Although there is no common definition, terrorism as defined in Article 1 of the Anti-Terror Law No. 3713; using algebra and violence; to change the political, legal, social, secular, economic order of the Republic specified in the Constitution by means of repression, intimidation, intimidation, intimidation or threatening,
Any kind of criminal offense by a person or persons to enter into an organization in order to jeopardize the existence of the Turkish State and the Republic, to weaken or destroy the state authority, to destroy or seize basic rights and freedoms, to disrupt the internal and external security of the State, public order or general health. ”
are actions. Organized groups that implement terror are defined as terrorist organizations and those engaged in Terrorism activities  are defined as Terrorism.

Terrorism activities in Turkey, killing thousands of people over the past 40 years, the wounding of many more, and has led to population movements originated from this case. Even more important than the direct and indirect losses of hundreds of millions of dollars are the inability to compensate for the moral damages caused by the traumas suffered by people due to terrorism. .[1]

It is known that acts of terrorism aimed primarily at overthrowing the constitutional order of the State do not stem from personal animosity towards the victims. Persons who are the target of terrorist acts are not affected by their own flaws and actions, but as a member of society. Leaving the damage caused by acts targeting the state and society on the victim is incompatible with the rules of rights and generosity. [2]

The Law No. 5233 on Compensation of Damages Arising from Terrorism and Fighting Against Terrorism, adopted on 17.07.2004 and published in the Official Gazette dated 27.07.2004, aims to compensate the material damages incurred by individuals due to terrorist activities by means of reconciliation without being transferred to the judiciary.

In Article 1 of the Law No. 5233 on the Compensation of Damages Arising from Terrorism and Combating Terrorism;

The purpose of this Law is to determine the principles and procedures for compensating the persons who have suffered material damage due to acts of terrorism or activities carried out within the scope of the fight against terrorism. the provision end

Article 2 entitled “Scope” of the same Law;

This Law covers the principles and procedures regarding the settlement of the material damages of real persons and private law legal persons who are damaged by the actions or activities carried out within the scope of articles 1, 3 and 4 of the Anti-Terror Law no. 3713.”It is called.


In accordance with the Law No. 5233 on the Compensation of Damages Arising from Terrorism and Combating Terrorism, which was accepted on 17.7.2004 and published in the Official Gazette dated 27.7.2004, and the 10th Chamber of the Council of State dated 18/03/1998 and 1996/10292 as stated in the decision numbered 1190; ” The legal responsibility of the administration is not based only on the principle of defect, the theory of service defect; The administration may be deemed responsible for the search for the condition of defect. As a rule, the administration is obliged to compensate for the damages that can be established as a causality immediately after the service it provides. However, as an exception to the aforementioned rule, the administration must compensate certain damages related to its field of activity which it cannot prevent although it is obliged to prevent. The principle called collective risk, based on collective responsibility, has been adopted by doctrine and judicial case-law.” Even if there is no service defect in accordance with the principle, the defendant administration has the responsibility of compensation. The legal responsibility of the administration is not based only on the principle of defect, the theory of service defect; the administration may be deemed responsible for the condition of defect. 125 of the Constitution.According to the article; The Contracting Entity is obliged to pay the damages arising from its actions and transactions. As a rule, the administration is obliged to compensate for the damages which can be established as a direct result of the service it provides. However, as an exception to the aforementioned rule, the administration must compensate certain damages related to its field of activity which it cannot prevent although it is obliged to prevent. In order to apply the social risk principle, besides the fact that the case concerns the whole society and the damage occurs as a result of the realization of a social risk, the case and harm should not be the direct result of the public service carried out; in other words, a causal link between the damage and administrative action should not be established.[3]Even if there is no service defect due to the so-called social risk principle, the defendant administration has the responsibility of compensation.

Law no. 5233 is the enactment of the ” social risk” en principle adopted in judicial and scientific jurisprudence, and therefore

Article 7 of the Law no. 5233 on the Compensation of Damages Arising from Terrorism and Fighting Against Terrorism regulates damages to be met by the administration due to terrorist incidents. Losses to be Covered;

Article 7- According to the provisions of this Law, the damages that can be covered by peace are as follows:

  1. a) Any damage to animals, trees, products and other movable and immovable property.
  2. b) Damages incurred in cases of injury, disability and death, treatment and funeral expenses.
  3. (c) Material damages resulting from the inability of persons to access their assets due to the activities carried out within the scope of the fight against terrorism.

Although the damages to be covered in the relevant law article are not explicitly included in the non-pecuniary damages, both Article 12 of the Law no. 5233 and T.C. In accordance with the Resolution of the Constitutional General Assembly dated 25.06.2009, 2006/79 Basis, 2009/97, it was stated that the administration should also cover the non-pecuniary damages suffered by persons due to terrorist acts.

Decision of the General Assembly of T.C Constitution on 25.06.2009, Decision No: 2006/79 of 2009/97; “Law no. 5233 is not a result of the actions and actions of the administration and there is no direct causal link with any administrative actions or actions, but it also opens the way for compensation of the damages that occur during the fight against terrorism and terrorism, in this sense it expands the area of ​​flawless responsibility of the administration. While this law enlarges the flawless area of responsibility of the administration, it also specifies the principles and procedures for the settlement of only the maddi material kısm part of the damages that occur during the fight against terrorism and terrorism. There is no provision in the law stating that the evi moral an part of these damages cannot be demanded from the administration, and Article 12 states that haklar the right of those concerned to apply to the judiciary in disputes that cannot be settled through peace is reserved saklı and a regulation parallel to the first paragraph of Article 125 of the Constitution is included. Therefore, the object of the objection, which narrows the area of responsibility of the administration or administrative it does not contain a provision that blocks its way against transactions or actions.

The Law No. 5233 contains the regulations regarding the manner and procedure of application to the relevant administrations and the durations.

REFERENCES:

[1] SALDIRIM, M., GÖBEKCİ ELMAAL, F. (2016). A Comparative Study on Terror Crimes, Crimes Against Humanity and Genocide, p.5.

[2] ÇETİN, Y. (2010, April); Compensation Cases in Terror Incidents and Compensation of Damages Caused by Administrative Law Enforcement Services

[3] YILDIZ, H. (2016). The Relationship of Relation in Social Risk Responsibility of Administration, Journal of TBB, p.167.