AŞIKOĞLU LAW OFFİCE | Damage Caused by Rock Fall- Court Decision
Aşıkoğlu started his position as the Alanya Public Prosecutor in 2009 and continued until 2013 when he quit his position to initiate his career as an attorney at law.
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Damage Caused by Rock Fall- Court Decision

Damage Caused by Rock Fall- Court Decision

15th Department of the Council of State
Article No: 2016/186
Decision No: 2016/1423

Summary of the Referral: The Decision of the 4th Administrative Court of Antalya dated 12/10/2015 and E: 2015/327; K: Decision 2015/64 is required to be reviewed and appealed for failure to comply with the law.

Summary of the defense: No defense was given.

Opinion: In accordance with Law No. 2918, it is considered that the Administrative Court’s decision on the rejection of the case should be reversed, since the settlement of the dispute is the duty of the Administrative Judiciary.

Summary of the defense: No defense was given.

FOR THE TURKISH NATION

The fifteenth Department of the Council of State, who made the decision, heard the explanations of the Investigative Judge and examined the documents in the file.

Case; plaintiff’s shipment and administration XX plate commercial transport vehicle on 24.02.2015 while cruising from Korkuteli to Fethiye on the road crashes due to crashing parts of the repair costs, transportation and value loss of 37.605,00-TL, due to loss of earnings 1.000,00 – TL and non-pecuniary damages of 20.000,00-TL; legal interest.

4. By the Antalya Administrative Court; Pursuant to Article 110 of Law No. 2918, it was decided to dismiss the case in accordance with Article 15/1-a of the Law on Administrative Procedure No. 2577 on the grounds that judicial judiciary was responsible for the settlement and settlement of the dispute.

The defendant administration is requested to review and cancel the decision of the Administrative Court, which is alleged to be unlawful, on appeal.
In order to clarify the subject, the relevant legislation should be examined and examined in detail:

According to the Law No. 6001 on the Organization and Duties, there is a public authority with a special legal entity, which has a public budget, and is authorized and authorized to construct, construct, ensure the safe use of highways, repair, operate and operate highways. That the public service in the form of fine road construction, maintenance and operation shall be carried out in accordance with the principles and rules of administrative law; There is no hesitation that the disputes arising from the administrative procedures and actions of the said General Directorate should be settled in the administrative jurisdiction in accordance with Article 125 of the Constitution and Article 2 of Law No. 2577. The amendment to the Highway Traffic Law no. 2918 made by Law no. 6099 does not include a new regulation on the legal responsibility of the road construction and maintenance service; does not change the judicial path.

In Article 110 of Law No. 2918 and Article 14 of Law No. 6099, dated 19.1.2011 and amended by Article 14 of the Law “Including those related to damages caused by vehicles which are the owner or owner of the State and other public institutions kuruluş arising from liability cases, judicial judges. The fact that the injured person is a public official does not prevent the application of the provision of this paragraph. The provisions of this Law shall also apply to train-traffic accidents occurring at the level crossing. Lawsuits relating to legal liability for motor vehicle accidents can be filed in one of the courts of the place where the insurer’s head office or branch office or the agency making the contract is located, or may be filed in the place where the accident occurred. ”

In the aforementioned law provision, it is emphasized that the sorumluluk liability lawsuits arising from this law iyle means that the place of jurisdiction which is limited to the cases in which the rules regarding the legal responsibility in the Law No. 2918 will be applied is determined. Therefore, when determining the place of jurisdiction, it is necessary to determine whether the rules of liability, which are limited to the damages caused by motor vehicles, apply to the dispute in question.

Law No. 2918, which aims to provide traffic safety in terms of safety of life and property on highways and to determine all measures related to traffic safety, besides General Directorate of Security, Ministry of National Education, Ministry of Food, Agriculture and Livestock, Ministry of Transportation, Maritime Affairs and Communication, authority through counting. However, the law does not regulate the legal responsibilities of other public administrations and, in the meantime, for the public services they undertake in relation to traffic order and traffic safety.

In the eighth section of the Law No. 2918 titled legal liability and insurance; the legal responsibility of the undertaking to which the vehicle operator is affiliated; in other words, the legal responsibility of the vehicle owners and operators is regulated due to the damage caused by traffic accidents involving motor vehicles.

When the provisions of the eighth part of the Law No. 2918 regarding legal responsibility are considered together; The judiciary’s jurisdiction is the jurisdiction of the judicial judiciary to deal with all vehicle owners and operators, including those to be filed against public administrations and organizations in the capacity of vehicle operators due to accidents involving motor vehicles belonging to the state and other public institutions. However, in order to ensure the safety and order of the public administrations and organizations, both their establishment laws and the services they carry out in accordance with the Road Traffic Law No. 2918 are considered as public services and the responsibilities of the public administrations and institutions assigned in the Law No. 2918 are not regulated separately; with the request of compensation for the damages alleged to arise from traffic order and security services, the view and solution of the lawsuits against the related administrations are within the scope of the administrative judiciary.
As a result, the duties of the establishment of the law, which is repeated in Law No. 2918, ie; determination of the legal responsibility arising from public service in the form of road construction, maintenance, operation and traffic safety according to the principles and rules of administrative law; therefore, the full judicial proceedings to be filed must be resolved at the administrative jurisdiction.

The examination of the case file; It is understood that the case which is being investigated under appeal with the request of payment of the damage caused by the incident, stating that the administration is defective due to the lack of adequate measures on the road which is under the care and responsibility of the defendant administration.

In this case, the dispute is not the legal responsibility of the vehicle operator in private law, but under the Law no. and the failure of the services to be carried out completely, so that the services carried out are defective, the damage caused to the service is due to the allegation, the opinion and solution of the case belongs to the administrative courts.

In this case, while the Administrative Court should examine the merits of the dispute and make a decision, the decision on the rejection of the case in respect of duty did not show any legal hit.

For the reasons explained, the 4 th Administrative Court of Antalya dated 12/10/2015 and numbered E: 2015/327; K: 2015/64 decision to be overturned, a new decision to be sent to the court to be sent to the said court, Article 54 of the Law No. 2577 1 of the decision following the date of notification of this decision within fifteen days, including the way to correct the decision, 07/03 / 2016 was unanimously decided.

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