Özet:

This paper is prepared to refl ect legal opinion of Gazi University Law Faculty regarding bill of law dated december 2013 Concerning the Establishment and Duties of the Court of Human Damages.This bill of law is prepared with the aim of establishing the court of human damages mainly to hear cases arising from all sorts of administrative acts and actions including military ones together with cases relating to human damage that falls under the jurisdiction of civil courts.Regarding this bill of law, the above-mentioned courts will be in the level of the civil court of first instance and provisions of the Code of Civil Procedure will be applied by these courts. Lawsuits seeking compensation for damages regarding partial or complete loss of the physical integrity or death will be examined by these courts.In our opinion, this damage focused approach set out by the bill of law is not accurate. First of all, according to liability law, a distinction such as human damages and property damages cannot be made. Liability cannot be determined by the nature of the damage. Therefore, according to our view, this bill of law does not provide a solution for the current problems mainly caused by the procedure.This new proposal is also not accurate in the light of constitutional distinction between civil jurisdiction and administrative jurisdiction. On the other hand, in determining the liability for damages caused by the administration, Turkish Code of Obligations cannot be applied. As regards to the liability of the administration, some “special” liability principles have been developed by the administrative courts.This proposal is also contrary to article 157 of the Constitution that regulates duties and powers of the supreme military administrative court. Additionally, this new proposal seems to cause problems regarding the recourse to public officials responsible for causing harm and in respect of the key principles of the proceedings. Beyond being contrary to the grounds of previous jurisprudence of the Constitutional Court, it is also against constitutional principle that states the decisions of the Constitotional Court to be binding

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