Compensation Claims for Damages Arising from Terrorism and Counter-Terrorism Activities under Law No. 5233

Application Requirements, Damage Assessment Commissions, Annulment Actions, and the Compensation Calculation System Under the Code of Administrative Procedure (İYUK)

Introduction

Law No. 5233 on the Compensation of Damages Arising from Terrorism and the Fight Against Terrorism is a sui generis administrative compensation regime under which the pecuniary damages suffered by citizens as a result of the terrorist incidents that continued in Türkiye for many years, and of the security activities conducted to combat them, are compensated by the administration within a defined procedure.

Entering into force on 17 July 2004, this Law introduced a fast and systematic compensation avenue based on administrative settlement, departing from the logic of the classic full remedy action.

The fundamental purpose behind the Law's enactment is to ensure that the damages suffered by citizens living in the regions heavily affected by terrorist incidents — above all Eastern and Southeastern Anatolia from the 1990s onward — are compensated not only through long and costly judicial proceedings but through an administrative mechanism that is faster, more predictable, and broader in scope. This has both eased victims' access to redress and reduced the burden on the judiciary.

Law No. 5233 departs from the classic administrative liability system in several critical respects. As is known, a significant portion of full remedy actions in administrative law rest on service fault or strict (no-fault) liability. Service fault requires a defect, delay, or malfunction in the public service carried out by the administration; under strict liability, an obligation to bear the loss arises in certain situations regardless of whether the administration is at fault.

At the foundation of Law No. 5233, by contrast, lies predominantly the social risk principle. The social risk principle rests on the idea that where certain individuals suffer extraordinary losses in the course of efforts conducted for the general security and order of society, leaving that loss solely on the victim's shoulders would be contrary to equity. The side effects of an activity carried out for the benefit of society should be shared by the whole of the society that benefits from it. Accordingly, even where no direct fault of the state is proven, it is accepted that certain damages arising from terrorism or counter-terrorism activities are compensated by the administration.

This feature elevates Law No. 5233 beyond a mere compensation statute into a concrete reflection of the social state principle (Constitution, Art. 2). The Constitutional Court has likewise emphasized in various decisions that this Law is a requirement of the social state principle and is an instrument through which the state's positive obligations are concretized in the context of property rights (Constitution Art. 35) and the right to life (Art. 17).

Damages Compensable Under the Law

The common feature of the damages assessed under Law No. 5233 is that they are pecuniary damages arising from terrorist acts or counter-terrorism activities. Article 1 of the Law defines the scope of application quite broadly; however, not every loss is automatically accepted. Two essential conditions are required together: an adequate causal link must be capable of being established between the damage and the terrorist or counter-terrorism activity, and the damage must not fall within the cases excluded from the Law's scope.

The Concept of Adequate Causal Link

An adequate causal link means the existence of an objective, reasonable, and direct causal connection between the occurrence of the damage and the terrorist or counter-terrorism activity. In other words, the damage must be a typical and foreseeable consequence of the activity in question in the ordinary course of life. For example, the inability to carry out agricultural production in a village evacuated for security reasons carries a direct causal link, whereas a crop loss caused by adverse weather in the same period cannot be assessed within this scope.

The Council of State (Danıştay) case law applies the causal link requirement strictly; however, particularly in extraordinary situations such as village evacuations, curfews, and operation periods, the existence of this link is generally accepted by region and period. The individual burden of proof is eased at this point.

Typical Categories of Damage Under the Law

The first of the most commonly encountered categories of damage in practice is damages for deprivation of the use of immovable property. Particularly in villages evacuated for security reasons or in settlements under constant risk of conflict, people were unable for years to cultivate their fields, use their vineyards and orchards, or continue their livestock farming activities. This led not only to a de facto loss of immovable property but also to serious income losses. For this reason, the Law covers, beyond the actual loss, lost earnings (loss of profit) as well.

The second common category is damage to movable property. Household goods, agricultural implements, tractors, animals, and other means of production damaged during clashes, bombings, fires, or operations are assessed under this heading. The third group is structural damage: damage to, or the total loss of use of, structures such as houses, barns, haylofts, and warehouses is among the compensable types of damage.

In addition, the Law also covers bodily harm. In cases of injury, disability, or death, treatment costs, damages arising from the loss of working capacity, and claims for loss of support are assessed within the framework of the Law. Non-pecuniary damage claims, however, fall outside the scope of the Law; non-pecuniary damages may be sought only through a full remedy action before the administrative court under the general provisions.

Damages Excluded from the Law

Article 2 of the Law expressly excludes certain damages from its scope. These include damages arising from ordinary crimes committed by third parties, damages resulting from general public-order incidents that cannot be connected to terrorism, and cases where the victim caused the damage through their own fault. In addition, damages suffered by persons whose membership in a terrorist organization has been established by court judgment, where sustained in the course of organizational activity, are also excluded.

The Structure and Legal Function of the Damage Assessment Commissions

At the center of the Law No. 5233 system stand the Damage Assessment Commissions. These commissions are established within the governorships and are, by legal nature, special administrative boards. The commission does not have the passive role of merely accepting or rejecting an application on the documents; on the contrary, they are active administrative bodies charged with investigating the material facts, gathering evidence, and making technical assessments.

Composition of the Commission

Under Article 4 of the Law, the commission consists of seven members, chaired by the governor or a deputy governor designated by the governor, one member being a lawyer. The members are selected by the governor from among public officials and include representatives from different fields of expertise such as the revenue office, public works, agriculture, health, and village services. This multidisciplinary structure aims at the competent assessment of the different types of damage.

The Commission's Investigative Authority and Its Scope

The commissions investigate whether the applicant actually suffered damage, whether a connection exists between the damage and the terrorist or counter-terrorism activity, whether the applicant holds the status of rights holder, and the amount of the damage. In this examination process, a wide range of evidence is examined, including land registry records, civil registry records, gendarmerie and police reports, mukhtar's letters, provincial/district agriculture directorate records, expert reports, site inspection minutes, local expert statements, and, where necessary, satellite photographs.

The commission has ex officio investigative authority. That is, it is not obliged to content itself with the documents submitted by the applicant; on the contrary, it may request information and documents from the relevant institutions on matters it finds incomplete, conduct on-site inspections, and appoint experts. In this respect, the commission process partly functions as an administrative expert-examination and inspection phase. Since the commission's decision is by nature an administrative act, the legal consequences it produces are subject to administrative judicial review.

Mandatory Administrative Application and Time Limits

One of the most critical procedural rules under Law No. 5233 is the mandatory administrative application rule. It is not possible to file an action directly before the administrative court under this Law. The administrative application route must first be exhausted. This is not merely a procedural requirement but a condition of action. If the court finds that this condition has not been fulfilled, it dismisses the case on procedural grounds without examining the merits.

Where and How the Application Is Made

The application is made to the governorship of the province where the damage occurred. If damage occurred in more than one province, a separate application must be made to the governorship of each province. The application must be made in writing and must contain the applicant's identity and contact details, the date, place, type, and amount of the damage, and explanations regarding the link between the damage and the terrorist/counter-terrorism activity. Documents capable of proving the damage (title deeds, photographs, expert reports, official minutes, mukhtar's letters, etc.) are attached to the application.

Preclusive Time Limits

Under Article 6 of the Law, the injured person must file the application within sixty days from the date they learned of the damage and in any event within one year from the date of the incident. These time limits are preclusive; missing them results in the loss of the right to apply. However, with respect to these periods, the moment at which the damage is learned is contested — particularly for continuing damages such as village evacuations — and has been shaped by case law.

In addition, for damages that occurred before the Law entered into force, special application periods were provided in the Law through transitional provisions. Failure to have applied within those transitional periods can render new applications based on the same damage largely impossible; it is therefore of great importance not to miss the deadlines.

The Six-Month Waiting Period and Implied Rejection

With the filing of the application, the Damage Assessment Commission's examination process begins. Under the Law, the commission must as a rule conclude the application within six months. The governor may, where deemed necessary, extend this period once only, by up to three months. The applicant must wait for this period to elapse so that the commission can make its assessment; otherwise the condition of action is not fulfilled.

If the commission does not issue a decision within the six-month period, an implied rejection arises under Article 10 of the İYUK. In that case, the person may file an annulment and/or full remedy action before the administrative court within sixty days from the date of the implied rejection. If the commission issues an explicit decision within the period (acceptance, partial acceptance, or rejection), the time limit for filing an action against that decision is again sixty days from its notification.

The Settlement Deed (Sulhname) Process

If the commission establishes and accepts the damage, it offers the applicant a specific payment. This payment offer is made in the form of a settlement deed (sulhname). The sulhname is in the nature of an administrative contract signed between the administration and the applicant that brings the dispute to an end.

The Legal Nature and Consequences of the Sulhname

If the applicant signs the sulhname, the amount determined by the commission is paid; however, this acceptance has an important legal consequence: as a rule, the right to bring a new action for the same damage comes to an end. In other words, the sulhname also embodies the applicant's waiver. For this reason, signing the sulhname is not merely an economic decision but a critical legal act with legal consequences.

After the sulhname is signed, the applicant retains the right to have it annulled on grounds of defective consent (mistake, fraud, duress). Furthermore, if there is another head of damage not included in the sulhname (for example, where the sulhname covers only structural damage and excludes agricultural damage), a separate claim may be made for that head. In practice, however, proving these exceptions is quite difficult.

Points to Consider When Reviewing a Sulhname

For this reason, the sulhname must be examined carefully from a technical and legal standpoint. The most frequently encountered problems in practice are: the damage period being determined incompletely (for example, calculating only the years 1996-2000 in the sulhname although the village evacuation lasted from 1994 to 2002), the failure to calculate yields for certain years, the value of the immovable property being kept low contrary to comparable values, irrigated farmland being assessed as if it were dry farmland, livestock numbers being understated on the ground of insufficient documentation, and the lost earnings (loss of profit) head not being calculated at all.

Where such deficiencies are identified, it is advisable for the applicant not to sign the sulhname and to carry the administrative process into an annulment/full remedy action. For once the sulhname is signed, the possibility of judicial recourse for the missing heads is largely foreclosed. This point is particularly important in terms of the duty to inform within the lawyer-client relationship.

Actions to Be Filed Under the İYUK

Actions filed under Law No. 5233 are usually in the nature of both an annulment action and a full remedy action. This is because the claimant asserts not only that the commission's decision is unlawful (annulment action) but also that their actual damage was calculated incompletely and that the outstanding amount must be paid to them (full remedy action). Under Article 12 of the İYUK, these two types of action may be filed combined in a single petition.

Competent Court and Venue

The court with subject-matter jurisdiction is the administrative court. Under Article 36 of the İYUK, the court with territorial jurisdiction is the administrative court of the place of the administration that carried out the administrative act giving rise to the damage (that is, of the governorship to which the application was made). Where applications were made to more than one provincial governorship, a separate action must be filed against each commission decision before the administrative court of the relevant jurisdiction.

Time Limit for Filing an Action

Under Article 7 of the İYUK, the time limit for filing an action is sixty days from the notification of the commission's decision. In the case of an implied rejection, it is again sixty days from the end of the six-month (or nine-month) waiting period. These time limits are preclusive. Failure to file an action within the period results in the loss of the right of action.

Grounds for Annulment and Instances of Unlawfulness

For the court to issue an annulment decision, the unlawfulness of the act must be established. The most frequently encountered grounds for annulment in practice are the following:

Incomplete examination: The commission's failure to adequately assess the documents in the file, to gather additional evidence, or to investigate the claims put forward by the applicant.

Failure to conduct a site inspection: Particularly in immovable property and agricultural damage cases, deciding on the file without an on-site examination is in itself a ground of unlawfulness.

Inadequacy of the expert assessment: Failure to select the expert in line with the relevant field of specialization, calculations made without reasoning, and market values not being applied correctly.

Failure to investigate possession: Disregarding the position of persons who, although not registered in the land registry, operated vineyards and orchards through actual use (possession); this produces results at odds with the realities of the region.

Inconsistency with comparable files: Making an unreasoned calculation that differs significantly from the amounts awarded to other victims who suffered the same type of damage in the same village during the same period is contrary to the principle of equality.

Failure to calculate lost earnings: Taking only the market value of the immovable property as the basis while leaving the income obtainable throughout the period of use (loss of profit) out of the calculation.

Burden of Proof and Evidence

Since the ex officio investigation principle applies in administrative procedural law, the court may, where necessary, also gather evidence not submitted by the claimant. In practice, however, the burden of proof rests largely on the claimant. Documents the claimant may submit include land registry records, statements of possession, mukhtar's minutes, gendarmerie reports, village evacuation lists, witness statements, photographs and video recordings, satellite imagery, private expert reports, and production/yield certificates obtained from the provincial agriculture directorate.

The Compensation Calculation System

One of the most technical areas under Law No. 5233 is the calculation of damages. The calculation method varies according to the type of damage and is generally performed by experts. The Regulation on the implementation of the Law and the Council of State case law developed over time form the basis of the calculation methods.

Agricultural Damages

The main parameters taken into account for agricultural damages are: the size of the immovable property (decares/square meters), its irrigated or dry farmland status, the type of crop grown (wheat, barley, corn, tobacco, viticulture, etc.), average annual yield capacity, the market price of the crop in the relevant period, and the length of time it could not be used. These parameters are brought together to calculate the income loss on a yearly basis; production costs (sowing, pesticides, fertilizer, harvest) are then deducted to arrive at the net lost earnings.

Because irrigated farmland provides far higher yields than dry farmland, drawing this distinction correctly is economically critical. Expert reports must establish elements such as whether the land has irrigation facilities, its proximity to irrigation canals, and the existence of a water well.

Livestock Damages

For livestock damages, the number of animals, their species (cattle, sheep and goats, poultry), breed, age and productivity status, production capacity (milk, meat, wool, eggs), and market value in the relevant period are taken into account. Where the animals died or were lost outright, their market value is taken as the basis; where the production activity could not be continued, the annual production income obtainable from the animals must be calculated over the period of loss.

Structural Damages

For structural damages, the nature of the property (dwelling, barn, warehouse, hayloft), construction class (adobe, briquette, reinforced concrete), floor area in square meters, intended use, year of construction, and reconstruction cost are calculated. The unit prices of the Ministry of Public Works and Settlement for the relevant year and its building classification principles are the primary reference points. In addition, depreciation is deducted to arrive at the net damage amount.

Lost Earnings (Loss of Profit)

One of the economically most important heads of the compensation calculation is lost earnings. This head is the compensation of the income the injured person could have derived from the property in question during the period of loss. Annual crop income in agriculture, the income obtainable from annual milk/meat production in livestock farming, and the market rent of real estate capable of generating rental income are the classic examples of lost earnings. This head is very often calculated incompletely by experts and becomes the real economic subject matter of the case.

Statutory Interest

It has been accepted through case law that statutory interest runs on the compensation payable under the Law from the date of application. As no special provision exists in the Law, the type of interest applied is statutory interest within the framework of Law No. 3095. The claimant must expressly state the interest claim in the petition; otherwise, the court cannot award interest, under the principle that the claim may not be exceeded.

Typical Problems Encountered in Practice

Over more than a decade of implementation, Law No. 5233 has encountered certain recurring problems. The main ones are the following:

Time-limit management: Missing the preclusive sixty-day and one-year periods is among the most frequent causes of loss of rights. Citizens who have migrated or who are remote from the registration system are often unaware of these periods.

Insufficient documentation: The absence, or lack of currency, of title deeds, possession records, livestock counts, or agricultural registrations creates difficulties of proof. This is particularly pronounced in rural areas where official records were kept incompletely.

Calculation disparities: Significant differences can be observed in the compensation amounts awarded to two people who suffered damage in the same village during the same period. This creates problems in terms of the principle of equality and administrative consistency.

The perception of imposed settlements: The emphasis that low-amount sulhnames are pressed for signature, and that refusing to sign means lengthy judicial proceedings, can at times create pressure on the applicant.

Quality of experts and site inspections: At both the commission and the court stage, the failure to select experts in line with their field of specialization and the superficiality of site inspections cause reports to reach erroneous conclusions.

The Human Rights Dimension and ECtHR Case Law

Law No. 5233 has particular significance in the context of the right to property regulated in Article 1 of Protocol No. 1 to the ECHR. The European Court of Human Rights' judgment in Doğan and Others v. Türkiye (2004) was one of the triggering factors in the enactment of this Law. In that judgment, the Court found that the property rights of persons forced to leave their villages had been violated.

Law No. 5233, enacted after that judgment, was accepted by the ECtHR as an effective domestic remedy in its İçyer v. Türkiye (2006) decision. For similar grievances, therefore, the Law No. 5233 route must be exhausted before applying directly to the ECtHR. However, in the event of deficiencies emerging in the Law's implementation (for example, situations where the compensation amount is manifestly inadequate), the ECtHR has kept open the path of finding a violation. Likewise, the Constitutional Court requires the exhaustion of the Law No. 5233 route in individual applications, but may examine the merits in situations where that route has not been applied effectively.

Conclusion

Disputes under Law No. 5233 constitute one of the most technical and most distinctive areas of administrative law. When the preclusive time limits, the mandatory administrative application, the Damage Assessment Commissions' ex officio duty of examination, the six-month waiting period and the implied rejection rule, the sulhname system, the combined structure of annulment and full remedy actions, the expert and site inspection phases, and the technical damage calculations are considered together, what emerges is an exceptionally comprehensive field of administrative litigation demanding great care.

For this reason, both the injured citizens and the lawyers conducting the case must manage the process with technical care. In particular, it is not sufficient for the petition merely to recount the grievance; the instances of unlawfulness in the commission's decision must be set out concretely, numerically, and technically, the omitted heads of damage (lost earnings, irrigated-farmland status, the reality of possession, etc.) must be argued separately, and connections must be drawn with comparable files.

As a concrete application of the social risk principle, Law No. 5233 is an important manifestation of the social state understanding and of the state's positive obligations. The effective implementation of the Law is decisive for giving substance both to the freedom to seek justice and to the right to property. In this context, conducting rigorous legal and technical work at the commission and court stages strengthens not only the redress of individual grievances but also the holistic justice of the system.

Av. Kevser Öztürk

Globalblaw