1-LEGAL REMEDIES THAT CAN BE APPLIED TO ADMINISTRATIVE COURTS WITHIN THE SCOPE OF ADMINISTRATIVE LAW
Although disasters / natural events experienced in our country and in many countries of the world are perceived as force majeure, which partially or completely removes the responsibility of the administration, it is not rationally, logically and legally possible to characterise an earthquake as a force majeure in a region located in an earthquake zone, where earthquakes occur continuously.
In our country, which is located in an earthquake zone and a large part of which is within the earthquake zone, it is a legal obligation for the administration to take the necessary measures even if it is not possible to prevent it. Material and moral compensation lawsuits may be filed against the administration in order to compensate the damages arising from the failure to take the necessary measures.
The administration is obliged to take the necessary measures and precautions before the earthquake.
As stated in the decisions of the Council of State, the responsibility of the administration for the damages caused by earthquake The characteristics of the ground on which the building is located, the control of its earthquake resistance according to the ground condition, whether there is a building occupancy permit, the administrations by which zoning plans and construction licences are made and issued, the inspection of the buildings in terms of zoning, whether the disaster areas that have suffered or may suffer from disasters and the disaster areas prohibited for construction and residence have been determined and announced, It covers the rules regarding the buildings to be constructed in disaster areas, construction techniques, project design principles, whether the administration fulfils its duties and authorities in preparing the earthquake maps of the country, whether it performs its supervision and control duties, and whether the necessary measures are taken by the administration. All these issues are the ones to be considered in the process before the damage/disaster occurs.
It is not possible for the administration to be relieved from liability based on force majeure in activities carried out in a region located in an earthquake zone.
Responsibility of the Administration after the Earthquake – Service Defect
The activities to be carried out after the earthquake are undoubtedly public services. The administration is liable for damages arising from defects arising from the establishment and operation of public services. The service defect may occur in the form of late operation of the public service, failure to operate at all or failure to operate as required. Some of the main responsibilities are rescuing the useful people at the disaster site and under the ruins, rescuing the trapped people, removing the ruins under which there are people, animals and valuable goods/materials, removing the ruins that prevent transportation, etc.
It is also possible for the administration to be found guilty of a Service Defect due to the rescue teams being late to intervene on time, being inadequate in terms of number or installation or other reasons. It is also possible to claim a defect of service in the increase in the damage caused by the lack of intervention.
Persons Who Have the Right to File a Full Action in Administrative Jurisdiction (Plaintiff)
Persons who stayed in the rubble of the building that collapsed due to the earthquake and survived injured, and if they lost their lives, their relatives may file a lawsuit for material and moral compensation.
Persons living as tenants in the demolished building may also file a full judgement lawsuit. Although the tenant who suffered damage here may file a lawsuit for damages, the building owner may also file a full judgement lawsuit for other reasons.
Place and Duration of Filing the Lawsuit to be filed in Administrative Jurisdiction after the Earthquake
The lawsuit to be filed against the administration due to the earthquake is a Full Jurisdiction Case. According to Article 13 of the Law No. 2577, “Those whose rights have been violated by administrative actions must apply to the relevant administration within (1) year from the date they learn about these actions upon written notification or otherwise, and within five (5) years from the date of the action, and request the fulfilment of their rights before filing an administrative lawsuit. In the event that these requests are partially or completely rejected, a lawsuit may be filed within the lawsuit period starting from the day following the notification of the transaction in this regard, or from the date of expiry of this period if the request is not responded within thirty days.”
The activities for which the administration may be held liable in the event of an earthquake are characterised as administrative actions. While negative/negligent action is in question in the responsibility of not taking the necessary precautions, the defect in the service it carries out is also characterised as an administrative action.
The application to be made must be made to the municipality, governorship, Ministry of Interior and ministries that may be related within 1 (one) year from the date of learning of this action. However, if the causal link between the damage and the administration is understood later, the date of learning will be considered as this date.
In full judgement lawsuits to be filed due to poor functioning of post-earthquake support services, the time period will start from the date of the negligent act. If the application is rejected or no response is given within thirty days, the lawsuit must be filed within sixty days from this date.
An express preliminary decision is the written refusal of the administration upon the application of the injured party. An implied preliminary decision, on the other hand, is the acceptance that the administration has implicitly rejected this request since it has not responded within 60 days from the date of application.
Evidence in Administrative Lawsuits
Written procedure is applied in Administrative Jurisdiction. Therefore, they will be able to benefit from written evidence. Witness statements are important in compensation cases. Evidence such as damage assessment reports kept at the site of the earthquake, minutes kept regarding rescue activities or the status of other public services, reports containing concrete information prepared by professional organisations and other professional organisations with the status of public institutions, statements taken in criminal cases or investigations, photographs and camera recordings, if any, must be submitted. Of these, it is especially important that the damage assessment reports are kept healthy and in accordance with the truth, and that the time is clear in the photographs.
2-PECUNIARY DAMAGES TO BE CLAIMED IN ADMINISTRATIVE JURISDICTION DUE TO EARTHQUAKE
Moral compensation is claimed by the person whose personal rights are violated due to the decrease in his/her moral value.
According to the principle of indivisibility of moral compensation, moral compensation can be claimed in a single lawsuit. In cases where moral damage occurs, the amount of compensation to be assessed is decided according to the nature of the incident, taking into account the nature of the attack on honour and dignity, the personal characteristics of the injured person, and the physical and moral suffering.
Persons Who Can Claim Moral Damage
-Persons directly harmed,
-Relatives of the deceased; spouse, children, parents, siblings, fiancés and persons who have close ties with the deceased.
According to the established jurisprudence of the Council of State, the amount of money to be paid as non-pecuniary damages is determined at a rate that will partially alleviate the pain and sorrow caused by the damage caused by the administrative action or transaction, will not lead to enrichment of the injured party and at the same time reveal the gravity of the fault of the administration.
3- LEGAL REMEDIES THAT CAN BE APPLIED IN PRIVATE LAW DUE TO EARTHQUAKE
A- OBTAINING CERTIFICATE OF INHERITANCE (CERTIFICATE OF INHERITANCE)
The heirs of the person who died in the earthquake must obtain a certificate of inheritance (certificate of inheritance) in order to legally receive the title of heir. For the certificate of inheritance;
Notary or
It can be obtained by a single application to the Civil Court of Peace in the place of residence.
The application must be made by the legal heirs.
B- DETERMINATION OF EVIDENCE
For the compensation lawsuits that can be filed against the administration or private persons in order to compensate for the material damages caused to movable (automobile, furniture, etc.) and immovable (building, shop, etc.) goods, it is necessary to apply to the Civil Court of Peace or Civil Court of First Instance in the place where the damaged goods are located and to have evidence determination.
If a lawsuit is to be filed based on the service defect of the administration, it should be requested to have evidence determination after filing a lawsuit in the administrative court.
Persons who can apply; If the owners of the damaged or damaged goods are alive, they themselves, if they are deceased, their heirs may request the determination of the amount of damage.
As a citizen, the news and pictures and videos on the internet can be made through a notary application or personally through e-detection.
However, in the lawsuits to be filed, especially in the lawsuits to be filed against public administrations, since the administration will be a party to the lawsuits to be filed against the public administrations and since the administrations will be attributed fault, it is necessary to apply to the method of special evidence determination in addition to the officially kept damage assessment reports.
For this purpose, the beneficiary injured persons or their authorised attorneys should apply to the courts or take pieces and masses from the relevant building or structure together with engineers or persons with technical expertise, identify the relevant building or structure, make a report, sign it, and, if possible, take and preserve audio and video recordings while doing so.
C- MATERIAL AND MORAL COMPENSATION CASES
In the event of death or injury in an earthquake, the heirs of the deceased, certain relatives of the deceased, and those whose movable and immovable properties are damaged may claim material and moral compensation.
c.1 Basis of Liability and Determination of Liability
When a building or structure collapses or is damaged as a result of an earthquake, the liability arising from the damage to life and property is based on Article 69 of the TCO.
Pursuant to this article, the owners of the building or structure are liable for the damages caused by the building or structure due to the defects in its construction (construction contrary to scientific, scientific and technical rules) or deficiencies in its maintenance.
If there is a usufruct or residence right in this building or structure, the owner of this right is only responsible for the lack of maintenance, not for the construction defect.
If it is the tenant who has suffered damage, he may sue the landlord for compensation on the basis of the lease agreement. If the building has not been demolished, but has only suffered repairable damage, the tenant may request the landlord to repair the defect free of charge.
If the owner of the damaged house or workplace is the owner of the damaged house or workplace, he/she may file a lawsuit for compensation against the purchaser based on the sales contract or against the contractor/contractor based on the work contract. If the building has not been demolished and is in a repairable condition, he/she may request the seller or contractor to repair the defect free of charge or to reduce the price in proportion to the defect. If the building is demolished or heavily damaged, the owner of the building reserves the right to rescind the sales contract or the work contract.
The owner of the building or structure may be relieved from such liability by proving the cause that breaks the causal link. This person may be released from liability if he/she proves that the cause of the collapse or damage of the building or structure was caused by an owner on the ground floor cutting the columns, that the contractor (contractor) who built this house or independent section belonging to him/her did so in violation of the project, zoning, science and technique, that he/she used deficient iron cement, sea sand, etc. in the construction of the building.
Article 69 of the TCO is a case of strict liability. In strict liability, the person cannot discuss the issue of fault, which is one of the five conditions of tort, and cannot claim that he/she is faultless; however, he/she can prove the existence of the cause that breaks the causal link between the occurrence of the damage and his/her action.
If the injured party is the owner of the dwelling or workplace, he/she may file a lawsuit for compensation against the building inspection bodies, supervising architects and engineers, project authors, laboratory officers and the building contractor (contractor) in accordance with the Law on Building Inspection.
According to the TCO, the lawsuit for damages arising from tort can be filed against the injured party, whether or not there is a contractual relationship between the injured party and the injured party; against the defective persons such as the contractor, auditor architects and engineers, and against the owner of the construction work, whether or not there is a defect.
In other words, persons who have any kind of fault or negligence in the poor construction of the building, such as contractors, supervising architects and engineers, are liable to everyone who suffers damage due to that building, whether they live in the building or not, and a lawsuit for compensation can be filed against these persons.
Pursuant to Article 69 of the TCO, the owner of the work of construction shall be liable for the damages arising from the defect in the construction or maintenance of the work of construction against all persons who are harmed by the work of construction, whether or not they live in the building, even if they are not at fault for the poor construction or maintenance of the work of construction, and a lawsuit for compensation may be filed against this person.
Damaged persons may sue local administrations or governorships and the Ministry of Environment, Urbanisation and Climate Change for compensation. In the event that buildings and structures are constructed in violation of the project and zoning, municipalities that fail to take action despite being aware of them may also be held liable due to service defects.
According to the Zoning Law, the local administrations that give floor, construction and residence permits to the building or open the area that should not be opened for zoning and settlement, and the Ministry of Environment, Urbanisation and Climate Change that approves the zoning plans and issues licences are responsible.
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