Does the Responsibility of the Administration (State) Arise from Earthquake Damages?
Whether the responsibility of the administration arises from the damages caused by the earthquake may vary according to the characteristics of the concrete situation. Therefore, there is no definite answer to this question.
The responsibility of the administration will arise in cases where it fails to fulfil its obligations regarding the earthquake and fails to take the necessary precautions regarding the earthquake. In other words, if the administration fails to fulfil its duties regarding the earthquake and does not take the necessary precautions, and therefore damages arise after the earthquake, it will be held liable for these damages.
The administration should ensure that the buildings that will be affected by the earthquake are identified and evacuated, that the buildings are built earthquake-resistant, and that damaged and unstable buildings are demolished. It should also prevent the construction of buildings on existing fault lines. Organise trainings to inform citizens.
Failure to fulfil these obligations may result in a service defect on the part of the administration. In this case, the responsibility of the administration arises for the damages caused by the earthquake, and the administration becomes obliged to compensate the damages caused by the defect of service.
What is the Defect of Service of the Administration?
The situation that occurs in cases where the public service performed by the administration is malfunctioning, the service is not performed on time or the public service is not performed at all is called the administration’s service defect. The administration is obliged to compensate and compensate the damages caused by the defect of service.
Persons may suffer material or moral damages due to the defect of service by the administration. In this case, the responsibility of the administration arising from the defect of service comes into question. As a result of applying for this responsibility, the persons who have suffered damages may file a full judgement lawsuit and demand compensation for the damages caused by the service defect.
Examples of defects of service of the administration in the event of an earthquake are the lack of preparedness of the administration against earthquakes in the activities carried out in the region located in the earthquake zone, and the incomplete inspection and control of the buildings constructed in these regions.
It is important to note that in the event that the administration fails to fulfil its obligations, the administration will be held liable for defects in service. Regarding the subject, you can read our article titled “compensation lawsuit due to the administration’s service defect”.
However, it would not be correct to say that the administration is the only responsible party in case of an earthquake. It is possible that the construction company that built the building, the contractor of the building, as well as other relevant persons who did not fulfil their obligations during the construction of the building, may also be held responsible for the damages caused by the earthquake. Here, the legal evaluation such as what kind of process should be followed, to whom it would be better to apply first, etc. should be done very carefully.
Necessary Conditions for Holding the Administration (State) Responsible for Earthquake Damages
The necessary condition for the liability of the administration for damages caused by an earthquake is the failure of the administration to fulfil its earthquake-related obligations. The administration has various obligations to minimise possible damages in case of an earthquake. The obligations are not only related to the pre-earthquake period. The administration also has various obligations after the earthquake. Some of the obligations of the administration regarding earthquake are as follows:
Ensuring that the buildings in settlements are constructed in accordance with the Zoning Law No. 3194 by obtaining building licences,
In the event that a construction contrary to the Law and Regulations is detected by the Administration, this construction shall be stopped without delay,
To take into consideration the Law No. 7269 on the Measures to be taken and the Aids to be made due to Disasters Affecting Public Life for the buildings to be constructed in earthquake zones
Ensuring that the buildings to be constructed in these regions are designed to be earthquake resistant in accordance with the Regulation on Buildings to be Built in Earthquake Zones
Municipality, local administrative authorities and the Ministry of Environment and Urbanisation to inspect whether buildings are constructed in violation of the legislative regulations,
Starting rescue operations immediately after the earthquake, treating the injured and extinguishing the fire if it has occurred,
Acting in accordance with the provisions of the Regulation on Emergency Aid Organisation and Planning Principles for Disasters after the earthquake,
The obligations of the administration related to earthquake are not limited to the ones listed above. There are many other liability regulations in the Laws and Regulations. It is important to note here that lawsuits for damages against the administration, i.e. full judgement lawsuits, are highly technical lawsuits. Continuing these lawsuits without legal assistance may cause serious loss of rights. For this reason, legal counselling must be obtained before the process.
Situations that reduce or eliminate the responsibility of the administration
If the administration causes damages due to its failure to fulfil its obligations, it shall be liable for these damages. However, in some cases, this responsibility may be reduced or eliminated. The situations that reduce and eliminate the liability can be shown as follows:
Force majeure event causing the occurrence of the damage
Damage due to an unexpected situation
The behaviour of the injured person or the third party was not effective in the occurrence of the damage
Force majeure exists if the event causing the damage is caused by a reason other than the action of the administration, it is impossible to predict in advance, and it is not possible to prevent its realisation. If all of these conditions exist at the same time, the responsibility of the administration disappears.
There is no definite rule as to whether the natural disaster of earthquake will be accepted as force majeure. This situation is evaluated by considering the concrete conditions of each case. For example, an earthquake in an earthquake zone and in regions where earthquakes have occurred before cannot be accepted as force majeure. Because it is probable that an earthquake will occur again in this region, and the occurrence of an earthquake in this region is not considered unpredictable.
In regions where the probability of an earthquake is high, the failure of the administration to fulfil its obligations and take measures in this regard eliminates the earthquake as a force majeure and unforeseeable event. In this case, the responsibility of the administration shall not be reduced or terminated.
If the behaviour of the person who suffered damage as a result of the earthquake or the third party caused the damage to occur or the effects of the damage to increase, the responsibility of the administration may be completely eliminated or reduced depending on the circumstances of the situation.
For example, if the parts of the building constructed by the building owner without obtaining a building renovation permit are damaged in an earthquake and the belongings of the people living in the building are damaged, the owner of the building will be responsible for the resulting damages, not the administration.
Of course, the intensity of the earthquake will also be taken into consideration when assessing the responsibility of the administration. If it can be said that the same result would have occurred even if the administration had complied with all its obligations in a very severe earthquake, the responsibility of the administration does not arise. However, this is very difficult to determine. Even if the earthquake is very severe and the damage is great, if it can be said that the damage could have been less if the administration had acted in accordance with its obligations, the responsibility comes up again.
Lawsuits against the Administration due to Earthquake
In case of damages caused by an earthquake, the lawsuit to be filed by the injured person is a full judgement lawsuit. As stated in Article 13 of the Administrative Procedure Law No. 2557, since the reason for filing a full judgement action is administrative actions, it is obligatory to apply to the administration that performed the action before filing a lawsuit.
Period for Filing a Lawsuit
The person who has suffered damage due to the earthquake shall apply to the administrative authority that has not fulfilled its obligations within 1 year at the latest from the date of learning about this damage and request compensation for the damages caused by the earthquake. The application to the administrative authority must be made within 5 years in any case.
The administration shall respond to the application for compensation of the damages within 60 days at the latest. The administration may decide that the damage is partially or completely compensated, or that the damage cannot be compensated. Or it may not respond at all within the 60-day period, and not responding means a negative response.
In the event that the decision of the administration is negative or does not respond, the person who has suffered damage may file a full judicial action for compensation of the damage within 60 days after the date of receipt of the rejection decision and the expiration of the 60-day period.
Authorised and Competent Court
The lawsuits filed for the compensation of damages caused by the earthquake fall within the jurisdiction of the administrative judiciary. For this reason, in the event of damages after the earthquake, a full judgement lawsuit should be filed before the competent administrative courts for the compensation of the damages incurred.
The regulation regarding the competent court is included in Article 36 of the İYUK. As stated in the article, the court in the location of the administrative authority that caused the damage by failing to fulfil its obligations shall be competent.
Decisions that may be made at the end of the case and the appeal process
The full judgement lawsuit filed for the compensation of the damages incurred due to the earthquake may be accepted or rejected.
If the lawsuit is accepted, it is finalised that the person has suffered damage due to the action of the administration. With the acceptance decision, it is also stated in detail how the damage will be compensated.
If the lawsuit is rejected, even if the person has suffered damage, it is finalised that this damage was not caused by the action of the administration. The rejection decision given by the court is final, and it is not possible to file a lawsuit again by citing the same damage.
It is possible to appeal and appeal against the rejection or acceptance decision of the administrative court. Appeal examinations are carried out by the Regional Administrative Courts and appeal examinations are carried out by the Council of State.
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