Republic of Turkey Court of Cassation 12th Criminal Chamber
Main: 2020/12133
Decision: 2022/10714
K.T.: 27.12.2022
NEGLIGENT HOMICIDE
PRINCIPLE OF PROPORTIONALITY IN PUNISHMENT
EQUITY RULES
SUMMARY: In determining the basic penalty in terms of negligent crimes; by taking into account the fault of the perpetrator, the gravity of the damage caused, the way the crime was committed, and the place and time of the crime, which are among the criteria in Articles 61/1 and 22/4 of the TCC, and Article 3/1 of the same Law. Article 3/1 of the same Law, a penalty should be imposed between the lower and upper limits stipulated in the article in proportion to the gravity of the act committed, while a penalty in accordance with equity should be imposed between the lower and upper limits stipulated in the article, and the perpetrator who did not show care and diligence in terms of having a construction in accordance with the rules in force, did not inspect the inadequacies of the materials and reinforcement in the building, and for this reason, who is located in the first degree earthquake zone … The defendants …, …, … and …, who caused the complete collapse of the apartment building and the death of 43 people under the cave-in, should be sentenced by moving further away from the lower limit by considering the principle of proportionality in punishment in accordance with the rules of … and equity.
12th Criminal Chamber 2020/12133 E., 2022/10714 K.
“Case Law Text”
Court :Serious Criminal Court
Crime : Negligent homicide
The verdicts on the conviction of defendants …, …, … and … and acquittal of defendants …, … and … were appealed by the defense counsels of defendants … and …, defendants … and … and the attorneys of the participants:
Pursuant to the first paragraph of Article 299 of the Law No. 5271 amended by Article 94 of the Law No. 7079, the defendant … requested a hearing review after the expiration of the first paragraph of Article 299 of the Law No. 5271, and the request was not deemed appropriate and the file was examined on the file without opening a hearing;
I-In the examination of the appeal request of the attorney of the participant … regarding the conviction of the defendants …, …, … and … and the acquittal of the defendants …, … and ….;
In view of the fact that the attorney of the participant …, who has the authority to waive the appeal in his power of attorney, stated that he waived the appeal request with the petition dated 10.02.2021 dated 10.02.2021 at the appeal stage after the verdict, THAT THERE IS NO PLACE FOR APPEAL EXAMINATION, and that the file regarding the appeal request of the participant’s attorney be referred to the Chief Public Prosecutor’s Office of the Court of Cassation to be returned to its place without examination;
II-As for the examination of the appeal requests of the participants …, …, …, …, … and …, the defense counsels of the defendants … and …, the defendant … and …, the defendant … and the defendant … and the defendant … against the conviction of the defendants …, …, … and … and the acquittal of the defendants …, … and ….;
Since it is understood that the verdict was duly served on 02.03.2016 in the absence of the defendants …, …, …, …, … and …, and that the defendants’ counsel appealed the verdict on 04.03.2016 within the legal one-week period stipulated in Article 310/1 of the Code of Criminal Procedure; the opinion in the notification that the appeal request of the defendants’ counsel was not in due time is not shared.
On 23.10.2011 at around 13:41 local time on 23.10.2011, the epicenter of the earthquake occurred in … province, … district, the epicenter of which was around the village of …, the value of which varied between 7.1 and 7.3 according to different organizations, and the focal depth was 19.02 km. In the event that 43 people died as a result of the collapse and collapse of the … Apartment located in Kışla Mahallesi, Block 12, Parcel 6, and the death examination and autopsy procedures … it was determined that the deceased died due to the collapse (earthquake);
The approved electrical installation project, the architectural project prepared by Aydınoğlu Architecture, the building license request petition dated 2001, the certificate of occupancy dated 2008, the consent letters and notary documents show that the building was built in 2001 or later, there are architectural, static and electrical installation projects of the building, but there are no static calculation reports and ground reports,
… According to the year of construction of the … Apartment Building, it falls within the scope of the Regulation on Structures to be Built in 1997-Disaster Zones, according to the expert report dated 14.11.2011, the structural system of the building is reinforced concrete and consists of a total of 8 floors including …, ground and 6 normal floors, according to the building license, the building consists of a total of 8 floors including …, ground and 6 normal floors, it was determined that the …, ground and normal floor heights specified in the building license and occupancy permit documents are not compatible with the architectural and static project,
In the section “7.2 General Rules” of the Regulation on Structures to be Built in Disaster Zones 1997, information is given about the minimum concrete classes to be taken into account in buildings to be used in earthquake zones, as a result of the central compression test performed on the core samples of the … Apartment Building, the average compressive strength of the samples was obtained as 14.82N/mm2, and the range of variation between the core strengths was 10.85-22. 28N/mm2, which means that the concrete poured in the building is quite heterogeneous, the average compressive strength obtained does not meet the minimum concrete class C16 specified in the Regulation on Structures to be Built in Disaster Zones published in 1997, and in the “7.2.5. Material Strengths” Section of the regulation, it is stated that concrete with C20 or higher strength must be used in buildings in first and second degree earthquake zones,
“7.7. 4 Column Transverse Reinforcement Conditions” section of the Regulation on Structures to be Constructed in Disaster Zones, information is given about the lengths to be considered for column hugging zones, column center zones and column-beam junction zones, stirrup percentage, diameter and spacing in these zones, … According to the expert report prepared for the apartment building, it was determined that while there was adequacy in terms of stirrup diameter, there were inadequacies in terms of stirrup spacing and in the reinforcement detailing of the existing load-bearing elements of the building; again, according to the expert report and project data, there were differences in column dimensions, reinforcement diameters and quantities, and it was determined that there was adherence dissolution between cement paste and aggregate in concrete samples,
In the expert committee report dated 29.06. 2015 dated expert committee report; the technical inadequacies determined visually and experimentally regarding the … Apartment collapsed in the earthquake subject to the lawsuit were taken into consideration, the defendant … was the fnancial responsible of the collapsed building, his negligent behavior violating the obligation of attention and care in terms of the deaths and injuries that occurred was causative, for this reason, the defendant’s negligence was found, the defendant … ‘s being the owner and contractor of the building, and the defendants … being responsible for the construction of the building as the owner of the building from the moment the construction of the building started, they are responsible for not showing the care and diligence on their part in terms of having a construction in accordance with the rules in force, the defendants … ‘s position as the person who bought the apartment while the building was being constructed, the defendant … sold his shares while the first floor of the building was being constructed and left the position of building owner, therefore, they do not have any responsibility for the collapse of the building, the defendant … is only responsible for the architectural project according to the file information, the defendant … … ‘s responsibility for the electrical and installation projects of the building, it was concluded that they did not have any responsibility for the collapse of the building, and that the defendant … … was responsible for not showing the necessary care and attention in manufacturing the building, which he undertook the responsibility of building as a master, in accordance with the construction technique,
As a result of the expert reports, examinations, evaluations and evidence available within the scope of the file; it was determined that there were inadequacies in the reinforcement detailing of the structural elements of the … Apartment located in the 1st degree earthquake zone, and that the principles of the Regulation on Structures to be Built in Disaster Zones and the Zoning Law were not sufficiently complied with during the project design, construction and … completion stages of the building,
A-The examination of the judgments regarding the acquittal of defendants …, … and …;
At the end of the trial, since it has been accepted and appreciated by the court on the grounds that the defendants …, …, …, …, …, … and … have not committed the offense charged on them, the other grounds of appeal of the attorneys of the participants …, …, …, …, … and … are rejected and the verdicts regarding acquittal are APPROVED in accordance with the request,
B-The examination of the convictions of defendants …, …, … and ..;
According to the trial, the evidence gathered and shown in the decision, the court’s opinion and appreciation formed in accordance with the results of the prosecution, and the scope of the file examined, the other grounds of appeal of the defendants … and … defense counsels, the defendant …, the defendant …, the defendant … and the participants …, …, …, … and … attorneys are rejected, but;
Article 28 of the Zoning Law No. 3194 stipulates that the members of the professions who take on the responsibility of the building’s fnancial responsibility (fnancial responsible architects and engineers according to their fields of expertise) are responsible for supervising the construction of the building, together with its installations and materials, in accordance with the Law, other relevant legislation, the application zoning plan, the license, the studies and projects annexed to the license, the standards and technical specifications, and that they are obliged to report the situation to the Municipality that issued the license in case it is built in violation of the license and its annexes, and that the defendant …, who gave the undertaking numbered 3374 and dated 01.07.2003 belonging to the 1st. Notary Public dated 01.07.2003 and numbered 3374 in this regard, the defendant … did not fulfill his duty of supervision arising from being a fnancial supervisor, therefore the defendant … was responsible for the manufacturing defects that caused the building to collapse,
The defendant … assumed the responsibility of construction as a master builder, and was held responsible for not showing the necessary care and attention in constructing the building in accordance with the construction technique,
1- In determining the basic penalty for negligent crimes, the fault of the perpetrator, the gravity of the damage caused, the manner in which the crime was committed, and the place and time of the crime, which are among the criteria in Articles 61/1 and 22/4 of the TCC, are taken into consideration. Article 3/1 of the same Law, a penalty should be imposed between the lower and upper limits stipulated in the article in proportion to the gravity of the act committed, while a penalty should be imposed in accordance with equity between the lower and upper limits stipulated in the article, and the perpetrator who did not show care and diligence in terms of having a construction in accordance with the rules in force, did not inspect the inadequacies of the materials and reinforcement in the building, and for this reason, who is located in the first degree earthquake zone … Sentencing the defendants …, …, … and …, who caused the complete collapse of the apartment building and the death of 43 people under the cave-in with primary fault, to incomplete punishment by sentencing the defendants by establishing a written judgment, while it is necessary to determine the punishment by moving further away from the lower limit by considering the principle of proportionality in punishment in accordance with the rules of … and equity,
2-The earthquake destroyed … As a result of the examination of the core samples taken from the apartment building by technical experts; Although the 1997 Regulation on Structures to be Built in Disaster Areas requires the use of concrete with C20 or higher strength in buildings in first and second degree earthquake zones, the concrete used did not even meet C16, the minimum concrete class specified in the Regulation on Structures to be Built in Disaster Areas, there were inadequacies in terms of stirrup spacing and in the reinforcement detailing of the existing structural elements of the building, there were differences in column dimensions, reinforcement diameters and numbers according to the expert report and project data, it was determined that there was adherence dissolution between cement paste and aggregate in the concrete samples, these inadequacies and deficiencies were effective in the collapse of the building; the defendants were involved in the project phase of the demolished building, in the construction phase and … It is understood that the conditions of conscious negligence have occurred for the defendants …, …, …, … and …, who did not fulfill their obligations during the completion phase, and who acted against the obligation of attention and care in terms of this foreseeable result, and it is understood that their sentences should be increased in accordance with Article 22/3 of the TPC No. 5237. Article 22/3 of the Turkish Penal Code No. 5237,
3 – Article 53/6 of the Criminal Code Article 53/6 of the Criminal Code stipulates that “in case of conviction for a negligent offense committed due to violation of the obligation of attention and care required by a certain profession or art or traffic order, it may be decided to ban the practice of this profession or art from 3 months to 3 years or to revoke the driver’s license, in order to ban the practice of a profession, it must be carried out depending on the license, and the defendant, who is understood to be a civil engineer … to be banned for 1 year and 6 months from practicing his profession in a way that restricts his freedom to work, without taking into account that his work is not a profession carried out depending on a license,
4- Considering that the provisions of participation cannot be applied in crimes committed by negligence, it should be decided to charge the trial expenses to each defendant separately by the amount they caused, while it should be decided to collect the trial expenses equally,
Since it is contrary to the law and the appeals of the defendants … and …, the defendant …, the defendant …, the defendant …, the defendant … and the participants …, …, …, …, … and … have been deemed appropriate for these reasons, it was decided unanimously on 27.12.2022 to VACATE the provisions partially in accordance with the request in accordance with Article 321 of the Code of Criminal Procedure No. 1412, which is still in force in accordance with Article 8 of the Law No. 5320.
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