For those who suffered damages due to the earthquake, compensation for the damages can be provided within the framework of both administrative law and private law. However, the legal remedies and remedies to be followed according to both liability principles are quite complex
The earthquake, which was centred in Kahramanmaraş and affected 11 provinces and caused great loss of life and property, including the death and injury of tens of thousands of people, resulted in 3 different types of legal liability for material and moral damages.
The first one is criminal liability.
Those who have negligence and fault in the loss of life and property caused by the earthquake are investigated and punished in terms of criminal law.
The second is private law liability.
The damages incurred due to collapsed or damaged buildings and other structures are to be compensated from those who constructed, sold, inspected or rented the buildings or insured them in accordance with the provisions of private law.
The third is administrative liability.
State institutions are held financially liable for both the disruption and delay in search and rescue activities after the earthquake and the material and moral damages suffered by individuals due to the collapsed or damaged buildings and structures due to public officials who failed to perform their duties of supervision, coordination, planning, sanction and service provision properly.
In this article, I will talk about this third type of liability, which is my area of expertise.
Since the subject is extremely comprehensive in legal and technical terms, I will try to summarise it as simply as possible here.
My aim is to provide some help to the victims of the earthquake in this way.
No liability if there is no fault
First of all, it should be noted that the liability of the administration due to earthquake can only be based on fault. The faultless liability of the administration is exceptional and is not in question here. In other words, the administration can be held liable for the earthquake only if it is at fault.
We call fault liability as a specific concept in administrative law as “service defect”.
In other words, in order for the state/administration to be compensated for the material and moral damages suffered by individuals due to the earthquake, the relevant state institution must have disrupted the service it is supposed to carry out and failed to fulfil it properly (the service must be malfunctioning, not functioning at all or functioning late).
Here, not only the concrete fault of the officials providing services on behalf of the administration, but also the failure of the administration to organise and coordinate the service well and to establish the system well in general constitutes a service defect.
Is the earthquake a force majeure?
Another important issue is that this earthquake will not constitute a “force majeure” (compelling reason) that prevents the administration from being held liable.
Normally, an earthquake is one of the force majeure events that eliminate liability. However, in order to eliminate liability, the damage caused by the earthquake must be unavoidable, even if the administration had done everything according to the rules. However, since there are buildings that remain intact right next to the destroyed buildings in the same place and since it is technically possible to construct buildings resistant to earthquakes of this intensity, the liability for this earthquake does not disappear due to force majeure.
The financial responsibility of the administration, i.e. state institutions, due to the earthquake should be divided into two categories: the financial responsibility of the administration due to deaths and injuries caused by the disruption and delay of search and rescue activities after the earthquake, and the financial responsibility of the administration due to the destruction or damage to buildings and structures.
Liability due to disruption, delay and inadequacy of search and rescue
In the first 72 hours after the earthquake, if all debris and collapsed buildings are not properly intervened and search and rescue is not carried out, the chance of rescuing the survivors is extremely low. Even if those trapped under the rubble are rescued after the first 3 days, the possibility of continuing their lives in a healthy way afterwards is very low. Therefore, failure to properly intervene and search and rescue in the first 3 days (72 hours) constitutes a service defect for the administration.
Pursuant to the Law No. 7269 on Disasters, it is obligatory for the governor of each province to prepare a search and rescue plan for major disasters that may occur in the province and to establish and organise the necessary system for this purpose in advance.
In the event of a disaster, the same law authorises the governors to immediately put the search and rescue system into operation without asking permission from anyone, including the central administration, to request assistance from the governors of neighbouring provinces or military units if necessary, to impose compulsory work obligations on everyone living in the province, and to temporarily confiscate all kinds of vehicles, tools, equipment and movable property held by all public or private persons in the province.
In fact, the “breadth of authority” recognised only for governors in the Constitution is for such cases.
On the other hand, the Presidential Decree No. 4 (CBK) assigned AFAD, which was established under the Ministry of Interior, the task of making emergency response and search and rescue plans and organisation and establishing a system for major disasters throughout the country and immediately putting it into practice in the event of a disaster.
Unfortunately, in this earthquake, it became evident that neither the Ministry of Interior, AFAD nor the governors of the relevant provinces had a comprehensive plan for search and rescue for such a large-scale earthquake, and if they did, it could not be put into practice. The immediate mobilisation of the military in search and rescue was also extremely inadequate, especially in the most vital first days.
As a result, during the first 3 days, which is the most important time for search and rescue, interventions were largely incomplete and both the expert search and rescue team and equipment for rescue (cranes, dozers, hilti, sensors, etc.) could not be delivered urgently enough and the number of dead and injured was high mainly, perhaps, for this reason.
As a matter of fact, the Minister of Interior, in his statement to the press, cited the damage to roads, airports and communication systems as the reason for the lack of effective search and rescue in the first days, and it is a requirement of such planning that the shortest route to the disaster site should be planned in advance and rescue equipment should be properly deployed in each region.
In a sense, the Honourable Minister has admitted his “service defect” in search and rescue.
In that case, it can be assumed that the failure to carry out search and rescue operations in the first 3 days would constitute a “service defect” on the part of the administration. It is the burden of the administration to prove otherwise. In other words, the burden of proof passes to the administration.
In this respect, the relatives (spouse, children, mother, father, siblings) of those who died or were injured in collapsed or heavily damaged buildings and whose search and rescue could not be carried out in the first 3 days, may file a lawsuit against the administration (AFAD, Ministry of Interior, governorship) for deprivation of support and moral damages (full judgement) due to service failure. Before filing a lawsuit, a written application to the relevant administration is mandatory.
The administration can only be released from liability by proving that it duly intervened in the ruins and debris within the first 3 days and carried out search and rescue activities, but still could not prevent deaths and injuries.
Financial liability of the administration due to collapsed or damaged buildings
In this regard, it is necessary to make different evaluations according to 4 different possibilities:
Possibility 1: The building has a building and settlement licence, but since the necessary inspection was not carried out, materials were stolen during the construction phase or the building was not constructed in accordance with the project.
According to the Zoning Law, the construction of the building is normally undertaken by the contractor, the construction site supervisor supervises the construction of the building and the technical supervision of all stages of the construction is carried out by the fenni mesul (building supervision company).
The inspection authority of the municipality in both the building licence and the occupancy licence is actually “formal”. In other words, a licence is issued as a result of a “formal” inspection as to whether the building complies with the zoning plan and project and whether the necessary documents and signatures of the contractor, site supervisor and fenni sorumlul (building supervision company) are complete. In fact, it is practically difficult for the municipality to carry out a more fundamental inspection.
Therefore, the responsibility of the administration here should be directed to the Ministry of Environment and Urbanisation, which has the authority to licence and supervise building inspection firms. In fact, the key responsibility here lies with the building supervision firm (fenni mesul) and it is understood that they are not properly supervised in practice.
Unless there is an error in the above-mentioned form of supervision, there is normally no service defect of the municipality for this possibility.
Of course, the private law liability of other relevant persons (contractor, site supervisor, building supervision firm) may also be applied.
Possibility 2: The building has a building and settlement licence, there is no theft of material or contradiction to the project, everything is appropriate, but later on, during the use, the statics of the building has been disturbed by cutting the arm in some independent sections, removing the load-bearing wall or making additions contrary to the zoning
In this case, it is normally not possible to hold the administration responsible. This is because it would not be possible for the municipality or the Ministry/Governorship to inspect each building continuously in this respect after it is put into use. However, if a notice or complaint has been made on these issues and the municipality or the governorship has not urgently taken the necessary action, there is no doubt that there will be a service defect in this case.
Possibility 3: The building was built in violation of the zoning, illegal or rotten, but the owner of the building received a “building registration certificate” by benefiting from the last zoning peace (zoning amnesty)
According to the Provisional Article 16 of the Zoning Law, which regulates the latest zoning amnesty, it is possible to benefit from the zoning amnesty for any illegal, illegal or rotten building, with some minor exceptions. The legal document to benefit from the zoning amnesty is to obtain a “building registration certificate” for the building. This certificate is issued by the Provincial Directorates of the Ministry of Environment, Urbanisation and Climate Change.
According to the law, buildings for which a building registration certificate has been obtained in this way cannot be demolished by the administrations, even if they are found to be against the zoning or illegal.
However, with a very clear provision in the aforementioned law, the responsibility that will arise due to the building being earthquake-resistant and rotten is imposed on the owner who requests a building registration certificate. In other words, the law has clearly removed the responsibility from the administration and placed it on the building owner who wants to benefit from the zoning amnesty.
It is debatable whether this provision of the law is in conformity with the Constitution.
Since it is also possible for the owner who obtains a building registration certificate in this way to sell the building to third parties later on, it seems constitutionally problematic for the state to absolve itself from responsibility in terms of the safety of life and property in this way.
However, the law must be implemented as long as it remains in force and is not cancelled by the Constitutional Court. We do not have the luxury of not implementing the law we do not like.
Therefore, in my opinion, in the event that a building with a building registration certificate collapses in an earthquake, it is not possible for the owner of the building registration certificate to hold the administration (either the municipality, the ministry or the governorship) responsible. This is because the fault of the injured party will cut the causal link.
It is also difficult to hold the administration responsible for the third party who purchases or leases the building with a building registration certificate. This is because even if the municipality or governorship determines that the building is illegal or contrary to the zoning, the law (Provisional Article 16) explicitly prohibits the administration from demolishing the building. Therefore, it does not seem possible to talk about a defect of service here.
Moreover, in our legal system, there is no way to hold the state financially responsible for the law made by the legislator.
However, the situation may be different in the absence of such a provision relieving the administration from liability in the zoning amnesties prior to the last amnesty law.
Possibility 4: The building does not have a building and settlement licence, is contrary to the zoning or illegal and does not benefit from the amnesty
In this case, the relevant municipality may be held liable due to service defect. This is because, pursuant to the Zoning Law, municipalities (district municipalities in metropolitan areas) have the authority and duty to control, inspect, detect and impose sanctions in case of detection of illegal or non-construction buildings.
“Entitlement” and state aids envisaged by the Disaster Law No. 7269
Pursuant to the aforementioned Disaster Law, persons whose houses have been destroyed or damaged due to earthquake may be provided with state aid in the form of new housing allocation, interest-free and long-term loans for housing construction, and housing construction aid.
In order to benefit from this right, it is necessary to be determined as a “beneficiary” as a result of the determinations made by the administration. For this purpose, the law stipulates certain conditions and the damages in the houses are categorised by the administration according to the degree of damage (such as demolition, heavy damage, medium damage, light damage, etc.). For example, if there is no valid DASK (earthquake insurance) on the date of the disaster, the beneficiary cannot be entitled. Short-term compulsory appeal mechanisms against building damage assessments are foreseen in the law.
For those who are determined as beneficiaries in this way, the compensation of material damages by the state due to the damage to dwellings works in a practical way. However, it is also possible to hold the administrations liable according to the general provisions mentioned above, both because the conditions of entitlement are not met and because the aids and payments made do not fully cover the damages (such as not compensating the damaged goods, not covering the temporary accommodation damages, not providing tents and other equipment).
At this point, the payments made by the state for housing according to the Disaster Law can be deducted from the compensation to be awarded in the full judgement (compensation) lawsuits to be filed according to the general provisions. Otherwise, unjust enrichment may be in question. For example, if those whose houses were demolished are provided with housing within the scope of the Disaster Law, the cost of the demolished house is not awarded as compensation. However, exceptional one-off payments made by the state for urgent needs other than the primary aid for housing (such as 10 thousand TL aid) cannot be deducted from the compensation.
Intersection and competition between administrative liability and private law liability
In the above-mentioned cases where the administration may be held liable for the buildings destroyed or damaged in the earthquake, the private law liability of the relevant persons (contractor, building seller, lessor, fnancial supervisor, etc.) may also be applied.
The practical problem here is whether it would be more effective and appropriate for the injured party to be held liable by administrative authorities, to be held liable by private law, or to be held liable by both.
This is because it is necessary to file a lawsuit in the administrative judiciary (administrative courts) for the liability of administrative authorities and in the judicial judiciary (civil courts of first instance) for private law liability.
My personal opinion is that it would be more practical for the injured party to pursue both remedies together.
However, since it is highly probable that the private persons (contractors, sellers, building inspectors, construction site supervisors, etc.) responsible for the demolished or damaged buildings have either fled or have long since fled their assets on themselves or their companies, the chances of enforcement and collection will be very low as a result of the lawsuits won even if private law liability is pursued. Nevertheless, it is useful to request an immediate injunction for these.
For this reason, in the above-mentioned possibilities where the administration may be held liable, it would be a more effective and practical way to file a lawsuit against the relevant administrations. This is because when the lawsuits are won, the damages can be collected from the administrations absolutely and easily.
At this point, an important technical point is the following:
In the lawsuits to be filed, the administrative judicial authorities should hold the relevant administration responsible for all damages in cases where the administration is responsible for service defects, and if more than one administration is responsible, they should hold them responsible in proportion to their defects. At this point, while determining the proportion of fault, the responsibility should not be divided between the administrations and the persons who are responsible in terms of private law.
In other words, the liability of administrations and private law persons should be accepted as “joint and several”; and if the plaintiff prefers, the principle of recourse of the relevant administrations to the responsible private law persons should be adopted, if necessary, after the entire damage is paid by the relevant administration(s).
As a matter of fact, the essence and basis of administrative liability (failure of the administration to fulfil its duties of supervision, control and sanction) and the basis of private law liability (defective goods, breach of contract, etc.) are different from each other.
On the other hand, since the liability ratios of private persons determined in the cases filed in the administrative jurisdiction will not be binding for the cases filed in the judicial jurisdiction (and vice versa), it may not be possible to fully compensate the damages of the injured parties as a result of the cases filed in different jurisdictions.
The Council of State’s adoption of the principle of “joint liability” rather than the principle of joint and several liability for damages caused by previous earthquakes, and the division of liability between administrations and private persons has made it extremely difficult to compensate the damages in practice.
As a result, the compensation of damages for earthquake victims can be provided within the framework of both administrative law and private law as explained above.
However, the legal recourse and litigation procedures to be followed according to both liability principles are quite complicated.
As a more practical way, it may be suggested to compensate all the damages incurred by the citizens due to the earthquake either through a separate special law or through additions to the Disaster Law No. 7269, just like the Law No. 5233, which envisages the payment of the damages of the citizens who have suffered damages due to terrorist incidents by the administration in a more practical way.
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