Administrative Responsibility Due to the Earthquake

Deprem Nedeni İle İdarenin Sorumluluğu – İzmir Avukat

It is a foreseeable fact that people will lose their lives if buildings are not constructed safely. Of course, the legal system will not protect individuals and institutions who act unlawfully in the face of such foreseen circumstances. In this article, we will address the issue of the administration's responsibility in the event of an earthquake.

Depremin ortaya çıkardığı zararlardan dolayı birinci dereceden sorumluluk idareye (devlete) aittir. İdarenin kusur sorumluluğu olduğu gibi kusuru olmadığı durumlarda da deprem nedeni ile idarenin sorumluluğu olduğu görülmektedir. Yani idare, ağır bir hizmet kusuru olmasa bile verdiği zararlardan sorumludur. İdarenin tutum ve davranışlarından, kusurlu olmasa da sorumlu tutulmasına ”kusursuz sorumluluk” denir. Nitekim, 1999 Gölcük depreminde birçok yargı kararı ile idarenin kusuru olmadığı durumda da sorumluluğu yönünde kararlar verilmiştir. See / Council of State Decision 11th Chamber, 2007/6248 K.:  ‘’…Deprem kuşağındaki bölgede, deprem gerçeği veri alınarak yerleşmelerle ilgili alanların belirlenmesi, bu alanlarda yapılaşmada idarenin olumsuz eyleminin bulunması durumunda, depremin mücbir sebep olduğunun ve illiyet bağını kestiğinin kabulü olanaksızdır…’’

Lawsuits to be filed against the administration for its responsibility due to the earthquake. Law No. 2577These are full judicial review cases pursuant to Article 13 of the Law No. 2577. Since the reason for filing a full judicial review case is administrative actions, it is mandatory to apply to the administration that carried out the action before filing a lawsuit. Because according to Law No. 2577:‘Those whose rights have been violated by administrative actions must, before filing an administrative lawsuit, apply to the relevant administration to have their rights restored within one year from the date they learned of these actions through written notification or otherwise, and in any case within five years from the date of the action.”According to the Council of State's decisions on unifying jurisprudence, filing a lawsuit directly without first applying to the administration is considered "infringement of administrative authority," and the court orders that the lawsuit petition be submitted to the relevant authority at every stage of the proceedings. Therefore, we should emphasize that an application must be made before filing a lawsuit.

Municipalities, governors, and district governors must evaluate and inspect all private and public buildings within their jurisdiction in accordance with the provisions of the "Regulation on Buildings to be Constructed in Disaster Zones." Based on the results, buildings that do not meet the requirements of the relevant regulation should be given a three-month period to bring them into compliance, and the building should be re-inspected. Buildings and building parts that still do not meet the requirements should be demolished. Individuals cannot claim that their building permits are invalid and constitute a vested right due to the work and planning carried out to ensure settlement and construction aimed at preventing disasters. This is because building permits may lose their validity in the face of new regulations made later for the public good. If the administration shows weakness in these inspections and evaluations, the existence of a service defect must be accepted. In this context, if a person who has suffered damage due to the earthquake proves that the building was constructed in violation of the regulations, they will have directly identified the fault of the administration.

Below is an important Council of State decision related to this matter:

“…In a region located in an earthquake zone, where the determination of settlement areas based on the reality of earthquakes, the taking of decisions regarding construction in these areas, their implementation and supervision, and the negative actions of the administration constitute a result of negligence in all administrative activities, it is not possible to accept that the earthquake is considered a force majeure event and thus severs the causal link between the damage and the administrative action. In this case, while the Court should have made a decision based on an assessment of whether the administration was at fault in causing the alleged damage, the decision to dismiss the case on the grounds that the earthquake was considered a force majeure event and the causal link between the damage and the administrative action was severed is deemed incorrect…”

The Legal Process Regarding the Administrative Liability Due to the Earthquake

The statute of limitations refers to the period during which a right cannot be asserted within a certain timeframe, rendering it impossible to obtain through legal action, or when the legally prescribed period has expired, making the exercise of a right impossible. A person who has suffered damage due to an earthquake must apply to the administrative authority that has failed to fulfill its obligations within a maximum of one year from the date they learned of the damage, requesting compensation for the damages caused by the earthquake. In any case, the application to the administrative authority must be made within five years.

 The administration responds to applications for compensation for damages within a maximum of 30 days. The administration may respond by partially or completely compensating for the damage, or by stating that compensation is impossible. Alternatively, it may not respond at all within the 30-day period. Failure to respond constitutes a negative response. If the administration's decision is negative or if no response is given, the injured party may file a full judicial action for compensation within 60 days of receiving the rejection decision and the expiration of the 30-day period. Lawsuits filed for compensation for damages caused by earthquakes fall under the jurisdiction of administrative courts. Therefore, the competent courts for compensation for damages resulting from earthquakes are administrative courts. The regulation concerning the competent court is found in Article 36 of the Administrative Procedure Law. As stated in the article, the court located where the administrative authority that caused the damage by failing to fulfill its obligations is situated shall have jurisdiction.

If a full court case filed to recover damages incurred due to an earthquake, for which the administration is responsible, is accepted, it is definitively established that the individual suffered damages due to the administration's actions. This decision will also specify in detail how the damages will be compensated. If the case is dismissed, even if the individual has suffered damages, it is definitively established that these damages did not occur due to the administration's responsibility for the earthquake. It is not possible to file another lawsuit against the administration, citing the same damages as grounds for compensation.

Is it possible to file a compensation lawsuit against the state?

The state has an obligation to compensate for damages caused by earthquakes within a certain framework, and individuals have the right to appeal to the administration through legal channels in this regard. One type of administrative lawsuit regulated in the Administrative Procedure Law is a full judicial review lawsuit, which can be filed against the administration and seek compensation. These lawsuits can be filed to seek compensation for both material and moral damages arising from the actions or procedures of the administration. The right and authority to file these lawsuits regarding the administration's responsibility due to the earthquake belongs only to individuals whose rights have been violated due to administrative actions and procedures. If the attack on personal rights is carried out by the administration, moral damages can be claimed and sued for in administrative courts under the name of a full judicial review lawsuit. For the court to accept a claim for moral damages, there must be damage, this damage must stem from the action or procedure of the administration, and there must be a causal link between the damage and the action or procedure of the administration.

In conclusion, considering that Türkiye is an earthquake-prone country, building permits should not be granted in first-degree earthquake zones with active fault lines. Due diligence should be exercised in settlement planning, and even with such diligence, frequent inspections should be conducted to ensure that structures in these areas comply with earthquake regulations. Although earthquakes are considered a force majeure event, given the geography of our country, it would be unfair to definitively classify earthquakes as force majeure and state that the causal link has been completely eliminated in favor of the administration. The decisions of the Turkish judiciary regarding major earthquakes in past years also support this view. If there is a deficiency on the part of the administration in the above matters, it must be accepted that a service defect will occur.

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