Dear Friends and Clients,
As a result of the Kahramanmaraş-Pazarcık earthquake, which has been described as the worst disaster in our Republic’s history, ten provinces with 13.5 million citizens were directly affected, and thousands of buildings, which are our national wealth, were destroyed or severely damaged. While the balance sheet of the material and moral damages left by the earthquake on our people becomes clearer by the day, it is critical to determine who is responsible and liable under the law for the situation we are in.
From the very beginning we closely follow developments and report it to our clients. Below, we summarized and categorized the legal remedies that can be applied.
There must be a causal link between the contractor and the engineer of record who failed to fulfil their obligations during the construction of the collapsed buildings and the death and injury that occurred as a result of the collapse of the building. If this condition is met, the contractor and the engineer of record may be held liable for the crimes of killing or injuring with eventual intent or conscious negligence or deliberately endangering public safety only in the event of danger.
The offences of death and injury by negligence, conscious negligence or eventual intent must be prosecuted by the Public Prosecutor’s Office on behalf of the public, without the need for a complaint. However, the injured and victims may intervene in the case as a participant during the prosecution and submit their statements and testimonies to the court.
The Court of Cassation’s opinion on earthquake offences is that the offence is committed with “conscious negligence“. In some of its decisions regarding the fraudulent concealment of defects in the construction of the building, it ruled that the offence was committed with “eventual intent“.
The classification of the moral element of the offence will be effective in the collection of penalties. Because while the penalty for the offence of causing the death of more than one person by negligence is in a wide range such as “2-15“, if it is accepted that the offence is committed with “eventual intent“, the lower limit of the penalty will increase to “20” years.
“The defendants constructed the structures in a faulty and fraudulent manner by risking and even accepting the possible dangerous consequences despite the negativities, and although the flood protection walls, which were found not to be built under the specifications by the administration, were demolished twice, they prevented the supervision of the administration by plastering the dykes with concrete in order to cover the bad materials used. Although it is foreseen, there is no mention of an undesirable result that is thought not to be realised, but by going beyond this and exceeding the elements of conscious negligence, it is seen that they continue their faulty and fraudulent construction activities by acting with the thought of “no matter what happens”, although they foresee that it may cause a flood. It has been decided to overturn the conviction given by the local court on the grounds that they should be held responsible for this result with their eventual intent and that a written judgement was established without considering that the elements of the offence of manslaughter with eventual intent were formed.”
The government has a positive obligation to protect citizens against earthquakes and to minimise the damages of earthquakes. Public officials who violate this obligation shall be criminally liable for the offences of neglect of duty and misconduct in public office. On the other hand, officers who issue documents to obtain licences, reports or conformity to obtain benefits while performing their inspection duties are liable for bribery and extortion offences.
There is a special investigation procedure for public officials. In order to continue criminal investigations against these public officials who have acted in breach of their duties, permission must be obtained from the relevant supervisor. Therefore, upon receipt of the criminal complaint, the public prosecutor’s office must collect the evidence that needs to be collected immediately and that may be lost, and submit it to the administrative authority for approval. If no permission for investigation is granted, the relevant decisions may be appealed to the administrative judiciary.
The spouse and children of the deceased or injured person, or if they are not present, their relatives, should file a complaint with the Chief Public Prosecutor’s Office of the place where the offence was committed. Evidence should be analyzed to establish a causal link between the buildings in question and the deaths and injuries. Evidence discovered in criminal investigations may also be used in civil proceedings.
In terms of the buildings destroyed due to the earthquake, there will be an impossibility of performance since the subject of the contract does not exist. Pursuant to Article 136 of the TCO, “If the performance of the obligation becomes impossible for reasons for which the debtor cannot be held responsible, the obligation is terminated.”. Therefore, since the rent contract has ended in terms of the buildings being destructed in this way, the renter does not have any rights in the new buildings that will be built.
This transaction of the homeowner who purchases the real estate for use as a residence without any commercial purpose is considered a consumer transaction. In this case, pursuant to Article 12 of the LPC, the statute of limitations does not apply in cases where the defect is concealed by gross negligence or fraud. Therefore, if there is a situation where the contractor has concealed the defect, gross negligence or fraud, the homeowner may compensate the damage from the contractor without being subject to any time limitation.
In cases where the building was purchased not directly from the contractor but from another third party, it is possible to compensate for the damage based on the contractor’s tort liability. The statute of limitations for tort under Article 72 of the TCO is 2 years from the date the injured party learns of the damage and the indemnity obligor, and in any case 10 years from the date of the act. However, after the 1999 Gölcük earthquake, the Court of Cassation based on the statute of limitations from the date the building was destructed in order to prevent unfair situations.
“As for the condition of whether there is an appropriate causal link between the damage and the unlawful act, the damaging result of the lawsuit had happaned with the occurrence of the earthquake. In other words, the damage, the effect of the defendants’ violation of the regulations, occurred only after the earthquake occurred. The question in this case is whether or not the failure to act in accordance with the regulations had an impact on the negative outcome.In this context, when the fact that the damage would not have occurred if there had been no earthquake is taken into consideration, it may be thought that the damage is a result of the mere existence of the earthquake. However, even if this is the obvious outcome, the claim is that the defendants did not construct the building in an earthquake-resistant manner. If the building had been built in accordance with written building regulations and technical conditions but collapsed as a result of the earthquake, the defendants would not have been held liable because the appropriate causal link between the damage and the unlawful act would have been severed. If there had never been an earthquake, an action for compensation could not have been filed in the form subject to the present case due to the unlawful act of the defendants committed years ago, since there was no damage.”
Under Article 53 et seq. of the TCO, in the event of the death of the earthquake victim funeral expenses, treatment expenses; if the death did not occur immediately, and losses arising from the decrease or loss of working capacity, and the losses incurred by the persons deprived of the support of the deceased for this reason are compensated.
Earthquake victims may claim medical expenses, loss of earnings, loss of earning capacity, and loss of economic future as pecuniary compensation in case of physical damage.
In addition, in the event of severe bodily harm or death of the earthquake victim, he/she or his/her relatives may also claim non-pecuniary compensation for the damages incurred. In addition, compensation can also be claimed for the contractual responsibilities of the contractor for the building purchased from the contractor.
Meeting the needs of earthquake victims is unquestionably a matter of urgency. In such urgent cases, the regulation titled “temporary payments” regulated under Article 76 of the TCO should be taken into consideration. Under Article 76 of the TCO;
“If the injured party submits convincing evidence showing the justification of his claim and the economic situation requires it, the judge may, upon request, order the defendant to make a temporary payment to the injured party.”
The purpose of the relevant law is to protect the party in need of urgent financial support to compensate for the damage suffered. Therefore, in cases where the defendant is in a position to make
temporary payments in economic terms, the relevant provision can be applied to minimize victimization.
Risk assessment can only be carried out by organisations licensed by the Ministry upon the application of the building owner or legal representative. The responsibility for the building inspection costs is on the owner.
The Ministry of Environment, Urbanisation and Climate Change examines the reports on buildings deemed risky as a result of the audit. After the examination, the Ministry of Environment,
Urbanisation and Climate Change notifies the land registry office that the immovable property should be annotated as risky and notifies the owner. Buildings which are not objected to or which are finalised to be risky after the evaluation of the objection are given a period of 2 months to apply for a demolition licence.
If the structure is not demolished by the owner in due time, the structure shall be demolished by the administration and the owner shall be recourse to pay the costs. Although it is not obligatory for the owners to have a risk audit unless a specific deadline is given by the administration, it is necessary to examine the available building stock, especially the old buildings, in order to make our buildings safer against earthquakes.
Law No. 6306 on the Transformation of Areas Under Disaster Risk authorises only the owner (owner of the building or independent section) or the administration to request a risk assessment on the buildings in order to transform the buildings located in areas under disaster risk. Therefore, tenants do not have the right to directly request a risk assessment of the building they live in.
However, since the administration has the authority and duty to give a deadline to the owners for the determination of the risky building, tenants can submit such requests to the Ministry of Environment, Urbanisation and Climate Change.
Currently, it is not mandatory to determine whether the buildings are risky or not and to test the buildings regularly. Nevertheless, within the scope of Law No. 6306 on the Transformation of Areas Under Disaster Risk, if the Ministry of Environment, Urbanisation and Climate Change gives a deadline to the owners for the determination of the risk status of the building, even if the owner avoids this, the determination works are completed by the administration and the costs are charged to the owners.
It is a type of insurance that is compulsory in order to partially absorb the public budget’s losses in case of a possible disaster. As a result of the devastating effects of the 1999 Gölcük earthquake and the subsequent economic crisis, earthquake insurance was mandated to reduce the effects of earthquakes. It creates a fund by accumulating insurance premiums over the years. On the other hand, no funds are transferred from the public budget in normal times, except in disaster situations.
Natural Catastrophe Insurance Institution (“DASK“) is a public institution with its own legal personality, established to manage the policies and the funds collected. Annually, its financials are reported to the Planning and Budget Commission of the Turkish Grand National Assembly by an independent auditor. It has been reported that DASK has a fund sufficient to cover losses of TL 117 billion, including reinsurance contracts. Due to the fact that private insurance companies are obligated to indemnify damages outside DASK coverage only as a supplement to DASK coverage, the existence of this fund also constitutes a significant assurance for private insurance companies operating in the country.
The Catastrophe Insurance Law requires earthquake insurance for independent sections within the scope of the TLC, buildings constructed as house on immovable properties registered to the title deed and subject to private ownership, independent sections within these buildings used for commercial, office, and similar purposes, and house constructed by the state due to natural disasters or built with loans granted by the state. Material damages caused directly by the earthquake and damage to insured buildings caused by fire, explosion, giant wave (tsunami), or landslide are covered under this insurance (including those occurring in foundations, main walls, common walls separating independent sections, garden walls, retaining walls, ceilings and floors, stairs, elevators, landings, corridors, roofs, chimneys, and similar complementary parts of the building).
In any case, the sum insured for a building subject to compulsory earthquake insurance cannot be more than the maximum coverage amount specified in the “Compulsory Earthquake Insurance Tariff and Instruction”. As of 2023, the maximum insurance amount has been determined as 640 thousand TL. In addition, a 2 percent excess is applied to the calculated compensation amount in payments.
The insurance company is obliged to notify the policy holders about the termination of the contract and the obligation renew insurance via electronic mail, short message (SMS) or call center before the end of the insurance contract. The insurance company will be liable for the damages arising from the failure to fulfill this obligation.
The earthquake damage clauses made with private insurers are evaluated under the “Earthquake and Volcanic Eruption” clause in the “General Conditions of Fire Insurance”. Damages caused by earthquake, tsunami and volcanic eruption; foundations and retaining walls, including damages caused directly or indirectly as a result of fire, explosion, landslide or soil collapse, are included in the coverage. One of the main issues to be considered in this coverage clause is that in cases where the risk is also covered by compulsory earthquake insurance, the insurer will only cover the part that is not covered by DASK coverage in terms of additional house insurance policies.
Exemption and other issues regarding the coverage may be freely determined. When determining the amount of coverage, it should be kept in mind that if the coverage exceeds the value of the insured property, no payment can be made for the exceeded portion due to excess insurance. Therefore, the collateral values should be carefully examined when drafting an insurance policy. Excess and underinsurance policies should be taken into consideration to avoid creating a coverage gap or making excessive premium payments. In addition to these, the insurance company has the chance to recourse the indemnity paid because of the occurrence of the risk to other responsible parties who caused the damage to occur in the first place or aggravated it after the damage occurred.
Pursuant to Articles 56 and 17 of the Constitution, it is the responsibility of the government to prevent illegal construction in earthquake zones, to evacuate buildings that are destroyed or cannot be repaired, to immediately demolish buildings that cannot be repaired, to carry out urban transformation practices, to prevent construction in dangerous areas, to ensure the demolition of unsafe buildings that are about to be demolished.
In addition to the right to life regulated in Article 2 of the European Convention on Human Rights and the government’s obligation to protect its citizens against earthquakes, the identification of persons responsible for incidents resulting in death and conducting an effective investigation process against them are also considered as one of the positive obligations of the government within the scope of the right to life because of court case law.
In natural disasters such as earthquakes, compensation for direct pecuniary and non-pecuniary damages may be claimed based on service defects of the administration. However, at this point, there must be a service defect arising from the administration’s supervision and oversight obligation.
Although force majeure is a legal defense that will reduce or remove the responsibility of the administration, an earthquake cannot be considered as force majeure in all cases since the possibility of an earthquake in risky areas located in the earthquake zone is known by the administration. To talk about force majeure, the elements of unforeseeability, externality and irresistibility must all exist at the same time.
“In a region located in an earthquake zone, if there is a ‘negative action’ of the administration consisting of the negativities in the whole of the administrative activities related to the determination of the areas, related to the settlements by taking the earthquake reality as a data, taking decisions regarding the construction in these areas, implementation and supervision, it is not possible to accept that the earthquake is considered as force majeure and cuts the casual link with the damage.
In this case, while the Court should decide as a result of the evaluation of whether there is a service defect of the administration in the occurrence of the alleged damage, the decision to reject the case because of the casual link between the damage and the administrative activity has disappeared by accepting the earthquake as a force majeure is not inaccurate.”
This document has been prepared for the general information of our clients and should not be regarded as legal advice.
For further information please contact:
Av. Faruk AKTAY (firstname.lastname@example.org)
Yapı Kredi Plaza B Blok Kat:11 Beşiktaş/İstanbul
Phone: +90 (212) 216 40 00
Levent Mh. Yapı Kredi Plaza B Blok Kat:11 Beşiktaş / İstanbul / Türkiye