EARTHQUAKE and STATE (News File) Av. Filiz Ölmez Wrote
Türkçe EARTHQUAKE JUDICIAL PROCESS IN THE LIGHT OF HUMAN RIGHTS On 6 February 2023, in Kahramanmaraş province, Pazarcık 7.7 and Elbistan 7.6 magnitudes occurred. As a result of the two earthquakes, according to the current information announced by AFAD, Gaziantep, Şanlıurfa, Diyarbakır, In Adana, Adıyaman, Osmaniye, Hatay, Kilis, Malatya and Elazığ provinces, a total of 44,218 citizens lost their lives. were killed in the earthquake. 100.000 people were injured in the earthquake and 10.000 buildings collapsed. In total, 13.5 million people were adversely affected by this disaster. In the aforementioned disaster with such a heavy balance sheet, while citizens were recovering from their wounds on the one hand, on the other hand On the other hand, it started to seek for rights. In this search for rights, we have learnt how the earthquake is processed in our legal system. it is worth analysing. For example, Article 1 of the Law No. 6306 on the Transformation of Areas under Disaster Risk "The purpose of this Law is to transform areas under disaster risk and risky structures outside these areas. to live a healthy and safe life in accordance with the norms and standards of science and art on the lands and plots where they are located to determine the procedures and principles regarding improvement, liquidation and renovation in order to constitute their environment." With this statement, the measures to be taken against the earthquake risk are included. Article 3 of the Regulation No. 26582 on Structures to be Built in Disaster Areas states; "The buildings to be constructed in disaster areas are required to be constructed in terms of the properties that the building materials should bear. Building Materials Regulation published in the Official Gazette dated 8/9/2002 and numbered 24870 (89/106/EEC) and Turkish Standards shall apply. In the absence of Turkish Standards, international must comply with the standards recognised as valid." Article 4; "14 of the Law No. 7269 No building shall be constructed and existing buildings shall not be erected in areas considered as prohibited areas for building and residence according to Article 3 cannot be repaired. In addition, special precautions should be taken on artificial fill soils after examination and evaluation. unless the measures are taken." With the statements, it is determined how the measures will be operated by the administrative institutions. Article 1 of the Turkey Building Earthquake Regulation states; "The purpose of this Regulation is to be rebuilt, all public and private buildings and building-type structures to be replaced, enlarged or design and construction of sections under earthquake effect and design and construction of existing buildings under earthquake effect the rules and minimum conditions for the assessment and strengthening of their performance " refers to the manner in which preventive measures are taken. No. 7269 on Measures to be taken and Actions to be taken due to Disasters Affecting Public Life In the Law on Assistance, the rights that disaster victims can benefit from in the event of a disaster and the obligations of the administrative institutions. No. 4481 of 26 November 1999, of which the public is still not informed as to its fate According to the Law on Earthquake Taxes, citizens are levied according to the current disaster risk of the country. how taxes will be spent for disaster victims. In addition to these, with the Provisional Article 16 of the Law No. 3194, 31.12.2017 under the name of "Zoning Peace" In case of renewal of the structures for which a Building Registration Certificate is issued for the structures built before the date, It is stated that the provisions of the zoning legislation in force shall be applied. The article clearly states that the structure It is regulated that the earthquake resistance is the responsibility of the owner. Currently, 2019, 2022 and In 2023; three legislative proposals to extend the application period for zoning peace It is known that it is in the Commission, the proposal received on 04.01.2023 was withdrawn and the other two There is no similar information on the proposed law. Each disaster has many responsibilities including Legal, Administrative, Criminal, Financial and Political. It will be useful to evaluate one responsibility separately. Criminal liability, criminal law according to the Basic Principles of Criminal Law, taking into account the "punitive" and "protective" functions It is the situation where the persons responsible for the offence are punished according to the Turkish Penal Code. Accordingly, earthquake the contractors of the buildings and structures demolished as a result, the authorised and responsible persons involved in their construction persons, public officials who issue building and occupancy licences for these buildings and who take part in their supervision and inspection, and negligence in identifying risky structures in the earthquake-prone region and taking necessary measures the actions of the public officials who have demonstrated their behaviour are subject to a general lump-sum assessment and to the judgement of the Court of Cassation in the past that the demolished the case-specific judgements on the buildings, it was concluded that, for each building that collapsed, the responsible parties should be held liable. According to the characteristics of their acts, they are classified as Killing with Probable Intent (Art. 81, 82, 21/2 of the TPC), Killing with Probable Intent Injury (TPC Art. 86, 87, 21/2), Negligent Manslaughter, Negligent Manslaughter, Negligent Manslaughter Investigation for the offences of 'intentional injury, qualified fraud, abuse of office' an indictment has to be issued and a trial has to be held. At the end of the trial; if the deceased is a child, the Qualified Form of the Offence of Deliberate Homicide, the injured the behaviour towards persons should be evaluated within the scope of the offence of "Probable Intentional Injury" the application of the aggravated version, separate penalties for each act of death or injury must be given. The buildings and flats are in compliance with the earthquake regulations and are claimed to be earthquake-resistant. the contractors who sold the demolished buildings, which were demolished but died, should be punished for the offence of Qualified Fraud. or building licence for buildings where no injury or injury has occurred, construction and supervision in the process, but neglected their duties and neglected to fulfil their duties in the process, and thus, the region is located on a fault line. to be obliged to take necessary precautions by identifying risky buildings due to their location in or around the neighbourhood public officials who fail to fulfil these obligations despite the fulfilment of these obligations are also charged with negligent behaviour. indictment for the offence of abuse of power, and as a result of the trial, for this offence must be penalised. As for the determination of administrative responsibility, firstly for the damages caused by administrative activities It is necessary to determine the type of fault of the administration. Defects arising in the establishment, organisation and functioning of the administration the Service Defect arising from the resulting disorder, disruption or gap server is considered as Negligent Liability is defined. Consequently, the service resulting from the non-operation, late operation or poor operation of the service In case of fault, the Administration must compensate the resulting damage. The principle of no-fault liability is the principle of risk and equity-objective" principles, and the Administration is authorised to carry out activities that involve danger or to compensate for damages incurred even if there is no fault when people are damaged by their vehicles obligation. According to both principles, the loss of life and property in the earthquake that occurred in our country The administration is directly responsible for the losses. Although the legal personality of the organisations Although criminal liability cannot be mentioned due to the fact that the highest supervisor of the organisation is personally criminal all types of liability are open. In case of application of the existing laws before the occurrence of the disaster, the existing damages will not arise. Although many jurists claim Force Majeure, it is either unforeseeable or Since there is no unpredictable situation, this interpretation will not be legal for the aforementioned disaster. Therefore, in a region located in an earthquake zone, where earthquakes occur continuously, earthquake force majeure ceases to exist. As it is known, there are five different earthquake zones in our country. Earthquake risk is the most The region is classified as a first degree earthquake zone and the region with the lowest number of earthquakes is classified as a fifth degree earthquake zone. are named. Earthquake Zones of Turkey, which entered into force on 23.12.1972 The map was re-prepared according to today's conditions and available information and dated 18.04.1996 and It entered into force with the Council of Ministers Decree No. 96/8109. According to this map, a large part of our country Part of it is located in the earthquake zone. Therefore, even if it is not possible to prevent earthquakes the necessary precautions are taken by the administration by predicting where earthquakes may occur can be minimised. Otherwise, the administration may be held liable for service defects. can be travelled. When all these issues are considered together, there is a serious violation of the Right to Property and Right to Life with the violations of the law. In the face of these grave violations, it is our responsibility within the framework of Criminal, Financial and Legal Responsibility of the persons, institutions and administrative authorities immediately to be tried by independent courts and to ensure that aggrieved citizens are subjected to the principle of the Social State of Law to be protected accordingly and to benefit from all kinds of legal, psychological, social and economic opportunities It is essential for the public conscience to be relieved to some extent. Lawyer Filiz Ölmez
