First of all, as Ünal&Partners Law Firm, we would like to start our article by conveying our condolences to the relatives of those who lost their lives. On this occasion, we have examined in detail the legal processes and disputes that may arise as a result of all kinds of disasters, together with their solutions, within the framework of this disaster law, both today and in the later stages of the process.
What does the concept of disaster mean legally?
The concept of disaster is considered as a force majeure or unexpected situation that requires the termination of the debt or the change of the conditions of the debt relationship in terms of its features that cannot be foreseen, irresistible and occur outside the will of the parties. Therefore, a disaster in the sense of private law can be perceived as a personal, extraordinary and negative development that affects the legal relationship, outside of the will of the parties.
What is the legal responsibility of the State after the disaster?
The State administration, which is responsible for maintaining the calm and orderly flow of daily life, takes measures to prevent disasters that will disrupt this flow; Despite all measures, the negative consequences of the disaster must be overcome within the shortest time frame and with the most effective methods. The duties of the State Administration to be prepared for extraordinary developments and to immediately implement the solutions required by the period are described as "protective administrative services".
An important point should be mentioned in terms of the responsibility of the state: The last paragraph of Article 29 of the Law No. 7269 imposes a very severe sanction for not having taken out compulsory earthquake insurance. Accordingly, if it is determined that the compulsory earthquake insurance (TCIP) has not been made, the State's obligations to extend loans and build houses, arising from 7269 and other legislation, come to an end. These victims will be exposed to two important rights provided by the law and will not be able to claim rights.
What laws are the basis of Disaster Law?
1) Law No. 7269 on Aids to be Made with Measures to be Taken Due to Disasters Affecting Public Life,
2) Law No. 4123 on the Execution of Services Regarding Damage and Destruction Caused by Natural Disasters,
3) Catastrophe Insurance Law No. 6305,
4) It consists of the Law No. 4539 on the Adoption of the Decree-Law on the Settlement of Legal Disputes arising from the Disaster and the Facilitation of Certain Transactions in Natural Disaster Regions.
In addition, there are also regulations that are evaluated within the scope of "secondary legislation" in order to determine the principles regarding the implementation of these laws. These are also:
1) Regulation on the Basic Rules Regarding the Effectiveness of Disasters in General Life,
2) Regulation on the Determination of Those Who Have Rights Due to Disaster,
3) Regulation on the Discounts to be Made from the Debt Fees of the Buildings Constructed or to be Constructed due to Disaster,
4) Regulation on the Evaluation of the Remains of Buildings, Lands and Lands Acquired due to Disasters,
5) Compulsory Earthquake Insurance Tariff and Instruction Communiqué,
6) Compulsory Earthquake Insurance General Conditions.
Are there extraordinary regulations for the resolution of legal disputes arising from disasters?
According to the Law No. 4539 on the Adoption of the Decree-Law on the Settlement of Legal Disputes arising from the Disaster and the Facilitation of Certain Transactions in Natural Disaster Regions; It has been regulated that the power of attorney is not sought, the evidence is determined first, and the convenience of benefiting from legal aid. Taking advantage of these laws and provisions, which may be overlooked by the impact of the disaster, will make our work easier.
When are the studies carried out to determine the damage to the structures after the disaster?
After a high rate of search and rescue work after a disaster is completed, damage assessment studies are started. The legal basis of this application is the provisions of the 13th article of the Law No. 7269 and its continuation. According to the magnitude of the disaster, civil engineers and architects are appointed from the surrounding provinces or from all provinces and these determinations are made.
As a result of the determinations, the results are given to the buildings as ruined, heavily damaged, moderately damaged, slightly damaged and undamaged. However, it is important to be reminded that undamaged detection does not mean that the identified structure is "solid" or "earthquake resistant". This determination only reports the state of the structure at the time of detection.
Do I have the right to object to detection reports?
Of course, even a single person who has rights in multi-storey buildings can object to the damage assessment report prepared for the entire building. However, the period of disqualification regarding the objection varies according to the content of the report. Namely:
Objections can be made to the Board within 3 (three) days from the date of notification to the owner of the right or the announcement to be made in the neighborhood headmen about the reports regarding the buildings that were decided to be demolished due to severe damage, and the Board will examine your objection within 3 (three) days and conclude it.
Objections can be made to the Board within 30 (thirty) days about the reports containing the situations other than this. However, it should not be forgotten that as a result of the examinations to be carried out by the Board, changes may occur in the objectionable report against the person who made the objection. As a result of the examination to be made for a building that has been given a "Medium Damage" report and time is given to the right holders for its repair, changes can be made in the reports as "Heavily Damaged" or even "To be demolished".
What are the scope and conditions of the repair obligation of the beneficiaries for the buildings with a “Moderately Damaged” report?
“Moderately Damaged” structures are considered as “damaged but rehabilitative structures. It is forbidden to live in buildings included in this classification. These structures were given one year for repairs. The term, which is expressed as repair, is used as reinforcement in practice. It has been regulated that if repairs are not made within this period and there is no objection, the Ruined and Heavily Damaged Buildings will be demolished according to the procedure shown.
The objection here is not an objection to the determination, but the claim that the repair works will exceed one year. The board evaluates this objection within five days at the latest and extends the period by six months.
What other legal rights are there regarding the post-disaster process that may concern victims? Which lawsuits can be filed against those responsible for the process?
According to the provisions of article 478 of the Turkish Code of Obligations in the contracts of work regarding immovables, if the contractor has a serious fault, regardless of the nature of the defective work, it becomes time-barred only after twenty years have passed. In cases where there is a serious fault situation, it will be necessary to file a lawsuit in this direction.
In accordance with Article 39 of the Zoning Law, the necessary precautions for dangerous buildings to be demolished must be fulfilled by the municipality and the governorship. Those who have suffered damage due to the structures falling into this classification will be able to apply to the Administrative Courts due to service failure.
Due to the Law No. 7269 and Law No. 6306, it is possible to apply to the Administrative Courts, with exceptions.
As stated above regarding TCIP, evidence can be determined through the Civil Court of Peace in order to form the basis for the lawsuit(s) to be filed in the future for possible loss of rights due to the earthquake.
In cases of not being included in the Right Owner list or not being considered as a right owner, a lawsuit can be filed in the Administrative Court after the necessary objections.
Except for the exceptions, a stay of execution can be requested against the administrative actions that can be taken against the earthquake victims.
In addition to these, it will be able to file a criminal complaint against people you think are responsible in terms of criminal law.
Unal&Partners Legal Team
Comments