Because a substantial part of the country’s territory lies within an earthquake zone, whether the State can be held liable for the loss of life and property that follows a tremor is a debate that never leaves the agenda. There is no doubt that the administration must be held liable for damage arising from its failure to discharge its pre-earthquake obligations properly or to take the measures it was required to take. The public authority is under a duty to take every kind of measure to secure the health, safety and well-being of the citizen.
An administration that fails to perform the duties imposed on it by statute — in the forms defined as “defective operation of the service”, “late operation of the service” and “complete failure of the service to operate” — and that does not take the measures that could have been taken before the earthquake becomes liable to make good the resulting damage.
An administration that fails to take the necessary measures before an earthquake occurs must be regarded as having committed a service fault. It follows that the damage arising from the tremor will also fall to be remedied by the administration.
In this note we seek to answer questions such as whether the administration bears liability in relation to earthquakes, where the limits of that liability begin and end, and in what direction the case law on the subject has developed.
Types of Administrative Liability
Under Turkish law the liability of the administration falls into two categories: fault-based liability and strict liability.
Fault-Based Liability
Fault-based liability is also known in practice as service fault. Put plainly, service fault is the type of liability that expresses the obligation to make good the damage arising where the service operated by the administration functions defectively, functions late or does not function at all. Compensation claims founded on service fault make up a significant proportion of the actions brought before the administrative courts.
Strict Liability
This is the form of liability that arises where, even in the absence of any fault attributable to the administration, a causal link can be established between the damage sustained and the administrative activity. In other words, even where there is no fault, it is legally possible to hold the administration liable for the damage if certain conditions are met. The situations in which strict liability arises are exceptional in nature. Put differently, the existence of administrative fault remains the rule for holding the administration liable for damage.
Circumstances That Reduce or Remove Liability
Turkish legislation also regulates the situations that mitigate the liability of the administration or remove it altogether. These may be grouped under three headings: the conduct of the injured party or of a third person, unforeseen circumstances, and force majeure.
In situations characterised as unforeseen circumstances or force majeure, both the fault-based and the strict liability of the administration are removed. Where the conduct of the injured party or of a third person has contributed to the occurrence or the aggravation of the damage, the liability of the administration is either reduced or extinguished entirely, depending on the particular circumstances.
Can the Administration Be Held Liable for an Earthquake?
Since Turkish law contains no statutory provision determining whether an earthquake is to be treated as force majeure or as an unforeseen circumstance, there is no express rule as to whether the administration may be held liable on account of an earthquake.
A distinction must be drawn at the outset: the administration’s failure to discharge its obligations properly and the aggravation of earthquake damage through measures that were not taken are two different matters. Nevertheless, in both scenarios it is beyond dispute that the administration must be held liable for the damage that arises.
Indeed, Turkish law sets out the obligations to be discharged by the administration in relation to earthquakes expressly, through numerous instruments such as statutes, decree-laws, regulations and circulars. The conclusion follows that, where the administration fails to discharge those obligations properly, it will be liable for the resulting damage within the framework of fault-based liability.
Is an Earthquake Force Majeure?
The Court of Cassation defines force majeure as “events which, by reason of their natural, social and legal origin, lie outside the actor, which the actor has no possibility of preventing, and which cannot be assessed or foreseen in advance”. According to the case law, an event may be treated as force majeure only if three conditions are satisfied together in the particular case:
- Unforeseeability: it must not have been possible to foresee the event in advance
- Unavoidability: the occurrence of the event must not have been capable of being prevented
- Externality: the event must arise from a cause lying outside the administration
Where all of these conditions are satisfied in a given case, force majeure is accepted to exist and the liability of the administration is removed. In other words, the damage is then no longer to be made good by the administration. The reasoning underlying this is that the matter treated as force majeure does not stem from the acts and transactions of the administration.
The Externality Condition
Viewed from the standpoint of externality, it is beyond dispute that an earthquake is a natural event occurring outside administrative activity; the externality condition is therefore plainly satisfied. As to whether an earthquake amounts to force majeure, however, a separate assessment must be made in each case, taking into account features such as the place, the setting, the time and the technological means available.
The Unforeseeability Condition
It is a known fact that the greater part of Türkiye carries an earthquake risk. Against that background it cannot be argued that an earthquake is unforeseeable. Thanks to the data obtained from research in geology and seismology, the administration knows that an earthquake will occur; the only uncertain element is the timing of the tremor. An administration that fails to take the necessary measures in good time must be regarded as liable for the damage that will arise from an earthquake.
The Unavoidability Condition
It is likewise a known fact that, in the earthquakes of recent times, buildings constructed in accordance with the rules did not suffer damage. By contrast, structures that rise without regard to the rules and without inspection give rise to very serious loss of life and property. Against that background, it is wholly untenable to argue that damage caused by an earthquake is unavoidable.
It is beyond dispute that, in a region within an earthquake zone, the administration must take a range of measures against a possible tremor. Where the necessary measures have nonetheless not been taken, the State may have to be held liable for the damage arising in a further earthquake. In such a situation it is difficult to speak of the earthquake being unforeseeable or of the damage being unavoidable in nature.
The decision of the 6th Chamber of the Council of State of 12.04.2004, case no. 2004/1477, decision no. 2004/2115, is to the same effect.
The prevailing view in legal circles is that an earthquake cannot be treated as force majeure in regions that lie within an earthquake zone, that have experienced earthquakes in the past, or that carry a high earthquake risk. On that basis, it is very difficult to characterise an earthquake as force majeure so far as this country is concerned. That is because, for Türkiye, an earthquake is not unforeseeable in nature, nor is it tenable to argue that the damage that would arise should one occur is unavoidable.
Bringing an Action Against the Administration After an Earthquake
The type of action to be brought in respect of claims directed against the administration on account of an earthquake is the full remedy action. Before that action is brought, however, an application must first be made to the administration in compliance with the time limits in Article 13 of the Administrative Procedure Act No. 2577. The Court of Cassation characterises the respondent administration’s inaction in failing to discharge its earthquake-related obligations as an administrative act and requires that an application be made to the administration before proceedings are commenced.
The application to the administration for the redress of damage sustained on account of an earthquake is subject to a time limit. In other words, certain limitation restrictions apply to the pursuit of legal remedies seeking compensation for earthquake damage. On that basis, the application must be made to the administration concerned within one year of the date on which the earthquake and the damage became known and, in any event, within five years of the date on which the earthquake occurred.
If the administration rejects the claim directed to it within the 30-day period, the action must be brought within 60 days of service of the decision of rejection. If the administration does not reply to the application within 30 days, the claim is deemed to have been rejected and an action may again be brought against the administration within 60 days.
Courts with Subject-Matter and Territorial Jurisdiction
Which court has subject-matter and territorial jurisdiction in compensation (full remedy) actions brought against the administration is determined in accordance with the provisions of the Administrative Procedure Act No. 2577.
In full remedy actions directed against the administration on account of an earthquake, subject-matter jurisdiction lies with the administrative courts.
As to territorial jurisdiction, subject to the special jurisdiction rules laid down in the Act, the court with territorial jurisdiction in full remedy actions is the administrative court for the place where the administrative authority that adopted the contested measure is situated.
Frequently Asked Questions
Is representation by a lawyer mandatory in earthquake actions?
Turkish law allows parties to defend themselves in person before the courts and, save for limited exceptions, does not make representation by counsel compulsory. No such requirement applies in the administrative courts either. That said, the technical nature of administrative law legislation, together with the short and strict time limits laid down in the Administrative Procedure Act No. 2577, makes it risky for the process to be conducted by persons who are not lawyers. In order to avoid procedural or substantive errors that cannot later be remedied, it is prudent to obtain support in the field of administrative law before any step is taken.
Does the absence of a DASK policy remove the administration’s liability?
It is beyond dispute that, in a region that has experienced an earthquake in the past and lies within an earthquake zone, the administration must take measures against a possible tremor. An administration that fails to take the necessary measures will be regarded as having committed a service fault, and its duty to provide assistance continues even where no DASK policy has been taken out.
Can an action be brought if the administration was negligent in the collapse of a building?
Where the administration is at fault or negligent in the collapse of a structure, there is no obstacle to bringing a full remedy action against it.
In which circumstances is the administration’s liability reduced or removed?
The administration is liable for damage caused by an earthquake where it has failed to discharge the obligations incumbent on it. In certain situations, however, that liability may be mitigated or removed altogether:
- the damage arises from an unforeseen circumstance
- the event giving rise to the damage is in the nature of force majeure
- the conduct of the injured party or of a third person has contributed to the occurrence of the damage
What is the liability of contractors and building inspection companies?
Under the Turkish Code of Obligations No. 6098 and the settled case law of the Court of Cassation, contractors are liable for damage arising from a failure to exercise the care required of them during the construction process or from constructing the building contrary to the building permit.
Put another way, all damage arising from causes such as poor-quality concrete, the use of sea sand, defects in column and beam connections or cheap workmanship falls within the contractors’ sphere of liability. Those who suffer loss of life or property in an earthquake are entitled to bring compensation actions against the contractors that constructed the building and, where the building was constructed through a building inspection company, against that company.
It must also be emphasised that, so far as the lives lost in a disaster are concerned, those responsible for constructing unsound buildings clearly commit the offence of killing by conscious negligence regulated in the Turkish Penal Code No. 5237, and the conduct of the necessary investigation and the bringing of a public prosecution against those persons may also be requested.
How long is the period for objecting to a demolition decision?
In respect of structures that pose a danger and must be demolished, notice must be given to the owners and a period of 3 days allowed. The owner may object to that notice before the competent authorities within 3 days. The administration must in turn examine and determine the objection within 3 days at the latest.
How is an objection made to a damage assessment report?
Those who consider that the damage assessment reports drawn up after an earthquake do not reflect the true position may object, within 30 days of the date on which the reports were announced, to the contact points designated by the Ministry of Environment and Urbanisation. The condition of the damage to the building is then re-examined by the Ministry’s technical teams. If, after that examination, the assessment is still considered to be erroneous, recourse to the courts will be the appropriate course.
What does comprehensive motor insurance pay for vehicles damaged in an earthquake?
Where the vehicle is partially damaged, the repair costs are met by the comprehensive motor insurance; where the vehicle is a write-off, its market value is met.
Who may claim the insurance payment if the vehicle owner has died?
Where the owner of the vehicle has lost their life in an earthquake, the heir is entitled to apply with a certificate of inheritance in order to obtain payment under the comprehensive motor insurance.
The Independent Legal View
In earthquake-related compensation files, what determines the outcome is most often not the scale of the damage but the ability to establish which specific obligation the administration breached, on what date and in what manner. Every link in the chain running from zoning plan decisions to ground surveys, and from the inspection of the building permit to the grant of the occupancy permit, must be examined separately. It should also be borne in mind that, on the same facts, the liability of the administration, of the contractor and of the building inspection company may need to be pursued before different branches of the judiciary.
In files of this kind we recommend that particular attention be paid to the following:
- diarising the one-year application period running from the date on which the damage became known and the five-year period running from the date of the event
- ensuring that the requirement to apply to the administration under Art. 13 of the Administrative Procedure Act No. 2577 is fulfilled before proceedings are commenced
- not missing the thirty-day period for objecting to damage assessment reports
- supporting the causal link between the administrative act and the damage with technical reports
- planning the claims to be directed against the contractor and the building inspection company in coordination with the process pursued against the administration
Independent Legal provides legal advisory services and conducts litigation throughout the process in disaster-related damage, from applications made to the administration to the conduct of full remedy actions.