Legal responsibility of the state in natural disasters

It has been known for centuries that Turkey is a disaster country with its geographical structure, location and climate characteristics. In the past, frequent natural disasters such as earthquakes, landslides, floods and forest fires have caused loss of life and property in Turkey and will continue to happen in the future.

The basis of the responsibility of the state for damages arising from administrative actions and transactions is stated in Article 125 of the Constitution with the provision "The administration is obliged to compensate for the damage arising from its own actions and actions". What is meant here is the state. Being a social state and a state of law imposes this responsibility on the state.

In order to protect the life and property of the citizens of the state; It is obliged to take the necessary measures to prevent the damages that may arise from the disaster before, during and after the disaster.

In the event that the pre-disaster and post-disaster services do not "operate at all", "work late" or "operate badly", the administration is liable to faulty and the administration is liable to compensate the resulting damage (Gürsel). In this article, the legal nature of the natural disaster will be defined and the relationship between the disaster and the responsibility of the state will be examined.

In a geography where disasters are common, the state should determine the disaster area before the disaster, take appropriate measures for this region, and impose the necessary restrictions; services such as assistance, shelter, health and other needs after a disaster must be met in a timely manner and as required. We said that this is a constitutional responsibility. But how does this work in practice? First of all, the state should determine the disaster risks. This study should be carried out with a scientific study, taking into account the disasters experienced in the past. When you say that Turkey is an earthquake country, of course, this proposition has a scientific basis. Similarly, we can make the propositions that landslide and flood are also a disaster risk for Turkey by looking at the experiences, geography and precipitation regimes. We can also localize these propositions geographically. The state has these data. According to the available data, we can easily say that the areas of forest prevalence will expand and increase every year within the scope of global warming, and we will encounter more floods and landslides. We call this determination predictability.

After the risk analysis is made and the disaster risk is localized, the measures to be taken before, during and after the disaster are determined and the institutional infrastructure and legislation are completed for this purpose. Have these studies been done in Turkey? Yes it has been done.

As legislation, there are Law No. 7269 on Assistance to be Taken Due to Disasters Affecting Public Life and Civil Defense Law No. 7126.

In 2009, AFAD (Disaster and Emergency Management Presidency) was established under the Ministry of Interior with the Law No. 5902 on the Organization and Duties of the Disaster and Emergency Management Presidency.

For pre-disaster risk analysis and coordination, the Turkish Disaster Risk Reduction Platform was established in 2011 with the decision of the Council of Ministers. Under the chairmanship of AFAD, the Platform consists of the General Staff, ministries and other public institutions and organizations, universities, local administrations, press and broadcasting organizations, and professional organizations, non-governmental organizations and private sector representatives, which are public institutions that carry out activities related to the field of duty of the Presidency.

Now, let's examine the responsibility of the state in natural disasters within the concepts of administrative responsibility, fault of the administration, force majeure, unpredictability and unavoidability.

ADMINISTRATIVE RESPONSIBILITY

The administration is responsible for every transaction and action it takes. Administrative liability is divided into two as faulty liability and strict liability. For the responsibility of the administration to arise;

There must be an administrative act and this behavior must be attributable to the administration.

If a loss occurs as a result of this behavior,

There must be a causal link between this behavior and the harm.

ADMINISTRATION'S FAULT

The responsibilities arising from a faulty behavior in law are criminal liability and financial liability. Financial responsibility is called the payment of the damage caused by one person to another with his assets. Criminal responsibility, on the other hand, is evaluated within the scope of actions and acts defined as crimes in the Laws. It is possible for administrative actions that are in accordance with the law to be faulty. Faulty liability is explained on the basis of the concept of “service fault”. A service defect is called "no service", "late processing" or "malfunction" of the service. The fact that the service does not function at all means that the administration remains inactive in the face of the activities that it is obliged to perform, that the service does not work in accordance with the requirements of the service, and that the service is not performed in a reasonable time in accordance with the requirements of the service.

FORCE MAJEURE

Force majeure refers to unforeseen and unpreventable events that are outside of the activities carried out by the administration. Force majeure removes both the faulty and strict liability of the administration. The legal nature of disasters is the responsibility of the administration.