Why Do Authorised and Responsible Persons Not Bear the Consequences of Their Negligence and Defects After the Earthquake Destruction?

On 06 February 2023, after the great earthquake disaster we experienced, search and rescue and then debris removal works started. Debris removal works are still ongoing. 

According to the data of the Ministry of Environment, Urbanisation and Climate Change, a total of 478,280 buildings were affected by the earthquake, 105,739 buildings were completely destroyed or heavily damaged, 34,670 buildings were moderately damaged and 337,891 buildings were slightly damaged. Although the exact number is not yet known, the lifeless bodies of around 45,000 people have been recovered from the rubble of these buildings. The actual number may be even higher. 

Many of our people who were exposed to this great destruction were injured and millions of our people were left homeless and homeless on the streets. We all know that the response to the earthquake was inadequate at the first moment. The spear does not fit in the sack. Nevertheless, as a result of the efforts of our state and the total mobilisation of our nation, the delivery of aid to the earthquake victims is admirable in terms of our national unity and solidarity. 

The unpredictability of the extent of the disaster, the inadequacy in search and rescue activities and the negativities experienced due to lack of organisation are the subject of a separate examination. It is my wish that state institutions and organisations have learned the necessary lessons and that the necessary preparations for a similar natural disaster, God forbid, have been made accordingly.

Since the third day of the earthquake, arrests have started, mostly involving contractors. Of course, those responsible must be found and punished. Whoever is responsible for the destruction of people's lives and property must be held accountable without hesitation and must be held accountable with justice. So, among those who left us with the negative consequences of this earthquake disaster, is it only the contractors who are responsible?

What is Responsibility?

In order to clarify this question, first of all, I would like to dwell briefly on the concept of responsibility. Responsibility is defined as "the individual's ability to adapt, to fulfil his/her duties, to assume the consequences of the effects of an event on others, to respect the rights of others and to own the consequences of his/her own behaviour". In short, responsibility is the task itself. 

According to TDK, it means to assume one's own behaviour or the consequences of any situation that falls within one's jurisdiction. In this case, the person must assume all the consequences of his/her own behaviour or work. 

According to the law; "to account for behaviour contrary to a rule that must be followed, to be held liable for compensation, to suffer the punishment required by a crime committed". When we examine the legal rules, religious rules, writings, articles, articles and works on responsibility, in short, when we examine the legislation, we come across various types of responsibility. 

What is Responsibility in religious sense?

1. Conscientious (moral) responsibility.

Every human being whose creation (fıtrat) has not been distorted by negative reasons feels the authority of conscience, which is in his/her spiritual structure and appreciates or blames him/her according to the place. "Even if the mufti gives you a fatwa, consult your conscience." 

2. Social responsibility.

Islam does not see the individual's life as an event that begins and ends with him/her; it makes the individual responsible to the society on the one hand, and on the other hand, it imposes on the society the responsibility to endeavour for the good of the people.

3. Religious responsibility.

This kind of responsibility arises from the need to believe and completes the deficiency of the other two types of responsibility. The moral decline observed in societies where religious consciousness is weakened shows that the collapse of moral and social responsibilities is inevitable.

What is liability in terms of legal sanctions?

1. Criminal Responsibility.

This type of responsibility refers to bearing the penal sanctions of the act that is considered as a crime by the legal system, which is committed by one's own choice and with the realisation of its meaning and consequences.

2. Legal (Civil) Responsibility.

It means "being liable to compensate for the damage caused by one's wrongful act, failure to fulfil one's obligation or late or bad fulfilment".

In order for a public liability to arise, those who assume responsibility and those who are considered responsible must also have authority. People who are given the responsibility to fulfil a duty must also be given certain powers based on the law so that they can fulfil this responsibility they have taken.

What does authorisation mean?

Authorisation literally means; the right to carry out a task, a job, according to the possibilities provided by the law, under certain conditions. When we examine whether it is possible to delegate authority in the public sector, we see that it is possible. Although the delegation of authority also gives some responsibility to the delegate, we see that the delegation of authority does not remove the responsibility of the delegate. 

The issue of delegation of authority, the delegation of some of the authority of the managers to their assistants or lower level managers is a method that has been applied since ancient times in history. Management is a coordination task and this is done by giving orders and ensuring that the work is done. In both classical and modern periods, "delegation of authority" has been considered as one of the important subjects of administrative science and administrative law.

Issues to be considered in delegation of authority;

1. Delegation of authority must be stipulated by law 

2. Delegation of authority must not be expressly or implicitly prohibited. 

3. Delegation of authority must be in writing and partial.

4. The limits of delegation of authority must be defined. 

5. Delegation of authority must not be confidential and must be announced especially to those concerned. 

6. Authority should be delegated to the authority, not to the personnel. The persons occupying public offices may change, but continuity is essential in the state.

There are also powers that should not be delegated under any circumstances. In the literature, these are listed as follows:

1. Planning Authority

2. The power of organisation, including the classification of the work to be done and the division of labour between the public officials who are to carry out this work

3. Supervisory authority of the superior over subordinates

4. Disciplinary powers

5. Authorisations for the evaluation and promotion of subordinates

6. Power to delegate authority

7. Authorisations for the execution of works with high financial and prestige costs should not be delegated.

As can be seen, although the delegation of authority is in accordance with the law, the delegate cannot transfer the entire responsibility. Even though the delegated authority does not have any responsibility, it cannot in any way relieve the responsibility of supervision. Both religion, social morality and the law require that everyone authorised to do a job should take responsibility for the work they do, and that the persons and institutions that are entrusted with responsibility should be held responsible for the work they do.

In the light of these data, it is clear that every person and institution, from the owner of the construction or building, to every person and institution authorised to do this work, should be responsible for the great disaster in which such a great destruction occurred.

What do our laws say about this issue, starting from the bottom?

Article 57, Paragraph 1 of the Planned Areas Zoning Regulation, which entered into force after being published in the Official Gazette numbered 30113 on 03.07.2017; According to the documents listed in Article 55, the building owner or his representative has given the responsibility to prepare projects in accordance with Turkish Standards, environmental conditions, science, art and health rules and all relevant legislation provisions.

Paragraph 6 of Article 57 gives the building owners the duty to have a static project and a ground and foundation survey that will constitute the basis for the static project. In this context, building owners have duties and responsibilities from the planning stage to the completion of the building.

Article 9 of the Building Inspection Implementation Regulation, which entered into force after being published in the Official Gazette numbered 26778 on 05.02.2008, clearly explains the duties and responsibilities of the building contractor and the site supervisor. In Paragraph 1 of this article; "It is obligatory that all kinds of building construction works are undertaken by real or legal persons who have been authorised by the Ministry". Paragraph 5 states; "The building contractor and the construction site supervisor appointed to represent him are jointly and severally liable for defects in the construction works". Building contractors and site supervisors, who are their representatives, have the responsibility to be present at the construction site at every stage of the construction, to ensure that the works are carried out in accordance with the project and to ensure that materials in accordance with TSE Standards are used.

In Article 5 of the same Regulation, a series of duties and responsibilities are given to the Building Inspection Institutions during the project supervision phase, during the licence obtaining phase and during the construction phase. These organisations are obliged to perform their works in accordance with the conditions specified in the law, in accordance with the zoning plan, science, art and health rules, standards, applicable legislation and professional ethics. No construction can be initiated and executed outside the control of building inspection organisations. In this context, the fact that Building Inspection Organisations may also be at fault for the collapsed and damaged buildings cannot be ignored.

In Article 19 of the same regulation, the working procedures and principles of the Central and Provincial Building Inspection Commissions are clearly defined. Accordingly, the commissions are in charge of examining and evaluating building inspection institutions and laboratories in terms of equipment and technical infrastructure, ensuring the supervision of the activities of building inspection institutions and laboratories, issuing auditor certificates and permission certificates to building inspection institutions and laboratories and taking decisions to cancel these certificates. In this case, it is clear that the Central and Provincial Building Inspection Commissions should also be held responsible if the Building Inspection Institutions have not fulfilled their duties properly.

Article 22 of the Zoning Law No. 3194 states that "In order to obtain a building licence, the building owners or their legal representatives apply to the municipality, governorship offices with a petition. Only the title deed (in exceptional cases, a document substituting the title deed), architectural project, static project, electrical and installation projects, drawings and calculations, and a sketch with survey or, if not available, a dimensional sketch must be attached to the petition. Municipalities or governorships shall examine the licence and its annexes and if there are no deficiencies or errors, a building licence shall be issued within thirty days at the latest from the date of application." It is stated. It is understood from this situation that; If the building is to be built within the municipal boundaries, the building licence is issued by the municipalities, and if it is to be built outside the municipal boundaries, this licence is issued by the governorships.

Regarding Urban Transformation and Development Areas, Article 38 of the Law on Municipalities No. 5393 states that "Metropolitan municipalities are authorised to declare urban transformation and development project areas within the boundaries of metropolitan municipalities and adjacent areas. If deemed appropriate by the metropolitan municipality council, district municipalities may implement urban transformation and development projects within their borders. Metropolitan municipalities are authorised to use zoning plans of all scales, parceling plans, building construction permits, occupancy permits and all similar zoning procedures related to urban transformation and development projects to be carried out by metropolitan municipalities and the powers granted to municipalities in the Zoning Law dated 3/5/1985 and numbered 3194." It is stated. This imposes responsibility on municipalities and governorships for the construction of buildings in appropriate areas and in accordance with the projects.

In Section 12 of Article 5 of Chapter 2 of the Planned Areas Zoning Regulation, which was published in the Official Gazette No. 30113 on 03.07.2017 and whose purpose is "to determine the procedures and principles regarding building and construction, project design and supervision in accordance with the plan, science, health and sustainable environmental conditions";

"A building licence cannot be issued to any parcel in that island until the parcellation plan of the zoning island where a parcel is located is made and accepted by the municipal council and registered to the title deed. In this case, we can see that the responsibility for the construction of buildings in planned areas lies with the Municipal Council.

Although it is stated in Section 3 of the same regulation that "Areas with sanitary and geological hazards in disaster areas such as floods, landslides and rock falls, or areas where construction is prohibited according to zoning plans or reports prepared or approved by the relevant administrations due to their dangerous situations such as these, cannot be subdivided, and structures cannot be built in such places except for facilities for land reinforcement", we see that buildings are also built in areas where construction is not allowed. The Ministry of Environment, Urbanisation and Climate Change, which issued this regulation, must have some responsibility.

Section 7 of the same regulation covers issues related to the Ministry's supervision authority. Since so many buildings have been damaged, it is worth analysing how and to what extent the Ministry performs its supervision duty. Shouldn't the Ministry assume some responsibility here?

There is also the issue of Soil Investigation, which is carried out to measure parameters such as the condition and depth of the underground layer, geological structure, electrical resistivity and basic soil, and whose main purpose is to learn its behaviour in the face of an earthquake, which, in my opinion, is the primary responsibility of all institutions and organisations related to construction, starting from the building owner. Hundreds of buildings have collapsed and thousands of buildings have collapsed because of the structures and settlements built on fault lines.

Conclusion

Authorised persons are obliged to assume responsibility in proportion to their authorisation and bear the consequences. If a building collapses in a place, starting from the owner of this building, the contractor, the building supervision institution, the laboratory authorities assigned with building supervision, the building supervision commissions supervising them, the relevant units of the municipalities and governors who give them building supervision licences and occupancy permits, and the supervisors who give them the authority, the Ministry Auditors who are responsible for supervising them, if the destruction is caused by the ground, all institutions that do not examine the ground structure of these places or allow construction even if it poses a danger, make zoning plans and approve them are responsible.

Based on the fact that responsibility cannot be transferred even if the authority is delegated, it is obvious that all those responsible from past to present must be held accountable before the law. The fact that the arrest of a few construction site chiefs and contractors and the fact that those responsible have saved themselves will take its place as a black stain in the history of the country. 

We have lost many lives and property due to our conscious or unconscious misbehaviour and our failure to give due importance to science. The country's economy has suffered trillions of liras of damage. Of course, these will be held to account, but it is not possible to bring back our lost lives. My hope is that everyone who is engaged in this business will act in accordance with the law by putting their hands on their conscience in the light of science, protecting their moral values and that we will never experience such a disaster again. Every part of the society has a duty in this regard. As long as we, as a society, are conscious, do not give any support to the immoral, do not allow our national and spiritual feelings to be exploited and obey the laws and regulations, it is not possible for another disaster to happen to us. Nothing we experience because of our negligence is not our fate.