Disasters and the Principle of Responsibility of the Administration

Article 5 of the Constitution of the Republic of Turkey states, “The fundamental aims and duties of the State are to safeguard the independence and integrity of the Turkish Nation, the indivisibility of the country, the Republic and democracy, to ensure the welfare, peace, and happiness of the individual and society; to strive for the removal of political, economic, and social obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law; and to provide the conditions required for the development of the individual’s material and spiritual existence.", which guards the concept of "public interest" that should be adopted in the functioning of the state. Accordingly, the State has to carry out public services and protect the public interest in these services. Disasters, which are one of the public services of the state, undoubtedly increase the responsibility of the administration due to their consequences.

The concept of the responsibility of the administration is examined in the doctrine in two groups as "the responsibility of the administration arising from service failure" and "the strict liability of the administration". In cases where the service provided by the administration does not function, functions negatively or there is a malfunction in its functioning, the administration is deemed to be defective. On the other hand, there are decisions by the Council of State which state that the administration, which has fulfilled its responsibility in accordance with the law, cannot be held responsible for the losses, even in the presence of individuals suffering from these losses. Based on this opinion of the Council of State, it is possible to state that the administration, which fulfills its obligations in accordance with the law, is not responsible for the damage, and is not liable for compensation. In order to be able to claim that there is a liability due to the fault of the administration, the service must not function, function negatively/badly, be delayed or fail.

In another decision of the Council of State upon the claim of the individuals, who lost their relatives in an earthquake, one of the natural disasters, that the administration performed the necessary rescue activities insufficiently, they suffered loss of life because of this insufficiency, and moral damage was in question, the Council of State decided on compensation for the damage. This decision and similar decisions taken by the Council of State on compensation for damage lead the administration to reduce the number of its faulty behaviors in public services.

Undoubtedly, the responsibility of the administration regarding disasters is not only for the post-disaster period. Management during the disaster and the control process before the disaster are also within the responsibility of the administration. Losses and damages caused by disasters necessitate the administration to perform activities in order to generate solutions. The administration is responsible for carrying out activities and taking precautions against all possible disasters. While the administration carries out strategy plans to protect the society, it should also conduct preparatory studies in its own functioning and structure for possible disasters.

As experienced in the 1999 earthquake in our country, the failure to carry out the preparations for disasters caused an increase in the number of lives and properties lost. The administration was held responsible for the losses and damages incurred in the earthquake in question, and many lawsuits were filed for this reason. In one of the cases of dispute, the Council of State decided to uphold the decision of the first instance court, and rejected the request for appeal made by the defendant municipality for annulment on the grounds that "...the building was destroyed by severe damage due to the earthquake, and the plaintiff's wife and two children died under the rubble.; the respondent municipality stated that there was no transaction file related to the building in which the plaintiff was living as a tenant, the building was constructed illegally without obtaining a license, the aforementioned administration failed to make any determinations and issues regarding the building both during the construction phase of the building and at the later stages, there was no inspection, the demolished building was constructed illegally, it was destroyed after the earthquake as a result of using faulty materials and workmanship, the defendant municipality, which did not fulfill the inspection and surveillance duties given by the laws, was 100% defective in the occurrence of the damage." Article 17 (Right to Life) of the Constitution of the Republic of Turkey imposed the responsibility to protect its citizens and to use all means at its disposal on the state. The administration is obliged to take all strict measures regarding the right to life.  This right is protected by both the articles of ECHR and decisions of ECTHR in the international arena as well as in domestic law. ''Öner Yıldız V. Turkey Decision'' is one of the leading precedents of the European Court of Human Rights in this regard. Regarding the application made to Court filed in 1999 on the grounds that the state authorities were responsible for the death of 13 members of families and the damage to their properties as a result of the methane gas explosion that occurred in the Istanbul-Ümraniye municipal garbage storage in 1993, Articles 2, 8 and 13 of Protocol No. 1 of ECHR were violated, and the administrative action was not carried out in accordance with Article 6/1 of the Convention, the Court decided that the administrative and local units of the state were responsible for the control of the garbage areas that posed a risk in the case of a technical field such as the operation of garbage centers in the context of Article 2 of the Convention, which regulated the right to life; and that although the national authorities never encouraged the applicant to come near a dump, they did not take any measures to prevent them from coming near according to all indicators, and the official authorities did not evacuate people although they were aware of the methane gas compression (Cengiz, 2011:394).  The Court decided that it was important to make regulations regarding harmful activities that could damage human life by creating an administrative structure, preventing the elements that posed a threat to the right to life, that the state should supervise such activities when necessary, ensure security and force everyone to take measures in order to protect those in danger against risks, and that for these reasons, the Article 2 of the convention regulating the right to life was violated (Kızılyel, 2014:280).

One of the important shares in overcoming disaster periods with minimum damage is the crisis management process of the administration. Being prepared for a disaster and being able to manage a disaster complement each other. It is not possible to survive for states that are not able to manage a crisis. While the state administrates the society, it also acts as a roof over other organizations/organizations involved. For this reason, the functioning of the state is directly related to the crisis management abilities of the administrators within this organization. State administrators should be prepared for the disaster and they should be able to manage the crisis arising from the disaster. “Administration must manage the crisis before the crisis turns into an administration crisis” (Demirtaş, 2000, p.353).

Crises caused by disasters are the physical and mental damages arising from these losses as well as the losses of life and property. Along with those, who are exposed to the disaster, the individuals in their environment, individuals who help in the disaster, and even individuals, who witness the disaster through mass media, might experience these damages. Accordingly, all levels of the administration, especially local administrations, have important parts to play. It is very important to prepare the society for the disaster step by step, and to create disaster awareness starting from the local level.

The fact that the Council of State considers natural disasters to be within the responsibility of the administration, and evaluates as faulty service when the administration acts irresponsibly in case of disasters, indicates that the administration is liable to compensate for the incurring damages. (See Council of State 15.04.2014 T., 2013/6954 E., 2014/3101 K.; 13.05.2015 T., 2014/9625 K., 2015/3013 E.) The decisions taken by the Council of State in this regard have a deterrent nature for the administration to take the necessary measures. On the other hand, in the decisions of the European Court of Human Rights, the criteria sought in terms of assigning responsibility to the administration in case of disasters include the determination of whether the disaster is identifiable and whether it affects the residential area.

The state is responsible for preparing a balanced and livable settlement plan, using natural resources in the most efficient way in these plans and thereby, ensuring development. Failure to prepare this plan pushes the society to seek alternative solutions due to the sense of helplessness they experience. Especially the economic insufficiency is the most important factor contributing to this search for a solution and the formation of a new system that cannot be established correctly. The system that cannot be established is the squatting itself.

When the need for shelter arising from the increasing population cannot be met by both the state and the individual, and when a social policy cannot be developed for this need, the society meets the need for shelter by building slums. Unavoidable squatting leads to unplanned urbanization, an unstable environment, cultural differences, and limitation of natural resources.  In this context, the state should fulfill its responsibility by taking measures in accordance with the provisions of the Articles 5, 23, 56/1, 57 and 65 of the 1982 Constitution.

Urban transformation plans are implemented in order to ensure the right to housing of the society, to prevent settlement in areas in risk of disaster, and to ensure livable and healthy urbanization. With these plans, the administration fulfills its supervision and control responsibility arising from the legislation by preventing settlement in areas exposed to disasters with strict measures. As stated above, the slightest act of negligence by the administration still remains within the scope of its responsibility, and judicial decisions are in favor this perspective. On the other hand, it should be noted that a loss must have arisen as a result of the negligent act of the administration. For example, in case a house is demolished due to the risk determined by the administration, the owner of the house can demand compensation for the damage. This right of claim is based on the principle of fault liability.

Force majeure is a condition that cuts the causal link between the resulting damage and the procedure or action that has caused the damage, making it impossible to fulfill the debt (Gözübüyük, 1977, p.166), and in this context, abolishing the principle of responsibility of the administration. Force majeure can be natural as well as humane, social and legal.

In order to be able to talk about force majeure, the elements of unpredictability, externality and irresistibility are required. If a natural disaster meets these criteria, it is considered as force majeure. In case of force majeure, it is also evaluated whether the administration is at fault in the increasing part of the damage. However, it should be noted that in an event where there is force majeure, the administration is responsible for the compensation of the damage when it is impossible for force majeure to produce results without the fault of the administration.

In case the damage is not caused by the administration and it is caused by the preferences and actions of the individual, then the causal relationship between the damage and the administration is terminated and the responsibility of the administration does not arise. On the other hand, both the administration and the individual may be at fault in the cause of the damage. This situation is considered as partial liability. The absence of fault is essential for the existence of force majeure (Gözübuyuk, 1977:66).