Determination and Recommendations regarding the Main Procedural Problems in Terms of Earthquake-Related Civil Cases

“It is Not Possible to Get Rid of the Responsibility of Those Responsible by Obscuring the Evidence of the Earthquake, On the Contrary, Their Responsibilities Increase”

Prof. Dr. Muhammet Özekes

(12.02.2023)

If the CCP and procedural rules can be applied consciously, correctly and quickly, the judiciary can get out of this earthquake without being in the wreckage. Because, there is a significant remedy for the judicial problems in this regard. Otherwise, a victimization will also come out through the judiciary.

By collecting what I have previously written about the damages caused by the earthquake and other civil cases, and

in addition, it is necessary to draw attention to the following issues again (detailed academic work on this topic October also

we will share):

1. In these cases, if the judicial authorities, especially the BAMS, which are the places of jurisprudence, and the Supreme Court apply the procedural rules consciously and correctly, it is impossible for any responsible person to get rid of them by destroying, eliminating, and obscuring evidence. Victims will also not face unnecessary procedural difficulties. Because, especially in the face of the CCP numbered 6100, their efforts on this issue are a futile effort. There are many possibilities for these tr situations in HMK. Even at the moment, instead of the victims, on the contrary, the main public institutions (municipalities, ministries, administrative units, etc.), contractors who build buildings, relevant architects and engineers, building inspection firms and those who allow, build, inspect buildings in this way, that is, those who are primarily responsible for this, should make efforts to preserve the evidence. Because the absence of this evidence will work against them, not the victims.

2. This determination should in no way mean that the disappearance and elimination of evidence will be tolerated at the moment, should not be interpreted, and the use of opportunities in this regard should not be abandoned. Regarding urgent things to be done in this regard, AHGİzmir’s (@AHGizmir) report, which I also contributed to, should be looked at. This report was delivered to the TBB, Bar Associations and relevant places and shared with the public.

3. In such civil cases to be opened, the discretion to prove is of the nature that it can be with evidence, with all kinds of evidence. For this reason, there is no limitation of proof based solely on the document.

4. In these cases, apart from the claim burden of the plaintiff victims and the basic embodiment burden to a certain extent (such as building, ownership or use, damage), especially the embodiment burden related to the building and the technical aspect of the building (HMK m. 194) does not exist; this burden will essentially belong to the defendant parties. For this reason, judicial organs should expect this from the defendants, not from the plaintiffs, in the cases to be opened in the future.

5. The burden of proof (HMK m. 190), but especially the burden of substitution of evidence is not on the plaintiff victims except in the limited cases mentioned above, but significantly on the defendant administration, contractor, relevant architect-engineer, building inspection officers, etc. above. Because it is possible for the plaintiff, who is the victim of the evidence, to keep it in his hands, to preserve it and to have it all. No building owner can have these detailed documents other than basic documents, they must be prepared and maintained by the specified persons. It is clear that the information and documents on this subject, the nature of the work and the duty of greinte are in the above-mentioned defendants by law. In this case, the evidence for the proof is on the other side. In this case, the defendants have to present and bring the evidence on this issue in the case; that is, these possible defendants are under the burden of evidence substitution. This means that if the defendant party cannot present the evidence on this issue completely and cannot prove otherwise, a decision will have to be made against him.

6. In addition, there will be a procedural situation against the party who is understood to have destroyed the evidence and eliminated it (even if the evidence has not been determined before). One reason for this is the effect of negative party behaviors on the proof, and the other is the procedural honesty rule (HMK m. 29). Moreover, at the request of the other party or by the decision of the court, the parties must submit the evidence they have, otherwise

a decision is made against them (HMK m. 219 et seq.). It may even be the case that those who do not preserve and eliminate the evidence are liable for additional damages caused by this.

7. There is no need to prove the cases that are known to everyone (known and legitimate) (HMK m. 187/2). For that reason

at least in matters that are known to everyone in that region, there will also be no need for proof.

8. Essentially, the measure of proof sought in a case, that is, the opinion that must be formed about the claim at the time, is full proof, full conviction. However, in certain cases, in cases clearly specified in the law (for example, precaution, determination, etc.) or if the nature of the work does not make complete proof possible, approximate proof can also be satisfied. At that time, if the plaintiffs prove their claims by a weighted probability, the judicial organs may decide against the defendant institution, public institutions and related persons with approximate proof without seeking full proof.

9. Direct proof may not be possible in such cases. In this case, the indirect proof, that is, the presumption proof,

the first appearance proof, the sign proof will also come into play. Therefore, the plaintiff must directly prove that case

if not, it is possible to prove it with side cases.

10. It can be said that the basic conditions in terms of legal aid are formed in these cases. For this reason, mortar, etc.

claimants should be exempt from expenses. The best way to do this is to take a temporary

the arrangement is to be made.

11. The community litigation of such cases (HMK m. 113) may be possible to be filed (but for certain claims), as well as for the plaintiffs in a significantly uncertain receivable case (HMK m. 107) it can be said that the conditions are formed. Also, the existence of a specially sought legal benefit can be mentioned in the determination case (HMK m. 106).

12. The responsibility for the failure to collect evidence and delay, the failure of the State to take the necessary measures, and the late and poor functioning of the trial is not on the victims, but on the State. Because, it is the main and indispensable duty of the State to take measures on this issue, to operate the courts in a series, to provide judicial services. For this reason, in terms of Decriminalization, individual avenues of application such as freedom of seeking rights, access to justice, the right to a fair trial will also be open. In fact, depending on the situation in this regard, the individual application method can also be applied directly for cases where domestic legal remedies are clearly ineffective / ineffective. Also, it is likely that many applications for violation of fundamental rights, especially the right to life and the right to property, will come before the Constitutional Court and the ECHR during the process. Work should also be done on this issue.

13. As an issue that will be discussed and raised, it is whether special courts can be established for lawsuits to be filed due to the earthquake at this time. Special investigation authorities and law enforcement agencies can create in this regard. However, at the moment, there may be a violation of the principle of natural law in terms of the courts to be established on this issue. However, as a practical method in this regard, new courts of first instance may be established in the region or in places that will be authorized in this regard, some of them may be assigned to the distribution of work in this regard, and their judges may be trained both in terms of procedure and basis.

14. Since the Covid pandemic, we have emphasized the need for a Law on the Conduct of Judicial Proceedings in Exceptional Cases many times, especially regarding the deadlines and urgent actions to be taken, a framework to be implemented by Presidential decision, and we have made a proposal on this issue. But it was not taken into account, this time there were both grievances, and the Presidential Decree was published, the application of which turned into solving a puzzle. However, if such a law existed, the judiciary would also know what to do in advance, and the Decree would only include some considerations related to the date and concrete situation.