A fire that recently occurred in a tourism enterprise in Bolu province has brought about discussions regarding legal and criminal liability. In this context, our study aims to clarify the discussions by addressing legal and criminal liability regarding a fire that occurred in a tourism enterprise.
According to Article 52 of the Municipality Law No. 5393; the working procedures and principles of the fire department, the duties and authorities of the employees, and the units to be established in the fire department according to the service requirements are regulated by a regulation to be issued by the Ministry of Environment and Urbanization after receiving the opinion of the Ministry of Interior. The regulation in question is the Regulation on the Protection of Buildings from Fire No. 26735 published in the Official Gazette dated 19.12.2007. According to Article 5 of the Regulation in question; if the projects do not comply with the conditions stipulated in the Regulation in terms of safety against fire, in addition to the legal regulations, a building permit cannot be issued. Likewise, if it is determined that the construction was not carried out in accordance with the principles stipulated in the Regulation in newly constructed buildings or those whose purpose of use has been changed through project modifications, a building occupancy permit or work permit cannot be issued for the building until these deficiencies are remedied.
Article 6 of the Regulation stipulates that the authorities authorized to issue building permits shall inspect whether fire extinguishing, detection and evacuation projects and applications comply with the provisions of the Regulation. In clearer terms, the authority authorized to issue building permits is also the authority responsible for conducting fire-related inspections. Within this framework, according to Article 131 of the Regulation titled ‘Inspection’; private structures, buildings, facilities and businesses are inspected by the local fire department and the inspectors, controllers or inspection personnel of the ministry and public institutions and organizations to which they are affiliated or related. As a result of the inspection, the deficiencies found to be deficient and requested to be remedied and the requested measures must be implemented by the relevant parties within the appropriate period.
According to Article 6/3 of the Regulation, due to fire damages caused by non-compliance with the Regulation provisions;
a) Building owners, employers and employer representatives involved in the construction of the building,
b) Architects and engineers responsible for design, implementation and inspection,
c) Building inspection organizations,
ç) Contractors, manufacturers and consultants,
According to their faults, they are responsible.
In light of the provisions in the legislation, the municipality, special provincial administration or relevant ministry authorized to issue building permits is also responsible for conducting inspections. As can be understood, the fire department does not have the authority to inspect. As for the tourism business where the incident took place, the license of this business was issued by the Ministry of Culture and Tourism in 1997. Therefore, it is clear that the relevant Ministry authorized to issue permits is also responsible for inspections related to fires. However, the Ministry’s ability to issue a building permit depends on the submission of a ‘suitable report’ by the fire department affiliated to the municipality. In clearer terms, the Ministry of Culture and Tourism can only issue a permit upon a ‘suitable report’ by the fire department affiliated to the municipality. If the fire department affiliated to the municipality has reported the fire risk assessment in an untrue or erroneous manner, in this case, the responsibility of the municipality will come to the fore in addition to the responsibility of the Ministry.
In this case, there is no doubt that the criminal responsibility of both the municipality officials authorized to prepare the relevant report and the Ministry officials responsible for inspection can be brought to the fore. Likewise, it is certain that legal responsibility will come to the fore in addition to criminal responsibility. In this context, it is possible to file a full jurisdiction lawsuit against the administration for compensation for material and moral damages caused by the fire.
It should be noted that the compensation claim to be directed to the business authorities is the compensation for loss of support to be put forward in the civil courts. The compensation for loss of support is a special tort compensation granted to the relatives of the deceased as a result of a tort, which aims to compensate for the damages resulting from the loss of life. The conditions sought for the application for compensation for loss of support are as follows: First, there must be an unlawful act and the person who suffers the damage as a result of this act must lose his life. Second, the condition of damage as a result of the unlawful act must be met. In addition to death, the material and moral damages that the recipients of support are deprived of and the future damages are included in this scope. Third, there must be a suitable causal link between the unlawful act and the damages that occur after death. Finally, the unlawful act must be committed with fault. It is not important whether the fault occurred with intent, negligence or negligence, it is sufficient for the person not to have shown the necessary care and attention and not to have demonstrated the will to avoid the unlawful act.[1]
The damages to be compensated within the scope of compensation for loss of support are regulated in Article 53 of the Turkish Code of Obligations as funeral expenses, treatment expenses if death did not occur immediately, losses arising from the decrease or loss of working capacity, and losses suffered by persons deprived of the support of the deceased due to this reason. In addition, according to Article 56 of the Law, in the event that a person’s physical integrity is damaged, the judge may decide to pay an appropriate amount of money to the injured party as moral compensation, taking into account the characteristics of the incident. In addition, in the case of serious bodily harm or death, an appropriate amount of money may be decided to be paid to the relatives of the injured party or the deceased as moral compensation.
Regarding the subject, the General Assembly of the Court of Cassation Civil Law included the following statements in its Merits No. 1528 and Decision No. 412, dated 21.4.1982;
“There is no obligation for the support aid to be solely monetary in nature. Because, the deceased’s power and ability to serve also constitutes a financial opportunity that can be expressed in money.
No matter how many children the mother and father have, no matter how much their financial situation is, and even if their future is guaranteed by institutions (social security institutions), it is not possible to predict whether they will one day fall into need and not be dependent on their children.
It should be accepted that if the death had not occurred, people who were likely to benefit from the deceased’s assistance in the near or distant future may also request financial compensation.
… There is no obligation for the support to be solely monetary. Because, the deceased’s power and ability to provide service constitutes a financial opportunity that can be expressed in money.
According to Article 6 of the Civil Code, the burden of proof in these cases falls on the plaintiff as a rule. However, the person who relies on general life experiences and the normal course of life is no longer obliged to prove his claim. If it can be expected that the deceased child will take care of his parents in the future within the normal course of life and events, the child is support for them.”[2]
[1] Kılıçoğlu, Mustafa, “Trafik Kazası, İş Kazası, Meslek Hastalığı, Haksız Fiil Sonucu Ölümden Doğan Destekten Yoksun Kalma Tazminatı” Yıl 2014, Sayı 1.
[2] The General Assembly of the Court of Cassation Civil Law, Merits No. 1528 and Decision No. 412, dated 21.04.1982.