During the February 6 earthquakes in Kahramanmaraş, 35 people lost their lives, the youngest of whom was 6-month-old baby Asude, as a result of the collapse of Ezgi Apartment in Onikişubat district.
At the verdict hearing held on September 11, Kahramanmaraş 4th High Criminal Court sentenced the detained patisserie owners Sami Kervancıoğlu and Mustafa Pekel to 8 years in prison each for the crime of "causing the death and injury of more than one person through conscious negligence" and decided to release them with a judicial control order.
Mehmet Tekin, who was technically responsible for the same crime, was sentenced to 6 years and 8 months in prison with a good behavior reduction and a 2-year ban from his profession.
Kahramanmaraş Municipality officials of the period, former Director of Public Works Fahri Yiğitoğlu, architect Veli Çiftaslan, Onikişubat Municipality Deputy Director of Zoning and Urbanization Sait Avşar, civil engineer Ali Gemci and construction technician Mehmet Akif Yaşam were sentenced to 4 years, 5 months and 10 days in prison with a reduction for good behavior for "causing the death and injury of more than one person through conscious negligence".
The committee decided to acquit the patisserie's interior designer, Ertan Danacı, and the public officials of the period, architect Mehmet Dışçeken and mechanical engineer Mustafa Şirikçi.
"THERE IS NO EVIDENCE THAT THE PASTRY MAKERS ACT WITH THE motivator 'NO MATTER WHAT'"
The court stated that Sami Kervancıoğlu and Mustafa Pekel, the officials of the pastry shop on the ground floor, who were sentenced to 8 years in prison for "conscious negligence" and released under judicial control, carried out destructive renovations.
In the decision, it was noted that "there is no evidence that the defendants accepted the outcome to occur or acted with a 'no matter what' motive when committing the actions." It was reported that some public officials in Onikişubat Municipality did not reflect renovations that were "visible to the naked eye" and contrary to the zoning legislation and license, in their reports.
PROSECUTOR'S OFFICE: 3 DEFENDANTS SHOULD BE EVALUATED WITHIN THE SCOPE OF "POSSIBLE INTENTIONAL KILLING AND WOUNDING"
Kahramanmaraş Chief Public Prosecutor's Office appealed the decision of the Kahramanmaraş 4th High Criminal Court.
The Chief Public Prosecutor's Office requested that the convictions against the defendants Sami Kervancıoğlu and Mustafa Pekel be annulled and their actions be evaluated within the scope of "intentional murder with possible intent" and "injury with possible intent".
The Prosecutor's Office, which also requested the acquittal decision against the defendant Ertan Danacı to be annulled, stated that Danacı's action cannot be evaluated separately from the actions of the defendants Sami Kervancıoğlu and Mustafa Pekel, who had the patisserie renovations done, and that he should be punished within the scope of the crimes of "intentional murder with possible intent" and "injury with possible intent".
The Chief Public Prosecutor's Office also requested that a higher sentence be given to the defendant Mehmet Tekin, and that the acquittal of public servant defendants Mehmet Dışçeken and Mustafa Şirikçi be annulled, and that they be punished for the crime of "recklessly causing the death and injury of more than one person". He requested that the "conscious negligence" provisions against public servant defendants Ali Gemci, Veli Çiftaslan, Sait Avşar, Mehmet Akif Yaşam and Fahri Yiğitoğlu be abolished, their actions be evaluated within the scope of "simple negligence" and the defendants be banned from the profession.
"INTERVENTIONS TOWARD CARRIER SYSTEM ELEMENTS WERE PREDICTABLE"
The following evaluation was included in the appeal requests made by the defendants Sami Kervancıoğlu, Mustafa Pekel and Ertan Danacı:
"In the concrete case, it has been determined through expert reports and the scope of the file that the interventions in question are not ordinary or simple renovation activities; they are aimed at critical elements in terms of the load-bearing system of the building such as columns, beams, curtains and floors, some load-bearing elements were cut or removed, gaps were opened in the walls and operations that directly affected the integrity of the structure were carried out.
It must also be accepted that the defendants, while carrying out these activities, were in a position to foresee the serious consequences that the productions in question might have in terms of building safety, within the ordinary conditions of life. Especially considering the fact that the defendant Ertan Danacı is an architect and the defendants Sami Kervancıoğlu and Mustafa Pekel, as the operators of the workplace, in the process of carrying out the renovations, it is clear that the interventions on the carrier system elements cannot be considered as an ordinary decoration activity.
It is technically foreseeable that such interventions on the load-bearing system may weaken the structural safety. Based on these issues, it should be evaluated that the defendants continued their actions despite foreseeing the severe consequences that might arise as a result of their actions and accepted the result with the thought of 'no matter what'.
In the court decision, it was stated that there was no direct evidence that the defendants accepted the outcome or acted with a 'no matter what' motive. However, in terms of accepting 'possible intent', it is clear that the will of the perpetrator must be determined based on the conditions of the concrete event, the nature of the action, the magnitude of the danger, the knowledge and experience of the perpetrator and the way the action is carried out. The material facts available in the file show that the load-bearing system elements were directly destroyed, these interventions were carried out without a license and without a project, and despite this, the actions continued.
Moreover, according to the court's acceptance, the defendants' destructive renovations changed the seismic behavior of the building and, combined with the existing serious defects, contributed to the resulting result. In other words, the court accepted the causal link between the defendants' actions and the result of death and injury, but evaluated the moral element of the actions as 'conscious negligence' instead of 'possible intent'. Therefore, the evaluation that should be made by the court is 'were the actions alone sufficient?' Rather than the question, the defendants should focus on the nature of the interventions they made and whether their continuing to carry out these interventions, despite foreseeing the outcome of death and injury due to their technical knowledge and position, means accepting the result.
When the available evidence within the scope of the file is evaluated as a whole, this is the conclusion reached. For these reasons, the actions of the defendants Sami Kervancıoğlu and Mustafa Pekel are in accordance with Article 21/2 of the Turkish Penal Code. "It must be accepted that it was carried out with 'possible intent' within the scope of the article."
"DANACI'S CRIMINAL LIABILITY CANNOT BE DETERMINED BY CONTRACT ONLY"
In the appeal application of the Chief Public Prosecutor's Office, it was stated that the acquittal decision given for the defendant Ertan Danacı was incompatible with the scope of the file and the following findings were included:
"Basically, the court accepted that, based on the scope of the contract dated December 1, 2016, it was regulated that some renovations would be made by the employer and official permits were the responsibility of the employer, and gave an acquittal decision based on the evaluation that a causal link could not be established for the defendant in the expert reports dated April 22, 2026 and June 15, 2026. However, the division of labor in the contract regulating the private law relationship cannot alone be decisive in determining criminal liability. Which party's contractual obligation an action falls within, who actually carried out that action, and whether the defendant is at fault in terms of criminal law for the outcome are different matters.
As a matter of fact, it is understood that there is evidence in the file that the defendant Ertan Danacı, in his capacity as an architect, had professional knowledge that could foresee the structural consequences of the interventions carried out, that he acted together with the defendants Sami Kervancıoğlu and Mustafa Pekel and that he actually participated in some heavy renovations that were shown to be out of contract, and that it is not possible to evaluate the interventions independently of each other."
"THE ACTIONS ARE EVALUATED WITHIN THE SCOPE OF 'POSABLE INTENTION'..."
"Although the court focused on the defendant's obligations within the scope of the contract in terms of Ertan Danacı and who owns the work outside the contract, it seems that the interventions on the carrier system that the defendant actually carried out or participated in carrying out together with other defendants were not discussed sufficiently in terms of concrete evidence. Especially, even though it was accepted in the expert report on which the court's decision was based, that the renovations of the patisserie directly changed the earthquake behavior along with the weaknesses of the existing structure, it is not enough to terminate the criminal liability of the defendant Ertan Danacı, who had an actual contribution and professional position in the realization of these renovations, solely based on the contract provisions.
Even if it is accepted that the defendant's actions should be distinguished from the actions of other defendants, this separation must be based on concrete evidence. The technical findings within the scope of the file and the material facts revealed do not justify excluding the defendant from the incident just because of the contractual provisions. For this reason, the verdict of acquittal given against Ertan Danacı in accordance with Article 223/2-e of the Criminal Procedure Code should be annulled and his actions should be evaluated within the scope of 'possible intent' and punished."
