After the building in Güvenkent 1 Site Block B in Gaziantep's Şahinbey district was found to be moderately damaged during the February 6 earthquakes centered in Kahramanmaraş, H.Y. Citizen named filed a lawsuit against Gaziantep Metropolitan Municipality, Şahinbey Municipality, Ministry of Environment, Urbanization and Climate Change and Disaster and Emergency Management Presidency on the grounds that there was a service defect, demanding compensation for the price of the real estate, loss of value, and material and moral damages.
In the expert report received in the case heard at Gaziantep 3rd Administrative Court, Şahinbey Municipality was found to be 15 percent at fault for the damage, Gaziantep Metropolitan Municipality 5 percent, Ministry of Environment, Urbanization and Climate Change 3 percent, and AFAD 2 percent.
Applying a 20 percent unavoidable discount by deducting the depreciation for the house price, the Court ruled that the determined amount of 136 thousand 991 liras and 40 kuruş should be paid to the plaintiff in line with the fault rates of the administrations.
The Administrative Court noted that the fault of the administrations was not "intentional" but "at the level of negligence" and that the fault of the third parties was found to be more serious, and decided to pay 50 thousand lira of non-pecuniary damages to the plaintiff in line with the fault rates.
The court ruled that Şahinbey Municipality should pay a total compensation of 112 thousand 194 liras, Gaziantep Metropolitan Municipality 37 thousand 398 liras, the Ministry of Environment, Urbanization and Climate Change 22 thousand 438 liras, and AFAD 14 thousand 959 liras to the plaintiff, with legal interest accruing from the date of application.
The defendant administrations filed an appeal against the decision to the 9th Administrative Case Chamber of the Gaziantep Regional Administrative Court. The chamber annulled the decision of the Gaziantep 3rd Administrative Court because the expert report was insufficient and the fault rates were not sufficiently justified.
In the decision, it was stated that "The court concluded and concluded that the decision subject to the appeal was not in compliance with the law, given without clarifying the ownership relationship of the immovable property in question with the plaintiff, without making an investigation as to whether the structures were incomplete or not, and based on the expert report, which contained insufficient justification and which could not be taken as a basis for the decision in its current state." and it was stated that the file was sent to the court for a new decision.
AKP's Şahinbey Municipality paid 204 thousand 639 lira to the earthquake victim with legal interest before the decision was lifted by the appeal. However, after the court decision was annulled, the Municipality initiated enforcement proceedings for the refund of the money it paid and demanded that the amount in question be collected with legal interest at the rate of 31 percent annually and varying rates.
The earthquake victim's lawyers rejected the refund and objected to the enforcement proceedings. Şahinbey Municipality filed a "case for cancellation of the objection against the objectionable pursuit". Şahinbey Municipality, in the lawsuit filed at the Gaziantep 9th Civil Court of First Instance, argued that "the unfounded payment should be taken back in order to prevent public harm."
In their response petition, the lawyers of earthquake victim H.Y. stated that they initiated "execution proceedings without judgment" for the return of the 204 thousand 639 liras and 61 kurus paid by Şahinbey Municipality to their client in line with the decision of the Gaziantep 3rd Administrative Court, citing the annulment of the decision in the appeal review.
In the petition, it was argued that the decision of the Gaziantep Regional Administrative Court 9th Administrative Case Chamber was not a rejection decision concluding the full jurisdiction case on its merits, but rather a removal decision to send the file to the first instance court in order to complete the incomplete investigations, and therefore, it was stated that there was no finalized, due and enforceable refund claim in favor of the municipality.
Lawyers of earthquake victim H.Y. evaluated as follows:
"In the full jurisdiction lawsuit we filed against the administrations to compensate for the damage to the real estate destroyed as a result of the earthquake dated February 6, 2023, Şahinbey Municipality, which based the removal decision of the 9th Administrative Case Chamber of the Regional Administrative Court in order to eliminate procedural deficiencies and has 15 percent fault in line with the expert report, demands the refund of the compensation amount it paid, along with an exorbitant interest, through enforcement.
Şahinbey Municipality's initiation of enforcement proceedings against citizens who suffered greatly due to the earthquake constitutes a violation of conscience and law. "While Gaziantep Metropolitan Municipality, Şehitkamil Municipality and Nurdağı Municipality, which are defendants in the lawsuits we filed in Gaziantep, do not have such an attitude, it is unacceptable for Şahinbey Municipality to misinterpret the decision and demand the return of the compensation it has paid, to complicate the work of the citizens who are the plaintiffs in the municipality and to force the citizens to waive the case."
