Fennur GÜÇLÜ – Lawyer
Suspension of Building Inspection Activity
THE INVESTIGATION PROCEDURE TO BE FOLLOWED IN THE SUSPENSION OF BUILDING INSPECTION ACTIVITY AND THE CANCELLATION OF AUTHORISATION CERTIFICATES
Where building inspection activity is not duly carried out, there are two separate types of administrative sanction applied to building inspection organisations. The first of these consists of the administrative fines imposed by municipalities under the Zoning Law, while the second type of administrative sanction consists of the suspension of inspection activity and the cancellation of the authorisation certificate, which are currently imposed upon the proposal of the provincial building inspection commission chairs and with the approval of the Ministry of Environment and Urbanisation.
Previously, the procedure regarding the suspension of inspection activity and the cancellation of the authorisation certificate was as follows: as is known, before the amendment made to Law No. 4708 on Building Inspection by Decree Law No. 648 dated 08/08/2011, there was only a single Building Inspection Commission Chair at the Ministry headquarters. This commission would launch an investigation into a building inspection organisation found to have committed acts and conduct contrary to the building inspection legislation — whether upon a report or complaint by the municipality, the building owners or third parties, or on its own initiative. This investigation was conducted through the Ministry’s Inspection Board Directorate, and upon the examination or investigation report prepared by the Ministry inspector, activity-suspension penalties would be imposed upon the proposal of the central commission chair and with the Ministry’s approval.
Subsequently, with the “Communiqué on the Procedures and Principles Concerning the Auditing of Building Inspection Organisations, the Suspension of Inspection Activities and the Cancellation of Authorisation Certificates” dated 26 February 2011, issued by the Ministry of Public Works and Settlement, this matter has been regulated in greater detail. This Communiqué is still in force, and the procedures and principles set out in this communiqué must be complied with in the investigations and examinations conducted by the building inspection commission chairs concerning building inspection organisations.
The Communiqué stipulates the following: that, concerning building inspection organisations found to have acted contrary to the building inspection legislation and the architects and engineers employed by these organisations, the technical examination reports to be prepared by the Provincial Directorate of Environment and Urbanisation — that is, by the provincial building inspection commission chair established within that directorate — must be drawn up for each building inspection organisation and for each inspected work on the basis of what we call the YİBF, the “building information form”; that, where the inspection duty has not been carried out in accordance with the legislation, the written defence of those authorised to represent the building inspection organisation and of the architects and engineers responsible for the irregularities in the building must be taken, and that the defence documents must be appended to the examination report; that the irregularities in the building, and the unlawful acts and circumstances of the building inspection organisations and the architects and engineers, must be based on objective evidence in the examination reports, that the evidence must be appended to the report with sequential numbering, and that the architects and engineers responsible for causing the irregularities must be clearly identified; that the examination reports will be assessed by the Ministry building inspection commission; that, concerning building inspection organisations found not to have carried out the inspection duty in accordance with the principles in the legislation and the architects and engineers employed by these organisations, by decision of the building inspection commission and separately for each YİBF, the inspection activity may be temporarily suspended by an approval obtained from the Ministry authority; that the approval will be published in the Official Gazette; and that the announcement to be made in the Official Gazette will state separately and clearly the work on which the temporary suspension of inspection activity is based and which article of Law No. 4708 and of the Building Inspection Implementation Regulation has been violated.
In order for an activity-suspension decision to be issued against building inspection organisations, the procedure set out in this communiqué must be followed exactly. For in Law No. 4708 and the regulations issued on the basis of this law, there is no detailed regulation whatsoever regarding the procedures and principles to be applied in matters of suspending organisations’ activities and cancelling their authorisation certificates. In 2011, when the building inspection system began to be applied throughout the country, the Ministry — albeit belatedly — recognised this deficiency and saw the need to publish a Communiqué on the matter. However, despite this Communiqué published by the Ministry, in practice — particularly in provinces where building inspection began to be applied in 2011 — it is observed that the provincial building inspection commission chairs do not comply with some provisions of the Communiqué. According to the Communiqué, where any deficiency is identified in the assessment of the technical examination reports by the Ministry building inspection commission, the report must be returned for the deficiencies to be remedied. Despite this provision, it can happen that deficiencies in some technical examination reports also escape the notice of the central commission.
When technical examination reports are being prepared, it is of great importance that the building inspection organisation and the architect or engineer responsible for the act subject to investigation — whose future is directly affected — be informed about the subject and probable outcomes of the investigation. For, in line with the opinion stated in the reports prepared as a result of the investigation conducted, activity-suspension decisions are most often issued; for this reason, both the building inspection organisation and the architect and engineer concerned are excluded — even if only temporarily — from the building inspection system and barred from the work by which they earn their livelihood, thereby resulting in a decision that directly affects the organisation’s partners, the responsible architects and engineers, and their families. It is necessary that technical examination reports having such serious consequences be prepared with great care and sensitivity; that particular attention be paid to obtaining the written defences and defence documents of the architects and engineers responsible for the work subject to investigation; and that the written notification given to both the building inspection organisation and the architect and engineer concerned clearly state that “an investigation is being conducted on the matter, that a number of administrative sanctions, including a possible activity-suspension decision, may result from the investigation, and that a written defence must be submitted together with the defence documents relating to the matter.”
In practice, it can be observed that some partners, architects or engineers of inspection organisations against which an activity-suspension decision has been issued were unaware, during the period the investigation was conducted, that an investigation or examination that could conclude with an activity-suspension decision was under way, and that they perceived the written statement they submitted to the relevant authority on the matter not as a defence but as a mere informational letter.
When one looks at the grounds in some annulment decisions issued by the administrative courts concerning engineers and architects on this matter, it is observed that activity-suspension decisions issued against engineers or architects who took no part at all in the building inspection work that gave rise to the activity-suspension sanction have been annulled; and likewise, that activity-suspension decisions issued against an architect or engineer who, although having taken part in the building inspection work that gave rise to the activity-suspension sanction, did not take part in the portion of the inspection work carried out contrary to the legislation, have been annulled.
On compliance with the aforementioned Communiqué, which regulates the procedure relating to the auditing of building inspection organisations and the investigations conducted concerning organisations, architects and engineers, both the central and provincial organisations of the Ministry should exercise diligence; these investigations, which directly affect the inspection organisations and the architects and engineers employed in them, should be conducted in a spirit of justice and equality; and it should not be forgotten that organisations and architects and engineers whose activities have been unjustly suspended owing to faultily and deficiently conducted investigations have the right to claim compensation, within the framework of general rules of law, for the damages they have suffered.
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