The Crime of Causing Zoning Pollution in Turkey

Environmental pollution, which is one of today’s major problems, negatively affects many living beings, especially human health and the balance and order in nature. Therefore, in addition to various measures and regulations, it is also necessary to sanction behaviors that contradict these measures and regulations. In this regard, various harmful behaviors to the environment have been classified as crimes under the provisions of our Turkish Penal Code No. 5237 under the title of crimes against the environment, and penalties are prescribed for them. The crime of causing zoning pollution is an example of these crimes against the environment.

 

The provision of the crime of causing zoning pollution regulated under TPC article 184 is as follows:

Article 184 – (1) A person who constructs or has constructed a building without obtaining a building permit or in violation of the permit shall be sentenced to imprisonment for a term of one to five years.

2) A person who allows the connection of electricity, water, or telephone to the construction sites established for buildings initiated without a building permit shall be punished in accordance with the provision of the first paragraph.

(3) A person who allows any industrial activity to be carried out in buildings that have not obtained a usage permit shall be sentenced to imprisonment for a term of two to five years.

(4) Except for the third paragraph, the provisions of this article shall only apply within municipal boundaries or in areas subject to special zoning regulations.

(5) If the person brings the building constructed without a permit or in violation of the permit into conformity with the zoning plan and the permit, no public lawsuit shall be filed according to the provisions of the first and second paragraphs; any filed public lawsuit shall be dropped, and the imposed penalty shall be annulled with all its consequences.

(6) (Added: 29/6/2005 – Article 21 of Law No. 5377) The provisions of the second and third paragraphs shall not apply to buildings constructed before October 12, 2004.

ACTS CONSTITUTING THE CRIME OF CAUSING ZONING POLLUTION

Looking at the provision regulating the crime, we see that the first three paragraphs each regulate a crime. Accordingly, the acts constituting the crime of causing zoning pollution are as follows;

 

– Constructing or having constructed a building without obtaining a building permit or in violation of the permit (TPC article 184/1)

Building permit is an essential element for starting the construction of a building. A building permit signifies that the necessary permission has been obtained from the administration for buildings that legally require permission to be constructed. According to the provision of TPC article 184/1, constructing or having constructed buildings that require a building permit without obtaining the permit or in violation of the permit is regulated as a crime. The scope of this provision is regulated in TPC article 184/4. According to this; “Except for the third paragraph, the provisions of this article shall only apply within municipal boundaries or in areas subject to special zoning regulations.” As understood from the provision, the acts of constructing or having constructed buildings without obtaining a building permit or in violation of the permit will be considered a crime if committed within municipal boundaries or in areas subject to special zoning regulations.

According to this crime regulation in the first paragraph, those who can commit the crime are regulated as those who construct and those who have constructed. When we look at the justification of the article to determine the scope of those who construct and those who have constructed, it states that not only the contractor, subcontractor, craftsman, or foreman who constructs the building, but also the owner of the construction will be held responsible as the perpetrator of this crime. Additionally, technical persons providing control and inspection services for such construction activities will also be punished as perpetrators for this crime.

 

– Allowing the connection of electricity, water, or telephone to construction sites established for buildings initiated without a building permit (TPC article 184/2)

Construction site means a building or buildings to be used and demolished as needed and required during the continuation of the construction. For the crime mentioned in this paragraph to occur, the place where the electricity, water, or telephone connection is made must be a construction site, otherwise, no crime will occur under this paragraph. For the mentioned construction site to constitute a crime, it must be within municipal boundaries or in areas subject to special zoning regulations. (TPC article 184/4) Another point to be considered is that the crime in this paragraph can be committed with the act of allowing as stated in the text of the law. The person who will allow it will appear as a public official. Although it is not definitively clear from the regulation of the crime that it is a specific crime, many authors consider the crime in this paragraph to be a specific crime. It should be noted that this provision will not apply to buildings constructed before October 12, 2004. (TPC article 184/6)

 

 – Allowing any industrial activity to be carried out in buildings that have not obtained a usage permit (TPC article 184/3)

Unlike the first two paragraphs, the crime regulation in the third paragraph mentions a usage permit instead of a building permit. The usage permit means occupancy permit. The occupancy permit is the permit obtained from the municipality or governorate offices that issued the construction permit to use the entire building when it is completely finished, or to use the completed parts when the partially usable parts are finished. (Zoning Law article 30/1) In this way, allowing any industrial activity to be carried out in buildings that have not obtained a usage permit is regulated as a crime. The act constituting the crime again appears as allowing. Therefore, it should be stated that the person allowing it will appear as a public official. It should be noted that this provision will not apply to buildings constructed before October 12, 2004. (TPC article 184/6)

 

WHAT IS THE VALUE PROTECTED IN THE CRIME OF CAUSING ZONING POLLUTION?

The crime of causing zoning pollution is regulated within the scope of crimes against the environment, and the legislator’s aim here is to ensure that people live in a healthy environment. As a result, it is possible to say that the value protected by this crime is the environment.

 

WHO CAN BE THE PERPETRATORS OF THE CRIME OF CAUSING ZONING POLLUTION?

When examining the perpetrators of the crime of causing zoning pollution, we need to consider each crime regulation in the article separately. According to the crime regulation in the first paragraph of TPC article 184, the perpetrator of the crime committed by constructing or having constructed a building without obtaining a building permit or in violation of the permit is the person who constructs or has constructed the building without obtaining a building permit or in violation of the permit. There is information in the justification of the article about who should be understood by the persons constructing and having constructed. According to the mentioned justification, not only the contractor, subcontractor, craftsman, or foreman who constructs the building, but also the owner of the construction will be held responsible as the perpetrator of this crime. Additionally, technical persons providing control and inspection services for such construction activities will also be punished as perpetrators for this crime. This crime regulation is not of a specific crime nature, so anyone who constructs or has constructed can be the perpetrator.

 

The perpetrator of the crime regulation in the second paragraph of TPC article 184, which states the act of allowing the connection of electricity, water, or telephone to construction sites established for buildings initiated without a building permit, is the person who allows the connection of electricity, water, or telephone to construction sites established for buildings initiated without a building permit. In this regulation, the person allowing it appears as a public official. Although

it is not definitively clear from the regulation of the crime that it is a specific crime, it is likely that the person allowing it and committing the act constituting the crime is a public official. Therefore, it can be said that this crime regulation in this paragraph is of a specific crime nature.

 

The perpetrator of the crime committed by allowing any industrial activity to be carried out in buildings that have not obtained a usage permit, as stated in TPC article 184/3, is the person who allows any industrial activity to be carried out in buildings that have not obtained a usage permit. Here again, since allowing is in question, the person allowing it will appear as a public official, so this crime regulation also has the nature of a specific crime.

 

THE VICTIM OF THE CRIME OF CAUSING ZONING POLLUTION

Looking at the regulations made by the legislator regarding the crime of causing zoning pollution and the value to be protected, the victim of the crime is society.

 

PENALTY FOR THE CRIME OF CAUSING ZONING POLLUTION

The penalty for the crime of causing zoning pollution varies according to the ways the crime is committed. Accordingly, within the scope of the crime regulation in TPC article 184/1, the person who constructs or has constructed a building without obtaining a building permit or in violation of the permit shall be sentenced to imprisonment for a term of one to five years. The penalty for the person who allows the connection of electricity, water, or telephone to construction sites established for buildings initiated without a building permit, as regulated in the second paragraph of the same article, shall also be imprisonment for a term of one to five years. The person who allows any industrial activity to be carried out in buildings that have not obtained a usage permit shall be sentenced to imprisonment for a term of two to five years according to TPC article 184/3.

 

 

REPENTANCE IN THE CRIME OF CAUSING ZONING POLLUTION

Repentance is a personal reason that eliminates the penalty or provides a reduction in the penalty.

In the fifth paragraph of article 184 of the Turkish Penal Code, where the crime of causing zoning pollution is regulated, a special case of repentance is included. The mentioned regulation states; “If the person brings the building constructed without a permit or in violation of the permit into conformity with the zoning plan and the permit, no public lawsuit shall be filed according to the provisions of the first and second paragraphs; any filed public lawsuit shall be dropped, and the imposed penalty shall be annulled with all its consequences.”

Accordingly, if a person brings the building constructed without a permit or in violation of the permit into conformity with the zoning plan and the permit, no public lawsuit will be filed against the person under the first and second paragraphs of article 184 of the Turkish Penal Code. If a public lawsuit has been filed against the person due to these crime regulations, it is seen in the provision of the article that this public lawsuit will be dropped. As a result, no penalty will be imposed on the person due to the building that has been brought into conformity with the permit later. However, it should be noted here that, the fact that no penalty is imposed on the perpetrator does not mean that the act he committed has lost its criminal nature. The act of the perpetrator has constituted a crime, and for this reason, a decision to drop the public lawsuit will be made, not an acquittal decision.

This special repentance provision for the crime of causing zoning pollution does not apply to the act of allowing any industrial activity to be carried out in buildings that have not obtained a usage permit (TPC article 184/3). The legislator has foreseen that the repentance provisions will only apply to the crime regulations in the first and second paragraphs.

 

INVESTIGATION OF THE CRIME OF CAUSING ZONING POLLUTION

The crime of causing zoning pollution is not one of the crimes dependent on complaint. Therefore, the prosecution will conduct an investigation ex officio and file a public lawsuit.

COURT DECISIONS REGARDING THE CRIME OF CAUSING ZONING POLLUTION

“…In the crime of constructing a building without a permit or in violation of the permit regulated in the first paragraph of article 184 of the TPC No. 5237, the crime will be completed with the commencement of the act of constructing the building, the court’s decision of acquittal on the grounds that the building did not have a roof covering and therefore was not considered a building is against the law.” (Court of Cassation 4th Criminal Chamber – Case No. 2012/23458, Decision No. 2013/20803)

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“According to TPC article 184, the section constructed without a permit must have the nature of a building. Since it is not possible to accept that modifications made within an existing building without any extension are within the scope of this law article, the acquittal of the defendant is appropriate.” (Court of Cassation 4th Criminal Chamber – Decision No. 2012/7321)

 

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“For benefiting from the provision in the fifth paragraph of article 184 of the TPC, the person must bring the building constructed without a permit or in violation of the permit into conformity with the zoning plan and the permit. The person who will obtain the permit or bring it into conformity with the permit is the person under investigation, against whom a public lawsuit has been filed, or who has been tried and sentenced.

If the building constructed without a permit is demolished by the municipality officials under article 32 of the Zoning Law No. 3194, it is not possible to apply the fifth paragraph of article 184 of the TPC solely on the grounds that the demolition has taken place. In this case, there is no active behavior shown by the perpetrator, which is a mandatory element of repentance. The demolition of the building without a permit is a duty of the administration, and it will be contrary to the spirit of the repentance institution and the purpose of the article to decide to drop the public lawsuit solely because the demolition was carried out by the administration, even if there was no opposition to the demolition.

However, since the demolition of the building without a permit is an action that cannot be carried out by the building owner due to the necessary precautions, required technical equipment, etc., it should be considered natural for the building owners to wait for the demolition to be carried out by the administration, thinking that they will pay the demolition costs. In such a case, it will not be a fair solution not to apply the repentance provision solely on the grounds that the demolition was not carried out by the perpetrator. Therefore, if the demolition is carried out by the administration, the conditions for applying the fifth paragraph of article 184 of the TPC in favor of the perpetrator should be considered to be met if it is determined that the perpetrator did not actively oppose the demolition and voluntarily paid the demolition costs without any coercion, otherwise, the repentance provision should not be applied.”  (Court of Cassation General Assembly – Decision No. 2019/703)

 

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