The Offence of Causing Zoning Pollution — Sanctions Under TCK Art. 184

A comprehensive legal guide to the offence of causing zoning pollution under TCK Art. 184: the elements of the offence, unpermitted building and building contrary to a permit, effective remorse, limitation and the effect of a zoning amnesty.

The offence of causing zoning pollution is an important offence type governed by Article 184 of the Turkish Penal Code No. 5237 and falling within the category of offences against society. Created to prevent unauthorised construction in the urbanisation process and to protect the environment and planning order, this offence carries serious legal consequences because it is punishable by imprisonment. This article examines comprehensively the elements of the offence, the level of sentence, the provisions on effective remorse, the rules on limitation and the effect of the zoning amnesty on the offence.

The Legal Basis of the Offence

TCK Art. 184 consists of six paragraphs. The first paragraph punishes a person who constructs, or procures the construction of, a building without a permit or contrary to a permit; the second, a person who permits electricity, water or telephone connections to be made to an unpermitted construction site; the third, a person who permits industrial activity in a building for which no occupancy permit has been obtained. The fourth paragraph governs the field of application, the fifth effective remorse, and the sixth an exception relating to buildings constructed before 12 October 2004.

The Material Elements of the Offence

The first paragraph applies only to the act of constructing or procuring the construction of a “building”. Not every planning irregularity, garden wall, simple alteration or enclosure of a balcony automatically constitutes the offence; whether the works amount to a building for the purposes of the Penal Code and whether a permit is required are determined by technical examination. The offender is the person who “constructs or procures the construction”; an owner, contractor or technical supervisor is not automatically a co-perpetrator merely by reason of their status — their contribution to the act and their intent must be proved individually.

The offender under the second paragraph — permitting a connection — is not confined to a public official; it may be the person exercising the power to authorise the connection. The penalty for the offence in the third paragraph, permitting industrial activity in a building without an occupancy permit, is imprisonment of two to five years.

The Mental Element

The offence of causing zoning pollution may be committed intentionally; the statute does not provide for a negligent form. Intent is assessed under the general provisions of the Penal Code by reference to the offender's specific act and knowledge; the conclusion as to the mental element is determined on the evidence in the particular case.

An offender's ignorance of the permit or project position is assessed on concrete evidence, having regard to the provisions on mistake as to a material element and mistake of law. The status of owner or building proprietor does not of itself prove knowledge of the permit position or participation in the act.

No special motive is required for the offence to be made out. The offender need not act with an intention to disrupt planning order. Awareness and volition in constructing a building without a permit or contrary to a permit are sufficient. In this respect the offence may be committed with general intent.

The Distinction Between Unpermitted Buildings and Buildings Contrary to a Permit

TCK Art. 184/1 provides for two alternative acts: constructing a building without a permit and constructing a building contrary to a permit. The distinction matters for establishing the offence and determining the sentence.

An unpermitted building is construction begun and continued without any building permit having been obtained. Where no application for a building permit has been made, or where construction has continued despite the application being refused, the building is unpermitted. Unpermitted buildings are regarded as the most serious departures from planning order.

A building contrary to a permit is one for which a building permit has been obtained but which is constructed contrary to the permit and the annexed projects. Non-conformity with a permit covers situations such as exceeding the number of storeys stated in the permit, failing to observe setback distances, exceeding the ground coverage ratio (TAKS) or the floor area ratio (KAKS), and changing the building's intended use.

Not every departure from a permit or project constitutes the offence in TCK Art. 184/1. The first paragraph punishes the act of “constructing or procuring the construction of a building without a permit or contrary to a permit”. It must therefore be determined whether the works amount to a building, whether a permit was required, and whether the offender participated intentionally in the act of construction or procuring construction. Examples such as altering internal partitions, enclosing a balcony or interfering with the load-bearing system cannot automatically be treated as within or outside the offence without examining their technical characteristics.

The Level of Sentence and the Criteria for Determining It

TCK Art. 184/1 provides for imprisonment of one to five years for a person who constructs, or procures the construction of, a building without a permit or contrary to a permit; Art. 184/2 for one to three years for a person who permits a site connection; and Art. 184/3 for two to five years for a person who permits industrial activity in a building without an occupancy permit. The basic sentence is determined by the criteria in TCK Art. 61. Deferral of the announcement of the verdict may be considered if the final sentence and the current conditions of CMK Art. 231 are met; it is not automatic.

Effective Remorse (TCK Art. 184/5)

Where a person brings a building they constructed, or procured the construction of, without a permit or contrary to a permit into conformity with the development plan and the permit, no public prosecution is brought; any prosecution already brought is dismissed, and any sentence imposed is extinguished with all its consequences. A Building Registration Certificate does not of itself bring a building into conformity with a permit and does not automatically produce the effect of Art. 184/5. The act and the bringing into conformity are examined by reference to the current technical and legal position.

Limitation

The moment at which the offence is completed is determined on technical evidence by reference to the date on which the construction activity in fact ended or was interrupted; it cannot be said in every case to be “the day the building was completed”. Limitation for prosecution is calculated under TCK Art. 66 and the provisions on interruption and suspension; limitation for the sentence, under TCK Art. 68 according to the type and level of the sentence imposed.

The Effect of the Zoning Amnesty on the Offence

A Building Registration Certificate produces temporary administrative effects; it is not a building permit or a certificate of conformity with a permit. For TCK Art. 184/5 to apply in criminal proceedings, the building must be brought into conformity with the development plan and the permit. Moreover, under Art. 184/6, apart from the second and third paragraphs the provisions of the article apply only within municipal boundaries or in places subject to a special planning regime, and do not apply to buildings constructed before 12 October 2004.

Investigation and Prosecution

The offence of causing zoning pollution is not subject to complaint and is investigated of the authorities' own motion. Where unpermitted buildings or buildings contrary to a permit are identified by a municipality, a governorate or another competent institution, a criminal complaint is made to the chief public prosecutor's office. If sufficient evidence is found at the conclusion of the investigation, the public prosecutor brings a public prosecution by indictment.

The court with subject-matter jurisdiction is the criminal court of first instance; venue is determined by the rules of the Code of Criminal Procedure on the place where the offence was committed. At trial, whether the works amount to a building, the permit and project position, the offender's act and intent, and the field of application in TCK Art. 184/4 are investigated.

An expert examination is usual in the proceedings. Experts in planning legislation assess the building's conformity with the permit and the nature and extent of any non-conformity. The expert report has a decisive influence on the court's judgment.

Confiscation and Demolition

A criminal court does not, upon a conviction under TCK Art. 184, order the demolition of a building as an independent security measure not provided for by statute. The sealing, bringing into conformity and demolition of an unpermitted or non-conforming building are acts of the competent administration under Zoning Law Art. 32. Confiscation may be considered only in respect of property or proceeds connected with the offence on the conditions in TCK Arts. 54–55; there is no automatic confiscation of the whole immovable.

The Offence in the Light of Council of State and Court of Cassation Decisions

Under TCK Art. 184/4, apart from the third paragraph the article applies within municipal boundaries or in places subject to a special planning regime. Whether works amount to a “building” is determined by their fixity, intended use, volume and technical characteristics, on the evidence in the particular file including an expert examination. Not every departure from a project is automatically an offence; but nor can categorical exceptions such as “enclosing a balcony is always a simple irregularity” be laid down.

Administrative sealing, fines and demolition are governed by Zoning Law Arts. 32 and 42; criminal liability by the definitional and intent requirements of TCK Art. 184. In the same case the administrative decision and the criminal investigation have different conditions and consequences.

Mediation and Advance Payment

Offences under TCK Art. 184 are not on the criminal mediation list. Advance payment applies only to offences meeting the conditions in TCK Art. 75 as to the type of sentence and the upper limit; the sentences in Arts. 184/1–3 — one to five years, one to three years and two to five years' imprisonment — do not fall within that scope. Where the specific act also constitutes another offence, the special procedure for that offence is assessed separately.

Frequently Asked Questions

Is every departure from a permit an offence?

No. The first paragraph requires the act of constructing or procuring the construction of a building, and intent.

What is the sentence for permitting unauthorised industrial activity?

Imprisonment of two to five years.

Does a Building Registration Certificate automatically dismiss the prosecution?

No. TCK Art. 184/5 requires the building to be brought into conformity with the development plan and the permit.

Does the criminal court demolish the building?

Demolition is an administrative act under Zoning Law Art. 32; the criminal court cannot impose a demolition measure not provided for by statute.