Crime of Zoning Pollution — Sanctions Under Article 184 of the Turkish Criminal Code

The crime of causing zoning pollution is an important criminal offense regulated under Article 184 of the Turkish Criminal Code No. 5237, categorized among crimes against society. Established to prevent unauthorized construction during the urbanization process and to protect the environmental and zoning order, this crime carries serious legal consequences as it requires imprisonment. This article comprehensively examines the elements of the zoning pollution crime, penalty amounts, effective remorse provisions, statute of limitations rules, and the effects of the zoning amnesty on this crime.

Legal Basis of the Crime of Causing Zoning Pollution

Article 184 of the TCC regulates the crime of causing zoning pollution in four paragraphs. According to the first paragraph, a person who constructs or has a building constructed without obtaining a building permit or in violation of a permit is punished with imprisonment from one to five years. This paragraph constitutes the basic form of the crime.

According to the second paragraph, a person who permits electricity, water, or telephone connections to construction sites established for constructions started without obtaining a building permit is punished with imprisonment from one to five years. This paragraph targets public officials who facilitate unauthorized construction.

According to the third paragraph, a person who permits the conduct of any industrial activity in buildings without an occupancy permit is punished with imprisonment from one to five years. This paragraph was introduced to prevent industrial activities in buildings without occupancy certificates.

According to the fourth paragraph, except for the third paragraph, for the first and second paragraphs to apply, the building must be located within municipal boundaries or in areas subject to special zoning regimes. This limitation defines the geographical scope of the crime.

Material Elements of the Crime

The material elements of the zoning pollution crime represent the objective conditions necessary for the commission of the crime. Regarding the basic form regulated in the first paragraph, the material elements are as follows:

Perpetrator: The perpetrator of the crime is the person who constructs or has a building constructed. The perpetrator may be the building owner as well as the contractor or the person who actually carries out the construction. According to Court of Cassation decisions, the crime can be committed by multiple perpetrators, and in such cases, each perpetrator is held responsible in proportion to their own actions. The building owner, contractor, and technical supervisor can simultaneously be perpetrators.

Act: The criminal act is constructing or having a building constructed without obtaining a building permit or in violation of a permit. There are two alternative acts here: constructing/having constructed a building without a permit and constructing/having constructed a building in violation of a permit. The crime is committed in both situations.

Subject: The subject of the crime is a building. Under Article 184 of the TCC, the concept of building generally refers to permanent fixed structures used for human habitation or work. Temporary structures, simple shelters, and tents are generally not considered buildings. However, the Court of Cassation has accepted prefabricated structures and containers as buildings under certain conditions.

Location: For the first and second paragraphs to apply, the building must be located within municipal boundaries or in areas subject to special zoning regimes. Unlicensed buildings constructed in villages outside municipal boundaries are generally not evaluated under Article 184/1 of the TCC. However, this limitation does not apply in areas subject to special zoning regimes (conservation areas, coastal boundary lines, forest areas, etc.).

Mental Element of the Crime

The zoning pollution crime is an intentional crime. The perpetrator must act knowing and willing that they are constructing a building without a permit or in violation of a permit. It cannot be committed through negligence. However, the Court of Cassation accepts that the crime can also be committed with eventual intent.

If the perpetrator is unaware that a building permit was not obtained or that construction was carried out in violation of a permit, intent cannot be established. However, in practice, the defense of not knowing is not easily accepted. It is considered that the building owner has an obligation to obtain the necessary information about construction and therefore not knowing the permit status does not constitute an excuse.

No special motive is required for the commission of the crime. The perpetrator does not need to act with the intent to disrupt the zoning order. The awareness and will to construct a building without a permit or in violation of a permit is sufficient. In this respect, the crime is one that can be committed with general intent.

Distinction Between Unlicensed Buildings and Buildings Violating Permits

Article 184/1 of the TCC regulates two alternative acts: constructing a building without a permit and constructing a building in violation of a permit. The distinction between these two concepts is important for the detection of the crime and determination of the penalty.

An unlicensed building refers to construction activity that was started and continued without obtaining any building permit. An unlicensed building exists when no building permit application was made or when construction continued despite the application being rejected. Unlicensed buildings are considered the most serious violations of the zoning order.

A building violating its permit refers to a building that was constructed in violation of the permit and annexed projects, even though a building permit was obtained. Violations include exceeding the number of floors specified in the permit, non-compliance with setback distances, exceeding the floor area ratio (FAR) or the building coverage ratio, and changing the intended use of the building.

The Court of Cassation has emphasized that not every permit violation constitutes a crime under Article 184 of the TCC, and the violation must be of a substantial nature. Simple and minor violations (for example, interior partition walls being built differently from the project) generally do not constitute the crime of zoning pollution. However, substantial violations such as intervention in the structural system, addition of floors, and enclosure of balconies are evaluated within the scope of the crime.

Penalty Amount and Determination Criteria in the Zoning Pollution Crime

Pursuant to Article 184 of the TCC, the penalty for the zoning pollution crime is imprisonment from one to five years. In determining the specific penalty between the lower and upper limits, the criteria in Article 61 of the TCC are considered. These criteria include the manner of commission of the crime, the time and place of commission, the importance and value of the subject of the crime, the severity of the damage or danger caused, and the intensity of the perpetrator's intent or negligence.

In practice, there is a tendency to determine the penalty by departing from the lower limit for unlicensed buildings. For buildings violating their permits, the penalty amount varies according to the nature and degree of the violation. The size of the building, the scope of the violation, and the extent of environmental damage are important factors affecting the penalty amount.

If the imprisonment sentence is two years or less, it is possible to apply the deferment of the pronouncement of judgment (HAGB) or the suspension of the sentence. If a HAGB decision is made, the sentence becomes void if the defendant does not commit a crime during the five-year supervision period. If the sentence is suspended, the sentence is not executed if the defendant complies with their obligations during the supervision period.

Effective Remorse Provision (TCC Art. 184/5)

The fifth paragraph of Article 184 of the TCC contains an effective remorse provision for the zoning pollution crime. According to this paragraph, if a person brings the building they constructed or had constructed without a permit or in violation of a permit into compliance with the zoning plan and permit, the public prosecution is dropped and the imposed sentence is annulled with all its consequences.

To benefit from the effective remorse provision, the building must be brought into compliance with the zoning plan and permit. This can be achieved through demolition of the building or removal of non-compliant parts, or by subsequently obtaining a permit or correcting violations through an amendment permit.

The Court of Cassation requires that the building must be fully brought into compliance with the zoning plan and permit for the effective remorse provision to apply. Partial compliance is not sufficient. It is necessary for the municipality to determine that the building has been fully brought into compliance with the permit and zoning plan and to issue an official document to this effect.

Effective remorse can be applied at every stage of the investigation and prosecution. Even after a final conviction, if the building is brought into compliance with the permit, the sentence is annulled with all its consequences. In this respect, the effective remorse provision is encouraging for the perpetrator to act in compliance with the law.

Statute of Limitations in the Zoning Pollution Crime

The statute of limitations for prosecution of the zoning pollution crime is eight years pursuant to Article 66 of the TCC (for crimes requiring imprisonment not exceeding five years). The starting date of the limitation period is the date the crime was committed, that is, the date the construction was completed or the non-compliant part was built.

Whether the zoning pollution crime is a continuing crime is debated in doctrine. The Court of Cassation accepts that the zoning pollution crime is an instantaneous crime and that the crime is committed upon the completion of construction. Therefore, the statute of limitations begins from the date construction was actually completed. The completion date of construction is investigated by the court ex officio.

The statute of limitations for execution of the sentence is ten years pursuant to Article 68 of the TCC. If the sentence is not executed within ten years from the finalization of the conviction, the limitation period is deemed to have expired. When the limitation period expires, the sentence lapses and cannot be executed.

Grounds that interrupt and suspend the statute of limitations are separately regulated in the TCC. Taking the suspect's or defendant's statement, issuing a detention order, preparing an indictment, and rendering a conviction are among the grounds that interrupt the statute of limitations. When an interrupting ground occurs, the limitation period starts running anew.

Effect of the Zoning Amnesty on the Zoning Pollution Crime

The zoning amnesty regulation introduced by Law No. 7143 has had direct effects on the zoning pollution crime. The fate of criminal proceedings for buildings with building registration certificates has been the focal point of legal debates.

Whether obtaining a building registration certificate under the zoning amnesty can be evaluated within the scope of the effective remorse provision in Article 184/5 of the TCC has been an important topic of debate. According to the established case law of the Court of Cassation, obtaining a building registration certificate alone cannot be evaluated within the scope of effective remorse. Effective remorse requires the building to be brought into compliance with the zoning plan and permit. The building registration certificate provides for the registration of the building in its current state rather than bringing it into compliance with a permit.

However, in pending public prosecutions regarding buildings with building registration certificates, decisions have also been made to drop the prosecution or lift the sentence. Some courts have accepted that the zoning amnesty is a special regulation and that criminal prosecution can no longer be conducted for buildings with building registration certificates. Uniformity of case law has not yet been fully achieved on this issue.

Even if a building registration certificate has been obtained under the zoning amnesty, criminal liability for the zoning pollution crime may arise again if the building registration certificate is cancelled. Therefore, it is of great importance for building registration certificate holders to maintain the validity of their certificates.

Investigation and Prosecution of the Zoning Pollution Crime

The zoning pollution crime is not subject to complaint and is investigated ex officio. Criminal complaints are filed with the chief public prosecutor's office regarding unlicensed or non-compliant buildings detected by municipalities, governorships, or other authorized institutions. The public prosecutor, upon finding sufficient evidence at the conclusion of the investigation, prepares an indictment and initiates a public prosecution.

The competent court for the zoning pollution crime is the criminal court of general jurisdiction. The authorized court is the court where the building is located. During the trial, the court investigates whether the building is unlicensed or in violation of its permit, whether the violation is of a substantial nature, and whether the building is located within municipal boundaries or in an area subject to a special zoning regime.

Expert examination during the trial is common. Experts specialized in zoning legislation evaluate the building's compliance with its permit and the nature and extent of the violation. The expert report has a decisive effect on the court's decision.

Confiscation and Demolition in the Zoning Pollution Crime

In the zoning pollution crime, the demolition of the unlicensed or non-compliant building is an important legal consequence. When a conviction is rendered under Article 184 of the TCC, a demolition order is also issued. The demolition order is issued by the court decision and executed by the municipality.

Pursuant to Article 32 of the Zoning Law, a demolition order can also be issued by the municipal council. However, the demolition order under Article 184 of the TCC is issued by the criminal court. There are differences between the two demolition orders. While an administrative court lawsuit can be filed against an administrative demolition order, an appeal can be made against the criminal court's demolition order.

In practice, serious problems are experienced in the execution of demolition orders. Most demolition orders cannot be implemented for extended periods due to practical reasons (social, economic, etc.). This weakens the deterrent effect of zoning legislation and creates an incentive for unauthorized construction.

The Zoning Pollution Crime in Light of Court of State and Court of Cassation Decisions

The established case law of the Court of Cassation regarding the zoning pollution crime provides guidance in the application of the crime. According to decisions of the 4th Criminal Chamber of the Court of Cassation, for the crime to be committed under Article 184/1 of the TCC, the building must be located within municipal boundaries or in areas subject to special zoning regimes. Unlicensed buildings constructed in village settlement areas do not constitute this crime if they are not within municipal boundaries.

The Court of Cassation has also emphasized that the permit violation must be of a substantial nature. Minor deviations in the project, changes in interior layout, and simple violations that do not affect the structural system are not evaluated within the scope of the crime. However, substantial violations such as floor additions, balcony enclosures, and conversion of terrace floors to enclosed spaces constitute the crime.

Court of State decisions primarily provide guidance on the legality of administrative demolition orders. The requirement for administrative demolition orders to be reasoned, proportionate, and respectful of the right of defense has been reinforced by Court of State case law.

Mediation and Advance Payment in the Zoning Pollution Crime

The zoning pollution crime is not among the crimes subject to mediation. Pursuant to Article 253 of the Criminal Procedure Code, mediation is applicable for crimes subject to complaint and specific crimes specified by law. Since the zoning pollution crime is not subject to complaint, it falls outside the scope of mediation.

The advance payment mechanism also cannot be applied to the zoning pollution crime. Pursuant to Article 75 of the TCC, advance payment is applicable only for crimes requiring judicial fines or imprisonment with an upper limit not exceeding three months. Since the penalty for the zoning pollution crime is imprisonment from one to five years, advance payment cannot be applied.

The simplified trial procedure cannot be applied to the zoning pollution crime either, as Article 184 of the TCC has a maximum sentence of five years, exceeding the two-year threshold for simplified proceedings.

Disclaimer: This article has been prepared for general informational purposes and does not constitute legal advice. It is recommended to consult a specialized criminal attorney for specific disputes regarding the crime of zoning pollution.