Entrance

This report has been prepared in light of the submitted Supreme Court decisions in order to answer the questions asked by the user, "What is the crime of causing urban pollution, what is the penalty, the reasons for increasing and decreasing the penalty, what are the points to be considered during the trial?" The report aims to comprehensively address the definition of the crime, its legal basis, the foreseen penalties, the reasons for reducing or increasing the penalty, and the points that should be taken into consideration during the trial process.

Main Findings

1. Definition and Legal Basis of the Crime: The crime of causing zoning pollution is basically regulated in Article 184 of the Turkish Penal Code No. 5237 (TCK). In the decisions of the Court of Cassation, this crime is generally defined as an act committed "by constructing or having constructed a structure without a license or in violation of the license" (Court of Cassation-4. CD-2022/1708), "by gaining area in violation of the procedures and conditions determined in the zoning legislation" (Court of Cassation-4. CD-2021/42806) or "by constructing unlicensed and illegal floors" (Court of Cassation-4. CD-2022/4989). A decision of the General Assembly of Criminal Proceedings of the Court of Cassation (2015/270) specified the element of the crime as "constructing a building without a license or in violation of the license within the boundaries of the municipality or in places subject to a special zoning regime". An important distinction is that the 4th Court of Cassation As emphasized in the decision numbered CD-2021/40665, the construction must comply with the definition of "building" in Article 5 of the Zoning Law, otherwise, constructions qualified as "structure" may not constitute this crime. In addition, it has been stated that in order for the crime to occur, the immovable property must be "within the municipality borders or in a place subject to a special zoning regime", and that the crime will not occur if it is located in an adjacent area (Court of Cassation-4. CD-2022/16610).
2. Penalty: The first paragraph of Article 184 of the TCK stipulates "a sentence of imprisonment from one to five years" for those who commit this crime (Court of Cassation-General Criminal Assembly-2015/270). However, in most of the decisions examined, it is seen that the courts impose a judicial fine by applying Articles 50 (alternative sanctions for short-term imprisonment), 52 (judicial fine) and 62 (discretionary reasons for reduction) of the TCK. For example, various amounts of judicial fines such as 6,000 TL (Court of Cassation-4. CD-2021/42806), 7,300 TL (Court of Cassation-4. CD-2022/15851), 10,500 TL (Court of Cassation-4. CD-2022/3513), 15,000 TL (Court of Cassation-4. CD-2022/7214) were encountered. In some cases, direct imprisonment was given (e.g. 10 months' imprisonment, Court of Cassation-4. CD-2022/9382) or the imprisonment sentence was not converted into alternative sanctions.
3. Increasing and Mitigating Factors for the Penalty (or Circumstances Dismissing the Case):
   • Reasons that reduce the penalty or drop the case:
     • Bringing the Building into Compliance with the Zoning Plan and License / Obtaining a Building Registration Certificate: This is the most common and important situation. According to the fifth paragraph of Article 184 of the TCK, "it is regulated that the public lawsuit filed in case a person brings a building that he/she has constructed or had constructed in violation of the license into compliance with the zoning plan and license will be dismissed" (Court of Cassation-4th CD-2022/1708). Similarly, in accordance with the temporary Article 16 added to the Zoning Law No. 3194 by Article 16 of Law No. 7143, it is also decided that the public lawsuit will be dismissed in case a "building registration certificate" is obtained (Court of Cassation-4th CD-2022/1708, Court of Cassation-4th CD-2021/34481, Court of Cassation-4th CD-2021/42024). This situation is considered a regulation similar to effective remorse and produces an important result in favor of the defendant.
     • Discretionary Discount (TCK Art. 62): In many decisions, it is seen that a discount is made in the sentence in accordance with Article 62 of the TCK (for example, Court of Cassation-4. CD-2022/4989).
     • Demolition of the Building and Coverage of Expenses: In the Court of Cassation-4. CD-2022/7214 numbered decision, it was stated that "it should be evaluated whether the structure in question was demolished or not, and whether the demolition costs were covered by the defendant, after determining beyond doubt whether a decision of dismissal can be made in accordance with the first paragraph of Article 184 of Law No. 5237 , in case it is determined by the municipality that it was demolished or not."
     • Death of the Defendant: According to Article 64 of the Turkish Penal Code, in case of death of the defendant, the public lawsuit must be dismissed (Court of Cassation-4. CD-2022/16067).
   • Factors Increasing the Penalty:
     • Chain Crime (TCK Art. 43): In cases such as continuing construction activities after a construction stoppage order, Article 43 of the TCK may come into play in case of continuity of action (Court of Cassation-4. CD-2022/4775). In the decision of the General Assembly of Criminal Court of Cassation (2015/270), it was stated that "in the event that the same crime is committed more than once at different times within the scope of the execution of a decision to commit a crime, the provisions of 'chain crime' may be applied."
     • Recidivism (TCK Art. 58): If the defendant has a conviction based on recidivism in his criminal record, the sentence may be decided to be served in accordance with the execution regime specific to repeat offenders , in accordance with Article 58 of the TCK (Court of Cassation-4th CD-2022/3353, Court of Cassation-4th CD-2021/43864).
     • Intensity of Intent and Danger Level: In the Court of Cassation-4. CD-2022/1855 numbered decision, it was claimed in the appeal request of the Public Prosecutor that "considering the intensity of the defendant's intent, the current condition of the building, the nature of the area where it is located, its surface area, the purpose of use and the danger it may create in terms of life and property... the basic penalty should be determined by moving away from the lower limit", however, the court did not agree with this view. This points to elements that can theoretically be considered as reasons for an increase.
4. Matters to be Considered in the Trial:
   • Collection and Evaluation of Evidence: It is essential that evidence such as "defendant's defense, statement of the participating institution, construction holiday record, inspection execution, expert report" (Court of Cassation-4. CD-2021/42806), "minutes, how the incident occurred and the entire scope of the file" (Court of Cassation-4. CD-2022/4989) are collected completely and evaluated without contradiction. The fact that conscientious opinion is "based on precise, consistent and non-contradictory data" is emphasized in many decisions.
   • Determination of Material Elements of the Crime:
     • Whether the structure qualifies as a "building" (Court of Cassation-4. CD-2021/40665).
     • The status of the place where the structure is located: "determining the place where the manufacturing subject to the crime is accepted to have been made by asking the municipality in a way that leaves no room for doubt, and determining the legal status of the defendant according to the result" (Court of Cassation-4. CD-2022/16610).
     • Areas where construction is strictly prohibited: In the decision numbered 4th CD-2021/33255 of the Supreme Court of Appeals, it was stated that "the areas where construction is strictly prohibited are outside the scope of the zoning amnesty, and considering the regulations in the Constitution and special laws, the building registration certificate will not make the construction and physical interventions in the areas that absolutely require protection lawful and will not prevent the occurrence of the crime of causing zoning pollution." It was emphasized that the building registration certificate alone may not be sufficient for construction in areas such as pastures, coasts and forests.
     • Date of manufacture of the products: Provision of "aerial photographs updated according to the years", conducting "law enforcement research on the date on which the products were made" (Court of Cassation-4. CD-2022/16610).
   • Examination of the Building Registration Certificate: Issues such as the existence of the building registration certificate, in whose name it was issued, which part of the building it covers, and especially "in the face of the fact that it is written that the buildings located in privately owned real estates belonging to third parties cannot benefit from the provisions of this article, the statements of the persons who are understood to be the owners of the real estate in shares regarding the defendant's actions should be taken and whether the defendant has any rights over the real estate in question should be questioned meticulously" (Court of Cassation-4. CD-2022/9960).
   • Application of Law in Favor: The obligation to re-evaluate the legal situation of the defendant, taking into account the laws that came into force after the date of the crime and were in favor of the defendant (for example, the temporary article 16 added to the Zoning Law by Law No. 7143) (Court of Cassation-4. CD-2021/27632).
   • Right to Defense: The right of defense of the accused should not be restricted, and in particular, in accordance with the principle that "a hearing cannot be held for an accused who is not present", a conviction should not be rendered without proper notification and without taking his/her defense (Court of Cassation-4. CD-2022/1096).
   • Legal Interruption and Chain Crime: Determination of whether construction continued after the construction suspension report, and whether action was taken under the "same crime decision" in the presence of more than one construction suspension report (Court of Cassation-General Criminal Assembly-2015/270).
   • Determination of Whether the Building Has Been Demolished: The Effect of Demolition and Coverage of Expenses on the Declaration of Dismissal (Court of Cassation-4. CD-2022/7214).

Examination

The reviewed Court of Cassation decisions draw the basic framework of the crime of causing zoning pollution through TCK Article 184. It is consistently emphasized that the act of constructing a "building" without a license or in violation of a license, which is the material element of the crime, must take place within the municipal borders or in areas subject to a special zoning regime.

The most striking and frequently repeated issue in the decisions is that, within the scope of Article 184/5 of the Turkish Penal Code and the temporary Article 16 added to the Zoning Law, the public lawsuit is dropped if the building is made suitable for construction or a building registration certificate is obtained. This situation reflects the legislator's aim to encourage the registration of the existing building stock and making it suitable for construction rather than penalizing. However, the Court of Cassation's precedent that the building registration certificate alone will not ensure compliance with the law and eliminate the crime in areas with special protection status such as pastures (Court of Cassation-4. CD-2021/33255) constitutes an important exception to this general rule.

In determining the penalties, there is generally a tendency to impose prison sentences close to the lower limit or to convert these sentences into fines. The discretionary reduction reasons in TCK Article 62 are frequently applied. While the provisions of repetition and consecutive crimes may come to the fore as reasons to increase the penalty, in practice, decisions of dismissal regarding the legalization of the structure later come to the fore.

During the trial process, it is of great importance to collect evidence meticulously, especially to clarify the nature of the structure, its location, the date of construction and the legal relationship of the defendant with the real estate. Expert reports, discovery, letters to be obtained from relevant institutions and witness statements form the basis of decisions. The Supreme Court tends to overturn decisions made with insufficient examination or insufficient justification.

Conclusion

The crime of causing zoning pollution is a type of crime regulated under TCK Article 184 and imposes sanctions on construction contrary to the zoning order. Although the penalty is imprisonment from one to five years, it is frequently converted to a judicial fine in practice or reduced according to TCK Article 62. The most important feature of the crime is that, according to TCK Article 184/5 and Temporary Article 16 of the Zoning Law, the public lawsuit is dismissed if the structure is brought into compliance with the permit or zoning plan or if a building registration certificate is obtained. However, this may not be the case for structures in areas protected by special laws such as pastures.

During the trial process, the material elements of the crime (unlicensed/contrary "building" construction, status of the place), the legal status of the defendant (building registration certificate, relationship with the real estate), favorable legal provisions and procedural safeguards must be meticulously evaluated. The complete collection of evidence and reaching a conscientious opinion without contradiction are indispensable for a fair trial.