Zoning Pollution shall be punished if the act is committed within the Neighbourhood Area.
1.” Zoning Pollution is Penalised if the Action is Committed within the Reconfined Area.”
“Pursuant to Articles 1, 2, 21 of the Zoning Law No. 3194 and the provisions of the “Zoning Regulation to be applied in areas without a plan within and outside the boundaries of municipalities and neighbouring areas”, it is obligatory to obtain a building licence from the authority for the construction of buildings in areas without a zoning plan, and pursuant to Article 5 of the Zoning Law. Pursuant to Article 5 of the Zoning Law, without taking into consideration that the adjacent areas are under the authority, supervision and responsibility of the municipalities in terms of zoning legislation, it is contrary to the law to acquit the defendant of the crime of causing zoning pollution by building a building without a licence, instead of convicting the defendant of the crime of causing zoning pollution by building a building without a licence, with the illegal justification that the building is within the boundaries of the municipality’s adjacent area and there is no zoning plan” (4th CD. 1.12.2008, 4245/21361).
“The Terrace Floor Being a Building Requires a Licence. Unlicensed Terrace Floor Constitutes Zoning Pollution Offence. “
“Article 184/1 of the Turkish Penal Code stipulates the punishment of persons who “construct or have constructed a building without obtaining a building licence or in violation of the licence”, and the definition of the concept of building in Article 5 of the Zoning Law is explained as follows: “A building is a building that can be used on its own, is covered and can be entered by people and is used for people to live, work, have fun and listen or worship, and for the protection of animals and goods”. In the concrete case, in the building assessment and holiday report dated 18.04.2005, it was stated that “the rough construction of the 2nd normal floor of 64 m2 on the ground + 1 normal floor was completed. normal floor on the ground + 1 normal floor was completed and the roof was covered”, the defendant stated in his statement at the investigation phase that “in 2005, he built another floor above his house and covered it with a roof” and in the expert report, “after the date of the report, the plastering of the terrace floor subject to the case was done, windows were installed and the penthouse was built in March-April 2005”, without considering that the penthouse subject to the case is a “building” and its construction is subject to a licence and without discussing and rejecting these issues, it is against the law to give a verdict of acquittal on illegal grounds “(4. CD. 8.2.2010, 7912/1544).
“Since Article 184 of the Turkish Penal Code No. 5237 entered into force on 12.10.2004, actions contrary to the zoning after this date are punished.”
“Since Article 184 of the Turkish Penal Code No. 5237 entered into force on 12.10.2004, and since it was determined on 14.4.2005 that the ground and first floors were used and the columns of the second floor were erected and the brick walls were partially built in the construction built by the defendant without a licence. 2005, it is necessary to listen to the recorders in a methodical way and ask them whether the defendant actually continued the construction during the preparation of the record, to have the expert explain the technical data for determining the construction date of the construction in a way that leaves no room for doubt, and to decide according to the result by evaluating all the evidence together.” (4th CD. 5.4.2010, 10054/5938).
“The Terrace Floor Being a Building Requires a Licence. Unlicensed Terrace Floor Constitutes Zoning Pollution Offence. “
“Article 184/1 of the Turkish Penal Code stipulates the punishment of persons who “construct or have constructed a building without obtaining a building licence or in violation of the licence”, and the definition of the concept of building in Article 5 of the Zoning Law is explained as follows: “A building is a building that can be used on its own, is covered and can be entered by people and is used for people to live, work, have fun and listen or worship, and for the protection of animals and goods”. In the concrete case, in the building assessment and holiday report dated 06.10.2005, it was stated that “…the 2nd and 3rd floors of the building floor of the building was found to be in a state of rough construction” and in the expert report it was stated that “after the date of the report, the internal plaster plasters of the floors subject to the case were made, levelling concretes were poured, rooms were made and the terrace floor was covered with ceramic tiles”, it is contrary to the law to make a decision of acquittal on the grounds that “the construction does not comply with the building description” without considering that the construction is in the nature of “building” and its construction is subject to a licence.” (4th Criminal Chamber, 8.6.2010, 14021/11140).
“Since Article 184 of the Turkish Criminal Code No. 5237 entered into force on 12.10.2004, actions contrary to the zoning after this date are punishable. In terms of whether the action constitutes an offence or not, it is mandatory to determine the date of the offence.”
“In Article 184/1 of the Turkish Penal Code, it is stipulated that the persons who “construct or have constructed a building without obtaining a building licence or in violation of the licence” shall be punished, and in Article 5 of the Zoning Law, the definition of the concept of building is explained as follows: “A building is a building that can be used on its own, is covered and can be entered by people and is used for people to live, work, have fun and rest or worship, and is used for the protection of animals and goods”. According to the concrete case, in the building detection and holiday report dated 17.03.2005, it was stated that the 1.50×3.50 m. sized light adjacent to the apartment 3 on the 1st basement floor was added to the apartment 3. The legal status of the defendant must be determined after hearing the witnesses of the minutes and discussing whether the nature and construction of the place subject to the case is subject to the licence or not, by listening to the witnesses of the minutes and conducting discovery and expert examination at the scene.” (4th Criminal Chamber, 15.6.2010, 15252/11766).
“In the face of the fact that it was determined that the rough construction of the ground floor and the first floor, which were built by the defendant without a licence, was completed and the doors and windows were not installed, and as a result of the discovery made during the trial, it was understood that the ground floor was used as a workplace and the first floor was started to be used as a dwelling, it is necessary to determine the legal status of the defendant who built a building that was completed before 12.10.2004, which is the effective date of Article 184 of the Turkish Penal Code No. 5237. 2004, which is the effective date of Article 184 of the Turkish Penal Code No. 5237, and considering that the construction works that continue until the legal interruption occurs according to the continuing nature of the action will constitute the offence, the record keepers and the residents of the neighbouring buildings should be listened to as public witnesses, and the witnesses should be asked about whether the defendant actually continued the construction during the preparation of the report, the technical data for determining the construction date of the construction should be explained to the expert, and all the evidence should be evaluated together and a decision should be made according to the result.” (4TH CD. 30.3.2010, 8677/5610).
“…The witness whose name was not disclosed in the expert report, the signatories of the building holiday report and the neighbours near the construction should be listened to, and the construction of the building after 12.10. 2004, and determining whether the plastering stated to have been done in the construction was carried out for the first time as a continuation of the construction or as a change or repair in the plaster, and explaining which technical data was relied on in the expert report in determining the construction date of the construction, and if it is determined that the plastering is a continuation of the construction, a verdict of conviction should be given, and if it is in the nature of repair, a verdict of acquittal should be given, while ruling for acquittal on incomplete research and insufficient grounds…”
(Court of Cassation 4th Criminal Chamber dated 16.12.2008, 2007/5320 E.2008/22782K.)
“Since building a wall does not constitute a closed area, it is not considered as a building, therefore the act of ‘building a wall’ does not constitute the offence of zoning pollution within the scope of Article 184 of the Turkish Penal Code”
“…According to the Zoning Law, every “construction” is subject to a licence. The only exception to this is “simple renovations” that do not require a licence. We have explained in detail above that only unlicensed structures in the nature of “building” fall within the scope of the offence of “Causing Zoning Pollution”. Since the legislation only provides a general definition of the concepts of “structure” and “building”, the issue of which structures are considered buildings is shaped by judicial decisions.
In one of its decisions, the Court of Cassation ruled that a 38-metre-long masonry brick wall is not considered as a “building” and unauthorised wall building does not constitute the offence of Zoning Pollution since it does not meet the condition of being “covered” in the definition of building in the law…” Court of Cassation 4th Criminal Chamber 05/03/2012, 2010/1854 E. 2012/ 4870 K.) “
“Closing the building by using steel construction material does not constitute the offence of zoning pollution within the scope of Article 184 of the Turkish Penal Code, since the lightweight material cannot affect the load-bearing elements.”
“…In the case of covering the roof of the licensed building by using steel construction material, it was accepted that the offence did not occur because the building was not a building and the light materials used in the building did not affect the load-bearing elements…” (Court of Cassation 4th Criminal Chamber 2010/4436 E. 2010/3966 K.)”
“Closing the balconies with light material PVC and glass does not constitute the offence of zoning pollution within the scope of Article 184 of the Turkish Penal Code, since it is not a “building”.”
The Court of Cassation ruled that closing the balconies with pvc and glass does not constitute a “building”. Closing the balcony and enlarging the room by demolishing the wall between the balcony and the room are not considered as buildings. However, in this case, it is ruled that an expert report should be obtained to determine whether the demolished walls affect the bearing system of the building and a decision should be made according to the report result. If the wall separating the room and the balcony is not a curtain wall and the columns are not damaged in the process of removing the wall, it is ruled that the act of closing the balcony and including it into the room does not constitute the offence of causing zoning pollution. It is not important that the material used to close the balcony is PVC, wood, aluminium etc. The important thing is that the material used is light and does not affect the statics of the building. (4th Criminal Chamber of the Court of Cassation dated 01.06.2011 and 2009/3046 E. 2011/7468 K.).
“…The act of closing the kitchen balcony (terrace) of the apartment with PVC, wooden joinery and glass cannot be considered as building a building, therefore it is unlawful to punish the defendant with the offence of zoning pollution…” (Court of Cassation 4th Criminal Chamber, 2012/6669)
9.” The Action of Removing the Wall Between Two Shops on the Ground Floor Does Not Constitute the Offence of Zoning Pollution within the Scope of Article 184 of the TPC.”
“…Similarly, in the case of removing the wall between two shops on the ground floor of a building and turning it into a single shop; it was ruled that the offence did not occur on the grounds that there was no new area gain in addition to the existing area and the carrier system was not adversely affected…” (Court of Cassation 4th Criminal Chamber 2011/21338 E. 2012/26052 K.)
“The act of installing or changing shop shutters does not constitute the offence of zoning pollution within the scope of Article 184 of the TPC.
“…It has been accepted that shop shutters do not constitute the offence of causing zoning pollution…” (Court of Cassation 4th Criminal Chamber dated 29/11/2012, 2012/15051 Main 2012/28152 Decision
11- “The act of placing three containers, which do not qualify as real estate, are not connected to the ground in any way, have no foundation, and do not require a licence for their manufacture and use, does not constitute the crime of zoning pollution within the scope of Article 184 of the Turkish Penal Code.”
“…It has been ruled that three containers, which do not qualify as real estate, are not connected to the ground in any way, have no foundation, do not require a licence for their manufacture and use, do not qualify as a “building”…” (Court of Cassation 4th Criminal Chamber 2013/23055 E. 2014/31439 K.)
12-“The Action of Building a Pergola on the Terrace Does Not Constitute the Crime of Zoning Pollution within the Scope of Article 184 of the TPC.”
“…The ground terrace extension that does not exceed the subbasement level will not constitute an offence, even if a pergola is built on it, since they are not subject to a licence…” (14th Chamber of the Council of State 2015/9242 E. 2018/1644 K.)
13.” Since structures without foundations are not considered as “buildings”, they do not constitute the offence of zoning pollution within the scope of Article 184 of the TPC.”
It has been accepted that the “kiosk” placed on the ground without a foundation does not constitute an offence, since structures without foundations are not considered as “buildings”. (Court of Cassation 4th Criminal Chamber 2013/11068E. 2013/8822K.)
In the case of the reconstruction of the demolished roof, it is necessary to examine the compliance of the reconstructed roof with the project and if it is not in compliance, a judgement should be made according to whether the new roof is a “building”. (Court of Cassation 4th Criminal Chamber 2013/8880 E. 2013/9358 K.)
Building an open terrace in violation of the project does not constitute an offence. (Court of Cassation 4th Criminal Chamber 2013/14233 E. 2013/13305 K.)
“…It should be observed that the act of the defendant in the form of closing the balcony of the existing licensed building by 10 square metres and including it into the room and creating an additional closed area, since it does not add a new area to the residence other than the one specified in the licence and is not a building, the elements of the crime of causing zoning pollution do not occur and may constitute the subject of administrative sanction…”
(Decision of the 4th Criminal Chamber of the Court of Cassation dated 18.6.2013 and numbered E. 2012/24491 K. 2013/19279)
- “Determination of the date of the construction of the productions contrary to the licence and whether the load-bearing element of the building is affected is important in terms of the existence of the offence of zoning pollution. “”… In the case where it was determined that the front balcony with an area of 1,5×4,80 square meters on the first floor of the duplex residence was closed with plastic joinery and 7,20 square meters, and the 1×2,5 square meters “L” shaped balcony on the rear facade was walled in the part facing the side garden and a closed area of 2,5 square meters was created in violation of the licence and its annexes; In order to determine the date of construction of the productions subject to the crime and whether they are in the nature of a building, the land registry records were brought and the way of acquisition of the defendant’s residence and the acquisition date shown in the expert report as 24. 09.2009, which is shown as the date of acquisition in the expert report, and after determining whether the defendant lived in the place in question, an additional report based on technical data should be obtained to determine the date of construction of the productions contrary to the licence and whether the load-bearing element of the building is affected, and all the evidence in the file should be evaluated together and the legal status of the defendant should be determined according to the result, while it is necessary to determine the legal status of the defendant, but it is contrary to the procedure and the law to establish a judgement with incomplete research…” (06. 11.2018 dated 06.11.2018 and numbered 176-503)15. “In order for the effective remorse provisions of Article 184/5 of the TCC to be applied, the demolition of the unauthorised place and the payment of the demolition costs to the relevant administration by the defendant is required. “”…In cases where the demolition of the unlicensed structure is carried out by the administration, the issues of whether the perpetrator actually opposed the demolition and whether he voluntarily paid the demolition costs are investigated and if it is determined that the perpetrator did not actually oppose the demolition and paid the demolition costs spontaneously without any coercion such as forced execution, the conditions for the application of Article 184/5 of the TPC in favour of the defendant are met. In the contrary case, the aforementioned effective remorse provision should not be applied… “25.10. 2018 dated 25.10.2018 and numbered 684-479)16- “Making Changes that do not qualify as a building by separating parts of the building without any overflow within the existing building does not constitute the crime of zoning pollution within the scope of Article 184 of the Turkish Penal Code.””…In Article 184 of the Turkish Penal Code, it is accepted as an element of the offence that the unlicensed section made must be in the nature of a building. Since it is not possible to accept the changes that do not qualify as a building by separating the parts of the building without any overflow within the existing building within the scope of this article of law, it is in accordance with the law to decide on the acquittal of the defendant …” (Decision of the 4th Criminal Chamber of the Court of Cassation dated 28.3.2012 and numbered E. 2010/9713-K. 2012/7321-)
“The relevant administration should be notified of the case in terms of the right to participate in the trial to be held in the action of unauthorised intervention to natural protected areas.”
“…In the proceedings conducted by the Criminal Court of First Instance, the defendant was convicted of the offence of causing zoning pollution. As a result of the appeal, the file was sent to the Court of Cassation for examination and discussion.
In accordance with the law article related to the incident subject to the file, it is stated that the Ministry of Environment and Urbanisation has the right to participate in the lawsuits filed for unauthorised interventions to the areas registered as natural protected areas. The place that is the subject of the case in the indictment is also a natural protected area. For this reason, the Court of Cassation stated that the Provincial Directorate of Environment and Urbanisation should also be informed about the pending lawsuit, and therefore, as a result of the examination, it was decided that there was no place to decide on this file. (18th Criminal Chamber of the Court of Cassation 2018/7925 Esas, 2019/15422 Karar)
18- “In the case of a balcony on the front and rear of the building. In order to make a correct judgement, it is necessary to investigate whether the places where the balconies are built are in the nature of a building and whether there is an area gain in violation of the licence by the authorised experts.”
The defendant built a 15 m² balcony on the front and rear parts of the building. In the case conducted by the criminal court of first instance on the grounds of this incident, the defendant was acquitted of the offence of causing zoning pollution. As a result of the appeal made by the participant’s attorney, the file was sent to the Court of Cassation for examination and discussion.
As a result of the examination, the Court of Cassation stated that the elements of the incident should be investigated in order to fully understand the incident and to be judged correctly. Authorised experts should investigate whether the places where the balconies are built are in the nature of buildings and whether there is an area gain in violation of the licence. The Court of Cassation has concluded that the judgement should be rendered after these investigations are completed. It was also stated that the legal status of the defendant should be re-evaluated by considering the provisional article added to the relevant law.
It was decided to overturn the judgement on the grounds that the necessary investigations should be carried out and the legal status of the defendant should be re-evaluated due to the relevant article. (Court of Cassation 18th Criminal Chamber 2019/2810 Esas, 2019/15073 Karar)
19- “It is necessary to re-evaluate the legal status of the defendant in accordance with the building registration certificate and to issue a decision of dismissal in case of the validity of the building registration certificate. “
“…In the trial conducted by the criminal court of first instance, the defendant was convicted of the offence of causing zoning pollution. Upon the appeal made by the defendant’s defence counsel, the file was sent to the Court of Cassation for examination and discussion.
According to the law, the court must clearly state the reasons for the judgement and the elements of the offence. However, the Court of Cassation, in its examination, has seen that the court only accepted the decision to defer the announcement of the judgement as a justification and sentenced the conviction. This situation is contrary to the law.
With the provisional article added to the Zoning Law, it is stated that the demolition decisions or fines related to the buildings with building registration certificates will be cancelled and if the buildings are brought into compliance with the building permit, the case will be dismissed and the sentence imposed will be lifted. This requires a re-evaluation of the legal status of the defendant.
For these reasons, the Court of Cassation has found the appellate objections in place and has decided to overturn the judgement. …”(Court of Cassation 11th Criminal Chamber 2019/2714 Main, 2019/6042 Decision)
20- “Establishing two separate judgements for two separate offences for a single action is contrary to the law.”
…As a result of the trial conducted by the Criminal Court of First Instance, the defendant was dismissed for the offence of causing zoning pollution, acquitted for the offence of contravention of Law No. 2863 and deferred the announcement of the verdict for the offence of contravention of Law No. 3621. Upon the appeal objections made by the attorneys of the participants, the file was sent to the Supreme Court for examination.
The first examination was made about the decision to defer the announcement of the verdict given for the offence of contravention of Law No. 3621. Here, since it was seen that the objection made by the participant’s attorney to the decision was conclusively decided by the heavy criminal court, it was decided to return the file to the court without examination.
In the examination made, it has been observed that the attorneys of the parties participating in the case as the injured party of the offence have filed an appeal objection. There is a situation that should be noted in this regard; in the law, the concept of victim of crime is not clearly explained like the victim. For this reason, the definition of being directly damaged by the offence in the established decisions is taken as basis, and indirect or possible damages do not entitle the parties to participate in the case as the injured party.
Therefore, it is not possible to join the public lawsuit based on indirect damages such as compensation, damage to reputation or loss of trust. In line with these reasons, the attorney of the Treasury on behalf of the Ministry of Environment and Urbanisation is not authorised to appeal the verdict against the defendant. Therefore, the Court of Cassation rejected the appeal objections of the attorneys of the participants against the judgement on the grounds of lack of jurisdiction.
Another examination was made about the verdict of dismissal for the offence of causing zoning pollution and the verdict of acquittal for violation of Law No. 2863, upon the appeal of the defendant’s attorney. Firstly, the defendant’s statement was analysed. In his statement, the defendant stated that in order for the customers to enter the sea, it was necessary to build platforms to provide descent and ascent to the place where the cliffs were located. He mentioned that the customers sunbathe and swim in the sea by descending to the bottom of the cliffs with stairs or lifts in this area. Even if the platforms built violate the relevant law, he said that this is obligatory in order to be able to do what the 5-star hotel licence requires and to enable customers to enter the sea.
Otherwise, he stated that there would be no point in being a touristic facility or a hotel by the sea. In the expert report submitted to the court after the incident, it was mentioned that the mentioned structures were present there during the discovery. In the light of this information, it is stated that the actions of the defendant have the characteristics of a special norm according to the relevant article of the law and should be judged accordingly. It has been concluded that there is no need to convict the defendant for the offence of causing zoning pollution and that the defendant should be convicted for the offence of violation of Law No. 2863 in accordance with the relevant article.
In summary, since it is contrary to the law to establish two separate convictions for two separate offences for a single act and since both convictions are not deemed appropriate, the Court of Cassation has decided to overturn them…” (Court of Cassation 12th Criminal Chamber 2016/7608 Esas, 2019/8277 Karar)
21- “It is not possible to issue a Decision of Deferral of the Announcement of the Verdict (HAGB) regulated in Article 231 for the Perpetrator who has the Possibility to Benefit from the Special Regulation in Article 184/5.”.
Deferral of the Announcement of the Verdict is the postponement of the announcement of the verdict of conviction if the perpetrator compensates the damage suffered by the victim or the public during the investigation or prosecution phase after committing the crime, and the verdict does not have any consequences during this postponement period.
It is not possible to decide to defer the announcement of the verdict (HAGB) for the defendant for the offence of zoning pollution. Because, the legislator has regulated a special state of effective remorse for the offence of zoning pollution under Article 184/5 of the TPC.
In the offence of causing zoning pollution, it is not possible to decide to defer the announcement of the verdict regulated in Article 231 for the perpetrator who has the opportunity to benefit from the special regulation in Article 184/5 by making the building he built or had built without a licence or in violation of the licence in accordance with the zoning plan and licence (General Assembly of the Criminal Court of Appeal – Decision: 2015/167). (However, if there are conditions, it is possible to decide to postpone the prison sentence for the defendant).
“Places with special zoning regime must be determined by an expert.”
In the face of the notification that the place subject to the crime of zoning pollution remains in the forest area, it is necessary to obtain a report from an expert expert expert on whether the said place is one of the places subject to the special zoning regime as of the date of the crime and whether it is within the scope of the provisional second article of the Law No. 5216 (18th Criminal Chamber of the Court of Cassation – 2015/14964 decision).
“In the event that the action constitutes both zoning pollution and violation of the Law No. 2863, the provisions of the TCK’s Intellectual Complication should be applied and a judgement should be established from the crime that requires a heavier penalty than the two crimes.”
“In the Decision of the Municipality Council, it should be stated that the place subject to the crime of zoning pollution is a 3rd degree archaeological site in the zoning plan, a criminal complaint should be filed for violation of Law No. 2863, the cases should be merged if opened, and a verdict should be established from the crime that requires a heavier punishment in accordance with Article 44 of the TPC.” (18th Criminal Chamber of the Court of Cassation – 2015/11763).
“Reinforced concrete building built as an addition to the mosque building is an offence under Article 184 of the TPC.”
In the face of the defendant’s unchanged defence that the defendant built a single-storey reinforced concrete building as an addition to the mosque building and the building holiday report confirming the defence and the determination that the building was built after 12.10.2004, it is against the law to acquit the defendant with the legal and insufficient justification that the building does not qualify as a building, without considering that the defendant’s action is in the nature of building a new building and should be punished for the crime of causing zoning pollution ( 4th Criminal Chamber of the Court of Cassation, 2012/3058 decision).
“The extension built without a licence is a building. It is an offence according to Article 184 of the Turkish Penal Code.”
Without considering that the unlicensed structure, the walls of which are made of bricks and the roof of which is made of sheet metal material, which is the subject of the crime, which the defendant built as an annex to the main building for the shelter of his worker, has the quality of ‘building’ described in Article 5 of the Zoning Law and that the crime of causing zoning pollution in accordance with Article 184/1 of the Turkish Penal Code has occurred, the decision of acquittal on illegal grounds required a reversal… (Court of Cassation 4th Criminal Chamber 2012/15384).
“Trial expenses, including attorney’s fees, cannot be ruled against the defendant who demolished the building himself.”
In the public case filed for the offence of causing zoning pollution, it was decided to dismiss the public case pursuant to Article 184/5 of the T.C.K. No. 5237, since the defendant demolished the building he built in violation of the licence. Pursuant to Article 325/1 of the Criminal Procedure Code No. 5271, it is only possible to charge the defendant with the costs of the proceedings in case of conviction to a penalty or security measure, and since the public case against the defendant has been decided to be dismissed, there is no possibility of holding the defendant responsible for the costs of the proceedings, including the attorney fee to be ruled in favour of the participant (Court of Cassation Criminal General Assembly – 2012/16 decision).
“Whether the structure is a building or not must be determined by an expert report”
Article 184/1 of the Turkish Criminal Code No. 5237 stipulates the punishment of persons who “construct or have constructed a building without a building licence or in violation of the licence”, and Article 5 of the Zoning Law defines the concept of building as “a building as “a structure that can be used on its own, that is covered and that people can enter into and that serves for people to live, work, entertain, listen or worship, and that serves for the protection of animals and goods”. However, the 2nd paragraph of the 2nd paragraph of the 2nd paragraph of the additional article 35 of the Law No. 406, which states that base stations, huts, containers and infrastructure facilities used in the formation of infrastructure related to electronic communication are not subject to building permits, was cancelled by the Constitutional Court’s decision dated 01.10.2009 and numbered 2006/129 Esas, 2009/121 Karar, and the cancellation decision was published in the Official Gazette dated 08.01.2010. In the concrete case, from the photograph attached to the expert report, it is understood that the surrounded and covered structures in which the base station power unit is placed, which is understood to be a “structure for the protection of goods” defined in Article 5 of the Zoning Law, should be investigated by investigating the date of construction and determining the legal status of the defendant according to the result by obtaining an additional report on whether it is in the nature of a building or not, but it is against the law to give a decision of acquittal with incomplete prosecution and insufficient reasoning (18th Criminal Chamber of the Court of Cassation – Decision: 2015/9910).
“In the Offence of Zoning Pollution, Discovery is Mandatory for the Determination, Appreciation and Determination of the Legal Status of the Defendants.
“…1- Defendants …, and … should have taken action in accordance with Articles 32 and 42 of the Law No. 3194 regarding the defendants who constructed buildings without a licence and/or in violation of the licence. Articles 32 and 42 of the Law No. 3194 regarding the defendants who constructed buildings without a licence and/or in violation of the licence, instead of their conviction for the offence of misconduct in office for which they were accused, 2- Considering that the Mayor, Deputy Mayor and Science Officer of the … Municipality were also tried as defendants within the scope of the same file in relation to the defendants …, and …, …. The decision of acquittal based on incomplete prosecution and erroneous justification instead of determining and appreciating the legal status of the defendants according to the result by obtaining an expert report by conducting an on-site discovery in the presence of an expert, is a reason for reversal. .” (18th Criminal Chamber of the Court of Cassation – Decision: 2019/13394).
29.” In order for the effective remorse provisions to be applied in the offence of zoning pollution; In cases where the demolition is carried out by the administration, it is obligatory to investigate whether the perpetrator actually opposed the demolition and whether he voluntarily paid the demolition costs, and to determine that the perpetrator did not actually oppose the demolition and paid the demolition costs spontaneously without any coercion such as forced execution. “
“…In order to benefit from the provision in the fifth paragraph of Article 184 of the TCC, the person must bring the building that he/she has built or had built without a licence or in violation of the licence into compliance with the zoning plan and licence. The person who will obtain a licence or bring it into conformity with the licence is the person or persons against whom an investigation has been carried out or a public case has been filed or who have been tried and sentenced.
In the event that the unlicensed building is demolished by the municipality officials pursuant to Article 32 of the Zoning Law No. 3194, it is not possible to apply the fifth paragraph of Article 184 of the TPC directly to the accused for the offence of causing zoning pollution, on the grounds that only the demolition has taken place. Because in this case, there is no active behaviour of the defendant, which is a compulsory element of effective remorse. The demolition of the unlicensed building is a duty of the administration, and even if the demolition is not opposed due to the demolition carried out by the administration independent of the defendant, it would be contrary to the spirit of the effective remorse and the purpose of the article to decide to drop the public case in accordance with the aforementioned regulation.
However, demolition of an unlicensed building is an action that cannot be carried out by the building owner in most cases due to the necessary measures to be taken, the technical equipment needed, etc. For this reason, it should be considered natural for the building owners to expect the demolition to be carried out by the administration with the idea that they will pay the demolition costs anyway. In such a case, it would not be a fair solution not to apply the effective remorse provision on the grounds that the demolition was not carried out by the perpetrator. For this reason, in cases where the demolition is carried out by the administration, the issues of whether the perpetrator actually opposed the demolition and whether he voluntarily paid the demolition costs should be investigated and if it is determined that the perpetrator did not actually oppose the demolition and paid the demolition costs spontaneously without any coercion such as forced execution, it should be accepted that the conditions for the application of the fifth paragraph of Article 184 of the TCK in favour of the defendant have been fulfilled, otherwise, the aforementioned effective remorse provision should not be applied…” (Criminal General Assembly -K.2019/703).
(Since the crime of causing zoning pollution has some specific features in terms of effective remorse, deferral of the announcement of the verdict and postponement of the sentence, it is beneficial to make the defence with an expert and experienced criminal lawyer).
30.” In the Offence of Causing Zoning Pollution; Considering that the offence will not occur in the adjacent area, it is necessary to determine the legal status of the accused according to the result of the research on whether the place subject to the crime is within the municipal boundaries or subject to special zoning regime.
It is unlawful to apply the measure without explaining what kind of a connection exists between the offence of causing zoning pollution and places where alcoholic beverages are consumed within the meaning of the law, without considering that there must be a connection between the offence committed and the social, psychological or environmental factors that encourage or facilitate the defendant to re-offend in order to apply the alternative sanction of being banned from going to certain places or doing certain activities. “
” LAWSUIT : The judgement given by the local court was appealed and the file was discussed according to the duration of the appeal, the nature of the judgement and the date of the offence:
DECISION : Since there were no reasons for the rejection of the appeal request, the merits of the case were considered.
In the examination made according to the content of the minutes, documents and justification reflecting the hearing process in which the conscientious opinion was formed, other reasons were not found to be relevant.
1- ) Pursuant to the provision “Except for the third paragraph, the provisions of this article shall only be applied within the boundaries of the municipality or in places subject to special zoning regime” in Article 184/4 of the T.C.K., considering that the offence shall not occur in the neighbouring area, it is necessary to determine the legal status of the defendant according to the result by conducting an investigation as to whether the place subject to the crime is within the municipal boundaries or subject to special zoning regime,
2- ) According to the acceptance:
a- ) With paragraph 1 of Article 562 of the Law No. 5728, which entered into force on 08.02.2008 and which is in favour of the defendant pursuant to Article 7/2 of the Turkish Penal Code, the limit for the deferment of the sentence stipulated in Article 231/5 of the Criminal Procedure Code was increased to two years and with paragraph 2 of the aforementioned Article 2. Paragraph 2 of the aforementioned Law Article 2 and the removal of the condition that the investigation and prosecution of the offence in Article 231/14 of the C.M.K. is subject to complaint, it is not discussed whether the announcement of the verdict should be deferred for the defendant who has no criminal record,
b- ) Applying the aforementioned measure with insufficient justification, without considering that in order to apply the alternative sanction of “being banned from going to certain places or doing certain activities” stipulated in Article 50/1-d of the T.C.K., there must be a connection between the offence committed and the social, psychological or environmental factors that encourage or facilitate the defendant to re-offend, and without explaining what kind of a connection exists between the offence of causing zoning pollution and places where alcoholic beverages are consumed in the sense sought by the law,
CONCLUSION : Since it is contrary to the law and the reasons for the appeal of the defendant Recep D. are deemed appropriate, it was unanimously decided on 03.06.2013 that the verdict be DISMISSED by rejecting the confirmation opinion in the notification, and since there is no counter-appeal, the 326/last article of the C.M.U.K. numbered 1412 should be taken into consideration while re-establishing the verdict, and the file should be sent to the original/conviction court in order to continue and conclude the trial starting from the stage before the reversal. ” (T.C.JUDICIARY 4TH CRIMINAL COURT E. 2013/11301 K. 2013/16939 T. 3.6.2013)
31.” In the face of the fact that it has not been proven that the offence of causing zoning pollution charged to the defendant, who has no criminal record, has caused a direct damage to the persons and the public administration, and that the restoration of the unlicensed building can be considered in terms of the application of the provision of effective remorse, While it is necessary to evaluate the conditions for the application of the suspension of the announcement of the judgement against the defendant in this direction, it is contrary to the law not to apply the provisions of the suspension of the announcement of the judgement with the illegal justification that the defendant did not restore the building he built. “
“CASE : The judgement given by the Local Court was appealed and the file was discussed according to the duration of the appeal, the nature of the judgement and the date of the offence:
DECISION : Since there were no reasons for the rejection of the appeal request, the merits of the case were considered.
In the examination made according to the content of the minutes, documents and justification reflecting the hearing process in which the conscientious opinion was formed, other reasons were not found to be relevant.
However;
Since it has not been proven that the offence of causing zoning pollution imposed on the defendant, who has no criminal record, has caused a direct damage to persons and public administration, and the restoration of the unlicensed structure can only be considered in terms of the application of the effective remorse provision stipulated in Article 184/5 of the TCC, the defendant is entitled to be deferred the announcement of the sentence regulated in Article 231 of the Code of Criminal Procedure. While the conditions for the application of the deferral of the announcement of the verdict regulated in Article 231 of the Code of Criminal Procedure should be evaluated in this direction, the provisions of the deferral of the announcement of the verdict regulated in Article 231 of the Code of Criminal Procedure should not be applied with the illegal justification that the defendant did not restore the building he built,
CONCLUSION : Since the reasons of appeal of the defendant Y.M. against the law and the opinion in the notification were deemed appropriate, it was unanimously decided on 05.11.2012 that the verdict shall be reversed and the file shall be sent to the original/conviction court in order to continue and conclude the trial starting from the stage before the reversal. ” (T.C.JUDICIARY 4TH CRIMINAL COURT E. 2011/24143-K. 2012/23032 T. 5.11.2012)
32.” As it is understood that the encroached place is within the municipality boundaries and the coastal border line, the legal status of the accused must be determined and judged in accordance with causing zoning pollution or violating the Coastal Law by issuing a hearing invitation to the Mayor of the Municipality and investigating the construction date of the pier. “
“DECISION : As it is understood in the expert report obtained as a result of the discovery made in the neighbourhood regarding the immovable property subject to the case that the encroached place is within the municipal boundaries and the coastal edge line, a hearing invitation should be issued to the Mayor’s Office, the date of construction of the pier should be investigated, and according to the result, the legal status of the defendant should be determined and appreciated in accordance with Article 184 of the Turkish Penal Code and Article 15 of the Coastal Law, but the decision of acquittal with incomplete research.
CONCLUSION : Since it is contrary to the law and the appellate objections of the participant’s attorney are deemed appropriate in this respect, it was decided unanimously on 11.10.2012 that the verdict should be (DISMISSED) in accordance with Article 321 of the C.M.U.K. No. 1412, which should be applied in accordance with Article 8/1 of the Law No. 5320 for this reason. “T.C. JUDICIARY 8TH CRIMINAL COURT E. 2011/12442 K. 2012/30563 T. 11.10.2012)
33- “Although a lawsuit has been filed against the defendant for encroaching on the immovable belonging to the Treasury by building an amphitheatre, concrete floor, shower area, staircase, cafeteria, green area, walking path, umbrella and sunbed area, scaffolding and mobile scaffolding; Since there is no title deed record in the file, it is necessary to investigate whether the immovable subject to the encroachment is in the nature of a building, whether the immovable is in a place subject to a special zoning regime and the date of construction of the building by bringing the title deed record, if any. The legal status of the defendant should be evaluated in accordance with the provisions on causing zoning pollution and violation of the Coastal Law.
In the Public Lawsuit filed pursuant to the Provisions on Encroachment on the Rightless Place, if the act subject to prosecution constitutes a misdemeanour, the Court should decide on administrative sanction according to the Law on Misdemeanours, but it is unlawful to make a decision of non-jurisdiction on the grounds that the Administrative Sanction Decision will be decided by the Local Authority. “
“DECISION : As it is understood that the defendant’s attorney has appealed the judgement against the defendant, in the examination limited to the said defendant:
1- ) Although a lawsuit has been filed against the defendant for encroaching on the immovable belonging to the treasury by building an amphitheatre, concrete floor, shower area, staircase, cafeteria, green area, walking path, umbrella and sunbed area, scaffolding and mobile scaffolding; Since there is no title deed record in the file, the title deed record of the immovable subject to encroachment, if any, should be obtained, and if necessary, a new discovery should be made by taking a civil engineer expert as a companion, and the nature of the immovable, whether it is in the nature of a building, whether a licence is required for its construction, whether it is within the Zoning Law and legislation, and whether the immovable allegedly encroached by the defendant is in a place subject to a special zoning regime and the date of construction of the building should be investigated. While it is necessary to determine and appreciate the legal status of the defendant in accordance with Article 184 of the Criminal Code and Article 15 of the Coastal Law, the decision of non-jurisdiction was made,
2- ) According to the acceptance and application:
In the public case filed against the defendant for the offence of violation of Article 154/1 of the T.C.K., without considering that if the act subject to prosecution constitutes a misdemeanour, an administrative sanction decision should be made by the court according to Article 24 of the Law on Misdemeanours, to make a decision of non-jurisdiction on the grounds that the administrative sanction decision will be decided by the local authority,
CONCLUSION : Since it is contrary to the law and the appellate objections of the representative of the participating treasury are deemed appropriate in this respect, it was decided unanimously on 11.10.2012, in accordance with Article 321 of the C.M.U.K. No. 1412, which should be applied in accordance with Article 8/1 of the Law No. 5320 for these reasons (DISMISSAL). (JURISDICTION 8. Criminal Court E. 2011/10103-K. 2012/30566 T. 11.10.2012)
“In the face of the existence of a construction contract between the landowner and the contractor and the fact that it is stated that the person who “built” or “had built” a building without obtaining a building permit or in violation of the building permit will be punished in the crime of causing zoning pollution, it is unlawful to acquit the landowner defendant by making a mistake in the evaluation of the evidence.”
(T.C. Court of Cassation 4th Criminal Chamber E. 2012/1537 K. 2012/18064 T. 19.9.2012)
“Making changes in the existing building without any overflow by separating the parts of the building without any overflow will not constitute this offence …”
(T.C. JUDICIAL COURT 4TH CRIMINAL CHAMBER E. 2010/9713-K. 2012/7321-T. 28.3.2012)
“It is necessary to accept that the activities such as the continuation of the construction and the construction of the exterior plaster and partitions for the completion of the construction will constitute the imputed offence – It is necessary to accept that the offence has occurred by considering that the construction activities continued until the date of the indictment “
(T.C. JUDICIAL COURT 4TH CRIMINAL CHAMBER E. 2009/16764 K. 2011/20197 T. 2.11.2011)
