The Crime of Causing Zoning Pollution (Article 184 of the Turkish Penal Code)

The ability of individuals to continue their lives in a healthy way depends on their ability to live in a healthy environment and conditions.

1.Introduction
The ability of individuals to continue their lives in a healthy way depends on their ability to live in a healthy environment and conditions. In this respect, it is necessary to prevent environmental pollution and protect the environment in order to create a healthy environment. In terms of this necessity, environmental protection has become of vital importance today. For this reason, regulations are made in many countries for the effective protection of the environment. In this context, Turkey has also made regulations to ensure environmental health through various norms in its legislation, especially Article 56 of the Constitution and the Environmental Law No. 2872, and has criminalized certain acts that harm environmental health between 181-184 provisions of the Turkish Criminal Code No. 5237 and stipulated certain sanctions for the commission of these acts.

In our study, the “Crime of Causing Zoning Pollution” regulated in Article 184 of the Turkish Criminal Code will be examined in all aspects.

What is the “Crime of Zoning Pollution” under Article 184 of the Turkish Criminal Code? Which actions constitute the “Crime of Zoning Pollution” according to the scope of the article?
The Crime of Causing Zoning Pollution is regulated under Article 184 of the Turkish Penal Code.

According to Article 184 of the Turkish Penal Code titled “Causing Zoning Pollution”;

(1) A person who constructs or causes to be constructed a building without a building license or in violation of a building license shall be sentenced to imprisonment from one year to five years.

(2) The person who allows electricity, water or telephone connection to the construction sites established due to the constructions started without a building permit shall be punished according to the provision of the above paragraph.

(3) Any person who permits any industrial activity to be carried out in buildings for which a certificate of occupancy has not been obtained shall be punished with imprisonment from two to five years.

(4) Except for the third paragraph, the provisions of this Article shall be applicable only within municipal boundaries or in places subject to special zoning regime.

(5) In the event that the person makes the building which he/she constructed or had constructed without a license or in violation of the license compliant with the zoning plan and license, the public case shall not be initiated pursuant to the provisions of paragraphs one and two, the public case initiated shall be dismissed, and the sentence imposed shall be annulled with all its consequences.

(6) The provisions of the second and third paragraphs shall not apply to buildings constructed before October 12, 2004.”

It should be noted that the person who committed these acts before 12.10.2004 will not be punished for the offense of zoning pollution. Because, since the crime of causing zoning pollution entered into force for the first time in the Turkish Penal Code on 12.10.2004, no one can be punished for an act that the law does not explicitly criminalize; no one can be punished with a penalty other than the penalty prescribed in the law for an act or with a heavier penalty than the penalty prescribed in the law, in accordance with the universal principle of “No crime and punishment without law”, which is included in criminal law and laws. Therefore, the offense of causing zoning pollution will not be committed for buildings completed before this date.

According to the scope of the article, the acts regulated as a crime are as follows:

Building or constructing a building without a building permit or in violation of the building permit;
Allowing electricity, water or telephone connection to the construction sites established due to the constructions started without a building permit;
Allowing any industrial activity to be carried out in buildings for which a certificate of occupancy has not been obtained;
to allow any industrial activity to be carried out in buildings for which a certificate of occupancy has not been obtained. It is noteworthy that the crime of causing zoning pollution within the scope of the article regulates three different crimes (acts) as stated above. In terms of the examination to be made in terms of the three crimes, common concepts are used as the subject of the crime at some points and as a part of the act at some points. In this context, firstly, common concepts will be discussed in terms of the crime of causing zoning pollution, and then each crime will be examined within the framework of its structural elements.

2.A-) What are the Concepts Used in the Crime Type?
Structure and Building:

The concept of building is defined in Article 5 of the Zoning Law as “permanent or temporary, public and private underground and aboveground constructions on land and in water, and fixed and movable facilities including their additions, changes and repairs”.

The concept of building is also defined in Article 5 of the Zoning Law and is defined as “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 or rest or worship, and for the protection of animals and goods”.

As can be seen from the definitions, it is clear that the concept of structure refers to a more comprehensive area that includes the concept of building; in this sense, although every building is a building, not every structure can be characterized as a building. For example, facilities such as garden walls, swimming pools, water wells, bridges, electricity and telephone poles, tents, and soccer fields are not buildings although they are structures. While the construction of the foundation underground for the construction of a building is a building, each part of the building such as columns and walls, stairs, balconies, roofs, etc. are buildings, when these structures are evaluated as a whole, they qualify as buildings.

These concepts are important in terms of whether the act constitutes the following. Namely; in terms of the crime of causing zoning pollution, the subject of the crime is the building, not the structure. As a matter of fact, the regulation explicitly mentions the building. Within the framework of the definition, it is not possible to characterize vehicles such as coops and tents as buildings. Again, it is not possible to consider empty fields that are not established as a result of a construction activity within the scope of the crime. However, prefabricated dwellings, even if they are demountable, which are in accordance with the definition above and which show the characteristics of a facility in a certain way, are considered within the building category. (1),(2)

Construction Site:

Construction site buildings are defined in Article 35 of the Unplanned Areas Zoning Regulation as buildings to be used and demolished during the continuation of the construction according to necessity and need.

Building License (Building License Certificate):

As stated in Article 21 of the Zoning Law, it is obligatory to obtain a building license from the municipalities or governorships in order to start construction of all buildings within the scope of this law, with the exceptions specified in this law. In terms of zoning legislation, a building permit is a document indicating that permission has been granted by the competent authority for the construction of a building, the construction of which is legally required to obtain permission.

The building license is an essential condition for the construction of a building and the construction of the building cannot be started without obtaining this license. Otherwise, the building will become an illegal building. In the event that changes are requested to be made to the structures for which a license has been obtained and the periods stipulated in Article 29/1 of the Zoning Law have expired (The period for starting the construction is two years from the date of the license. If the construction is not started within this period or if the construction is started but not completed within five years together with the starting period for whatever reason, the license issued shall be deemed null and void. In this case, it is obligatory to obtain a new license.) a new building license must be obtained. Otherwise, the building will again become an illegal building. As a matter of fact, the Court of Cassation stated that “According to Article 21 of the Zoning Law No. 3194, it is obligatory to obtain a license from the municipality for all buildings, with the exceptions specified in Article 26 of the same law. This issue is related to public order and must be taken into consideration by the court ex officio. Construction cannot be started without a license.”(3); “The provisions of the Zoning Law No. 3194 are related to public order and according to this law, the construction of all kinds of construction depends on obtaining a license from the competent authorities, and the structures built without a license and those that cannot be connected to the license must be demolished.”(4).

Building Permit Certificate of Occupancy (Iskan):

As stated in Article 30/1 of the Zoning Law17 , the occupancy permit, which can also be referred to as a settlement permit, is the permission obtained from the authority that issued the building permit upon the application of the owner, upon the completion of the construction of the building for which a building permit has been obtained, for the actual use of the whole or, if partially completed, the parts available for use.

The occupancy permit indicates the intended use of the building. For the purpose for which the permit is issued, the building can only be used within the scope of that permit, that is, for that purpose. For example; The building, which is permitted to be used as a residence, cannot be used as a workplace

Industrial Activity:

Industrial activity is defined as the work carried out to transform raw materials such as minerals, soil products and animal products into products that meet human needs by using machinery, labor and other means.

Areas within municipal boundaries or subject to a special zoning regime:

It is stated that the first two paragraphs of the regulation made in terms of the crime of causing zoning pollution in Article 184/4 of the Turkish Penal Code, namely the crime of constructing or having constructed a building without a license or in violation of the license, and the acts of allowing electricity, water or telephone connection to the construction sites established due to the constructions started without a building license, will only be applied in terms of municipal boundaries and places subject to special zoning regime. (5)

The municipal boundary is the boundary determined according to the principles specified in Article 5 of the Municipal Law No. 5393 and based on a report and a sketch. The adjacent areas are the areas under the control and responsibility of the municipalities in terms of zoning legislation according to Article 5 of the Zoning Law. As a result of the inclusion of an area within the adjacent area, it comes under the control and responsibility of the relevant municipality, and therefore, it will be necessary and obligatory to obtain a building license for the buildings to be built within the adjacent area.

In this context, the Crime of Causing Zoning Pollution is a crime that can only be committed within municipal boundaries or in special zoning areas. In other words, in order for the crime of causing zoning pollution to occur in accordance with Article 184/4 of the Turkish Penal Code, the immovable property must be within the municipal boundaries or subject to a special zoning regime. As a matter of fact, in one of the decisions of the Criminal General Board of the Court of Cassation, it was decided to overturn the decision of the Court of Cassation on the grounds that “In order for the crime of causing zoning pollution pursuant to Article 184/4 of the Turkish Penal Code to occur, the immovable must be within the municipal boundaries or subject to a special zoning regime, and since it is understood that it is stated in the letter of the Mayor’s Office dated 29.03.2011 that the location of the building subject to the crime is within the boundaries of the adjacent area, the judgment was established with incomplete examination without determining whether the immovable is subject to a special zoning regime.” (6)

According to Paragraph 4 of Article 184 of the TPC, construction activities subject to the offense can only be punished if they take place within municipal boundaries and in places subject to a special zoning regime.

Since the “reconciled areas” are not within the municipal boundaries, those who build illegal buildings in the reconciled areas cannot be the perpetrators of this offense. Structures in the nature of “buildings” in villages are also not subject to the offense.

“…According to the letter of Samsun Metropolitan Municipality dated 20/09/2007, it is stated that the village of Demirci, where the crime was committed, is not within the municipal boundaries, but in the adjacent area, and according to the provision of Article 184/4 of the Tck; “except for the third paragraph, the provisions of this article are only applied within the municipal boundaries or in places subject to special zoning regime”, in the face of the inapplicability of paragraph 1 of the aforementioned article in the adjacent area, an acquittal verdict should be rendered against the defendant, while a written verdict should be rendered against the defendant…(Court of Cassation 4th Criminal Chamber 20/12/2010, 2008/12395 E., 2010/21166 K)”

In the text of the law, “places subject to special zoning regime” refers to places whose zoning regime is regulated by special laws such as Organized Industrial Zones, Coastal Law, Law on the Protection of Cultural and Natural Heritage, Bosphorus Law.

2.B- What is the Protected Value in the Crime of Zoning Pollution?
Considering the place where the crime of zoning pollution is regulated in the TPC, it is regulated in the section of crimes against the environment; Considering that the crimes of “Pollution of the Environment” and “Causing Noise”, which are regulated in the same section, are dealt with in the same scope, it is possible to say that the aim of the legislator is to ensure that people can continue their lives in a healthy environment. In this context, the legal value protected in the crime of causing zoning pollution, which is organized under the title of crimes against the environment of the Turkish Penal Code, is the right to the environment.

2.C- The Crime of Building and Having Built a Building Contrary to the Building License and without a License
In the first paragraph of Article 184 of the Turkish Penal Code, the act of constructing or having constructed a building without a building permit or in violation of a building permit is regulated as a crime.

(A) The Material Element of the Offense of Building or Having Built a Building without a Building License or Contrary to a Building License:
1) What is the Subject of the Offense of Building and Having Built a Building Contrary to the Building Permit and Without a Building Permit?
As clearly stated in Article 184/4 of the Turkish Penal Code; the subject of the “Crime of Building and Having Built a Building Contrary to the Building License and without a License” is the “Building” built in violation of the building license and without a license in places subject to municipal borders or special zoning regime.

In this context, since the article explicitly mentions building, it is imperative to mention the existence of a building that must first be built by obtaining a building license. The formation of the crime cannot be mentioned in terms of buildings and buildings constructed in places that are not subject to a building license.

In this sense, the determination and existence of whether a building can be evaluated in the category of a building, first of all, whether the building can be considered as a building, and then whether it is subject to a license is very important in terms of whether the crime has occurred.

In the decision of the Criminal General Assembly of the Court of Cassation No. 2015/176 E. 2018/503 K., the conditions required for the crime of Causing Zoning Pollution to occur were discussed and in order for illegal structures to be considered as buildings and to be accepted as buildings:

1-It affects the load-bearing elements of the building or,

2- It has been ruled that it must be in the nature of gaining a closed area.

Let us explain what should be understood from the expression “gaining a closed area” with a few judicial decisions.

In the decision of the 4th Criminal Chamber of the Court of Cassation No. 2012/9298 E. 2012/6669 K. : In the case of closing the terrace balcony of the apartment with pvc and glass, it was decided that the crime did not occur on the grounds that closing an existing area of the building cannot be characterized as a new area acquisition and closing the balcony with pvc is not a “building”.

The 4th Criminal Chamber of the Court of Cassation in its decision numbered 2012/12489 E. 2012/15384 K: It was ruled that a production of a few square meters, which is simply built with a brick wall and covered with sheet metal for the workers to sleep, is in the nature of a “building” and the crime has occurred.

Closing the existing area or building a wall of meters does not constitute a crime since it does not meet the definition of “building”, but very simple structures that can be used independently with 4 sides and closed top are considered as “building” and punished.

In cases where the construction activity contrary to the zoning is not itself a “building” but takes place on a licensed building, it is ruled that the crime will also occur in cases where “the load-bearing elements of the building are affected” even if there is no gain of space.

In this case, there is no building constructed, but the load-bearing elements of the building, in other words, the statics of the building have weakened as a result of the negative impact on the load-bearing elements of the building due to the operations carried out in an existing lawful building. It is accepted that the weakening of an existing lawful building, but not the construction of a new building, also constitutes a crime. Cutting the columns or constructing a building with weaker columns in violation of the static project, which was started by obtaining all legally required permits, are examples of this situation.

The Court of Cassation considered “building a terrace floor” within the scope of a building (7); as well as making changes within the existing building by separating parts of the building without any “overflow” as making changes that do not qualify as a building. (8) Again, our supreme court found the failure to qualify the “water basin” as a building unlawful with its decision that “instead of convicting the defendant of the crime of causing zoning pollution by building a building without a license, it was decided to acquit him with the illegal justification that the building at the water basin level is not a building.” (9)

As can be seen, it is very important to determine which of the concepts of structure or building the production or action is included in the determination of the existence of the crime or whether the crime has occurred.

In order for Article 184/1 of the TPC to be applied, the building does not have to be specialized for human life. A shelter for animals is also within the scope of Article 184/1 of the TPC, provided that it is subject to a license. This is because Article 5 of the Zoning Law clearly states that places built for animals are also included in the concept of building.

The acceptance of a place as a building does not depend on the condition that it is actually used. What is important in terms of Article 184/1 of the TPC is not whether the place subject to the crime is actually used or not, but whether it is built without a license/in violation of the license. Even if the building is not actually used after it is built without a license or in violation of the license, the crime of causing zoning pollution will occur.

In order to be able to speak of Article 184/1 of the TPC; a building must be constructed/constructed without a building license or in violation of the building license. Therefore, Article 184/1 of the TPC will not occur if the building for which a building license has been obtained is used in violation of the occupancy permit. For example; A applied to the relevant institution and stated that he wanted to build a house and the project submitted by him was accepted. If A constructs the building in full compliance with the project submitted to the relevant institution, but uses the building not as a house, but for example as a lawyer’s office, Article 184/1 of the TPC will not apply. This is because there is no violation of the building license.

2) Who is the Perpetrator of the Offense of Building and Having a Building Built Contrary to a Building License and without a Building License?
The first paragraph of the Article stipulates that the person who constructs or has constructed a building without a building permit or in violation of the building permit shall be punished. According to the regulation, as stated in the preamble of the article, not only the contractor, subcontractor, master, journeyman and workers who construct the building will not be held responsible as the person who “constructed the building”, but also the owner of the building can be held responsible as the person who “built the building”.

3) Who is the victim of the crime of building and having a building constructed in violation of the building license and without a building license?
The crime of causing zoning pollution is included in the crimes against society section of the Turkish Penal Code. The victims of this crime are all members of society who have the right to live in a healthy and orderly environment. Taking into account that the victim of the crime can only be real persons, if it is necessary to evaluate the victimization of municipalities, it is possible that these institutions can only be described as damaged by the crime, since legal entities cannot be victims of crime. Since municipalities, which are authorized institutions in the field of zoning, have rights and duties such as zoning applications, granting or revoking zoning permits and inspections, it is accepted in practice that municipalities are damaged by the crime, and they are accepted as participants in such cases.

4) What is the Act of the Crime of Building and Having Built a Building Contrary to the Building License and without a License?
In the crime of building a building without a building license or in violation of a building license, the material element of the act is the act of building or having a building built.

The Court of Cassation interprets the term “building” as including construction activities and does not seek the completion of the construction of the building for the crime to occur. In this sense, according to the practice of the Supreme Court, any construction activity aimed at building or having a building constructed after the entry into force of the law is considered as a completed crime even if the construction of the building is not completed.

On the other hand, the Court of Cassation states in many of its decisions that it should be determined whether the construction activity is of the nature of a building and whether it is subject to a license or not, and that a decision should be made according to this determination. “It is understood from the report dated 04.01.2006 that the defendant constructed the roof of his unlicensed building by using steel construction material and covering it with aluminum cover. 2006 dated minutes, it is necessary to determine the legal status of the defendant according to the result by listening to the officials who issued the minutes, who received an expert report on whether these productions are in the nature of renovation and repair of an existing building, or whether it is a substantial construction activity for building or completing a building, and whether the execution of these works is subject to a license.”(10) In another precedent decision, it was stated that “the completion of the building is not necessary for the completion of the crime, and that the crime also shows the characteristics of a crime.”(11)

(B) What is the Moral Element of the Crime of Building and Having Built a Building Contrary to the Building License and without a License?
The crime of causing zoning pollution is a crime that can be committed intentionally. During the execution of the perpetrator’s act, he/she must know the material elements of the crime and act willingly. In this context, within the scope of the material element, the perpetrator must know that the area where the act of building a building is carried out is within the scope of Article 184 of the TPC, and that no license was obtained or that it was done against the license. It is not possible to commit the offense with negligence. However, it should be accepted that it can be committed with probable intent.

2.D. The Crime of Allowing Electricity, Water or Telephone Connections to Construction Sites Established as a Result of Constructions Started Without a Building License:
(A.) What are the Material Elements?
In Article 184/2 of the TPC, it is defined as a crime to allow the connection of electricity, water or telephone to the construction sites established due to the constructions started without a building license. Since it is not within the possibility and duty of everyone to ensure that the electricity, water or telephone connection listed in the text of the article is made, these connections can only be made if the necessary permission is given by persons with certain titles and authorized in this regard, the crime regulated in this paragraph has the characteristics of a specific crime.

In order for the offense under Article 184/2 of the TPC to occur, the place where electricity, water or telephone connection is made must be a construction site. Therefore, the connection of electricity, water or telephone to buildings that are not construction sites is not within the scope of Article 184/2 of the TPC. Since only electricity, water and telephone are mentioned in the provision, the acts of allowing works other than these, such as natural gas, road construction, establishment of infrastructure, cannot be accepted within the scope of Article 184/2 of the TPC.

As stated above, the perpetrators of the offense regulated under Article 184/2 of the TPC are the persons who are in charge of the control, signature and approval phase of the connection. Therefore, the actions of the persons who actually make the connection are not within the scope of Article 184/2 of the TCC.

In Article 184/2 of the TPC, unlike Article 184/1, only the unlicensed construction is mentioned. Therefore, in buildings for which a building license has been obtained, even if the building is constructed in violation of the license, the act of allowing electricity, water or telephone connection to the construction site of the building constructed in violation of the license will not constitute a crime.

(B) What is the Moral Element?
The offense is a crime that can be committed intentionally. The offense will be committed if the perpetrator knowingly and willingly allows the connection of electricity, water or telephone to the construction site established due to a construction that he knows is located within the municipal boundaries or in a place subject to a special zoning regime and that he knows that it started without a building permit.

2.E. The Offense of Allowing Any Industrial Activity to Be Carried Out in Buildings for which a Certificate of Occupancy has not been obtained:
(A.) What are the Material Elements?
In the third paragraph of the article, it is defined as a crime to allow any industrial activity to be carried out by the competent administration in buildings for which no occupancy permit has been obtained, and it is regulated that the authorized person who allows such an activity to be carried out will be responsible. As a result, the crime regulated in the paragraph is also a specific crime.

With the offense regulated in Article 184/3 of the TPC, the act of allowing any industrial activity to be carried out in buildings for which a certificate of occupancy has not been obtained is prohibited. In order for the crimes in the first and second paragraphs to occur, the condition in the fourth paragraph that the act is carried out within the municipal boundaries or in places subject to a special zoning regime is not sought in the crime regulated in the third paragraph.

Without exception, allowing industrial activities to be carried out in buildings without a building use permit is regulated as a crime.

In order for a person to be the perpetrator of the offense, he/she must have the authority and duty regarding the industrial activity that he/she has authorized. It is not possible for a person who does not have the authority to grant permission for industrial activity to be the perpetrator of the crime.

The crime regulated under Article 184/3 of the TPC is constituted by the act of allowing the business owner to carry out industrial activity in a building that does not have a building occupancy permit.

The perpetrator of the crime is the public official who is authorized to grant this permission – the official who issues the license to open and operate a workplace will determine whether the workplace in question has a certificate of occupancy or not.

(B) What is the Moral Element?
The crime can only be committed intentionally. The perpetrator must knowingly and willingly allow industrial activities to be carried out in a building that he knows does not have a building use permit.

3) Is There Effective Repentance in Zoning Pollution Crime? What kind of legal consequences does the perpetrator who shows effective remorse face?
Effective remorse is an institution of criminal law that ensures that the person is not punished or the penalty is reduced if the person eliminates the negativities and illegality caused by the act committed against the law.

In the 4th paragraph of Article 184 of the Turkish Penal Code, which regulates the crime of causing zoning pollution, effective remorse is regulated as a personal reason that removes the punishment.

The regulation is only related to the crime regulated in the first paragraph of the article. According to the provision, “In the event that the person makes the building, which was built or constructed without a license or in violation of the license, in accordance with the zoning plan and license, the public case is not opened in accordance with the provisions of paragraphs one and two, the public case that has been opened is dismissed, and the convicted punishment is eliminated with all its consequences.” Unlike other similar provisions, the provision on effective remorse has consequences after the conviction.

In order for the perpetrator to benefit from effective remorse, he/she must bring the building subject to the crime into compliance with the license or zoning plan.

Our high court rightly stated that in the crime of causing zoning pollution, there is no damage to the public in the sense of Article 231 of the Criminal Procedure Code, and in this way, the decisions that try to apply the effective remorse provision and the deferment of the announcement of the verdict together are contrary to the law. (12)

Article 184/5 of the Turkish Penal Code: “In terms of the first and second paragraphs, a public lawsuit cannot be filed, the lawsuit that has already been filed is dropped, and the convicted penalty is eliminated with all its consequences by making the buildings without a license or in violation of the license in accordance with the zoning plan and license.”

Accordingly, when the violation of zoning is eliminated during the investigation phase, a decision of “no prosecution” will be made, and when it is eliminated during the prosecution phase, a decision of “dismissal” will be made.

If a person who is sentenced to a penalty for the crime of Causing Zoning Pollution removes the zoning violation even if the decision on the person is finalized and even if some or all of the sentence is executed, the penalty imposed on him will be eliminated with all its consequences and his criminal record will be cleaned in terms of this crime.

Since there are conflicting decisions of the Court of Cassation on whether the perpetrator of the offense of Causing Zoning Pollution can be sentenced to “Deferral of the Announcement of the Verdict”, this issue has caused controversy. In the decisions ruling that the deferment of the announcement of the verdict cannot be decided in this offense, the provisions of TCK 184/5 effective remorse are stated as justification.

In many decisions of the Court of Cassation, it has ruled that “Deferral of the Announcement of the Verdict” can be decided in the offense of Causing Zoning Pollution. However, decisions in the opposite direction continue to be issued.

“The possibility of application of the provisions on effective remorse under Article 184/5 of the Turkish Penal Code and the provisions on the deferral of the announcement of the verdict under Article 231 of the Penal Code must be considered and evaluated independently of each other. One cannot be considered as a prerequisite for the other, nor does it constitute an obstacle to its application.” (Court of Cassation 4th Criminal Chamber, dated 7.10.2009, 2009/19787 main, 2009/15763 decision) Similar (Court of Cassation 4th Criminal Chamber, dated 21.02.2012, 2011/14279 E., 2012/6701 K)

In another decision of the Court of Cassation, in the case of effective remorse after the HAGB decision was made and finalized, in other words, in the case of the elimination of the violation of zoning, the finalization of the HAGB decision and the elimination of the 5-year supervision period and the dismissal of the case. (4th Criminal Chamber of the Court of Cassation 2009/17546 Main and 2009/17330 Decision)

Article 231 of the Code of Criminal Procedure stipulates the condition of eliminating the damage suffered by the public in order to make a decision to defer the announcement of the verdict. The Court of Cassation is of the opinion that in the crime of Causing Zoning Pollution, “the condition of eliminating the damage does not have any importance for this crime on the grounds that it will be acted to the detriment of society, not the public.” (4th Criminal Chamber of the Court of Cassation dated 02.02.2010, 2008/28222 E. and 2010/1218 K.) In this crime, the condition of eliminating the damage is not required to make a decision on HAGB.

Elimination of zoning violations is considered within the scope of effective remorse. It is even accepted that if the building is demolished by the municipality, the perpetrator can benefit from effective remorse if he pays the demolition costs of the municipality. (Court of Cassation 4 Criminal Chamber 04/11/2014 2013/21621 E. 2014/31660K.) (Court of Cassation 4 Criminal Chamber 4.11.2014, 2013/21668 E. 2014/31659K.) (Court of Cassation 4 Criminal Chamber 4.11.2014 2013/21664 E. 2014/31658 K.) (Court of Cassation 4 Criminal Chamber 10.11.2014 2014/5197 E. 2014/32937 K.)

In the jurisprudence of the Court of Cassation where the benefit from effective remorse in case of payment of demolition costs is discussed, it is ruled that the perpetrator should not benefit from the provisions of effective remorse on the grounds that in cases where the administration collects the demolition costs by forced execution, the perpetrator is obliged to pay the price, and it cannot be accepted that the forced payment fulfills the “remorse” condition in effective remorse. (Court of Cassation 4th Criminal Chamber 2014/37436E. 2014/35867 K.)

When it is decided to dismiss the criminal case according to the provisions of effective remorse as a result of the demolition and restoration or licensing of the illegal building subject to the crime, the defendant is not ordered to pay the attorney fee and judicial expenses. However, if the defendant is convicted of the crime, the costs of the trial will be charged to the defendant. (Court of Cassation Criminal General Assembly 2011/4-415 E. 2012/92 K. )

Demolition may be carried out by the administration itself or by the owner of the building in violation of the license. In terms of the applicability of the provisions of effective remorse, if the demolition was carried out by the administration, two important criteria are sought in line with the decisions of the Court of Cassation; “If the demolition was carried out by the administration, the provisions of effective remorse should be applied by investigating whether the perpetrator opposed the demolition and whether the demolition costs were met in line with the will of the perpetrator.”

4) Which types of renovations and repairs are not subject to a license? Is a Crime Committed for Every Alteration and Repair?
It is argued in the doctrine that the subsequent unlicensed alteration of a building built in accordance with the license is not within the scope of Article 184/1 of the TPC. In our opinion, in such cases, the occurrence of the offense should be determined within the framework of different possibilities, taking into account the subsequent alteration of the building.

On the other hand, how can we establish that any construction is within the scope of simple repair and alteration, that simple repair and alteration do not require a license, and that simple repair and alteration and repairs do not constitute a crime?

Paragraph 4/y of the Zoning Regulation on Planned Areas lists which changes are within the scope of simple repair and alteration. According to this

Repairs to joints, interior and exterior plaster, paint, whitewash, gutters, gutters, joinery, floor and ceiling coverings, electrical and sanitary installations that are not within the scope of substantial renovation and do not change the carrier system, the facade of the independent section, the location and number of wet areas,
All kinds of repairs and renovations such as garden walls, wall coverings, chimneys, eaves, roof repairs and tile transfer
It is counted as simple repair and modification.

In paragraph 1 of Article 59 of the Regulation;

Simple repairs and alterations,
With the construction of folding folding glass panel applications, railings, pergolas, pergolas, gazebos / pergolas and the like on balconies,
Repair of partition walls, garden walls, wall coverings, chimneys, eaves, roofs and similar elements and replacement of windows
It is regulated that they are not subject to a license.

Pursuant to Article 21/3 of the Zoning Law, “joints, interior and exterior plaster, paint, whitewash, gutters, gutters, joinery, floor and ceiling coverings, electrical and plumbing repairs, roof repair and tile transfer and other modifications and repairs that do not affect the carrier element to be specified in the zoning regulations to be prepared by the municipalities according to the characteristics of the neighborhood in accordance with the regulation are not subject to a license.” If the change made remains within this scope, the crime will not occur.

As a matter of fact, the Court of Cassation also points to this issue in its decisions. “In the case of covering the roof of the licensed building by using steel construction material, it was accepted that the crime did not occur since 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.)

“…Considering that the action of the defendant who closed the balcony of the building with aluminum joinery and glass will not constitute the crime of causing zoning pollution by building a building without a license or against the license, it should be decided to acquit him…” (Decision of the 4th CD of the Court of Cassation dated 01.06.2011 and numbered E. 2009/3046 K. 2011/7468);

“… As it is understood from the scope of the minutes that the defendant constructed the roof of his building, which was unlicensed, by using steel construction material and covering it with aluminum cover, it is necessary to determine the legal status of the defendant according to the result by listening to the officials who issued the minutes, who received an expert report on whether these productions are in the nature of renovation and repair of an existing building or whether it is a substantial construction activity for building or completing a building and whether the construction of these works is subject to a license… ” (Decision of the Court of Cassation 4th. CD decision dated 13.12.2010 and numbered E. 2008/19284 K. 2010/20575).

In the light of the provisions of the relevant legislation and the precedent high court decision we have mentioned above and as a result of the discovery to be made at the scene with the court and the expert committee, if it can be revealed that the actions subject to the crime are in the nature of simple renovation, an acquittal verdict will have to be established on the grounds that the elements of the crime of causing zoning pollution have not occurred.

As a matter of fact, the Court of Cassation also emphasizes this point in its decisions;

In the event that the subsequent modification falls outside the limitations specified in Article 21/3 of the Zoning Law, it should be taken into consideration whether the said modifications can be characterized as a building in accordance with Article 5 of the Zoning Law. As a matter of fact, the Court of Cassation stated, “…In the face of the explanation in the building vacation report that the common areas in the second basement floor have been converted into a shop, whether these changes affect the load-bearing system of the building, whether these changes affect the load-bearing system of the building, and whether the building is an area that complies with the definition of building in Article 5 of the Zoning Law No. 3194. Article 5 of the Zoning Law No. 3194, whether it provides an increase in area in accordance with the definition of the building, whether it is in the nature of modification within the building contrary to the project that requires an administrative fine, and without considering that the legal status of the defendant should be determined according to the result, the decision of conviction with incomplete prosecution and insufficient reasoning…”, (Court of Cassation 4th. CD’s decision dated 09.09.2014 and numbered E. 2013/20778 K. 2014/24683); “…It should be considered that the action of the defendant in the form of closing the balcony of the existing licensed building by 10 meters square and including it into the room and creating an additional closed area, since it does not give the residence a new area other than the one specified in the license 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…” (Court of Cassation 4th CD’s decision dated 18.06.2013 and numbered E 2012/24491. K. 2013/19279).

If the changes made to the building are not a building within the meaning of Article 5 of the Zoning Law, only the sanction specified in Article 42 of the Zoning Law should be imposed, since Article 21/2 of the Zoning Law has been violated.28 However, if the changes made qualify as a building within the meaning of Article 5 of the Zoning Law, the perpetrator should be held responsible for the offense of causing zoning pollution, since the act of building against the license is also punished under Article 184/1 of the TPC.

The Zoning Law and Regulation do not require a building license for the glazing of recessed balconies, and the nature of the work does not make it compulsory. As a matter of fact, according to the Council of State; “since it is understood that no new and extra area other than the floor area is gained by closing the recessed balcony, there is no violation of the setback distance, the modification does not affect the load-bearing elements, and the change in the facade appearance does not require a license, there is no compliance with the law in the transaction regarding the demolition of the said modification and imposing a fine” (6th Chamber of the Council of State, 18.2.2005, 4166/977). As a natural consequence of this, the closure of balconies with built-in glazing does not constitute the offense of causing zoning pollution.

5-) Is there an Attempt to Commit the Crime of Zoning Pollution?
It is controversial whether the attempt provisions apply to the offense under Article 184/1 of the TPC. According to the dominant opinion in the doctrine, it is not possible to attempt the offense under Article 184/1 of the TPC. The second view, which is in the minority, argues that there is no rule preventing the application of the attempt provisions in Article 184/1 of the TCC and therefore the attempt provisions can be applied to this crime as well.

The Court of Cassation, on the other hand, accepts that the crime will be completed with the commencement of construction in terms of the crime regulated under Article 184/1 of the TCC.

6-Are the Provisions on Participation Applicable in the Crime of Zoning Pollution?
In the event that there is more than one person who constructed the building in terms of Article 184/1 of the TPC, it should be accepted that these persons committed the crime in participation. However, since the actions of the person who constructed the building and the person who had it constructed are regulated independently of each other in the law, it cannot be accepted that the person who constructed the building and the person who had it constructed act in complicity. Persons who economically support the construction of the building may be held responsible as an aider and abettor. Again, in terms of Article 184/1 of the TPC, the person who instigates the person who builds/constructs the building will also be deemed to have participated in the crime.

Since Article 184/1 of the TPC penalizes the construction/construction of a building without a license or in violation of the license, the persons who live as tenants in this building, which was constructed without a license/in violation of the license, will not be held responsible for the crime of causing zoning pollution.

Another person whose responsibility should be determined in connection with Article 184/1 of the TPC is the person who sells land in return for land. In a construction contract in return for land shares, the landowner cannot be considered as the “builder” in all circumstances and conditions. In cases where the landowner does not give orders and instructions to the contractor for the construction of unlicensed or unlicensed construction, does not support, does not knowingly and willingly turn a blind eye, in short, does not have intent, he will not be considered as a contractor and Article 184/1 will not apply to him. Article 184/1 shall not be applied. If the landowner, even though he knows that a building will be built on his land without a license / in violation of the license, allocates this land to the person who builds the building in return for the apartment / apartments to be given to him, or if he condones or requests the building, he should be held responsible for Article 184/1 of the TPC, as he will have built a building. As a matter of fact, the Court of Cassation, in its precedent decision, found the acquittal decision of the landowner unlawful and decided to punish him, “…In the face of the existence of a construction contract between the landowner and the contractor and the fact that it is stated that in the crime of causing zoning pollution, the person who “builds” or “has built” a building without a building license or in violation of the license will be punished, it is unlawful to acquit the landowner defendant by making a mistake in the evaluation of the evidence…” (Decision of the 4th CD of the Court of Cassation dated 19.09.2012 and numbered E. 2012/1537 K. 2012/18064).

7-) Are the Provisions of Cumulation Applied in the Crime of Zoning Pollution?
The fact that the building built without a license / in violation of the license has more than one storey or has more than one section although it is a single storey does not mean that the crime is also more than one. However, in cases where there is a difference in time and place, if other conditions are also present, the provisions of chain crime may be applied.

In the event that the action causes the occurrence of another crime that requires a heavier penalty together with the crime of “zoning pollution”; In the case of building without a license or in violation of the license in areas subject to special laws such as the Law No. 2863 on the Protection of Cultural and Natural Assets and the Bosphorus Law No. 2960, both the crime of causing zoning pollution and the crime of opposing the relevant special law occur. In such a case, pursuant to Article 44 of the Turkish Penal Code, “A person who causes more than one different offense to occur with an act he/she commits shall be punished for the offense that requires the most severe penalty among them”, the penalty in the provision of the special law containing the more severe penalty is imposed according to the provisions of intellectual cumulation.

The Court of Cassation, on the other hand, without making any distinction in this regard, decided that the perpetrator should also be punished for the offense of breaking the seal if the construction continued after the building was sealed. “…After the unlicensed construction of the defendant was sealed and stopped with the report dated 30.03.2010, it was determined that the construction continued despite the seal in the control made on 11.05.2010, and also the report dated 30.03.2010 was found to be in violation of Article 32 of the Zoning Law. In accordance with Article 32 of the Zoning Law, since the defendant was not present at the construction site, the decision of acquittal for the offense of breaking the seal was rendered on unlawful and insufficient grounds…” (Decision of the 4th CD of the Court of Cassation dated 13.11.2014 and numbered E. 2013/42206 K. 2014/32856).

However, the above-mentioned statements regarding the offense of breaking the seal do not apply to the actions taken to bring the building in compliance with the license. This is because, according to Article 42/9 of the Zoning Law No. 3194, “Works and transactions carried out with the written permission of the administration in order to bring the building into compliance with this Law, other relevant legislation, plan, license, studies and projects annexed to the license do not constitute the crime of breaking the seal”.

For example, it can be said that a person who removes one floor of a building every year upon the decision of the administration violates Article 184/1 of the TPC in a sequential manner. Again, in the doctrine, it is stated that in the event that the construction of an unlicensed building is realized by the relevant officials and the building is sealed and the construction continues, the provisions of chain crime will be applied, but in the event that the construction continues after the case is filed against the perpetrator after the first detection, more than one crime will occur, that is, the provisions of real cumulation will be applied.

Since there is no special cumulation provision for this offense, general provisions shall apply.

If the offense of Causing Zoning Pollution is committed more than once with the same criminal decision, the provisions of chain crime are applied and the perpetrator is not punished separately for each crime, but the punishment is applied by increasing the punishment over a single crime.

In the event that the construction continues after the illegal building is detected and sealed by the relevant administration, the provisions of chain offense are applied and the penalty is increased from a single offense. However, if the issuance of the indictment is considered as a legal interruption and it is determined that the construction continues after the date of the indictment, the construction activities after the indictment constitute a separate crime and punishment is given for two separate crimes. (Court of Cassation 4th Criminal Chamber. 27/04/2011, 2009/5936 E., 2011/5795 K.)

The Court of Cassation accepts that in the event that the contractor makes an agreement with more than one neighboring parcel owner at the same time and starts construction, each of the agreements made separately with each owner constitutes an independent criminal intent and a separate crime of Causing Spatial Pollution. (Court of Cassation 4th Criminal Chamber T. 10.11.2014, 2013/20641 E. 2014/33202 K.)

If the illegal construction activity has taken place in protected areas within the scope of the Law No. 2863 on the Protection of Cultural and Natural Assets or in the protection areas of cultural and natural assets that need to be protected, Article 184 of the Turkish Penal Code and Article 65 of the Law No. 2863 will come to the agenda together. In this case, the provisions of the special law numbered 2863 should be applied. The Court of Cassation ruled that if the acts within the scope of TCK 184 occur in protected areas, TCK 44 intellectual aggregation rules should be applied and punishment should be made only according to Law No. 2863, which requires a heavier penalty. (Court of Cassation 4th Criminal Chamber T.10.11.2014, 2013/22194 E. 2014/32306 K.) Similar (Court of Cassation 12th Criminal Chamber 2011/9631 Esas 2012/23122 Karar)

If the construction continues after the illegal construction is sealed, the offense of breaking the seal will also come to the agenda. In this case, breaking the seal constitutes a separate offense and a separate penalty is imposed for both crimes by applying the rules of real cumulation. (Court of Cassation 4th Criminal Chamber. 2006/10351 E. 2008/20186K. ) Similar (Court of Cassation 4th Criminal Chamber 2007/13103E. and 2009/13642 K.)

In the offense of breaking the seal, evaluation is made according to the substance, not the form. In other words; breaking the seal affixed to the illegal structure by the relevant administration does not constitute a crime, but if the construction continues despite the seal is kept intact, the crime occurs. Again, activities aimed at eliminating the illegal structure do not constitute the offense of breaking the seal. In short, the crime occurs only by acting against the purpose of the seal.

Here, it should be noted that if actions such as demolition to eliminate the illegal structure require a permit-permit, restoration actions without obtaining the necessary permits will bring other criminal responsibilities.

The crime of breaking the seal is often mentioned together with the crime of causing zoning pollution. In order for the crime of breaking the seal to occur, the legal basis must be determined correctly. If the municipality performs a sealing that it must do according to the Zoning Law No. 3194 with another legal basis such as the Slums Law, etc., the sealing process will be subject to annulment. (14th Chamber of the Council of State 2012/6085 E. 2013/1997K.) In case of annulment, the crime will not occur.

8- If you are tried and sentenced for the crime of zoning pollution, can you get back the administrative fine that you have already paid to the relevant institution or have not yet paid? Or Can You Have the Fine Canceled?
Article 42, paragraph 7 of the Zoning Law No. 3194; “Administrative fines collected in accordance with the above paragraphs are returned without interest to those who are convicted according to Article 184 of the Turkish Penal Code dated 26/9/2004 and numbered 5237 due to the same act.” Within the framework of the provision, if the person who built a building without a license or in violation of the license is both fined according to the Zoning Law and convicted according to the Turkish Penal Code;
If the administrative fine has been paid, it shall be refunded; if not, the administrative fine shall be removed or canceled. As follows

Conditions for the Return or Cancellation of the Administrative Fine
In the event that those who have been imposed an administrative fine due to the act of building a structure without a license or in violation of the license and its annexes are convicted as a result of the criminal proceedings held due to the crime of “Causing Zoning Pollution” regulated under Article 184 of the Turkish Penal Code within the scope of the same act, the amount of the collected administrative fine must be returned to them, and the uncollected fine must be removed. (Council of State İDDK., 28.06.2018 dated E: 2016/3155, K.:2018/3741; Council of State 14th D., 24.05.2018 dated E: 2015/4933, K: 2018/4060; Istanbul BIM 5th İDD., 31.10.2019 dated E: 2019/2463, K: 2019/3144 numbered decisions)

In this context, the following conditions must be met in order for the administrative fine to be refunded or abolished:

It must be an administrative fine imposed after the entry into force of Article 42 of the Zoning Law No. 3194.
The first paragraph of Article 42 of the Zoning Law No. 3194, which reads “…a fine from 500 000 TL to 25 000 000 TL” was annulled by the Constitutional Court’s decision dated 17.04.2008 and numbered E:2005/5, K:2008/93.
Following the annulment decision, Article 42, paragraph 7 of the Zoning Law No. 3194, which was completely amended by Article 2 of the Law No. 5940, published in the Official Gazette dated 17.12.2009 and numbered 27435, reads as follows

“Administrative fines collected pursuant to the above paragraphs shall be refunded without interest to those convicted according to Article 184 of the Turkish Penal Code dated 26/9/2004 and numbered 5237 for the same act”‘

Article 7 of the same Law stipulates that this amendment shall enter into force on the date of its publication.
This amendment, which has been introduced for the first time, is not regulated to be applied retroactively.

In the decisions of the Council of State, it is accepted that this regulation will only apply to administrative fines imposed pursuant to Article 42, which entered into force on 17/12/2009, and cannot be applied to cases finalized before this date. (Decision of the 14th Chamber of the Council of State dated 1.4.2015 and numbered E:2013/10845, K:2015/2472)

A “conviction” decision must have been issued against the person who has been imposed an administrative fine in accordance with Article 184 of the Turkish Penal Code:
Imprisonment, Judicial Fine and Postponement Decision; In Article 45 titled “Penalties” of the Turkish Penal Code No. 5237; “Penalties are imprisonment and judicial fines as sanctions applied against the crime.” In paragraph 8 of Article 51 titled “Postponement of imprisonment”; “If the supervision period is spent in accordance with the obligations or in good behavior, the sentence is deemed to have been executed.”

Accordingly, in order to be considered “convicted” within the scope of Article 184 of the Turkish Penal Code, a prison sentence, a judicial fine or one of these two sentences must be imposed and postponed in accordance with Article 51 of the Turkish Penal Code and this decision must be finalized. In other words, the decision to defer the announcement of the verdict (HAGB) must not have been applied to the sentence (conviction) for zoning pollution.
Pursuant to Article 230, paragraph 5 of the Code of Criminal Procedure No. 5271; “Deferral of the announcement of the verdict means that the established verdict does not have any legal consequences for the defendant.”, the person who has been given a decision to defer the announcement of the verdict is not considered to be “convicted”.

In the case law of the Council of State, it is accepted that in case of a decision of deferral of the announcement of the verdict, the refund or removal of the fine cannot be requested in accordance with paragraph 7 of Article 42 of the Zoning Law.

However, in the decision of the 5th Administrative Case Chamber of the Istanbul Regional Administrative Court dated 14.11.2017 and numbered E:2017/1294, K:2017/1630; it was decided that before the decision to defer the announcement of the verdict was made about the defendant, a punishment was determined in accordance with the fixed action of the defendant and a conviction was established, the defendant was convicted as a result of the criminal proceedings and the announcement of the verdict was decided to be deferred, therefore, the administrative fine should be refunded in accordance with paragraph 7 of Article 42 of the Law No. 3194.
It should be noted that the decision of the Istanbul Regional Administrative Court is of an exceptional nature. In the established jurisprudence, it is accepted that the refund of the administrative fine cannot be requested since the HAGB decision is not a conviction decision.

However, in the event that the verdict is announced due to the commission of an intentional crime within the 5-year supervision period, the defendant will be deemed to have been convicted, and it will be possible to request the return or removal of the fine.

Application for Refund or Abolition of the Fine is Required:

It is clear that those who have been imposed an administrative fine due to the act of building a structure without a license or in violation of the license and its annexes may be refunded the amount of the administrative fine collected if they are convicted as a result of the criminal proceedings held due to the crime of “Causing Zoning Pollution” regulated under Article 184 of the Turkish Penal Code within the scope of the same act.
However, the fact that a conviction decision has been rendered does not lead to the conclusion that an annulment decision should be rendered in the lawsuit filed for the annulment of the council decision regarding the imposition of an administrative fine.

In other words, the conviction decision alone does not render the decision of the council for imposing a fine, which was made long before the aforementioned criminal court decision, unlawful, nor does it constitute the subject of the lawsuit filed for “annulment of the decision of the council for imposing an administrative fine”. (Council of State İDDK., decision dated 28.06.2018 and numbered E:2016/3155, K:2018/3741)

For this reason, after the conviction decision given as a result of the criminal proceedings is finalized, by applying to the administration within the scope of Article 10 of the Administrative Procedure Law No. 2577; If the administrative fine has been paid, its return,
if the fine has not been paid, it must be removed.

What can be done if the Administration does not refund or abolish the fine despite the applicant’s request?
In the event that the above-mentioned conditions are met, as a result of the application to be made to the municipality or special provincial administration that imposed the fine, the fine must be refunded if it has been paid or removed if it has not been paid.

Administrations have no discretion at this point.

If the application made under Article 10 of the Administrative Procedure Law No. 2577 is rejected or tacitly rejected by not responding within 60 days, it is necessary to file a lawsuit at the Administrative Court within the next 60 days.

In this lawsuit, if it is determined that the above-mentioned conditions are met, it is decided to cancel the transaction regarding the rejection of the application and to refund the fine to the plaintiff if it has been paid. (Council of State İDDK., 28.06.2018 dated E:2016/3155, K:2018/3741; Istanbul BIM 5th İDD., 31.10.2019 dated E:2019/2463, K:2019/3144 numbered decisions)

In the event that the action causes the occurrence of another crime that requires a heavier penalty together with the crime of “zoning pollution”; In the case of building a building without a license or in violation of the license in areas subject to special laws such as the Law No. 2863 on the Protection of Cultural and Natural Assets and the Bosphorus Law No. 2960, both the crime of causing zoning pollution and the crime of opposing the relevant special law occur.

In such a case, in accordance with the provision of Article 44 of the TPC, “A person who causes more than one different offense to occur with an act he/she commits shall be punished for the offense that requires the most severe punishment.” The penalty in the provision of the special law, which includes the more severe punishment according to the provisions of intellectual cumulation, is given.

In this case, we are faced with the problem of whether the person has been convicted of the offense of causing zoning pollution and therefore, whether it is possible to refund or remove the fine within the scope of paragraph 42/7 of the Zoning Law.
This issue has been discussed in judicial decisions and two different opinions have been put forward:
According to the first opinion; it is argued that the criminal court has decided to convict the plaintiff for the offense of opposition to Law No. 2863, and that the plaintiff has not been convicted for causing zoning pollution due to Article 184/1 of the Turkish Penal Code, therefore, it is not possible to refund the amount paid or remove the fine within the scope of Article 42/7 of Law No. 3194. (İzmir BIM, 4th İDD, decision dated 18.04.2017 and numbered E:2017/682 K. 2017/593 and the dissenting opinion in the decision dated 24.05.2018 and numbered E:2015/4933, K:2018/4060 of the 14th D. of the Council of State)

According to the second opinion accepted by the 14th Chamber of the Council of State, which we also agree with, the criminal court’s judgment also establishes the defendant’s offense of causing zoning pollution and also the offense of violating a special law such as Law No. 2863 or Law No. 2960. Since he should be punished for both crimes according to the provisions of intellectual cumulation pursuant to Article 44 of the Turkish Penal Code, it is accepted that the decision to punish him in accordance with the special law, which includes a heavier punishment, also includes the conviction for the crime of causing zoning pollution. Therefore, it was decided that the amount paid within the scope of Article 42/7 of the Law No. 3194 should be refunded or the fine should be abolished. (İzmir BIM, 4th IRB, dated 21.02.2017 and numbered E:2017/100, K:2017/166; Council of State 14th D., dated 24.05.2018 and numbered E:2015/4933, K:2018/4060)

As a result; in the 7th paragraph of Article 42 of the Zoning Law No. 3194; “Administrative fines collected pursuant to the above paragraphs shall be refunded without interest to those who have been convicted according to Article 184 of the Turkish Penal Code No. 5237 dated 26/9/2004 due to the same act.” In the event that the person who has been fined without a license or in violation of the license is also convicted of the crime of causing zoning pollution, upon the application to be made by the person who has been fined, the administrative fine must be refunded if it has been paid and removed if it has not been paid.

In the applications to be made within this scope, it is important that the procedural provisions in the administrative application stipulated under the Administrative Procedure Law are operated correctly. An error in the application procedure will cause the lawsuit to be lost or the collection of the paid fine to take too long.

9-) Which Court is in Charge and Authorized in the Trial Regarding the Crime of Zoning Pollution?
The competent and authorized court in the trial of the Zoning Pollution Crime; It is the Criminal Court of First Instance in the place where the structure contrary to the zoning legislation is located or where the zoning pollution acts take place.

10-) Is there a complaint period in Zoning Pollution Crimes? What is the statute of limitations for zoning pollution offenses?
The crime of causing zoning pollution is not among the crimes whose prosecution is subject to complaint. Therefore, a public case is opened by the prosecutor’s office through an ex officio investigation.

According to Article 66/1 of the TPC, the “statute of limitations” is 8 years. According to Article 68/1 of the TPC, the “criminal statute of limitations” is 10 years.

If a penalty is imposed despite the statute of limitations, and this penalty is finalized without appeal; by applying for “Reversal in the Interest of Law”, it can be ensured that the decision is reversed, the case is dismissed and the execution of the sentence, if it has not been executed, is prevented.

11-) What is the effect of Zoning Peace or Building Registration Certificate on Zoning Pollution Crime?
What will be the effect of the criminal file that is currently pending (pending) after the building that is in violation of the license, which benefits from the zoning peace, is made in accordance with the license? Does the existence of the building registration certificate alone prevent the opening of a public case?

Under normal circumstances, as a result of the existence of a valid building registration certificate in line with the Zoning Peace, a public case is not opened within the scope of TCK 184, the public case that has been opened is dismissed, and the convicted penalty is eliminated with all its consequences. However; this is only possible if the building registration certificate is issued for structures built before 31.12.2017.

Even if there is a building registration certificate, if a complaint is filed to the Prosecutor’s Office as a result of a determination made by the administration that the building was built after 2017, an indictment will be written even if there is a building registration certificate as a result. During the trial, even if there is a valid building registration certificate, an expert report will be obtained and as a result of the evaluation to be made, it will be examined whether the conditions of TCK 184 are met.

Another point we would like to emphasize here is whether the determinations made by the administration are in accordance with the law. At this point, as we mentioned above, the fact that an evaluation is made in line with the legislation in administrative law is extremely important for the outcome of the proceedings. As a matter of fact, in the expert evaluation to be made, the evaluation in terms of administrative law, that is, the determination of whether the transaction is in accordance with the law, is not made because the expert is not a lawyer. Since the judge will apply the law personally, it is extremely important for the fate of the trial that the accused/suspects receive legal assistance in matters that directly concern these two areas of law. It should also be noted that even the terminological structure in criminal law and the structure in administrative law are different. Here, it is extremely important in terms of the punishability of the crime to evaluate whether even the additions made later in terms of whether the crime has occurred are within the legal limits in terms of zoning legislation and administrative legislation.

12-) Is it decided to defer the announcement of the verdict in the crime of causing zoning pollution?
If the defendant is found guilty as a result of the criminal proceedings, if the defendant does not have a criminal record and if the victim or the public compensates for the damage suffered by the victim or the public, the announcement of the verdict may be postponed.

However, it is not possible to defer the announcement of the verdict (HAGB) for the defendant for the crime of zoning pollution. Because, Article 184/5 of the TPC regulates a special effective remorse for the perpetrator of this offense.

According to these effective remorse provisions, if the defendant makes the building he built or had built without a license or in violation of the license in accordance with the zoning plan and license, no criminal case will be filed against him, and if the case has been filed, the case will be dismissed.

Due to this special regulation, the defendant cannot be given a HAGB. However, if there are conditions, it may be decided to postpone the prison sentence.

13- What is the penalty for the crime of causing zoning pollution?
The penalty for the crime of causing zoning pollution is imprisonment from 1 year to 5 years. The defendant found guilty of this crime will not be sentenced to a judicial fine, and only the imprisonment sentence can be converted into money.

If the perpetrator of the crime of causing zoning pollution receives a prison sentence of one year or less, if he/she is over the age of 65 and has not been sentenced to imprisonment before, it is obligatory to convert the sentence he/she received into one of the alternative sanctions such as a judicial fine in accordance with Article 50/3 of the TPC.

14-Is it Possible to Postpone the Sentence Given in Zoning Pollution Crimes?
The decision to postpone the sentences given in practice; If the person is sentenced for a crime, if there are conditions, the execution of the sentence is postponed. In order for this decision to be made by the courts, certain conditions must exist. Namely; First of all, the person sentenced must have been sentenced to imprisonment for 2 years or less and must not have committed an intentional crime before. If these conditions are in question, it is possible to decide to postpone the sentence for the crime of causing zoning pollution.

15- Is it Possible to Compromise in Zoning Pollution Crimes?
As a practice that has entered the Turkish criminal procedure law, reconciliation is the termination of the criminal proceedings at the investigation or court stage if the person who is the victim of the crime and the person he/she complains as the suspect of the crime agree. The Ministry of Justice tries to resolve the dispute by reconciling the suspect and the victim or the real or private legal entity damaged by the crime through impartial persons.

In order for the reconciliation provisions to be applied, the victim or the person harmed by the crime must be a real or private legal person. Conciliation provisions are not applied in crimes committed against public legal entities. Except for those whose investigation or prosecution is subject to complaint, there must be an explicit provision in the law in order to proceed to conciliation regarding the crimes in other laws. (Article 253/2 of the Criminal Procedure Code)

Since the crime of causing zoning pollution is not included in the scope of crimes subject to reconciliation, the crime of causing zoning pollution is not one of the crimes subject to reconciliation due to the general nature of the crime and the fact that there is a society worth protecting from the crime and the crime is committed against the public legal entity. Therefore, the provisions of reconciliation will not be applied.

16- In the event that the crime of zoning pollution is committed or realized in places protected by other special laws, how is the determination and application of the penalty provisions regulated in special laws when determining the penalty?
In the event that the construction activities constituting the crime of Causing Zoning Pollution take place in places protected under special laws such as coastal, forest, protected areas, etc., the penal provisions regulated in special laws should also be taken into consideration when determining the penalty and applied to the concrete case or the action subject to the crime. To briefly mention the penal provisions regulated in special laws;

a-) EVALUATION OF THE CRIME OF ZONING POLLUTION IN TERMS OF THE ZONING LAW NUMBER 3194:
In the event that the construction activities or actions that constitute the offense of Causing Zoning Pollution constitute the result of contradiction to the zoning defined within the scope of the Zoning Law, the relevant Administration – usually municipalities – must also impose an administrative fine on those who commit this offense. However, this penalty is not a penalty imposed within the scope of criminal proceedings, but an administrative action taken by the administration, and it must be said that it is subject to other rules. In other words, in the face of an action or activity contrary to the Zoning Law, while the person is punished as a perpetrator according to Article 184 of the Turkish Penal Code, the Administration also imposes a “demolition penalty” in accordance with Article 32 of the Zoning Law before or after the criminal proceedings and an administrative fine in accordance with Article 42 of the same law. Pursuant to Article 42 of the same law, “Within ten working days from the date of detection of the acts and situations specified in this article that constitute a violation of the zoning legislation, the administrative sanctions specified in this article shall be imposed on those responsible by the relevant administrative council separately for each responsibility assumed.”

Article 42, paragraph 7 of the Zoning Law No. 3194 states that “Administrative fines collected pursuant to the above paragraphs shall be refunded without interest to those who are convicted of the same act in accordance with Article 184 of the Turkish Penal Code dated 26/9/2004 and numbered 5237.” Pursuant to this provision, if the person who has been fined for constructing a building without a license or in violation of the license is also convicted of the crime of causing zoning pollution, upon the application to be made by the person who has been fined, the administrative fine must be refunded if it has been paid and removed if it has not been paid. This regulation is within the scope of the principle of “no double punishment for the same offense (non bis in idem)”. It is intended to prevent people from being punished repeatedly for a single act. However, the “demolition decision” made by the relevant administration will not be evaluated within the scope of TCK 184, and this decision will not disappear with the punishment imposed.

b-) EVALUATION OF THE CRIME OF IMPROVEMENT POLL IN TERMS OF THE LAW OF MISdemeanors:
An act or action may be subject to the subject and sanction of the Law on Misdemeanors and at the same time subject to the subject and sanction of the Turkish Criminal Code. Which law applies in this case? Article 15/3 of the Law on Misdemeanors clarifies the issue: “If an act is defined as both a misdemeanor and a crime, sanctions may be imposed only for the crime. However, in cases where sanctions cannot be imposed for the crime, sanctions shall be imposed for the misdemeanor.” This regulation is within the scope of the principle of “no punishment can be imposed twice for the same offense (non bis in idem)”. It is intended to prevent people from being punished repeatedly for a single act.

c-) EVALUATION OF THE CRIME OF IMPROVEMENT POLLUTION WITH RESPECT TO THE LAW NO. 2863 ON THE PROTECTION OF CULTURAL AND NATURAL PROPERTY:
Law No. 2863 on the Protection of Cultural and Natural Assets and related regulations define the movable and immovable cultural and natural assets that need to be protected and regulate the necessary procedures and activities for protection. Law No. 2863 on the Protection of Cultural and Natural Assets is a special law that determines “the definitions of movable and immovable cultural and natural assets that need to be protected, regulates the procedures and activities to be carried out, and determines the necessary principles and implementation decisions in this regard”. Article 16 of this Law states that “It is forbidden to build without a license in immovable cultural and natural assets that need to be protected and their protection areas. In these areas, actions shall be taken in accordance with the zoning legislation for the constructions to be built without a license and for the constructions built in violation of the plan in the zoning plans for conservation purposes and in violation of the conditions of the sites.”

Article 65 of the Law No. 2863 on the Protection of Cultural and Natural Assets stipulates a penalty of 2 years to 5 years in paragraph 1 for “the act of building and making substantial renovations without a license”, which constitutes the crime of Causing Zoning Pollution.

What happens if both Article 184 of the Turkish Penal Code and Article 65/1 of Law No. 2863 are violated with the same act? Which provisions of the law will be applied? In the event that both Article 184 of the TCC and Article 65/1 of the Law No. 2863 are violated with the same act, the provisions of “intellectual cumulation” are applied and Article 65/1 of the Law No. 2863, which “requires a heavier penalty”, is applied. However, in paragraph 65/4 of Law No. 2863, it is ruled that “simple renovations” that do not constitute a crime in the sense of TCK 184 shall be punished. Productions in the nature of “simple renovations that do not require a license”, which are not in the nature of building and major renovations in protected areas, will be punished according to the provisions of the special law.

In order for the construction and physical interventions in protected areas not to constitute a crime, it is necessary and obligatory to obtain permission from the Conservation Regional Boards.

As a matter of fact, in the following two precedent decisions of the Supreme Court, in case of violation of both Article 184 of the Turkish Penal Code and Article 65/1 of the Law No. 2863 with the same action; It has been stated that the provisions of “intellectual cumulation” will be applied and Article 65/1 of the Law No. 2863, which is of a special nature “requiring a heavier punishment”, will be applied.

“…In the I… Municipality Council Decision dated 12.01.2010, it is stated that the place subject to the crime is a 3rd degree archaeological site in the zoning plan, and in accordance with the provision of Article 184/4 of the Turkish Penal Code; “Except for the third paragraph, the provisions of this article are only applied within the boundaries of the municipality or in places subject to special zoning regime”, since paragraph 1 of the said article cannot be applied in the adjacent area. Due to the inapplicability of paragraph 1 of the aforementioned article in the adjacent area, it is necessary to determine whether the place subject to the crime is a protected area by making an on-site discovery and by asking the relevant institution, and according to the result, to file a criminal complaint for violation of Law No. 2863, to merge the cases if opened, and to file a criminal complaint in accordance with Article 44 of the TPC. Article 44 of the Turkish Criminal Code, and to establish a verdict with incomplete examination without considering that the elements of the crime of causing zoning pollution will not occur if it is not a protected area but within the adjacent area or not subject to a special zoning regime, …” (18th Criminal Court Main: 2015/13802 Decision: 2015/11763 Date: 24.11.2015 )

“In the event that the place where the building was constructed is within the municipal boundaries or subject to a special zoning regime, and in the absence of a statement regarding the application of Law No. 2863 in the indictment, a criminal complaint will be filed for the act of opposition to the said Law, and if the cases are opened, after the cases are merged; In accordance with Article 44 of the TPC, a concrete application will be made between the crime regulated in Article 184/1 of the TPC and Articles 65/b of Law No. 2863, and the most severe punishment will be determined and the application will be made according to the heavier punishment. Article 184/1 of the TCC and Article 65/b of the Law No. 2863, the most severe penalty should be determined by making a concrete application between the offense regulated in Article 184/1 of the TCC and Article 65/b of the Law No. 2863, and in case the building is located outside the municipal boundaries or in a place that is not subject to a special zoning regime, it is necessary to establish a judgment according to Article 65/b of the Law No. 2863 due to the fact that the building is in the third degree archaeological site, but to establish a judgment based on incomplete examination and insufficient grounds,” 4th Criminal Chamber of the Supreme Court Main: 2012/28996 Decision: 2014/26575 Date: 22.09.2014

d-) EVALUATION OF THE CRIME OF IMPROVEMENT POLLUTION WITH RESPECT TO THE COASTAL LAW NO. 3621:
The Coastal Law No. 3621 regulates the procedures and principles for the protection of the natural and cultural characteristics of the sea, lake, river coasts and coastlines and the lands obtained by filling on the coasts, which are under the sovereignty and disposal of the State, and for everyone to benefit from the coasts equally and freely. Although there is a prohibition of building on the coast, coastal edge line and coastlines whose boundaries are determined by the Law, piers, ports, shipyards, aquaculture production facilities, service facilities open to public use, etc. can be built with the decision of the implementation zoning plan and by considering the public interest in use. Permission from the Ministry of Finance is required for the construction of these facilities, and this permission is deemed sufficient for the issuance of building permits. Article 13 of the Law assigns the authority and duty of inspecting the applications to the municipality within the boundaries of the municipality and the adjacent area, and to the governorship outside the municipality. Article 14 states that the relevant provisions of the Zoning Law No. 3194 shall apply to structures without a license or in violation of the license annexes. As can be seen, special provisions have been adopted for the determination of the areas covered by the Coastal Law and the constructions in these areas, apart from the general 104 zoning application.

Article 15 of the Coastal Law No. 3621 regulates the violation of zoning on the coasts. The article refers to Article 184 of the Turkish Penal Code and states that if the conditions constituting the crime of causing zoning pollution are realized in the areas covered by the Coastal Law, the penalty should be applied twice as much. In the same article, it is ruled that the zoning fines to be determined for the illegal structures on the coasts shall be applied with a one-fold increase.

In other words, if the act of causing zoning pollution occurs on the coast, a double penalty should be imposed. (Court of Cassation 18th Criminal Chamber 2016/149 E. 2018/1611 K.)

In Article 15 of the Coastal Law: It is regulated that those who create walls, fences, fences, fences, wire mesh, ditches, piles and similar obstacles on the coast and coastlines with an implementation zoning plan will also be punished. In other words, sanctions are also envisaged in the Coastal Law for productions that do not qualify as “buildings” within the scope of TCK 184.

In terms of effective remorse, it is examined whether the production subject to the contravention has disrupted the natural structure of the coast while the contravention is removed by making a discovery, and if the contravention is removed without damaging the natural texture of the coast, an acquittal decision is given. ( 7th Criminal Chamber of the Court of Cassation 2013/11384 E. 2013/17735 K.)

d-) EVALUATION OF THE CRIME OF IMPROVEMENT POLLUTION WITH RESPECT TO THE Bosphorus Law No. 2960:
According to the Bosphorus Law No. 2960, in order to impose sanctions, it is not required that the illegal production must be in the nature of “building” and it is regulated that penalties can be imposed for productions within the definition of “building”. The fact that the text of the law does not differentiate between “building” and “structure” and only includes the expression “structures” and regulates “imprisonment from 1 month to 6 months” for those who build illegal structures in places subject to the law may cause confusion in practice. For the productions in the nature of “building” which are not considered as buildings, Law No. 2960 should be applied, and for the construction activities in the nature of “building”, TCK 184, which regulates “imprisonment from 1 year to 5 years” according to the provisions of intellectual aggregation, should be applied. (Decree of the 7th Criminal Chamber of the Court of Cassation No. 2013/22409 E. 2014/13766 K. and dated 23.06.2014)

17.) What are the Investigation and Prosecution Stages and Procedures in Zoning Pollution Crimes Regulated under Article 184 of the Turkish Criminal Code?
In the Zoning Pollution Crimes Regulated under Article 184 of the Turkish Criminal Code, when the wrongful act defined as a crime in the law is committed, as a rule, the proceedings are initiated by the competent authorities without the need for any further action. The investigation and prosecution of the crime of causing zoning pollution is not subject to complaint and is among the crimes that must be pursued ex officio.

Upon an action that falls within the scope of the Zoning Pollution Crime regulated under Article 184 of the Turkish Penal Code, the Public Prosecutor of the place where that action is committed initiates an ex officio investigation against the person who committed the act of zoning violation or zoning pollution, upon the application of the relevant administration for a complaint, but for any reason. In cases where the perpetrator is a public official, the investigation procedure shall be carried out by the Chief Public Prosecutor’s Office in accordance with the provisions of Law No. 4483.

During the investigation phase by the Chief Public Prosecutor’s Office, the statement of the perpetrator or perpetrators is taken. Documents related to the subject of the investigation are brought from the relevant institutions. A report is obtained by the prosecutor’s office conducting the investigation on whether the elements of the crime are formed in a technical sense by conducting a discovery by expert experts. Expert examination has a very important place in the crime of causing zoning pollution. Expert examination plays a decisive role in determining issues such as the formation of the elements of the crime, effective remorse, and who the perpetrator is. The determination of the date of the crime, where the building was built, whether the element of intent has occurred, whether the construction has the characteristics of a building, whether there is a damage and if so, whether this damage has been eliminated will be revealed by the expert report. There are many guiding precedent decisions of the 4th Criminal Chamber of the Court of Cassation on these issues. Namely

Precedent Court of Cassation Decision in terms of Determining the “Element of Intent” in Zoning Pollution Crimes:
“In the expert report, although the building subject to the crime appears to be contrary to the building license, it is stated that it is in accordance with the project approved by the municipality in the annex of the license, and the defense is in the same direction; After this issue is asked from the municipality and a copy of it is placed in the file in a way to allow inspection, the criminal intent and the legal status of the defendant should be discussed.” (Court of Cassation 4th Criminal Chamber , 30.01.2012 dated 2010/18393 E., 2012/1283 K.)

Precedent Court of Cassation Decision in terms of “Determination of the Crime Scene” in Zoning Pollution Crimes:
: “In the expert report on the place subject to the crime, although it is stated that it is located within the municipal boundaries of Osmangazi Municipality, in the municipality’s letter dated 12/05/2005, in the face of the fact that it was reported that it is located within the municipal boundaries, Article 184/4 of the Turkish Penal Code; “Except for the third paragraph, the provisions of this article are applied only within the municipal boundaries or in places subject to special zoning regime”, since paragraph 1 of the aforementioned article cannot be applied in the municipal boundaries. Due to the inapplicability of paragraph 1 of the aforementioned article, it is necessary to determine whether the building subject to the crime is within the municipal boundaries or places subject to the special zoning regime in a way that does not leave any room for doubt, and if it is outside the municipal boundaries or places subject to the special zoning regime, the judgment should be established with incomplete investigation.” (4th Criminal Chamber of the Court of Cassation, 30.01.2012 dated, 2010/26932 E., 2012/1291 K.)

Precedent Court of Cassation Decision in terms of “Determination of the Crime Date” in Zoning Pollution Crimes:
“In the face of the defendant’s defense that he completed the construction in 2004, it is necessary to investigate whether the construction of the first floor of the building continued from 12.10.2004, when Article 184 of the Turkish Penal Code entered into force, until the date of the report, and to explain which technical data was relied on in the expert report to determine the construction date of the construction.” 4th Criminal Chamber of the Court of Cassation , 01.02.2012 dated , 2011/4440 E. , 2012/1735 K.

Precedent Court of Cassation Decision in terms of “Determining the Completion of the Crime” in Zoning Pollution Crimes:
“In order for the crime of causing zoning pollution to occur, it is not a condition that the building is completed, it should be taken into consideration that the crime will occur when the construction activity for the construction of the building is started.” 4th Criminal Chamber of the Court of Cassation, 06.02.2012 dated , 2010/2551 E. , 2012/1980 K.

Precedent Court of Cassation Decision in terms of “Determination of Building Qualification” in Zoning Pollution Crimes:
“In the action of the defendant in the form of turning into a single workplace by opening the walls between three shops and a dwelling on the ground floor without damaging the exterior architecture of the licensed building, after determining whether the removal of the walls affects the load-bearing elements of the building according to the expert report to be taken according to the method, according to the result; It should be observed that the unification of the workplaces in the adjacent order, which does not affect the load-bearing elements, by removing the wall, is not in the nature of building construction within the scope of Article 184/1 of the law numbered 5237.” Supreme Court of Appeals 4. Criminal Chamber , 29.02.2012 dated , 2011/17335 E. , 2012/4212 K.

Precedent Court of Cassation Decision in terms of “Deferral of the Explanation of the Verdict and Determination of Effective Remorse” in Zoning Pollution Crimes:
“Whether the offense of causing zoning pollution attributed to the defendant caused a direct damage to persons and public administration is determined by evaluating the expert report of the high urban planner in the file and according to the result; Considering that the restoration of the unlicensed structure is only in terms of the application of the effective remorse provision stipulated in Article 184/5 of the TPC, the provision regulated in Article 231 of the CYY. Whether the conditions for the application of the deferment of the announcement of the verdict regulated in Article 231 of the CYY should be evaluated in this direction.” 4th Criminal Chamber of the Court of Cassation , 21.02.2012 dated , 2011/14279 E. , 2012/6701 K

Precedent Court of Cassation Decision in terms of “Whether there is a Valid Building Registration Certificate within the Scope of Zoning Peace, Determination of Whether the Zoning Violation is Covered” in Zoning Pollution Crimes :
“In the face of the defenses of the defendants that they made renovations on the attic floor after purchasing the immovable in 2010, and the fact that it is understood that the judgment was established without sufficient research due to the evaluations far from scientific competence in the expert reports, the title deed records of the apartment subject to the crime should be brought and the date on which the immovable was purchased by the defendants should be determined, Obtaining the building license and certificate of occupancy for the building, obtaining the certified project from the relevant municipality, obtaining aerial photographs of the location of the immovable property, updated by years, including the date of the crime and before, from the municipality or other relevant institutions, conducting a law enforcement investigation on the date of construction of the roof floor, After the residents and neighbors of the building are heard as public witnesses and asked about the date of construction of the manufacturing on the attic floor and by whom or by whom, an additional report is obtained from the expert according to the technical data including the rate of wear and tear such as aging, wear, blistering, spalling and corrosion conditions about the structure, The exact dates of the construction of the building and the manufacturing subject to the crime should be determined, and if it is understood that the manufacturing on the roof floor is a building and was built by the defendants as a result of these examinations, the legal status of the accused should be determined in accordance with the provisional Article 16 added to the Zoning Law No. 3194 with Article 16 of the Law No. 7143, which was published in the Official Gazette dated 18/05/2018 and numbered 30425 after the judgment and entered into force on the same day. Article 16 of the Law No. 7143, which was published in the Official Gazette dated 18/05/2018 and numbered 30425 and entered into force on the same day…” Republic of Turkey Court of Cassation 18th Criminal Chamber Main: 2019/ 2038 Decision: 2020 / 4658 Decision Date: 19.02.2020.

As it can be understood from the precedent Supreme Court decisions above, as a result of the effective investigation to be carried out according to the technical and expert expert report on the nature and nature of the crime, whether it occurred or not, the public prosecutor conducting the investigation, according to Articles 170 and following of the Criminal Procedure Law, “If the evidence collected at the end of the investigation phase creates sufficient suspicion that the crime has been committed; the public prosecutor shall issue an indictment”

In order for the principle of no trial without a trial to make sense, the criminal charge must be clearly and thoroughly explained in the indictment and the court must be bound by the act and perpetrator in the indictment. In this respect, it is imperative that the act or acts constituting the elements of the charged offense are explained in the indictment in a manner that leaves no room for doubt. The accused must understand from the indictment what the crime charged against him/her is in a way that leaves no room for any doubt, and he/she must be able to make his/her defense accordingly. “Mentioning another event during the explanation of an event does not indicate that a case has been filed about that event. The act made the subject of the case in the indictment must be explained independently, without being based on another event.”

If the indictment is accepted by the competent and authorized court, the prosecution phase of the criminal proceedings begins against the perpetrator who committed the act. In the prosecution phase, the court takes the defendant’s statement (defense) and as a result of the evaluation of the evidence, a verdict of conviction, acquittal or, in the presence of conditions, dismissal is given. In the prosecution phase, a decision of “dismissal” should be made, and after the finalization of the sentence, a decision of “abolition of the sentence with all its consequences” should be made with an additional decision.

At the end of the investigation phase, the public prosecutor decides not to prosecute in cases where there is no evidence to create sufficient suspicion for the opening of a public case or there is no possibility of prosecution. (CPC172)

In terms of the first and second paragraphs of Article 184 of the Turkish Penal Code, which regulates Zoning Pollution, a public lawsuit cannot be filed, the lawsuit that has already been filed is dropped, and the convicted penalty is eliminated with all its consequences by making the unlicensed or unlicensed buildings in compliance with the zoning plan or license.

Likewise, in the trial conducted by the Court, if it is concluded that a building registration certificate that is valid and meets the legal conditions according to the provisional Article 16 added to the Zoning Law No. 3194 with Article 16 of the Law No. 7143, it may be decided by the prosecutor’s office that “there is no ground for prosecution” in the investigation phase, and in the prosecution (trial) phase, it may be decided to drop the public case opened in accordance with Article 184 of the TCC.

In the decision of the 15th Civil Chamber of the Court of Cassation dated 10.07.2018 and numbered 2018/1552 E. and 2018/2981 K.; “…since it is possible to legalize the structure, even temporarily, by obtaining a building registration certificate for illegal and illegal structures, to be valid until the reconstruction of the structure or urban transformation application, by applying within the period in the article and completing the necessary procedures and determining whether the structure has been legalized by obtaining a building registration certificate…”, it is stated that the immovables that have received a building registration certificate will become legal.

Attorney Umut Güneş

Founding Lawyer

Footnotes

Serdar Talas – Ar. Assist. Sertaç Işıka / The Crime of Causing Zoning Pollution in the Context of Environmental Protection
Osman YA$AR, Hasan Tahsin GÖKCAN, Mustafa ARTUÇ, Interpreted – Applied Turkish Criminal Code, Volume IV, Ankara, 2010, p.5069; Meran, op.cit., p. 7
Court of Cassation 15th HD, decision dated 09.12.1997 and numbered 1997/4557 E., 1997/5306 K.
Court of Cassation 15.HD, decision dated 03.12.2001 and numbered 2001/3718 E., 2001/5575 K.
Serdar Talas – Ar. Assist. Sertaç Işıka / The Crime of Causing Zoning Pollution in the Context of Environmental Protection ,page 14.
Decree of the Criminal General Assembly of the Court of Cassation dated 15.11.2018 and numbered 2015/71 Esas and 2018/540 decision
CD., E. 2008/7912, K. 2010/1544, T. 8.2.2010 (Kazancı Case Law Information Bank)
Local Court Judgment upheld by CD, E. 2010/9713, K. 2012/7321, T. 28.3.2012. (Kazancı Case Law Information Bank)
2008/2606, K. 2009/17255 and 27.10.2009. (Kazancı Case Law Information Bank)
CD., E. 2008/19284, K. 2010/20575, T. 13.12.2010. (Kazancı Case Law Information Bank)
CD, E. 2009/8715, K. 2011/6187, T. 4.5.2011 (Kazancı Case Law Information Bank)
CD., E. 2010/4000, K. 2010/3780, T. 10.3.2010; In the same direction, 4th CD., E. 2009/28162, K. 2010/695, T. 26.1.2010; 4th CD., E. 2009/14976, K. 2009/11762, T. 10.6.2009; 4th CD., E. 2009/11611, K. 2009/9307, T. 13.5.2009. (Kazancı Case Information Bank
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