I. INTRODUCTION
The offense of construction pollution and the relevant penalties are regulated in article 184 of Turkish Criminal Code no. 5237 (“Code no. 5237”), titled “Pollution caused by constructions”.
The article refers to three different types of offenses: constructing or allowing the construction of a building without a building license or in violation of the license; allowing electricity, water or telephone connections to construction sites for constructions without a building license; allowing any industrial activity in buildings without an occupancy permit.
This article on the offense of construction pollution will (i) address the types of offenses regulated in article 184 of Code no. 5237, (ii) distinguish between the terms of “construction owner” and “property owner” with respect to the individuality of criminal liability and the principle of typicality, (iii) analyze the relevant type of offense in view of the contrition provisions, and (iv) question whether the judgment’s pronouncement may be delayed for the relevant offense.
II. TYPES OF OFFENSES
a) Constructing or Allowing the Construction of a Building Without or Contrary to a Building License
Article 184/1 of Code no. 5237 stipulates that any person who constructs or allows the construction of a building without or contrary to a license will be sentenced to imprisonment from one year to five years.
A building license is a permission obtained from the administration to construct a building or to make substantial changes to a constructed building. The offense of construction pollution occurs when a person constructs or allows the construction of a building without or contrary to a building license. Article 184/4 of Code no. 5237 indicates that the provisions of article 184/1 are applied only within the municipal boundaries or the regions subject to a special construction regime. Therefore, the offense does not concern buildings located outside the municipal boundaries or the regions subject to special construction regime as well as structures that do not qualify as buildings.
Code no. 5237 does not define the term “building” in the relevant article. Therefore, we should refer to the definition in article 5 of Law no. 3194 on Land Development Planning and Control (“Law no. 3194“) to understand the term.[1]
As per the legal definition, the offense of construction pollution necessitates the structure to be a building. Accordingly, structures such as retaining walls, security cabins, scaffolding, and bridges are not considered as buildings. Hence, their construction will not lead to construction pollution.
b) Allowing Electricity, Water or Telephone Connections to Construction Sites for Constructions Without a Building License
The type of offense given in article 184/2 of Code no. 5237, namely that of allowing electricity, water or telephone connections to construction sites for constructions without a building license, is punished with the penalty set out in article 184/1 of Code no. 5237. The offense does not concern the provision of infrastructure service to a building completed without a building license. However, the article penalizes the provision of infrastructure to construction sites established for constructions without a building license.
Since the offense is committed by allowing the provision of electricity, water and telephone lines, the persons that commit the offense of construction pollution are the administrators who allow the connection, and not the persons who make the connection, under Article 184/2 of Code no. 5237. In practice, the constructors may receive illegal infrastructure services from other people for their construction sites. In this case, the perpetrator will not be punished under article 184/2, but under article 163 of Code no. 5237 with the offense of “Benefiting from a Service Without Compensation,” if they meet the relevant criteria.
c) Allowing Any Industrial Activity in Buildings Without an Occupancy Permit
Article 30 of Law no. 3194 mandates to obtain occupancy permits from the municipality or governorship offices which issued the building license in order to use the entire structure if the construction is completed fully, or part of the structure in case of partial completion, or from the relevant municipality or governorship for the complete or partial use of structures not subject to permit pursuant to article 27.
Furthermore, article 30/2 of the same Law stipulates that municipalities and governorships must conclude the applications of the property owners within thirty days. Otherwise, the occupancy permit is deemed granted to the entire structure or the finished part.
Under article 184/3 of Code no. 5237, it is illegal to allow any industrial activity in buildings without an occupancy permit, whether or not within the municipal boundaries or the regions subject to a special construction regime. The offense given in article 184/3 of Code no. 5237 may only be committed by the public officials who have the duty and power to authorize the execution of industrial activities. Therefore, the offense has the characteristics of a special status offense (i.e. delicta propria).
III. DISTINCTION BETWEEN A CONSTRUCTION OWNER AND A PROPERTY OWNER
People who were not involved in the construction of a building that violates land development legislation should not be held responsible for the offense under article 184 of Code no. 5237 solely because they are the property owners.
Article 42/2, titled “Administrative Sanctions”, in Law no. 3194 stipulates:
“Administrative fines, not to be less than a thousand Turkish Liras, calculated as follows according to ownership status, characteristics of the area, condition, quality and class of the land, its effect on settlement and environment, whether it poses danger to safety of life and property and the degree of the violation, shall be imposed on the construction owner, construction contractor or engineers of record who have failed to notify the violation within six workdays of the structure constructed without license, or in violation of the license, surveys and plans annexed to the license or the land development legislation, or without meeting the conditions specified in article 27 regarding the structures that can be constructed without a license.”
Thus, the administrative fine will be imposed on (i) the construction owner, (ii) construction contractor or (iii) engineers of record who have failed to notify the violation within six workdays of the structure in violation of the license.
Article 184/1 of Code no. 5237 sets down, “Any person who constructs or allows the construction of a building without or contrary to a license shall be sentenced to imprisonment from one year to five years.” This means that persons who construct or allow the construction of a building in violation of the land development legislation will face criminal sanctions.
As set forth by the relevant regulations and the case law below, being the owner of real estate does not give rise to liability for the construction activities performed on that real estate previously. The liability for violations of the land development legislation rests with the construction owner, construction contractor or engineers of record under Law no. 3194 and with the persons who construct or allow the construction of a building in violation of the land development legislation under Code no. 5237. At this point, we should analyze the term “Construction Owner”.
It would be unlawful to impose administrative actions and penal sanctions on the property owner directly without first investigating the identities of the construction owner, construction contractor and the engineers of record involved in the construction, solely because the person is the current deed holder.
Law No. 3194, its justification and other relevant legislation do not define the term “Construction Owner”. In the Constitutional Court’s decision (file no. 2012/93, decision no. 2013/8, 10.01.2013) regarding the term “Construction Owner” in article 42 of Law no. 3194, it is stated that the term “Construction Owner” should be understood as the person who performed construction activities in violation of the land development legislation. The decision’s justification sets down that it will be contrary to the principle of “Individuality of Criminal Liability”, a fundamental principle of criminal law, to impose administrative fines and criminal sanctions on the current property owner.[2]
Likewise, the Constitutional Court’s decision (file no. 2016/866, 12.11.2019) emphasizes that (i) the construction owner should be understood as the person who constructed the building in violation of the legislation, (ii) the obligation to identify the person who constructed the building in violation of the legislation rests with the administration, and (iii) it would be incompatible with the purpose of the law to impose an administrative fine on the property owner without carrying out the necessary investigation.[3]
As demonstrated by the Constitutional Court’s case law above, “Property Owner” and “Construction Owner” should be distinguished from each other. In simple terms, “Property Owner” is the person who has the right of ownership over the independent areas of a building, whereas “Construction Owner” is the person who performed construction activities in violation of the land development legislation and bears criminal liability under the law.
IV. INDIVIDUALITY OF CRIMINAL LIABILITY AND THE PRINCIPLE OF TYPICALITY
Two of the most fundamental principles of Turkish Criminal Law, namely the principle of “Individuality of Criminal Liability” and the principle of “Typicality”, require not to penalize a person solely because of their status as a property owner. The principle of “Typicality” reflects the idea that there is no crime and punishment without law and advocates that the act subject to punishment must correspond to the offense’s legal definition. The principle of “Individuality of Criminal Liability” requires that a person is held responsible only for the acts committed by themselves and not for the acts committed by others.
In practice, property owners sometimes face administrative fines, judicial investigations and criminal sanctions solely because they are the current deed holders, without the relevant administration’s identification of the person(s) who had the building constructed in violation of the land development legislation. However, this situation may lead to unfair practices such as the imposition of administrative fines and the initiation of judicial investigations against persons who only purchased the real estate ready for use, on the grounds that they are the property owners.
However, the decision of the 14th Chamber of Council of State affirms that the person who purchased the independent space later cannot be held responsible for the violations arising from the initial construction of the building. Therefore, an administrative fine cannot be imposed on the person who purchased the property later (file no. 2014/7357, decision no. 2015/899, 04.02.2015).[4]
Likewise, the 14th Chamber of Council of State found the municipal council’s decision to impose an administrative fine on the property owner, who submitted an expertise report by the bank to reveal that they did not build the structure in violation of the land development legislation, to be in contradiction with the procedure and the law as per the principle of individuality of penalties (file no.2015/2198, decision no. 2018/952, 27.02.2018).[5]
V. CONTRITION AND THE DECISION TO DELAY THE PRONOUNCEMENT OF JUDGMENT IN THE OFFENSE OF CONSTRUCTION POLLUTION
Article 231 of Turkish Criminal Procedure Code no. 5271 (Code no. 5271) lays down the decision to delay the pronouncement of the judgment and its conditions. Pursuant to article 231/5 of Code no. 5271, if the sentence imposed at the end of the adjudication conducted related to the crime charged to the accused is imprisonment for two years or less or a judicial fine, the court may decide to delay the pronouncement of the judgment. Delaying the pronouncement of the judgment means that the judgment does not have any legal consequences for the accused, except for the application of the seizure provisions. Article 231/6 in Code no. 5271 stipulates, “In order to be able to render the decision on delaying the pronouncement of the judgment, the following requirements must have been fulfilled: a) The accused must not have been previously convicted of an intentional crime; b) Considering the characteristics of the personality of the accused and their behavior during the main trial, the court must reach the belief that the accused will not commit further crimes; c) The damage to the victim or the public, caused by the committed crime, has been fully remedied by returning the same object, restoring the circumstances to their original state before the crime was committed, or by paying compensation for the damages.”
However, article 184/5 of Code no. 5237 has a special contrition provision for the offense of construction pollution. Accordingly, no public action will be filed, or the public action already proceeded will be extinguished, and the sentence will be cancelled with all its consequences under articles 184/1 and 184/2 of Code no. 5237 if a person restores the building constructed without or contrary to license in conformity with the construction plan and the license.
Under article 231/6 of Code no. 5271, in order to be able to render the decision on delaying the pronouncement of the judgment, the damage to the public should be fully remedied by returning the same object, restoring the circumstances to their original state before the crime was committed, or by paying compensation for the damages. Therefore, if the relevant condition is fulfilled, the contrition provision in article 184/5 of Code no. 5237 will be applicable. Consequently, it is not possible to apply the decision to delay the pronouncement of the judgment regulated in article 231 of Code no. 5271 for the offense in question.[6] However, the court may decide to suspend the prison sentence of the perpetrator if they fulfill the necessary criteria.
VI. CONCLUSION
There is no doubt that protecting the environment and imposing criminal sanctions for environmental offenses under criminal law are essential to sustain the health of society. Therefore, special and general laws regulate sanctions for environmental offenses, particularly those provided in the Constitution. The criminal sanctions for the offense of construction pollution, which is the subject of our article, are regulated under article 184 of Code no. 5237. However, in practice, the distinction between a construction owner and a property owner is sometimes ignored despite the pertinent case law, leading to unfair decisions. To prevent that, the administration should carry out inspections more frequently to identify the person(s) who gave rise to construction pollution.
Batuhan Birtane, Senior Associate
[1] A building is a self-contained and covered structure that is accessible to people for purposes such as living, working, recreation, rest, worship, or for the protection of animals and property.
[2] Constitutional Court, File no. 2012/93, Decision no. 2013/8, 10.01.2013: “…The phrase “construction owner,” subject to objection, refers to the persons facing criminal sanctions for the act of constructing without license, or in violation of the license, surveys and plans annexed to the license or the land development legislation… One of the fundamental principles of the rule of law enshrined in article 2 of the Constitution is “certainty”. Accordingly, regulations should be clear, unambiguous, comprehensible and enforceable in such a way as to leave no room for any hesitation or doubt for both the individuals and the administration. The principle of certainty is also crucial to ensure the legal security of individuals. The seventh paragraph of article 38 of the Constitution, entitled “Principles relating to offenses and penalties”, states “Criminal responsibility shall be personal.” The individuality of criminal liability is a fundamental rule of criminal law. The individuality of punishment aims to prevent the punishment of a person for an act they have not committed. In other words, a person cannot be held responsible for the acts of another. Since article 38 of the Constitution does not distinguish between administrative and judicial penalties, administrative fines should also follow the principles set forth in this article. Under paragraph 2 of article 42 of the Law, if the administration discovers that a building has been constructed without license, or in violation of the license, surveys and plans annexed to the license or the land development legislation, a fine will be imposed on the construction owner, construction contractor or engineers of record who have failed to notify the violation within six workdays, as per the criteria specified in the paragraph. Therefore, the term “construction owner” refers to the persons who perform the above-mentioned construction activities. In other words, the term “construction owner” refers to the persons who have been involved in the construction activity, whether the deed holders or third parties such as tenants, relatives of the property owner, or the beneficial owner. The Council of State’s case law also indicates that the construction owner refers to the person who constructed the building in violation of the legislation. In practice, it will be incompatible with the purpose and meaning of the law to impose a fine directly on the current deed holder without first identifying the person who performed the illegal construction activity, with the necessary investigation by the relevant administrations. “
[3]Constitutional Court, File no. 2016/866, 12.11.2019: As stated in the decision of the Constitutional Court regarding the petition for the cancellation of the administrative fine in the present case, whose legal ground was Article 42 of the Law No. 3194, and in the case law of the Council of State, the construction owner should be understood as the person who constructed the building in violation of the legislation (see §§ 28,29). These decisions also underline that it will be incompatible with the purpose and meaning of the law to impose a fine directly on the current deed holder without first identifying the person who performed the illegal construction activity, with the necessary investigation by the relevant administrations.“
[4] 14th Chamber of Council of State, File no. 2014/7357, Decision no. 2015/899, 04.02.2015: “In this case, the plaintiff cannot be held liable for the violations since the violations subject to the lawsuit occurred during the construction phase and did not arise from later additions to the project and its annexes, and that the plaintiff who purchased the property later was not involved in the incident. This reasoning is also a requirement of the principle of the individuality of penalties. Therefore, the imposition of a fine on the plaintiff is deemed unlawful, whereas the result of the Administrative Court’s decision subject to appeal is deemed lawful.”
[5] 14th Chamber of Council of State, File no. 2015/2198, Decision no. 2018/952, 27.02.2018: “In the disputed case, we see that the plaintiff, who is the property owner, purchased the property subject to the lawsuit on 07.12.2010 with a mortgage loan. The bank’s expertise report of 02.11.2010 showed in detail the indoor areas constructed later in the independent space no. 5 with condominium in violation of the approved project, as identified in the injunction to stop building. As a result of the additions, the apartment with a gross area of approximately 115 m² was turned into an apartment with a gross area of approximately 133 m²… In this case, the principle of individuality of offenses and penalties requires to identify the person(s) who constructed the structures subject to the fine and to impose a fine on the real construction owner(s). We take into account that the violations regarding the license occurred before the plaintiff purchased the property, that the plaintiff, who is the owner of an independent space in the building, is not responsible for these violations, and that this situation is a requirement of the principle of individuality of penalties. Since the decision of the Council of Administrative Court regarding the imposition of a fine on the plaintiff (2014/98, 14/01/2014) is deemed unlawful, this part of the decision has been found to be in conflict with the law.”
[6] Criminal General Assembly of the Court of Appeals, File no. 2014/4-806, Decision no. 2015/167, 26.05.2015: “The decision on delaying the pronouncement of the judgment means the postponement of the pronouncement of the conviction of the perpetrator if the perpetrator compensates the damage suffered by the victim or the public during the investigation or prosecution phase after committing the crime, and the judgment will not have any legal consequences during this postponement period. It is not possible to delay the pronouncement of the judgment for the offense of construction pollution. Because, the legislator laid down a special contrition provision in article 184/5 of Code no. 5237 for the offense of construction pollution. In the offense of construction pollution, the decision to delay the pronouncement of the judgment regulated in article 231 may not be taken for the perpetrator who may benefit from the special provision in article 184/5 by restoring the building constructed without or contrary to license in conformity with the construction plan and the license.”
