Legislators lay down rules so that societies may live safely and healthily. The order created by those rules passes on to later generations as well. The laws enacted on offences against the environment are among those rules. Certain acts directed against the environment have been accepted as offences. The offence of zoning pollution is one of the legal provisions falling within this scope. Because it is regarded as a widespread situation in our region, a perception arises that it is an ordinary matter. Yet this provision is clearly set out in article 184 of the Turkish Penal Code and its criminal sanction is stated there. Under article 184(1) of the Penal Code, a person who constructs, or has constructed, a building without a building permit or contrary to the permit is punished with imprisonment from one to five years. For the offence to arise, the building must have been constructed without a permit or contrary to the permit, and it must be accepted as a building.
Because the number of people around us in Fethiye who receive prison sentences for this offence has increased, I have compiled for you the most frequently asked questions about this offence and their answers.
Does the building have to be completed for the offence of zoning pollution to arise?
No. Having started the construction of the building is enough for this offence to arise.
A construction stoppage report has been drawn up for the construction. What does this mean?
Where the construction has been carried out without a permit or contrary to the permit, it is a report drawn up by the authorised staff of the administration determining the unlawfulness and stating that the construction cannot continue. It represents the preparatory stage of the legal sanctions that will be faced later in the process.
Is the construction stoppage report drawn up in the name of the landowner?
It is drawn up in the name of the person who constructs the building without a permit or contrary to the permit.
Is it possible to have the construction stoppage report annulled?
An action seeking annulment of the report must be brought within 60 days. Annulment may be requested of a report that does not contain the mandatory elements it must carry.
What happens if the landowner and the person who carried out the construction that is the subject of the offence are different people?
Where the landowner permits the construction of a building without a permit or contrary to the permit, participation in the offence is in question.
If the construction is sealed, may it be continued?
If the construction is continued after the seal, the provisions on the chain offence come into play. The criminal sanction for that offence is increased.
If an unpermitted floor is added to a permitted building, is the whole building sealed?
No. Only the part built without a permit or contrary to the permit is sealed.
What happens if the construction is continued after the indictment has been drawn up?
The indictment is regarded as a legal interruption. For this reason, construction carried out after the indictment has been drawn up constitutes a separate offence.
Does the place where the building that is the subject of the offence was built make a difference to the sentence?
Yes. For example, if the place where the building was constructed falls within the scope of cultural property that must be protected, the sanctions are different.
Does a swimming pool constitute the offence of zoning pollution?
No. Since a pool is not assessed as a building, it does not constitute the offence of zoning pollution.
Does enclosing a terrace balcony with glass and PVC constitute the offence of zoning pollution?
No, the offence of zoning pollution does not arise.
Does a concrete floor that does not exceed the plinth level, and a pergola built on it, constitute the offence of zoning pollution?
No. Zoning pollution does not arise.
What is the limitation period for the offence of zoning pollution?
It is 8 years.
Can the sentence for the offence of zoning pollution be converted into a fine?
In the offence of zoning pollution a judicial fine cannot be imposed directly. However, the prison sentence given may be converted into a judicial fine.
Can a tourism accommodation certificate be obtained with an unpermitted property that is the subject of the offence of zoning pollution?
No, it cannot.
These are the first questions that come to mind regarding the offence of zoning pollution. In the legal process to be followed concerning the construction stoppage report drawn up for the construction in question, the demolition decision and the criminal proceedings, attention must be paid to the time limits. Since the sentencing range under article 184 of the Penal Code is set at 1 to 5 years, the sentences to be given may differ according to the facts.
Protecting and improving our city, which we will leave to future generations, is the responsibility of all of us. It is in all our interests that the sanctions for this offence be deterrent and effective.
Av. Şükrü Köse
