The offence of causing zoning pollution is regulated in Article 184 of the Turkish Penal Code No. 5237 (TCK), and in practice it comes up in disputes such as the construction of unlicensed buildings, the creation of additional floors or independent units contrary to the permit, enclosing terraces, enclosing balconies, building illegal floors, site connections, and allowing industrial activity in structures without an occupancy permit. On the other hand, not every zoning violation automatically constitutes a "zoning pollution offence" in the criminal-law sense. Whether the offence has been committed is determined by assessing together the text of TCK Art. 184, the concept of "building" in the Zoning Law, the place where the structure is located, the nature of the work, the permit status, the date of construction, the evidence and Court of Cassation case law.
For this reason, in zoning pollution files it is not sufficient to look only at the municipal report. It is necessary to draw correctly the difference between a violation of zoning legislation and an offence in the criminal-law sense; to distinguish between "structure" and "building"; to investigate the elements of municipal boundary, adjacent area or special zoning regime; to establish the date of the offence; to ensure that the expert examination is properly carried out; and, if there is one, to assess in time the possibility of effective remorse under TCK Art. 184/5.
1. What Is the Zoning Pollution Offence?
TCK Art. 184 is located in the section on offences against society and among the offences against the environment. The legal interest protected is not only the permit order; it is urban discipline, protection of the environment, planned development and public order.
The basic function of the Article is not to punish every act that violates the permit system, but to set the criminal-law boundary of building activities contrary to zoning legislation. For this reason not every administrative violation creates criminal liability; conversely, violations that carry the elements in the Law may also have criminal-law consequences together with administrative sanctions.
2. Text of TCK Article 184 and Its Paragraphs
The main structure of TCK Art. 184 is as follows:
2.1. First paragraph
A person who constructs or has constructed a building without obtaining a construction permit or contrary to the permit is punished with imprisonment from one to five years.
2.2. Second paragraph
A person who allows electricity, water or telephone connection to be made to a construction site set up for constructions begun without a construction permit is punished in accordance with the provision of the first paragraph.
2.3. Third paragraph
A person who allows any industrial activity to be carried on in buildings for which an occupancy permit has not been obtained is punished with imprisonment from two to five years.
2.4. Fourth paragraph
Except for the third paragraph, the provisions of this Article apply only within municipal boundaries or in places subject to a special zoning regime.
2.5. Fifth paragraph: special effective remorse
If a person brings into conformity with the zoning plan and its permit the building that they constructed or had constructed without a permit or contrary to the permit, no public action is brought pursuant to the provisions of the first and second paragraphs; a public action that has been brought is dropped; and the sentence imposed is removed with all its consequences.
2.6. Sixth paragraph
The provisions of the second and third paragraphs do not apply in respect of structures built before 12 October 2004.
3. Elements of the Offence
3.1. The perpetrator
In the first paragraph, the perpetrator is the person who constructs or has constructed a building without a permit or contrary to the permit. It is not necessary for the act to be carried out in person. The owner, the contractor, the person who actually has it built, the person who voluntarily decides on the unlicensed works, or the participation of more than one person may be assessed according to the circumstances of the specific case.
In the second and third paragraphs, the type of perpetrator is more specific: the person who permits a site connection or the person who permits industrial activity in a building for which an occupancy permit has not been obtained.
3.2. Victim and protected interest
In this offence it is the public's environment and planned urbanisation order that is protected, rather than a specific individual victim. Nevertheless, in each specific case a separate assessment must be made as to being directly harmed by the offence and the right to join the case.
3.3. The act
For the first paragraph, the act is constructing or having constructed a building without a permit or contrary to the permit. The key concept here is "building".
3.3.1. Not every "structure" is the subject of the offence
In zoning legislation there is a very broad concept of "structure". However, TCK Art. 184 is based not on every structure but on the building. For this reason the following questions are critical in criminal proceedings:
- Is the work that is the subject of the offence capable of independent use?
- Is it roofed over?
- Does it create a volume that people can enter?
- Does it create a use such as living, working, resting, storage or similar?
- Is it a light, temporary intervention that does not have the character of a building?
3.3.2. Why is the concept of "building" decisive?
Court of Cassation practice, in cases of, for example, merely building a wall, enclosing with very light material or certain additions that do not affect the load-bearing system, often does not regard it as sufficient to go directly to a finding of an offence. By contrast, it is accepted that the offence may be formed in works that create enclosed space, create a new usable volume or produce the effect of an independent space.
3.4. Absence of a permit or violation of the permit
For the offence to be formed, either no permit must have been obtained at all or work contrary to the existing permit must have been carried out. Accordingly, the existence and content of the following documents in the file are important:
- construction permit,
- approved architectural project,
- alteration permit,
- construction-stop report,
- municipal council (encümen) decisions,
- technical determinations and photographs,
- on-site inspection and expert reports.
It is not sound to reach a judgment without comparing the scope of the permit with the actual works.
3.5. The place element: municipal boundary or special zoning regime
Under the fourth paragraph, the provisions of the Article, except for the third paragraph, apply only within municipal boundaries or in places subject to a special zoning regime. For this reason the following headings of defence are important in practice:
- Are the works within municipal boundaries?
- What is the position as to the adjacent area (mücavir alan)?
- Is there a place subject to a special zoning regime?
- Did this status exist on the date of the incident?
Inadequate investigation of the place element may lead to the judgment being reversed.
3.6. The mental element
The offence can be committed with general intent. The perpetrator's not being aware of the permit order does not always remove liability; however, in the specific case, defences such as status as owner, actual will to construct, the relationship of having it built, the possibility of technical error, a claim of good faith and delegation of authority may be assessed.
3.7. Date of the offence and continuing works
In zoning pollution files, one of the most contentious subjects is the date of the offence. In particular with respect to the 12.10.2004 date of entry into force and in the calculation of limitation, the following questions are critical:
- When did the construction begin?
- On what date were the works that are the subject of the offence completed?
- Was construction actually continuing on the date of the report?
- Is the work done later a continuation of the initial construction or of the nature of a repair?
The Court of Cassation specifically emphasises that the continuation of construction and a simple repair should not be confused with each other.
4. Which Acts May Constitute an Offence?
The following examples are typical situations that may constitute an offence depending on the specific case:
- constructing a detached building without a permit,
- building an additional floor contrary to the permit on an existing structure,
- creating an independent unit not envisaged in the permit,
- turning a terrace floor into usable enclosed space,
- turning a basement, attic or annex into an independent living/shopping/storage area,
- allowing a connection to an unlicensed site,
- allowing industrial activity in a building that has no occupancy permit.
On the other hand, whether the specific act constitutes an offence is determined according to "whether a new building or an addition of the nature of a building has in fact been formed".
5. Which Acts Are Not Automatically Regarded as an Offence?
A point frequently confused in practice with respect to TCK Art. 184 is treating every zoning violation as an offence. Yet detailed technical assessment is required in situations such as the following:
5.1. Merely building a wall
The act of building a wall that does not create an enclosed volume or the character of a building may not constitute an offence on its own.
5.2. Enclosing a balcony
In files on enclosing a balcony with PVC, glass, aluminium or similar light materials, the Court of Cassation often requires that this should not automatically be regarded as being of the nature of a "building", and that the effect on the load-bearing system, the gain in area and the nature of the structure be established by an expert.
5.3. Enclosures with light materials
For steel construction, light panels, awnings or similar works, the material used, the effect on the load-bearing system, the degree of permanence, whether enclosed space is created and whether a permit is required should be assessed.
5.4. A simple repair, or a continuation of construction?
It is important whether plastering, alteration or repair on a pre-existing structure is a continuation of the initial construction process or a simple maintenance work done afterwards. This distinction may be decisive for the date of the offence and for the formation of the offence.
6. Evidence and Proof
In zoning pollution files, conviction or acquittal often depends on the quality of the technical evidence. The main evidence is as follows:
6.1. Construction-stop report and municipal records
The construction-stop report, the determination report, municipal council decisions and the municipality's photographic annexes are important; however, they do not by themselves produce an indisputable result. The procedure of drawing them up, by whom they were kept, which part of the incident they cover and the level of technical clarity should be examined.
6.2. Permit and project
The total absence of a permit and the carrying out of works contrary to an existing permit are different from each other. Moreover, it is not sound to reach a conclusion of "violation of the permit" without comparing the approved project with the actual state.
6.3. On-site inspection and expert report
In most files the most critical evidence is the expert report. The following matters need to be clarified in the report:
- the nature of the structure as a building,
- enclosed area and function of use,
- effect on the load-bearing system,
- whether it is subject to a permit,
- whether there is a violation of the permit,
- date of construction,
- relationship with the municipal boundary / special zoning regime,
- whether it is technically possible to bring it into conformity with the zoning plan and the permit.
6.4. Witness and neighbour statements
In determining the date of construction, whether construction was continuing and who in fact had it built, the statements of neighbours, signatories of the report and other persons concerned may also be important.
7. Principles Laid Down by Precedent Judicial Decisions
The earlier content shared by the user includes many decisions that serve as guidance in this field. Without reproducing all of these decisions verbatim, the principles that stand out in practice are summarised below.
7.1. Investigation of the municipal boundary and the adjacent area is mandatory
In older decisions of the 4th Criminal Chamber of the Court of Cassation, it was emphasised that the obligation to obtain a permit may continue even in areas with no zoning plan, that acquittal cannot be given merely on the ground that "there is no zoning plan", and that investigation of the adjacent area and the municipality's area of authority is mandatory.
7.2. The offence may be formed if a terrace floor or additional floor has the character of a building
In the line of decisions of the 4th Criminal Chamber of the Court of Cassation Nos. 7912/1544 dated 08.02.2010 and 14021/11140 dated 08.06.2010, it was stated that where a terrace floor or additional floor is usable, roofed over and of the nature of a building, there is no sufficient ground for acquittal, and that the court must discuss the nature of the structure technically.
7.3. The date of the offence must be clarified
In the decisions of the 4th Criminal Chamber of the Court of Cassation Nos. 10054/5938 dated 05.04.2010 and 8677/5610 dated 30.03.2010, it was accepted that whether construction activity continued after the 12.10.2004 date of entry into force must be determined with witness and technical data.
7.4. Simple wall-building is not a "building" in every case
In the decision of the 4th Criminal Chamber of the Court of Cassation dated 05.03.2012, E. 2010/1854, K. 2012/4870, attention was drawn to whether the act of merely building a wall has the character of a "roofed building".
7.5. The expert plays a critical role in balcony-enclosure files
The decision of the 4th Criminal Chamber of the Court of Cassation dated 01.06.2011, E. 2009/3046, K. 2011/7468, and the decision of the 18th Criminal Chamber of the Court of Cassation, E. 2019/2810, K. 2019/15073, bring to the fore technical examination in balcony-enclosure and area-gain files in terms of the nature of the structure as a building, light material, effect on the load-bearing system and gain of enclosed usable area.
7.6. More than one offence norm in a single act must be carefully separated
In the decision of the 12th Criminal Chamber of the Court of Cassation, E. 2016/7608, K. 2019/8277, it was stated that establishing two separate judgments for two separate offences in respect of a single act may create problems, and that the relationship between a special norm and a general norm must be assessed.
7.7. In natural site and similar protected areas, the relevant administration may need to be notified of the case
In the decision of the 18th Criminal Chamber of the Court of Cassation, E. 2018/7925, K. 2019/15422, it was accepted that in cases relating to a natural site area, procedural safeguards must be observed with respect to the relevant administration's right to join.
8. Special Effective Remorse Under TCK 184/5
One of the most important special provisions for the zoning pollution offence is TCK Art. 184/5.
8.1. What is the result of this institution?
If a person brings into conformity with the zoning plan and its permit the building they constructed or had constructed without a permit or contrary to the permit:
- no public action is brought,
- a public action that has been brought is dropped,
- a conviction sentence that has been imposed is removed with all its consequences.
8.2. In which cases does it apply?
This provision does not apply merely by saying "I regret it". To achieve the result, one of the following must actually have occurred:
- the violation has been removed,
- the structure has been brought into conformity with the project and the permit,
- if necessary, the non-compliant part has been demolished,
- conformity has been established through municipal and technical records.
8.3. How does it differ from HAGB?
In the line of decision 2015/167 of the Criminal General Assembly of the Court of Cassation, it is accepted that for the zoning pollution offence TCK Art. 184/5 contains a special reparative provision, and that it would not be sufficient to discuss HAGB (deferral of the announcement of the judgment) automatically, ignoring this special mechanism. For this reason, in the file it must first be investigated whether the violation has been removed and whether the conditions of Art. 184/5 have been met.
9. Does the Building Registration Certificate Remove the Zoning Pollution Offence?
This question is one of the headings most often confused in practice after 2018.
9.1. General framework
The institution of the "Building Registration Certificate" (Yapı Kayıt Belgesi) was introduced by provisional Article 16 added to the Zoning Law No. 3194. This certificate, issued under certain conditions, produced some administrative consequences; its effects on demolition and fines and on criminal proceedings have also been discussed.
9.2. Effect in the criminal file
In the decision of the 11th Criminal Chamber of the Court of Cassation, E. 2019/2714, K. 2019/6042, it was stated that, in view of the building registration certificate and the relevant provisional article, the defendant's legal position must be reassessed and, if the certificate is valid, the result of dropping the case must be discussed.
However, the following points must not be forgotten:
- A Building Registration Certificate cannot be issued for every structure.
- The validity and scope of the certificate must be examined separately.
- Different results may arise where it was later cancelled, falls outside the scope, or covers works after 31.12.2017.
- In criminal proceedings, which works were done on what date and whether the certificate really covers those works are assessed separately.
9.3. Point to be noted in practice
In the defence, it is not enough merely to say "we obtained a building registration certificate". The following about the certificate must be set out with concrete documents:
- its number,
- date of issue,
- the structure it covers,
- which works it covers,
- active or cancelled status,
- the basis relating to the date of the structure,
- whether the locality is outside the scope.
10. Defence Strategies
In zoning pollution files, the defence is not built on mere denial or mere administrative objection. The file requires knowledge of both criminal law and zoning law.
10.1. Defence that there is no character of a building
This is one of the most basic defences. In particular for:
- walls,
- light enclosures,
- awnings,
- interventions on an open balcony,
- simple additions that do not affect the load-bearing system
the character of a building should be argued technically.
10.2. Defence that it is not subject to a permit or is a simple repair
It may be argued that the specific work does not belong to the initial construction process but is of the nature of maintenance-repair or minor alteration. The technical basis of this defence must be supported by an expert.
10.3. Defence on date of the offence and entry into force
In particular for old structures, it may be argued that the offence was completed before entry into force, that only simple maintenance was carried out afterwards, or that the conditions of limitation have been met.
10.4. Objection to the status of perpetrator
Being the owner of the property does not always mean on its own being the person who in fact had the construction carried out. The person who in fact had the construction carried out, managed it or made the decision must be determined.
10.5. Defence on municipal boundary / special zoning regime
Reaching a judgment while ignoring the fourth paragraph of the Article is not correct. The place element must be proved by official records.
10.6. Defence that the conditions of TCK 184/5 have been met
If the non-compliant part has been removed or the structure has been brought into conformity with the permit, this must be shown clearly and with documents in the file; the request for dropping of the case should be supported by the relevant municipal letters, on-site inspection and technical reports.
10.7. Request for reassessment based on the building registration certificate
If there is a valid building registration certificate, its effect on the criminal file must be separately examined. However, whether the scope of the certificate technically covers the work in dispute must be made concrete.
11. Documents to Be Noted in the Investigation and Prosecution
11.1. Documents that can be obtained from the municipality
- construction-stop report,
- municipal council (encümen) decision,
- demolition decision,
- fine decision,
- permit file,
- approved project,
- zoning plan extract (imar çapı),
- zoning status,
- occupancy permit,
- inspection photographs.
11.2. Other documents important for the defence
- land registry records,
- lease or use contracts,
- previous case files,
- dated photographs and videos,
- records of the craftsman/contractor,
- electricity/water subscription dates,
- alteration permit applications,
- the building registration certificate and its annexes,
- letters of conformity obtained from the municipality.
12. The Relationship Between Administrative Sanctions and Criminal Proceedings
In a zoning pollution file, alongside the criminal case there are often also the following administrative consequences:
- sealing,
- demolition,
- administrative fine,
- prohibition of use,
- cutting of electricity/water,
- permit cancellation or conformity problems.
Acquittal in criminal proceedings does not always mean that the administrative sanctions will also be lifted; likewise, the existence of an administrative violation does not always show that an offence within the meaning of TCK Art. 184 has been formed. For this reason the two fields must not be confused.
13. Frequently Asked Questions
Is every illegal building the subject of a criminal case for the zoning pollution offence?
No. Not every zoning violation automatically falls within TCK Art. 184. For the offence to be formed, the character of a building, absence of a permit or violation of the permit, the place element and the other elements must be present together.
Is enclosing a balcony a zoning pollution offence?
Not in every case. Matters such as the material used, gain of enclosed area, effect on the load-bearing system and the character of a building are assessed by expert examination.
Is merely building a wall regarded as an offence?
There are Court of Cassation decisions to the effect that the offence is not formed by the act of building a wall that does not create the character of an enclosed building. However, the nature of the specific work must always be examined separately.
If a building registration certificate is obtained, is the criminal case definitely dropped?
Not automatically and not in every incident. The validity, scope and effect of the certificate on the specific work must be assessed. The effect of a valid certificate on the file is of course important; but certificates that are outside the scope or were cancelled afterwards may produce a different result.
When does bringing into conformity with the zoning plan and the permit produce a result?
Under TCK Art. 184/5, if the violation is actually removed and the structure comes into conformity with the zoning plan and the permit, the provisions on special effective remorse apply. This must be proved with documents and technical reports.
HAGB or TCK 184/5?
In the file, the conditions of TCK Art. 184/5 should be investigated first. This is because this Article is a special provision specific to the zoning pollution offence. The HAGB discussion is assessed after that and according to the conditions of the specific file.
14. Conclusion
Zoning pollution files are much more technical in practice than they appear. For a successful legal assessment, it is not sufficient to look only at the municipal report or only at the permit file. The distinction between "structure" and "building", the place element, the date of the offence, the quality of the expert, whether the act is really subject to a permit, the status of the perpetrator, special effective remorse and the effect of the building registration certificate" must be addressed together.
In particular, if a criminal investigation or case has begun, both the administrative file and the criminal file must be examined together; a sound line of defence must be built between the technical records coming from the municipality and Court of Cassation case law. In many files the decisive result emerges from whether the non-compliant part has the character of a building, whether the violation has really been removed, and whether the elements of time, place and perpetrator of the offence have been correctly established.
Legal Bases and Selected Decisions
- Turkish Penal Code No. 5237, Art. 184
- Zoning Law No. 3194
- Code of Criminal Procedure No. 5271
- 4th Criminal Chamber of the Court of Cassation, 08.02.2010, 7912/1544
- 4th Criminal Chamber of the Court of Cassation, 08.06.2010, 14021/11140
- 4th Criminal Chamber of the Court of Cassation, 05.03.2012, E. 2010/1854, K. 2012/4870
- 4th Criminal Chamber of the Court of Cassation, 01.06.2011, E. 2009/3046, K. 2011/7468
- 18th Criminal Chamber of the Court of Cassation, E. 2018/7925, K. 2019/15422
- 18th Criminal Chamber of the Court of Cassation, E. 2019/2810, K. 2019/15073
- 11th Criminal Chamber of the Court of Cassation, E. 2019/2714, K. 2019/6042
- 12th Criminal Chamber of the Court of Cassation, E. 2016/7608, K. 2019/8277
- Criminal General Assembly of the Court of Cassation, 2015/167