Maintaining a regular and healthy social life requires not only regulating interpersonal relationships but also shaping the physical environment within certain rules. In this context, ensuring urban development on a legal basis and promoting construction in accordance with planning principles is of great importance. However, construction activities carried out in violation of zoning regulations not only threaten city aesthetics and infrastructure but also cause serious consequences that harm public order and community health. For this reason, acts causing urban/construction pollution have been subjected to criminal law sanctions under Article 184 of the Turkish Penal Code and defined as a crime under certain conditions. In this article, the definition, elements, criminal sanctions, and judicial practices regarding the crime of causing urban/construction pollution will be discussed.
LEGAL DEFINITION OF THE CRIME
Constructing or having a building constructed without obtaining a building permit from the authorized authority, or in a manner contrary to the obtained permit, within municipal boundaries or in areas subject to a special zoning regime; allowing industrial activity in buildings without a occupancy permit; or permitting the provision of infrastructure services to unpermitted buildings, is defined as an independent crime under Article 184 of the Turkish Penal Code. The relevant article of the law states:
Turkish Penal Code Article 184
- A person who constructs or has a building constructed without a building permit or in violation of the permit shall be punished with imprisonment from one to five years.
- A person who allows electricity, water, or telephone connections to be made to construction sites established for buildings started without a building permit shall be punished according to the provision of the above paragraph.
- A person who allows any industrial activity in buildings without an occupancy permit shall be punished with imprisonment from two to five years.
- Except for the third paragraph, the provisions of this article shall apply only within municipal boundaries or in areas subject to a special zoning regime.
- If a person brings a building constructed without a permit or in violation of a permit into compliance with the zoning plan and the permit, a public prosecution shall not be initiated under the provisions of paragraphs one and two; any ongoing public prosecution shall be dismissed, and any penalty imposed shall be fully annulled.
- (Added: 29/6/2005 – Article 21 of Law 5377) The provisions of the second and third paragraphs shall not apply to buildings constructed before 12 October 2004.
These provisions aim to prevent unpermitted or permit-violating constructions, thereby curbing unplanned urbanization and environmental degradation.
ELEMENTS OF THE CRIME
When the crime of causing urban/construction pollution is evaluated with both its objective and subjective elements, it has the following fundamental components:
Act (Conduct Element): The crime is defined as a crime of alternative acts. The alternative acts defined by the legislator that constitute the crime are as follows:
Perpetrator: According to Article 184/1 of the Turkish Penal Code (TCK), the perpetrator is the person who constructs or has a building constructed without a permit or in violation of the permit. According to Article 184/2, the perpetrator is the person who allows electricity, water, or telephone connections to construction sites established for buildings started without a permit. According to Article 184/3, the perpetrator is the person who allows industrial activity to take place in a building.
Victim: The victim of the crime is the society at large, as these acts affect public order and social life rather than individual interests.
a) Constructing or having a building constructed without a building permit or in violation of the obtained permit (TCK Article 184/1):
The crime occurs when a building is constructed without obtaining a building permit from the authorized authority, or when a building is constructed with a permit but not in compliance with the permit and its attached plans. For the crime to occur, the constructed structure must qualify as a “building” and must be located within municipal boundaries or in an area subject to a special zoning regime. Therefore, buildings located outside municipal boundaries or areas subject to a special zoning regime do not constitute this crime, even if constructed without a permit or in violation of an existing permit.
Furthermore, for the crime to be established, the construction must necessarily have the characteristics of a “building.” Not every structure can be considered a building. The concept of a building is defined in Article 5 of the Zoning Law No. 3194. According to this article:
“Building; a structure that can be used independently, covered on top, accessible to people, and serves the purposes of living, working, entertainment, rest, or worship, as well as the protection of animals and objects.”
Whether the structure in question qualifies as a building must be assessed separately for each specific case.
b) Allowing electricity, water, or telephone connections to construction sites established for buildings started without a building permit (TCK Article 184/2):
The crime is committed by knowingly permitting infrastructure connections (electricity, water, or telephone) to a construction site of a building located within municipal boundaries or in an area subject to a special zoning regime that does not have a building permit. The concept of a construction site refers to structures and areas used temporarily during the construction period and planned to be removed once the construction is completed. The law explicitly uses the term “construction site,” and allowing electricity, water, or telephone connections to structures that do not qualify as construction sites cannot be considered a crime under TCK Article 184/2.
c) Allowing any industrial activity in buildings without an occupancy permit (TCK Article 184/3):
An occupancy permit is an administrative document indicating that the building has been constructed in accordance with the zoning plan, permit, and projects, and is now suitable for use. The crime occurs when any industrial activity is allowed to take place in the building before this document is obtained. For the crime to occur, merely permitting industrial activity is sufficient; the crime is considered complete even if the industrial activity has not yet been carried out. Unlike the other alternative acts, for this alternative act concerning a building without an occupancy permit, it is not required that the building be located within municipal boundaries or in an area subject to a special zoning regime (TCK Article 184/4).
4- Legally Protected Value: The crime of causing urban/construction pollution is regulated under the heading of “Crimes Against the Environment.” The legally protected values of this crime include the zoning system that ensures the effective implementation of urbanization policies, environmental protection, public health, and public order.
5- Mental Element (Mens Rea): This crime can only be committed intentionally. According to TCK Article 184/1, it is sufficient that the perpetrator knowingly acts without obtaining a permit or in violation of an existing permit; according to Article 184/2, that the construction site to be connected is without a permit; and according to Article 184/3, that no occupancy permit has been obtained. The crime cannot be committed negligently under the law.
ACTIVITIES NOT CONSIDERED WITHIN THE SCOPE OF THE CRIME OF CAUSING URBAN/CONSTRUCTION POLLUTION
1- Activities on Balconies: Closing a balcony in any form or incorporating it into the living area does not, by itself, constitute the crime of “causing urban/construction pollution.” This is because such interventions do not increase the total area of the building and therefore do not create new usable space. In practice, common modifications, such as merging the balcony with the kitchen or enclosing it with glass panels, cannot be considered as “urban/construction pollution.” Indeed, these modifications do not alter the boundaries of the existing area but only affect the way it is used. However, if the balcony is expanded beyond its existing boundaries or transformed into a terrace, such changes increase the building’s physical volume and may fall within the scope of the crime of “causing urban/construction pollution.”
2- Renovations on Terraces: Simple and temporary modifications carried out on terraces are not considered to constitute the crime of “causing urban/construction pollution,” as they do not have the characteristics of a building and do not alter the essential elements of the structure. However, if the roof is completely removed and the area is permanently converted into a terrace, such comprehensive structural interventions constitute a construction activity and fall within the scope of the crime of “causing urban/construction pollution.”
3- Attachments: Simple attachments that do not have the characteristics of a building do not constitute the crime of urban/construction pollution. However, if these attachments qualify as buildings according to Article 5 of the Zoning Law, the crime of causing urban/construction pollution may apply.
4- Interior Renovations: Simple interior renovations that do not modify the load-bearing system or increase the building’s area do not constitute the crime of causing urban/construction pollution.
5- Non-Permanent Structures: Structures that are not fixed to the ground and can be easily moved do not fall within the scope of the crime of causing urban/construction pollution. For example, mobile containers that are not anchored to the ground do not constitute a crime in this context. The key factor is not how sturdy the structure is, but whether it qualifies as a building. Therefore, prefabricated structures that are fixed to the ground can constitute the crime of urban/construction pollution. Securing or anchoring portable containers for safety purposes does not constitute this crime.
COMPLAINT PERIOD, STATUTE OF LIMITATIONS, AND COMPETENT COURT
The crime of causing zoning pollution is not subject to a complaint and is investigated ex officio by the public prosecutor. Although there is no complaint period for the investigation of the crime, the statute of limitations for the case is 8 years. This period begins from the date the crime was committed. The competent court is the Criminal Court of First Instance in the location where the crime occurred, that is, where the building is situated.
Effective Remorse
Article 184/5 of the Turkish Penal Code establishes a special provision for effective remorse in the context of the crime of causing zoning pollution. The relevant legal provision states: “If a person brings a building, constructed without a permit or in violation of an existing permit, into compliance with the zoning plan and the permit, no public lawsuit shall be filed under the provisions of paragraphs one and two; any ongoing public lawsuit shall be dismissed, and the penalty imposed shall be fully annulled.”
Accordingly, if a building constructed without a permit or contrary to the permit is brought into compliance with the zoning plan and the permit, no public lawsuit will be initiated against the offender, and if a public lawsuit has already been filed, it will be dismissed.
Postponement of Pronouncement, Probation, and Judicial Fine
Persons who construct or have constructed a building without obtaining a building permit or contrary to the permit, as well as those who allow electricity, water, or telephone connections to construction sites established without a building permit, are punished with imprisonment from 1 to 5 years. Additionally, persons who permit any industrial activity in buildings without a usage permit are punished with imprisonment from 2 to 5 years. Although a judicial fine cannot be directly imposed for this offense, it is possible to convert the prison sentence into a judicial fine.
Considering the minimum and maximum limits of the penalty, it is possible to defer the sentence; however, since a special provision for active repentance has been established for the crime of causing zoning pollution, the postponement of the pronouncement of the verdict is not applicable.
CRIME OF URBAN POLLUTION AND ADMINISTRATIVE FINES
The crime of urban pollution is not only subject to criminal law sanctions but also constitutes an act that can incur administrative penalties. According to Article 42 of the Zoning Law No. 3194, administrative fines may be imposed by the authorities on buildings constructed without a permit or in violation of the permit. In this case, an individual may be subject to both criminal and administrative sanctions for the same act. However, this situation may conflict with one of the fundamental principles of criminal law, namely the principle of “ne bis in idem,” which prohibits being punished twice for the same act. Indeed, under the Constitution, it is legally impossible to punish a person repeatedly for the same action.
In line with this constitutional principle, the regulation is explicitly stated in Article 42 of the Zoning Law No. 3194. The relevant provision specifies: “Administrative fines collected pursuant to the above paragraphs shall be refunded without interest to those convicted under Article 184 of the Turkish Penal Code No. 5237, dated 26/9/2004, for the same act.” This regulation aims to prevent double sanctions for the same act.
Indeed, the 6th Chamber of the Council of State, in its decision dated 05.11.2020, stated:
“…Article 42 of Law No. 3194 contains provisions regarding monetary fines. Paragraph 2(a) of the article specifies that the basic penalty amount is calculated by multiplying the amount stated in the article by the building’s area, taking into account the building class and group. Subsequently, the total penalty amount is determined by adding the amounts calculated according to the rates indicated for the aggravating factors in the subparagraphs of paragraph (c). Paragraph 7 stipulates: ‘Administrative fines collected pursuant to the above paragraphs shall be refunded without interest to those convicted under Article 184 of the Turkish Penal Code No. 5237, dated 26/9/2004, for the same act.’ When these provisions are evaluated together, it is understood that administrative fines can be refunded under paragraph 7 of Article 42 of Law No. 3194 to those convicted under Article 184 of the Turkish Penal Code. However, if an individual applies to the administration for the refund of a collected fine and the application is rejected, the matter should be pursued through another legal action…” (Council of State 6th Chamber, 2019/9584 E., 2020/10547 K., 05.11.2020)
It is clearly stated that if a conviction is issued under TCK Article 184, any previously collected administrative fines for the same act must be refunded without interest.
DECISIONS RELATED TO THE SUBJECT
“…In the decisions of the Turkish Supreme Court Criminal General Assembly dated 25/02/2014 with file number 2013/4-691, decision 2014/91, and dated 25/11/2014 with file number 2014/4-94, decision 2014/525, it was stated: “In the crime of causing construction pollution, for a perpetrator who has the opportunity to benefit from the special provision in Article 184/5 of the Turkish Penal Code (TCK) by bringing a building constructed without a permit or contrary to the permit into compliance with the zoning plan and permit, the postponement of the announcement of the verdict under Article 231 of the Criminal Procedure Code (CMK) cannot be applied. Accordingly, for a defendant who does not fulfill the requirement of Article 184/5 of TCK, which constitutes a special regulation under the postponement of the announcement of the verdict and includes more favorable provisions, it is not necessary to make a separate evaluation regarding the applicability of the postponement of the announcement of the verdict under Article 231 of CMK.”
Given that it has been accepted that the postponement of the announcement of the verdict under Article 231 of CMK cannot be applied in the crime of causing construction pollution, the decisions of the Marmara Criminal Court of First Instance dated 04/05/2011, file number 2010/24, decision 2011/12, regarding the postponement of the announcement of the verdict for the defendants were inappropriate, and the request for reversal in favor of the law should have been accepted…” (Turkish Supreme Court, 4th Criminal Chamber, 2020/19280 E., 2020/21718 K., 25.12.2020).
“…Regarding the defendant …, within the scope of the investigation conducted by the Akkuş Public Prosecutor’s Office on the charge of causing construction pollution, an indictment was prepared and a public lawsuit was filed before the Akkuş Criminal Court of First Instance. As a result of the trial, the defendant was convicted of this offense, and the judgment became final without appeal. Subsequently, it was claimed that the defendant obtained a building permit from Akkuş Municipality for the noncompliant construction and brought the property into conformity with zoning regulations. Documents from the Municipality supporting this claim were submitted to the case file, and a request for action under Article 184/5 of the Turkish Penal Code (TCK) was made. This request was rejected by the Akkuş Criminal Court of First Instance on 25/07/2017, and a request for reversal in favor of the law was subsequently filed.
Legal Assessment: Article 184 of the Turkish Penal Code No. 5237 provides:
“(1) A person who constructs or has constructed a building without a permit or contrary to the permit shall be punished with imprisonment from one to five years.
(2) A person who allows electricity, water, or telephone connections to construction sites established for buildings started without a permit shall be punished in accordance with the provisions of the first paragraph.
(3) A person who allows any industrial activity in buildings without a usage permit shall be punished with imprisonment from two to five years.
(4) Except for the third paragraph, the provisions of this article shall only apply within municipal boundaries or areas subject to a special zoning regime.
(5) If a person brings a building constructed without a permit or contrary to a permit into conformity with the zoning plan and the permit, no public lawsuit shall be filed under the provisions of paragraphs one and two; any ongoing public lawsuit shall be dismissed, and the imposed penalty shall be completely annulled.
(6) (Added: 29/6/2005 – 5377/21) The provisions of paragraphs two and three shall not apply to buildings constructed before 12 October 2004.”
In this context, upon the defendant’s petition claiming that the zoning noncompliance had been rectified, the content of the petition should have been examined, and if compliance was verified, the penalty imposed on the defendant should have been completely annulled under Article 184/5 of the TCK. Since the conviction was rejected solely on procedural and legal grounds without any investigation, the rejection was deemed incorrect, and the request for reversal in favor of the law was accepted…” (Turkish Supreme Court, 18th Criminal Chamber, 2017/7585 E., 2018/6909 K., 07.05.2018).
“…As a result of the principle of legality in criminal law, within municipal adjacent areas that are not subject to a special zoning regime, the construction of a building without a permit or contrary to a permit by individuals does not constitute the offense of causing construction pollution. While the prosecution of unpermitted construction solely within municipal boundaries or areas subject to a special zoning regime may suggest a lack of protection for areas outside these zones, this does not imply irresponsibility for construction activities carried out there. Such actions do not constitute a crime under the Turkish Penal Code; however, under the provisions of Zoning Law No. 3194, administrative measures such as sealing, demolition, or the imposition of fines may be applied to unpermitted or noncompliant constructions if necessary…” (Turkish Supreme Court, 4th Criminal Chamber, 2023/7596 E., 2025/6786 K., 15.04.2025).
“…The immovable property in question had an expired permit, and a steel profile had been installed at the second standard floor level contrary to the project, with the roof covering completed, when it was sealed and stopped by the construction halt report dated 09.01.2014. An indictment was prepared on 11.03.2014 regarding the defendant under Manavgat Public Prosecutor’s Office investigation No. 2014/1124, and the case was heard before Manavgat 1st Criminal Court of First Instance under file No. 2014/245. During the on-site inspection in the investigation phase, it was determined that the defendant continued construction despite the sealing, and thus, the Court accepted that the defendant committed the offense of causing construction pollution again by continuing construction after the legal interruption of the original offense.
When evaluating the entirety of Manavgat 1st Criminal Court of First Instance file No. 2014/245 Esas and 2014/449 Karar, it is understood that the defendant stated in the inspection report that kitchen tiles were installed in April and, when comparing photos taken on the date of the construction halt report with photos obtained through expert review by the Court, the defendant continued construction after the halt. Accordingly, the Court’s assessment and reasoning that the defendant committed the offense of causing construction pollution again after continuing construction following the legal interruption from the date of indictment is not legally flawed.
No error is found in the Court’s discretion and reasoning regarding the non-application of the provision regulated in Article 231, paragraph five, of Law No. 5271. The sentence imposed on the defendant was converted into a judicial fine pursuant to Article 50, paragraph one, subparagraph (a) of Law No. 5237, and it is understood that the deferment procedure regulated in Article 51 of the same Law cannot be applied…” (Turkish Supreme Court, 4th Criminal Chamber, 2021/22432 E., 2023/25286 K., 06.12.2023).
“…Although the defendant was convicted on the grounds of committing the offense of causing construction pollution by enclosing the front façade of his workplace with a retractable glass window and constructing a tarp roof over it, the decision was found to be legally incorrect. This is because no expert report was obtained to determine whether this alteration complies with the definition of a building under Article 5 of Law No. 3194 or whether it results in an increase in floor area, and the defendant’s legal situation should have been assessed based on such findings. The ruling was therefore made with insufficient examination and inadequate reasoning…” (Turkish Supreme Court, 4th Criminal Chamber, 2021/42691 E., 2024/7619 K., 28.05.2024).
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
