1) What Is Meant by the Concept of a Building?

Since the Turkish Penal Code (TPC) does not define the term “building,” the Court of Cassation (Yargıtay) determines whether the elements of the offense are present by relying on the definition set forth in Article 5 of the Zoning Law No. 3194.

According to Law No. 3194, a building is a structure that can be used independently, has a roof, can be entered by people, and is intended for purposes such as habitation, work, recreation, rest, worship, or the protection of animals and property. The concept of a “structure” under the Zoning Law is much broader, and not every structure qualifies as a building.

Accordingly, for the offense regulated under Article 184 of the TPC to arise, it is necessary to correctly determine whether the relevant construction falls within the legal definition of a building. Therefore, structures that do not qualify as buildings, such as gardens or retaining walls, will not give rise to this offense. Even if a building has not yet been completed, actions taken during the construction phase may still constitute the offense.

2) Who Can Be the Perpetrator of the Crime of Causing Zoning Pollution?

Both the person who constructs the building and the person who commissions its construction may be prosecuted for this offense.

In this regard, the landowner, building owner, contractor, or developer may all be considered perpetrators of the offense. Although the legislative justification of the provision states that companies providing supervision and inspection services may also bear responsibility, this is not expressly included in the text of the article. Therefore, imposing criminal liability on inspection and supervision companies would be contrary to the principle of legality in criminal law.

3) Territorial Limitation for the Formation of the Offense

Except for the offense described in the third paragraph of Article 184, the building must be constructed within a municipal area or in a location subject to a special zoning regime for the offense to occur.

The concept of a municipal area is regulated under Article 5 of Law No. 3194. The law does not expressly define what is meant by an area subject to a special zoning regime; however, the legislative justification refers to organized industrial zones as an example. In addition, areas governed by specific legislation such as the Tourism Encouragement Law, the Coastal Law, and the Bosphorus Law are also considered to be subject to a special zoning regime.

4) Temporal Limitation for the Formation of the Offense

Since Article 184 entered into force on 12 October 2004, the offense may only arise in relation to buildings constructed after that date.

The same principle applies to paragraphs 2 and 3 of the article. Furthermore, paragraph 6 explicitly provides that these provisions shall not apply to structures built before 12 October 2004.

5) Is the Crime of Causing Zoning Pollution Subject to a Complaint?

No. The offense of causing zoning pollution is not subject to a complaint and is investigated ex officio by the public authorities.

6) Which Court Has Jurisdiction Over the Offense?

The competent and authorized court is the Criminal Court of First Instance (Asliye Ceza Mahkemesi) located where the offense was committed, namely where the relevant structure is situated.

7) What Is the Industrial Activity Defined Under Article 184/3 of the TPC?

The provisions of the Industrial Registry Law No. 6948 are important in determining what constitutes industrial activity. Article 1 of that law specifies which activities are considered industrial operations.

Accordingly, industrial activity may generally be defined as the process of transforming raw materials into usable products through the use of machinery or similar equipment.

Therefore, carrying out such activities in a building that has not obtained an occupancy permit will be punishable by imprisonment ranging from two to five years.

Unlike the other paragraphs of Article 184, the application of paragraph 3 does not require that the building be located within municipal boundaries or in an area subject to a special zoning regime.

For the offense regulated under Article 184/3 to occur, it is sufficient that permission is granted for the industrial activity to be carried out; the activity does not need to be actually performed. For this reason, Article 184/3 is classified as a formal offense.

8) What Are the Penalties for the Crime of Causing Zoning Pollution?

Pursuant to Article 184/1 of the TPC, the penalty for causing zoning pollution is imprisonment from one to five years.

Under Article 184/3, any person who permits industrial activities to be carried out in a building that has not obtained an occupancy permit shall be punished with imprisonment from two to five years.

A direct judicial fine cannot be imposed for this offense. However, under certain conditions, a prison sentence may be converted into a judicial fine.

Article 184/5 of the TPC also contains a provision on effective remorse (active repentance). If the person brings the building that was constructed without a permit or in violation of the permit into compliance with the zoning plan and building permit requirements, the criminal proceedings shall be dismissed, or, if a sentence has already been imposed, all legal consequences of the conviction shall be eliminated.

Furthermore, a deferment of the announcement of the verdict (HAGB) cannot be granted in relation to this offense. Since the effective remorse provision prevents the imposition of punishment, the conviction required as a legal basis for HAGB does not arise.

9) According to the Court of Cassation, In Which Cases Does the Offense Not Occur?

In its case law, the Court of Cassation examines whether the relevant construction increases or decreases the gross construction area, whether it creates architectural or structural concerns, and whether it qualifies as a building within the meaning of the law.

4th Criminal Chamber, Case No. 2021/18148, Decision No. 2023/23456, dated 31.10.2023

In a case brought against the defendant on the allegation that he had constructed a canopy-type structure in violation of zoning regulations, the expert report concluded that the structure did not possess the characteristics of a building. Accordingly, the court acquitted the defendant on the grounds that the elements of the offense of causing zoning pollution were not established. The Court of Cassation upheld the acquittal, finding no legal error in the trial court’s assessment.

4th Criminal Chamber, Case No. 2022/4003, Decision No. 2024/7732, dated 29.05.2024

In a public prosecution alleging that the defendant had committed the offense by constructing an unlicensed room on the roof of a commercial building, the First Instance Court conducted an on-site inspection and obtained an expert report. Based on the findings that no act capable of causing zoning pollution had been established and that the legal elements of the offense were absent, the court acquitted the defendant.