Articles 181 and 182 of the Turkish Penal Code penalise discharging waste or residue into soil, water or air contrary to the technical procedures laid down by law and in a manner capable of harming the environment. These are offences of concrete danger: actual damage need not occur.
The offence of intentionally polluting the environment, governed by Article 181 of the Turkish Penal Code, arises where waste whose release is prohibited is intentionally discharged into the receiving media — water, air and soil — in a manner capable of harming the environment. The offence is made out by a single discharge into a receiving medium contrary to the technical procedures laid down in specific legislation.
The offence of negligently polluting the environment, governed by Article 182, differs in respect of the mental element: the perpetrator commits the offence negligently. Here the perpetrator does not in fact wish to pollute the environment, but commits the offence by failing to foresee foreseeable consequences, or by accepting them as a possibility.
Both offences are classified as offences of danger. Offences of danger are those in which the legislature, in order to protect certain legal interests more effectively, does not require any damage to have occurred before the perpetrator may be punished.
The legal interest protected in general offences of danger is the prevention of wide-ranging danger to persons and property. Such conduct places human life or health, or property, animals or other economic interests on a large scale, at risk of harm. It may also produce adverse effects on the environment, which is of vital importance to human beings. It is therefore sufficient, for the elements of the offence to be made out, that the conduct be capable of harming the environment.
For the intentional offence, the waste or residue discharged into soil, water or air contrary to the technical procedures laid down by law must be of a nature capable of harming the environment. It must place environmental values in concrete danger — this is an offence of concrete danger. It is therefore sufficient, for example, that factory waste released into the sea be capable of killing marine life. Because this is not an offence of damage, it is not necessary that marine life actually be killed.
The offence may be committed not only by breach of the Penal Code but also by breach of the regulations issued on the subject. For proof, the court must relate the waste or residue in question to the specific legislation, examine its polluting properties, and determine whether it complies with the rules on emission limit values — emissions being any gaseous, liquid or solid waste released from a source with harmful effects on the environment. Courts must assess each case individually and obtain expert reports capable of withstanding review by the Court of Cassation; assessments made on general principles alone will otherwise be grounds for quashing.
The offence is established using the specific technical procedures defined in the legislation according to the nature of the receiving medium — that is, according to whether water, air or soil has been polluted.
As to conduct. For the perpetrator to be held responsible, the waste or residue must have been discharged into soil, water or air contrary to the technical procedures laid down in the relevant legislation. Discharge contrary to those procedures is not by itself sufficient for the intentional offence: the waste or residue so discharged must also be of a nature, scale and capability sufficient to harm the environment.
Ownership of the land onto which the waste or residue is discharged is immaterial. A perpetrator who leaves waste on their own land will accordingly be punished under Article 181 if the conduct is capable of harming the environment.
As to subject matter. The subject of the offence is the environment, defined as the biological, physical, social, economic and cultural setting in which living beings maintain their relations throughout their lives and with which they interact.
While the conduct must be on a scale capable of harming the environment, it is not required that individuals or the environment suffer direct harm. As explained above, the emergence of a possibility of harm and the existence of a concrete danger are sufficient.
As to the perpetrator. Anyone may commit the offence. Because no particular characteristics are required of the perpetrator, it is not an offence limited to a specific class of person.
As to the victim. All members of society are victims of the offence. Because the victims are not people living in a particular time and place — that is, because the offence affects all generations — the victim is humanity as a whole. That said, particular individuals may also be concretely harmed by intentional pollution of the environment.
Intentional pollution. A person who intentionally discharges waste or residue into soil, water or air, contrary to the technical procedures laid down by law and in a manner capable of harming the environment, is punished with imprisonment from six months to two years (Article 181/1). A person who brings waste or residue into the country without authorisation is punished with imprisonment from one to three years (Article 181/2). Where the waste or residue is persistent in soil, water or air, the penalty under the preceding paragraphs is doubled (Article 181/3).
Aggravated form. Where the conduct described in the first and second paragraphs concerns waste or residue capable of causing diseases that are difficult to treat in humans or animals, of impairing reproductive capacity, or of altering the natural characteristics of animals or plants, the penalty is imprisonment of not less than five years together with a judicial fine of up to one thousand days (Article 181/4). Security measures specific to legal persons are imposed in respect of the conduct described in the second, third and fourth paragraphs (Article 181/5).
Negligent pollution. A person who negligently causes waste or residue to be discharged into soil, water or air in a manner capable of harming the environment is punished with a judicial fine. Where the waste or residue leaves a persistent effect in soil, water or air, the penalty is imprisonment from two months to one year (Article 182/1).
Aggravated form. A person who negligently causes the discharge into soil, water or air of waste or residue capable of causing diseases that are difficult to treat in humans or animals, of impairing reproductive capacity, or of altering the natural characteristics of animals or plants, is punished with imprisonment from one to five years (Article 182/2).
Negligent pollution of the environment is among the offences subject to advance payment. Where the suspect pays the sum determined following an offer of advance payment, no criminal proceedings are brought.
A judicial fine may be applied together with, or instead of, a prison sentence. Where the sentence imposed for intentional or negligent pollution does not exceed one year, it may be converted into a judicial fine.
Deferral of the announcement of the verdict is a mechanism under the Code of Criminal Procedure by which the sentence produces no effect during a supervision period and, where the specified conditions are met, is set aside entirely, resulting in dismissal of the case. Where the sentencing thresholds are satisfied, a deferral decision is possible for this offence.
Suspension is the conditional decision not to enforce the sentence in prison, and is likewise available for sentences imposed for this offence.
Mediation is a process in which the accused and the victim reach agreement through a mediator. Intentional or negligent pollution of the environment is not subject to mediation.
The offence is not among those requiring a complaint. Withdrawal of a complaint therefore does not end the prosecution, and the offence must be investigated by the prosecutor of their own motion. The limitation period is eight years.
Jurisdiction lies with the Criminal Court of First Instance.
Because intentional or negligent pollution of the environment affects not only the moment of commission but future generations and the environment permanently, every member of society should take care not to commit it, even negligently. Where each individual makes that effort, we stand a better chance of protecting the world we live in and of leaving a healthier and cleaner one to those who come after us.
Frequently Asked Questions
It is committed by discharging waste or residue into soil, water or air contrary to the technical procedures laid down by law and in a manner capable of harming the environment. Articles 181 and 182 of the Turkish Penal Code govern the intentional and negligent forms separately.
No. These are offences of concrete danger. It is sufficient that the waste be capable of harming the environment; for example, factory waste released into the sea need only be capable of killing marine life, not actually do so.
No. It is investigated of the prosecutor’s own motion, withdrawal of a complaint does not end the prosecution, and the limitation period is eight years. Jurisdiction lies with the Criminal Court of First Instance.
The information on this page is general in nature and does not constitute legal advice. Please contact our office for an assessment of your specific matter.
Related articles Robbery Offence Liability for Failure to Comply with Court Decisions Withdrawal of an Attorney from Representation
Consultation
The information on this page is general in nature and does not constitute legal advice. Please contact our office for an assessment of your specific matter.
Book a Consultation