1. Purpose of the Offence, Protected Legal Interest, and Systematic Position

Unauthorised construction and construction in breach of a building permit jointly threaten planned urban development, disaster safety, and environmental protection. Before the entry into force of the Turkish Penal Code No. 5237, these acts were subject only to administrative sanctions under the Zoning Law No. 3194, namely sealing, demolition, and administrative fines. Article 184 of the Turkish Penal Code (TPC), which entered into force on 12 October 2004, transformed the construction of buildings without a permit into a zoning offence punishable by imprisonment for the first time. Legal scholarship attributes this development to the inability of administrative sanctions to provide the expected deterrent effect.

Article 184 is located in the section entitled “Offences Against the Environment” under the part of the TPC dealing with “Offences Against Society.” On the basis of this systematic placement, the Criminal General Assembly of the Court of Cassation has recognised the environment as the protected legal interest (Case No. 2014/4-806, Decision No. 2015/167). Legal scholarship, however, argues that the offence has a mixed character and protects not only the environment but also the zoning order and the administrative functioning of zoning legislation. This debate is significant in practice. If the protected interest is exclusively the “environment,” it becomes more difficult to establish concrete harm to the public where a building is constructed on the offender’s own land. This is precisely the point at which the chamber of the Court of Cassation and the local court disagreed in their consideration of the possibility of deferring the pronouncement of the judgment (HAGB).

The boundary between criminal law and administrative law is defined by three threshold requirements for the offence.

• The violated rule must concern the construction of a “building”; not every construction or installation is sufficient.
• The act must be committed within municipal boundaries or in an area subject to a special zoning regime.
• The act must have occurred after 12 October 2004.

Violations falling outside these thresholds do not constitute a criminal offence, although they remain subject to the administrative sanctions set out in Articles 32 and 42 of Law No. 3194. The Criminal General Assembly has expressly stated that where a location lies outside municipal boundaries and is not subject to a special zoning regime, no offence arises under the TPC, although sealing, demolition, and administrative fines may still be imposed (Decision No. 2018/540).

Article 184 TPC is a supplementary, or open-ended, criminal provision that leaves the content of certain elements of the offence to zoning legislation. Concepts such as “building permit,” “construction in breach of a permit,” “building,” and “adjacent area” are defined not in the Penal Code itself but in the Zoning Law and its implementing regulations. This legislative structure requires particular attention to the principles of legality and legal certainty. The prohibition of analogy under Article 2(3) TPC and the principle of individual criminal responsibility under Article 20 TPC also establish the limits within which criminal courts must interpret zoning legislation. The following sections examine how the Court of Cassation applies these principles in practice.

2. Types of Offences Regulated under Article 184 TPC

Article 184 establishes three distinct types of offences under the same heading.

Article 184(1) TPC. A person who constructs or commissions the construction of a building without obtaining a building permit or in breach of an existing permit shall be sentenced to imprisonment for a term of one to five years. According to the legislative explanatory memorandum, potential offenders include:

• Contractors, subcontractors, tradespeople, and construction workers who carry out the building work;
• The owner of the construction project;
• Technical professionals who provide control and supervision services for the construction activity.

The explanatory memorandum identifies the potential scope of criminal responsibility but does not automatically render every person listed above an offender. Under Article 20 TPC, criminal responsibility is personal, and the individual intent and contribution of each defendant must be established separately. A tradesperson or construction worker employed on an unauthorised construction project may not know that the building lacks the required permit. In such circumstances, the mistake provisions of the TPC, particularly Article 30, may become relevant.

The technical supervisor, architect, and engineer may be subject to two separate areas of responsibility. Knowingly providing supervision services for an unauthorised building may give rise to liability as a participant under Article 184(1), in conjunction with Articles 37–39 TPC. Failure to notify the administration of the violation within six working days, by contrast, is subject to an administrative fine under Article 42 of the Zoning Law.

Article 184(2) TPC. A person who permits electricity, water, or telephone connections to be made to construction sites established for buildings whose construction commenced without a building permit shall be punished in accordance with paragraph 1. The offender under this provision is the person who permits the connection, rather than the owner of the building. The prohibited conduct consists of granting permission; the technician who physically makes the connection is not, on that basis alone, the offender contemplated by this paragraph.

The types of connection are exhaustively listed. Natural gas and road services, for example, fall outside the provision. Furthermore, the paragraph specifically concerns construction sites. According to a 2014 decision of the Fourth Criminal Chamber of the Court of Cassation (Decision No. 2014/29703), permitting an electricity connection to a completed country house does not fall within Article 184(2).

The unauthorised drawing of electricity from a neighbour’s line to supply an unlicensed construction site is a separate matter of debate in legal scholarship and practice. One view holds that such conduct may constitute the offence of benefiting from a service without payment under Article 163 TPC rather than the offence under Article 184(2). Another view maintains that any person who grants the relevant permission may qualify as an offender.

Article 184(3) TPC. A person who permits industrial activity to be carried out in a building for which an occupancy permit has not been obtained shall be sentenced to imprisonment for a term of two to five years. This paragraph differs from the other two in three respects:

• It prescribes a heavier penalty, with a minimum term of two years.
• Under Article 184(4), the requirement that the building be located within municipal boundaries or in an area subject to a special zoning regime does not apply.
• The effective repentance provision under Article 184(5) is not available for this offence.

“Industrial activity” refers to operations aimed at transforming raw materials into products through machinery and labour. Commercial activity falls outside this concept. Accordingly, permitting commercial activity in a building without an occupancy permit does not fall within Article 184(3).

The offender is the administrative official authorised to grant the permission. The offence is completed when permission is granted; the actual commencement of the industrial activity is not required. Legal scholarship also argues that where other legal conditions for granting the permission are missing, the conduct may need to be assessed as abuse of public office under Article 257 TPC.

Difference between the explanatory memorandum and the operative statutory text. The explanatory memorandum does not correspond to the enacted provision in every respect. It reflects a legislative structure referring to “gas” connections to construction sites and to “industrial or commercial” activity. The current statutory text, however, refers only to electricity, water, and telephone connections and to “industrial” activity. Under the principle of legality, the binding text is the criminal provision itself. The explanatory memorandum may assist interpretation but cannot expand the scope of the offence.

3. Scope of Application: Municipal Boundaries, Adjacent Areas, Special Zoning Regimes, and the Temporal Limitation

Territorial requirement. Under Article 184(4) TPC, except for paragraph 3, the provisions of Article 184 apply only within municipal boundaries or in areas subject to a special zoning regime. This requirement is an integral element of the offences under Articles 184(1) and 184(2) and must be examined in every individual case.

Municipal boundaries. The content of this concept is determined by the Municipal Law No. 5393 (Articles 5 and 6) and the Metropolitan Municipality Law No. 5216 (Article 5). Following Law No. 6360, the boundaries of metropolitan municipalities in provinces with metropolitan municipal status became coterminous with provincial administrative boundaries, while district municipalities became coterminous with district administrative boundaries. Villages were incorporated into district municipalities as neighbourhoods. For acts committed before these amendments entered into force, the legal status of the relevant area at the time of the act must be examined separately. The circumstances underlying the Criminal General Assembly’s Decision No. 2018/540 arose from precisely this issue.

Adjacent areas. Under Article 5 of the Zoning Law, an adjacent area is an area placed under the control and responsibility of municipalities for the purposes of zoning legislation. Article 45 provides that the boundaries of such an area need not be contiguous with municipal boundaries and that villages may be included. The distinction between an adjacent area and a municipal boundary is decisive for criminal liability.

In Decision No. 2018/540, the Criminal General Assembly reached the following conclusions:

• The Zoning Law frequently refers separately to “municipal boundaries” and “adjacent areas.” The legislature’s decision to refer only to “municipal boundaries” and “areas subject to a special zoning regime” in the TPC was deliberate.
• Under the principle of legality, constructing a building without a permit in an adjacent area that is not subject to a special zoning regime does not constitute the offence of causing zoning pollution.
• Where the location lies outside municipal boundaries, the existence of a special zoning regime must be specifically investigated.

Earlier decisions of certain chambers and scholarly opinions suggesting that adjacent areas also fall within the scope of Article 184 have been superseded by this Criminal General Assembly decision. This is the approach that should be followed today.

Special zoning regime. The legislation does not provide an express definition of this concept. The explanatory memorandum gives organised industrial zones as an example. According to the Criminal General Assembly’s decision dated 21 February 2012, Case No. 570, Decision No. 51, which was cited in Decision No. 2018/540, areas governed by the following statutes may also qualify, in addition to organised industrial zones:

• The Law on the Encouragement of Tourism;
• The Law on Industrial Zones;
• The Free Zones Law;
• The Technology Development Zones Law;
• The Coastal Law;
• The Law on the Conservation of Cultural and Natural Assets;
• The Bosphorus Law.

If the location where the offence was committed is subject to a special zoning regime, there is no need separately to determine whether it also lies within municipal boundaries.

The Eighteenth Criminal Chamber of the Court of Cassation held that a judgment could not be delivered without obtaining an expert report on whether a location within a forest area was subject to a special zoning regime on the date of the offence and whether it fell within the scope of Provisional Article 2 of Law No. 5216 (Case No. 2015/14964, Decision No. 2015/12258, dated 30 November 2015). The same chamber also considered it necessary to investigate the distinction between adjacent areas and special zoning regimes in relation to a location alleged to be a protected site (Case No. 2015/13802, Decision No. 2015/11763, dated 24 November 2015).

The definition proposed in legal scholarship describes a special zoning regime as zoning procedures and principles established by special legislation for protective purposes in a specific geographical area, independently of administrative boundaries.

Villages. Under Article 27 of the Zoning Law, construction and occupancy permits are not required for residential, livestock-related, and agricultural buildings erected within and around village settlement areas outside municipal and adjacent-area boundaries by persons registered in the village population and permanently residing there. Permission from the village headman and compliance with technical and public health requirements remain necessary. Structures erected without satisfying these conditions may be subject to administrative fines.

For criminal law purposes, however, a village falls within Article 184(1) only if it is located within municipal or adjacent-area boundaries or in an area subject to a special zoning regime.

Temporal limitation. Article 184 entered into force on 12 October 2004 pursuant to Article 344 TPC. Since the former Penal Code No. 765 did not contain this offence, Article 184(1) cannot be applied to buildings completed before 12 October 2004 (Criminal General Assembly, Case No. 2015/176, Decision No. 2018/503). Article 184(6), introduced by Law No. 5377, expressly excludes the application of paragraphs 2 and 3 to structures built before 12 October 2004.

Whether a building was completed before that date is a matter of evidence. The defence should rely on witness statements, utility subscription records, title deeds, property tax records, and archived aerial photographs.

4. Elements of the Offence

Objective element. The subject matter of the offence is a building that requires a permit. The prohibited conduct consists of constructing or commissioning the construction of a building without a building permit or in breach of an existing permit. The offender may be the person who constructs the building or the person who commissions its construction.

The offence is completed through the performance of the prohibited conduct; a separate harmful result is not required. There is no individually identifiable victim. The victim, as the holder of the interest protected by the offence, is society itself. Consequently, the offence is not subject to a complaint requirement. The filing of a complaint or its subsequent withdrawal does not affect the continuation of the proceedings.

Time of completion. There is no single universally accepted view on this issue. Because the legislative explanatory memorandum refers to “engaging in construction activities,” one view holds that the offence is committed when construction activity begins, that the offence continues for as long as construction proceeds, and that resuming construction after the administration has detected and stopped the work constitutes a new offence.

In practice, both the date on which the building was constructed or completed and the date on which the administration detected the violation are considered when determining the date of the offence.

In Decision No. 2018/47, the Criminal General Assembly calculated the ordinary eight-year limitation period from the date on which the act was detected and the construction suspension report was drawn up.

On the other hand, the Eighteenth Criminal Chamber of the Court of Cassation held that, where the defence maintained that the building had been completed in 2002, it was necessary to establish who had constructed it and when, using witnesses, utility subscription records, aerial photographs, and an on-site inspection (Case No. 2015/18482, Decision No. 2016/19572, dated 21 December 2016).

These approaches must be read together. A judgment cannot properly be delivered where the relevant date remains uncertain.

Mental element. The offence can be committed intentionally but not negligently. General intent is sufficient. The offender must know and intend that the building being constructed or commissioned requires a permit and that the necessary permit is absent, or that the construction violates the permit.

Dolus eventualis is conceptually possible, although in practice the issue more frequently arises in cases involving offenders who reasonably believe that a permit has been obtained. A mistake concerning whether zoning legislation requires a permit is not generally accepted as an unavoidable mistake under Article 30(4) TPC. Reliance on documents such as a building registration certificate or a document indicating an exemption from permit requirements must be assessed separately.

Unlawfulness. Since the existence of a permit and compliance with it are already elements of the offence, they are not separately assessed as grounds of justification. If a valid permit exists and the building has been constructed in accordance with it, the offence is not established.

Where an administrative permit is subsequently annulled by the administrative courts, the offender’s criminal liability requires separate assessment. An order from a superior or the consent of the interested person does not constitute a ground of justification for this offence because the protected interest is societal rather than individual.

The zoning plan also forms part of the regulatory framework relevant to the offence. Whether the permit was issued in accordance with the zoning plan is of particular importance when applying Article 184(5).

5. The Concepts of Structure, Building, Building Permit, and Construction in Breach of a Permit

Article 184(1) TPC refers only to a “building,” not to a “structure.” Under Article 5 of the Zoning Law, a “structure” includes permanent or temporary, public or private, underground or above-ground construction on land or in water, together with additions, alterations, and repairs, encompassing fixed and movable installations.

A “building,” by contrast, is a structure that can be used independently, is covered by a roof, can be entered by people, and is intended for activities such as living, working, entertainment, rest, or worship, or for protecting animals and property.

Every building is a structure, but not every structure is a building. This distinction is a direct consequence of the prohibition of analogy in criminal law.

According to the Criminal General Assembly’s Decision No. 2018/503, Case No. 2015/176, constructions such as garden walls, retaining walls, swimming pools, piers, bridges, tunnels, and roads do not fall within the scope of the offence.

One source attributes the definition of “structure” to Article 30 of the Zoning Law. The correct reference is Article 5; Article 30 regulates occupancy permits.

In determining whether an installation qualifies as a building, the Court of Cassation applies three criteria: whether the construction affects load-bearing elements, whether it creates additional enclosed floor area, and whether the materials are permanent and fixed. A building need not be made of reinforced concrete; wooden buildings may also fall within the provision. It is sufficient that a permit is required; no particular minimum size or height is prescribed.

A building permit is an authorisation issued by the competent administration for the construction of a new building or for substantial repairs, alterations, or additions to an existing building.

An occupancy permit, by contrast, is issued after completion of the building, once it has been established that the building complies with the permit and its annexed plans and that there are no technical grounds preventing its use (Article 30 of the Zoning Law).

Using a building constructed with a permit without obtaining an occupancy permit, or changing its intended use, does not fall within Article 184(1) TPC. For example, using a building licensed as a residence as a wedding hall does not constitute the offence under Article 184(1), although it may be subject to administrative sanctions.

An unauthorised building refers to construction commenced without obtaining any permit. A building constructed in breach of a permit is one whose construction deviates from the permit or the accompanying plans. For the deviation to constitute a criminal offence, the resulting work must qualify as a building.

The following practical examples illustrate how these principles are applied.

Alterations subsequently made to a permitted building. Some commentators argue that unauthorised alterations made after a building has been constructed in accordance with its permit do not fall within Article 184(1). In Decision No. 2018/503, the Criminal General Assembly held that the issue must be resolved according to the nature of the alteration.

Under Article 21(3) of the Zoning Law, certain works do not require a permit, including grouting, plastering, painting, whitewashing, joinery work, floor and ceiling coverings, repairs to electrical and sanitary installations, roof repairs, and other alterations that do not affect load-bearing elements. Such works do not constitute the offence.

Other alterations may constitute an offence only if they qualify as a building or amount to substantial alterations affecting load-bearing elements. Otherwise, only the administrative sanctions under Article 42 of the Zoning Law apply.

Enclosing a balcony. Enclosing a balcony with PVC or glass does not constitute an offence where it neither creates additional floor area nor affects load-bearing elements (Fourth Criminal Chamber, Case No. 2012/9298, Decision No. 2012/6669, dated 15 March 2012). By contrast, extending a balcony to create a terrace may increase the enclosed area and may therefore constitute an offence.

In Decision No. 2018/503, the Criminal General Assembly did not find the creation of approximately 7.20 m² of enclosed space by enclosing the front balcony of a duplex apartment with plastic joinery, and approximately 2.5 m² by building a wall along part of the rear balcony, sufficient to establish the offence without further investigation. The decision did not establish an absolute rule that enclosing a balcony is never criminal.

Rather, it held that a judgment could not be delivered without investigating the date of the construction, its effect on the building’s load-bearing elements, and the manner in which the property had been acquired.

Terraces and roofs. A roof-like covering constructed over a terrace using a steel frame, with the sides left open, has been held not to constitute a building (Criminal General Assembly, Case No. 2020/329, Decision No. 2022/823).

By contrast, constructing an enclosed room on a terrace or enlarging an attic to create an independent apartment may qualify as the construction of a building. In Case No. 2015/18366, Decision No. 2017/607, the Eighteenth Criminal Chamber considered the creation of an independent apartment in an attic under Article 184(1). Roof repairs and the rearrangement of roof tiles do not require a building permit.

Unauthorised additional floors and extensions of floor area. Adding a new floor to an existing building, constructing a setback floor, or enclosing projecting sections to create additional enclosed floor area may qualify as construction requiring a permit.

In its decision Case No. 2014/4-806, Decision No. 2015/167, the Criminal General Assembly considered a case involving approximately 230 m² of unauthorised floor area created by enclosing the undersides of ground-floor projections and open projections on upper floors, as well as constructing a setback floor and a terrace in breach of the approved plans. The conduct was assessed under Article 184(1).

Internal alterations and interference with load-bearing systems. Demolishing walls or rearranging internal spaces will generally remain an administrative matter if the work does not affect the load-bearing system or increase the construction area. Where load-bearing elements are affected, the work may constitute a substantial alteration.

The Fourth Criminal Chamber set aside a judgment because no supplementary expert report had been obtained to determine whether alterations carried out following a fire affected the load-bearing system or increased the floor area (Case No. 2020/5646, Decision No. 2022/14490).

Ancillary structures and canopies. Simple ancillary structures that do not qualify as buildings do not constitute the offence. However, an ancillary structure with brick walls and a sheet-metal roof, built to accommodate workers, was classified as a building (Fourth Criminal Chamber, Case No. 2012/12489, Decision No. 2012/15384, dated 3 October 2012).

An open-sided wooden canopy supported by profile legs does not qualify as a building (Fourth Criminal Chamber, Case No. 2021/20028, Decision No. 2024/896).

Containers and prefabricated structures. A portable container without foundations and not fixed to the ground does not constitute a building (Fourth Criminal Chamber, Case No. 2013/23055, Decision No. 2014/31439, dated 2 December 2014).

Prefabricated structures fixed to the ground, by contrast, may qualify as buildings. Where a container has wheels, an expert must investigate whether those wheels are suitable for transportation (Eighteenth Criminal Chamber, Decision No. 2016/11620).

Base stations and retaining walls. Enclosed structures protecting the power units of base stations may qualify as buildings because they are roofed structures intended to protect property. The Eighteenth Criminal Chamber required a supplementary expert report concerning the construction date and whether the installation qualified as a building (Case No. 2015/14176, Decision No. 2015/9910, dated 3 November 2015).

The same chamber held that a retaining wall does not constitute a building and therefore does not give rise to the offence (Case No. 2015/32893, Decision No. 2015/11150, dated 26 October 2015).

The Planned Areas Zoning Regulation defines substantial alterations as works that change load-bearing elements, construction area, intended use, or the plans accompanying the building permit.

Amendments made to the Regulation in July 2026 have been discussed in professional publications in relation to permit exemptions and floor-area calculations. A criminal penalty cannot be imposed merely because a permit was not obtained for work that is exempt from the permit requirement. The scope of any exemption must be checked against the current statutory text.

The effect of subsequently introduced more favourable provisions on criminal proceedings is debated under the lex mitior principle in Article 7(2) TPC. Whether supplementary regulations, which complete the content of criminal provisions, are themselves subject to the lex mitior principle is a separate issue in legal scholarship.

6. Attempt, Participation, and Concurrence of Offences

Attempt. Under Article 184(1), the offence is completed when construction actually begins. Preparatory acts, such as gathering building materials, do not amount to an attempt.

The prevailing view in legal scholarship is that an attempt is not possible in relation to Article 184(1). Under Article 184(2), however, an attempt may be discussed where permission for a connection has been granted but the connection has not yet become operational. Under Article 184(3), the offence is completed upon the granting of permission, so an attempt does not arise.

Participation and instigation. The provision contains no special rule on participation; Articles 37–39 TPC therefore apply. A contractor who knowingly carries out the construction and the property owner may be joint perpetrators. The owner of an industrial business operating without an occupancy permit may also instigate the official who grants the relevant permission.

Continuing offence. Where the same offence is committed more than once at different times pursuant to a single criminal resolution, Article 43 TPC may apply. Its application in relation to the offence of breaking a seal can be seen in decisions of the Court of Cassation (Eleventh Criminal Chamber, Case No. 2024/6466, Decision No. 2025/3898).

Ideal concurrence of offences. Under Article 44 TPC, where a single act constitutes more than one distinct offence, punishment is imposed for the offence carrying the heaviest penalty.

This rule may become relevant where Article 184(1) overlaps with offences under special legislation. The Eighteenth Criminal Chamber held that unauthorised construction qualifying as a building in an area governed by the Bosphorus Law may constitute both an offence under Article 184(1) TPC and an offence under Article 18 of Law No. 2960. Because the conduct constituted a single act, the chamber stated that judgment should be delivered under Article 184(1), which prescribes the heavier penalty, pursuant to Article 44 TPC (Case No. 2015/18248, Decision No. 2016/12034, dated 1 June 2016).

A similar approach was considered in relation to Law No. 2863. In a case involving a protected site, the Eighteenth Criminal Chamber required the relevant institution to be consulted, a criminal complaint to be considered for violation of Law No. 2863, and the possibility of applying Article 44 TPC to be examined (Case No. 2015/13802, Decision No. 2015/11763).

The Twelfth Criminal Chamber, however, held in 2014 that ideal concurrence could not be applied between an offence under special legislation and an offence under the TPC, treating Law No. 2863 as special legislation.

The Criminal General Assembly resolved the dispute by dismissing the case because the limitation period had expired, without deciding the concurrence issue on its merits (Case No. 2014/516, Decision No. 2018/47, dated 20 February 2018). Accordingly, this issue still requires separate consideration.

7. Article 184(5) TPC: Effective Repentance

Under Article 184(5) TPC, where a person brings a building constructed or commissioned by that person without a permit or in breach of a permit into compliance with the zoning plan and the building permit, no public prosecution shall be initiated under paragraphs 1 and 2; any pending public prosecution shall be dismissed; and any sentence imposed shall cease to produce all its legal consequences.

This provision was not included in either the government bill or the text prepared by the Justice Commission. It was added during the plenary session of the Grand National Assembly of Türkiye following a motion. According to the explanatory statement accompanying the motion, its purpose was to eliminate the consequences arising from conduct that causes zoning pollution.

Legal character. The Criminal General Assembly has stated that the provision reflects both effective repentance and the principles of restorative justice. The legislature intended to eliminate the harmful effects of the offence and prevent its recurrence rather than focus exclusively on punishing the offender (Case No. 2014/4-806, Decision No. 2015/167).

In Case No. 2017/18-684, Decision No. 2018/479, dated 25 October 2018, the Criminal General Assembly identified the elements of effective repentance as follows: the existence of a statutory provision permitting it; completion of the offence; active conduct by the offender in the manner prescribed by law; and the voluntary nature of that conduct.

The fact that an offender seeks to avoid punishment does not, in itself, prevent the application of effective repentance. What matters is that the conduct is not motivated exclusively by that purpose.

Scope. The provision applies only to offences under paragraphs 1 and 2. It is unavailable for the offence under paragraph 3, namely permitting industrial activity in a building without an occupancy permit.

The person seeking to benefit from effective repentance must be the offender who is under investigation, has been prosecuted, or has been convicted.

Requirements: compliance with the zoning plan and building permit. The statute requires the building to be brought into compliance with both the zoning plan and the building permit. This may be achieved by obtaining a permit, remedying the non-compliance by demolishing the offending section or bringing the work into conformity with the approved plans, or demolishing the entire building.

The Eighteenth Criminal Chamber held that an unauthorised building must be regularised by obtaining a permit, a building constructed in breach of a permit must be brought into conformity with the permit, or the building must be completely demolished.

In the same decision, the expert report stated only that the joinery, internal doors, and ceiling panelling had been removed. The court’s decision to dismiss the case without obtaining a supplementary report on whether the building had been brought into compliance or completely demolished was set aside (Case No. 2015/18366, Decision No. 2017/607, dated 17 January 2017).

Partial correction, payment of an administrative fine, or emptying the interior of the construction is insufficient.

Timing. Article 184(5) imposes no time limit. At the investigation stage, effective repentance prevents the initiation of a public prosecution, resulting in a decision that there is no ground for prosecution. At the prosecution stage, the case is dismissed under Article 223(8) of the Code of Criminal Procedure (CCP).

Even after judgment has been delivered, including after the judgment has become final, the sentence ceases to produce all its legal consequences.

The Criminal General Assembly identified this feature as one of the reasons why Article 184(5) is more favourable to the offender than the deferral of the pronouncement of the judgment under Article 231 CCP.

Demolition by the administration. Where the administration demolishes a building under Article 32 of the Zoning Law, the mere fact of demolition is insufficient for the application of Article 184(5). This is because the active conduct of the offender, which is an essential element of effective repentance, is absent.

The Criminal General Assembly nevertheless recognised that property owners may be unable to carry out demolition using their own resources and may naturally wait for the administration to demolish the building, knowing that they will have to pay the demolition costs in any event.

It therefore required the following matters to be investigated: whether the offender physically resisted the demolition and whether the offender voluntarily paid the demolition costs without coercive enforcement measures.

If both conditions are satisfied, Article 184(5) applies (Case No. 2017/18-684, Decision No. 2018/479).

The Fourth Criminal Chamber held that where a receipt showing payment of demolition costs is attached to an appeal petition, the court must investigate whether the defendant made the payment voluntarily (Case No. 2024/4162, Decision No. 2025/7872).

Natural disasters. The Fourth Criminal Chamber held that, where it was alleged that the building forming the subject matter of the offence had been completely destroyed in an earthquake, the court must investigate whether the building had in fact collapsed and then assess whether the conditions under Article 184(5) had been satisfied (Case No. 2024/11890, Decision No. 2025/11628).

Relationship with the deferral of the pronouncement of the judgment. The Criminal General Assembly has held that the deferral of the pronouncement of the judgment under Article 231 CCP cannot be applied to an offender who has the opportunity to benefit from Article 184(5).

Its reasoning is that Article 184(5) is a special provision producing more favourable consequences, and where the offender fails to satisfy its requirements, there is no need to separately assess the conditions for deferral of the pronouncement of the judgment (Case No. 2014/4-806, Decision No. 2015/167).

Two members dissented. The essence of their dissent was that Article 184(5) and Article 231 CCP are distinct legal institutions, that no statutory exclusionary relationship exists between them, and that narrowing a right through interpretation when the legislature has not expressly prohibited it would conflict with the principle of legality.

In earlier decisions, the Fourth Criminal Chamber had adopted the view that the deferral of the pronouncement of the judgment could be applied. In current practice, however, the approach of the Criminal General Assembly should be treated as the governing position.

Building registration certificate. Provisional Article 16, added to the Zoning Law by Law No. 7143, introduced the possibility of obtaining a building registration certificate for unauthorised structures constructed before 31 December 2017.

The Court of Cassation has required courts to investigate whether such a certificate has been obtained and to seek written clarification from the relevant institution where the information concerning the certificate is inconsistent (Fourth Criminal Chamber, Case No. 2020/5455, Decision No. 2021/4655).

In another decision, the chamber stated that the defendant’s legal position had to be reassessed in light of a building registration certificate submitted after judgment (Fourth Criminal Chamber, Case No. 2021/43049, Decision No. 2022/8040).

The criminal-law consequences of the certificate remain disputed in legal scholarship. Some authors argue that the case should be dismissed under Article 184(5), while others argue that Provisional Article 16 establishes a special ground of justification and that an acquittal should therefore be entered.

A regional court of appeal decision published by the Sixth Criminal Chamber of the Izmir Regional Court of Appeal on 5 November 2019 held that a building registration certificate does not provide protection against the offence of breaking a seal. The case and decision numbers of that judgment could not be located.

As of the date this article was prepared, no new zoning amnesty law was in force. Whether an open application period exists should be verified with the relevant authorities.

8. The Offence of Breaking a Seal: Article 203 TPC

Statutory provision. Under Article 203 TPC, a person who removes a seal placed pursuant to law or an order of a competent authority to ensure that an item is kept or its existing condition preserved, or who acts contrary to the purpose for which the seal was placed, shall be sentenced to imprisonment for six months to three years or a judicial fine.

The offence is regulated in the section of the TPC dealing with “Offences Against Public Trust.” The Criminal General Assembly has emphasised that the legislature placed this offence among offences against public trust rather than among offences against state authority (Case No. 2017/23, Decision No. 2017/452, dated 31 October 2017).

Alternative forms of conduct. The offence may be committed in two ways: removing the seal or acting contrary to the purpose for which it was placed.

The offence is completed upon the performance of either act; actual damage or a concrete danger is not required. It makes no difference whether the seal is detached, torn, damaged, or burned.

Even if the seal is not physically removed, acting contrary to its purpose constitutes the offence. An example is the continuation of construction by a person whose building site has been sealed, without touching the seal itself.

Article 32 of the Zoning Law expressly addresses this situation. If construction continues for any reason after the site has been sealed, the seal is deemed to have been removed even if it remains intact, and the provisions of the Turkish Penal Code concerning breaking a seal apply. This statutory wording was reproduced in the Criminal General Assembly’s decision in Case No. 2017/18-684, Decision No. 2018/479.

Legal nature and validity of the sealing procedure. A seal must be placed pursuant to statutory authority and an order issued by a competent authority. Breaking an invalid seal does not constitute the offence (Criminal General Assembly, Case No. 2014/455, Decision No. 2014/541, dated 9 December 2014).

The Eleventh Criminal Chamber of the Court of Cassation held that breaking seals placed by privatised electricity distribution companies does not constitute an offence under Article 203 because those companies do not exercise public authority.

Nor can a criminal penalty be imposed on the basis of a sealing procedure subsequently annulled by the administrative courts.

The sealing report, documents demonstrating that the seal was physically applied, and the examination of the officials who prepared the report are particularly important.

In a decision dated 24 September 2020, the Eighth Criminal Chamber of the Bursa Regional Court of Appeal held that continuing construction after a report suspending the construction had been drawn up did not constitute the offence where no physical sealing had taken place. The case and decision numbers of this judgment could not be verified.

Knowledge of the sealing procedure (service of notice). The Criminal General Assembly held that, for the purposes of establishing intent, it is sufficient that the defendant knew of the sealing procedure. There is no separate statutory requirement that the sealing report be formally served on the defendant (Case No. 2017/23, Decision No. 2017/452).

Under Article 32 of the Zoning Law, affixing the construction suspension report to the building replaces formal service. However, the fact that the report was actually affixed must be proved.

Mental element. The offence can be committed only intentionally. General intent is sufficient, and motive is irrelevant.

The offender must know that the seal was placed by a competent authority for the purpose of preserving the relevant item and must know and intend that their conduct will remove the seal or contravene its purpose.

Arguments that the property should not deteriorate or that workers should not lose their jobs do not prevent the offence from being established.

Attempt and participation. Beginning to remove a seal but failing to complete the act may constitute an attempt. Attempt is more difficult to establish where the prohibited conduct consists of continuing an activity without physically removing the seal.

Regarding participation, the Court of Cassation has stated that jointly operating a business does not, by itself, establish that the seal was jointly broken. The manner in which each defendant participated in the act must be demonstrated separately (Eleventh Criminal Chamber, 2 July 2014).

Concurrence, recidivism, and limitation periods. Multiple acts of breaking a seal committed before an indictment is issued may be treated as a single offence under the rules on continuing offences, with an increased penalty.

Acts committed after the indictment constitute separate offences.

The Eleventh Criminal Chamber has held that criminal record information and other case files must be obtained to avoid duplicate proceedings and to assess whether the rules on continuing offences apply (Case No. 2024/6466, Decision No. 2025/3898).

The rules on recidivism under Article 58 TPC must be assessed separately according to their own requirements.

Under Article 66(1)(e) TPC, the limitation period for prosecution is eight years and may extend to a maximum of twelve years where the limitation period is interrupted, pursuant to Article 67(4).

The Eleventh Criminal Chamber took into account the suspension of the limitation period between the finalisation of a decision deferring the pronouncement of the judgment and the commission of a new intentional offence during the supervision period. It subsequently ordered dismissal of the case because the twelve-year period had expired (Case No. 2022/3780, Decision No. 2025/12577).

Sanctions and procedure. The statutory penalty is imprisonment or a judicial fine; both cannot be imposed cumulatively. According to the case law of the Court of Cassation, where the court selects imprisonment, that sentence can no longer be converted into a judicial fine.

Deferral of the pronouncement of the judgment and suspension of the sentence are possible.

Since the offence of breaking a seal is not an offence capable of causing damage in the relevant legal sense, the requirement to compensate for damage under Article 231(6)(c) CCP is not applicable. The Second Criminal Chamber of the Court of Cassation stated this with reference to the Criminal General Assembly’s decision dated 3 February 2009, Case No. 2008/11-250, Decision No. 2009/13.

The offence is not subject to a complaint requirement and is not eligible for settlement. The competent court is the Criminal Court of First Instance. The simplified trial procedure may apply. Article 203 TPC contains no provision on effective repentance.

9. Relationship Between Articles 184 and 203 TPC

A common practical question concerns the legal consequences of breaking a seal or continuing construction after an unauthorised building has been sealed.

The answer rests on the following considerations.

Breaking a seal is not an element of Article 184. Article 42 TPC defines a compound offence as an offence treated as a single act because one offence constitutes an element of another offence or an aggravating circumstance thereof. The rules on concurrence do not apply to such offences.

However, the law must expressly establish that one offence constitutes an element or aggravating circumstance of another. Article 184 does not include breaking a seal as an element or aggravating circumstance. Accordingly, Article 203 constitutes an independent offence.

The protected legal interests differ. Article 184 protects the zoning order and the environment, whereas Article 203 protects public trust against the frustration of the will of the public administration and safeguards state authority.

On this basis, legal scholarship argues that investigation and prosecution should be pursued for both offences. Article 32 of Law No. 3194 also expressly refers to the provisions of the TPC concerning breaking a seal, thereby connecting the two legal frameworks.

The issue of unity of conduct. For ideal concurrence under Article 44 TPC to apply, a single act must constitute multiple distinct offences, and the acts of execution must overlap at least in part.

Where unauthorised construction is underway, the building is sealed, a report is drawn up, and the seal is subsequently removed so that construction can continue, the sealing procedure constitutes a legal interruption and a separate voluntary act takes place.

In such circumstances, there are multiple acts, and real concurrence applies rather than ideal concurrence. The offender may have committed the offence under Article 184(1) once or several times and the offence under Article 203 once. If Article 184(1) has been violated multiple times, Article 43 TPC concerning continuing offences must also be considered where its conditions are satisfied.

Some authors take the opposing view, arguing that breaking the seal and continuing construction constitute two offences committed through a single act. Under that interpretation, ideal concurrence would apply and punishment would be imposed under Article 184(1), which prescribes the heavier penalty.

Position in judicial practice. The decision of the Eighteenth Criminal Chamber, Case No. 2015/14744, Decision No. 2015/11330, dated 18 November 2015, demonstrates that separate judgments may be delivered against the same defendant for both breaking a seal and causing zoning pollution.

The judgment concerning breaking the seal was found not to be open to appeal because of the amount of the sentence, whereas the judgment concerning zoning pollution was set aside because the investigation into the adjacent-area issue was incomplete.

The Criminal General Assembly’s Decision No. 2018/540 also concerned an incident in which a criminal complaint was filed because a seal had been broken following the issuance of a construction suspension report.

The joint consideration of both offences is established practice. However, no Criminal General Assembly decision directly resolving the issue of concurrence between these two offences on its merits could be located. The analysis on this point therefore rests on scholarly approaches and the practice of the criminal chambers.

Relationship between Article 184(5) and Article 203. Bringing a building into compliance with the permit may eliminate the criminal proceedings under Article 184(1). However, since Article 203 contains no provision on effective repentance, the offence of breaking a seal is unaffected.

A building registration certificate likewise provides no protection against the offence of breaking a seal.

Example. A municipality seals an unauthorised construction site and affixes a construction suspension report. One week later, the property owner removes the seal and resumes construction.

The earlier construction activity falls within Article 184(1). The continuation of construction after sealing and the removal of the seal constitute the offence under Article 203.

The judge must investigate intent and the validity of the seal in relation to both offences. If the building is subsequently brought into compliance with the permit, Article 184(5) applies to the offence under Article 184(1), while proceedings for breaking the seal continue separately.

10. Relationship Between Administrative Sanctions and Criminal Liability

Article 32 of Law No. 3194. When the administration discovers that a building has been constructed without a permit or in breach of a permit, it determines the existing condition of the construction, seals the building, suspends the construction, and prepares a construction suspension report.

A copy of the report is affixed to the building and is deemed served on the property owner on the date of posting.

The property owner is granted a period not exceeding one month to obtain a permit or bring the building into compliance with the permit. If a permit is obtained or compliance is achieved within that period, the seal is removed.

If neither occurs within the prescribed period, any existing permit is cancelled, and the building is demolished pursuant to a decision of the municipal council or provincial administrative board. The demolition costs are recovered from the property owner.

The Criminal General Assembly has emphasised that the recovery of demolition costs does not constitute an administrative fine.

Article 42 of Law No. 3194. Administrative fines may be imposed on the property owner, the contractor, and technical supervisors who fail to notify the authorities of the violation within six working days.

The current version of the provision was restructured by Law No. 5940 following the Constitutional Court’s annulment decision in 2008.

The fine is calculated on a per-square-metre basis according to the building’s class and group. Under subparagraph (c), added by Law No. 7226, an additional fine is imposed in an amount calculated by multiplying the non-compliant area by the unit value of the land used for property tax assessment purposes.

If the violation is remedied and the building is brought into compliance with the legislation within one month of notification of the fine, the additional fine is not collected.

Under the principle of individual responsibility, the administrative fine should be directed at the person who actually carried out or commissioned the non-compliant construction and who bears responsibility for it.

Ne bis in idem. Administrative fines, demolition orders, and criminal proceedings may all be pursued in relation to the same building. This three-part system raises questions under the principle that no one should be punished twice for the same act.

In Sergey Zolotukhin v. Russia (Grand Chamber, 2009), the European Court of Human Rights assessed whether acts were the same by reference to their factual circumstances. The Engel v. the Netherlands criteria also require a separate assessment of whether a sanction is criminal in nature.

The severity of administrative fines and the additional fine under subparagraph (c), which has certain punitive characteristics, keep this debate relevant.

Under Article 15(3) of the Misdemeanours Law, where the same act is defined as both a misdemeanour and a criminal offence, a sanction is imposed only for the criminal offence; where no sanction can be imposed for the criminal offence, a sanction may be imposed for the misdemeanour.

The application of this rule to zoning legislation remains disputed. In practice, demolition decisions and administrative fines are challenged separately before the administrative courts.

In an incident reported in the press, an administrative fine imposed on a person already being prosecuted in criminal court for an unauthorised ancillary structure was annulled on the basis of the principle against double punishment for the same act. The decision was upheld by the Fifth Administrative Litigation Chamber of the Izmir Regional Administrative Court on 11 November 2025.

Assessment of zoning legislation by criminal courts. A criminal judge must independently determine whether the zoning legislation that completes the criminal provision applies, whether the construction qualifies as a building, whether a breach of the permit exists, and whether the building complies with the zoning plan.

An administrative fine decision or a construction suspension report does not replace this assessment. Conversely, the existence of a valid permit or an annulled sealing procedure may directly affect criminal liability.

11. Investigation and Prosecution

Commencement. The offence of causing zoning pollution is not subject to a complaint requirement. The public prosecutor conducts an investigation ex officio.

In practice, investigations commonly begin with a construction suspension report prepared by the municipality and a written criminal complaint.

Public officials are required to report offences they discover in the course of their duties (Article 158 CCP and Article 279 TPC).

Evidence. The principal documents in the case file include:

• The construction suspension report;
• Building permits and construction plan records;
• Zoning plans and zoning status documents;
• Municipal correspondence;
• Land registry records;
• Photographs;
• Aerial photographs and satellite images;
• Electricity and water subscription records;
• Witness statements;
• Technical expert reports prepared following an on-site inspection.

The defence should examine whether these items of evidence provide a consistent account of the following matters: whether the construction qualifies as a building; whether it affects load-bearing elements; whether it creates additional floor area; the date of construction; the identity of the offender; and whether the location falls within municipal boundaries or an area subject to a special zoning regime.

Prosecution. Public proceedings are conducted before the Criminal Court of First Instance. The competent court is the court in the place where the offence was committed, namely the location of the building (Article 12 CCP).

The offence is not eligible for settlement.

The principal matters the court must investigate include:

• Whether the construction qualifies as a building and when it was constructed;
• Whether it lies within municipal boundaries or an area subject to a special zoning regime;
• The identity of the offender and the existence of intent;
• The nature of the breach of the building permit;
• Whether the building has been brought into compliance for the purposes of Article 184(5);
• Whether the building was completed before 12 October 2004;
• Whether a building registration certificate exists.

Setting aside judgments due to incomplete investigation. The Court of Cassation frequently sets aside judgments concerning zoning pollution because the investigation is incomplete. The principal grounds include:

• Delivering judgment without investigating municipal boundaries, adjacent areas, and special zoning regimes (Criminal General Assembly, Decision No. 2018/540; Eighteenth Criminal Chamber, Case Nos. 2015/14964, 2015/13802, and 2015/14744).
• Failing to obtain an expert report on whether the construction qualifies as a building and when it was constructed (Criminal General Assembly, Decision No. 2018/503; Eighteenth Criminal Chamber, Case No. 2015/14176).
• Failing to establish the offender’s identity and the date of construction through witnesses, utility subscription records, aerial photographs, and similar evidence (Eighteenth Criminal Chamber, Case No. 2015/18482).
• Failing to investigate whether the building has been brought into compliance under Article 184(5) and whether information has been obtained from the municipality (Eighteenth Criminal Chamber, Case No. 2015/18366).

12. Application in Light of Relevant Court of Cassation Decisions

CRIMINAL GENERAL ASSEMBLY OF THE COURT OF CASSATION, CASE NO. 2014/4-806, DECISION NO. 2015/167, DATED 26 MAY 2015

The defendant contractor had enclosed the undersides of projecting sections, constructed a setback floor and a terrace, and created approximately 230 m² of unauthorised floor area in breach of the approved plans.

The municipal council ordered demolition, but the building was not brought into compliance despite the period granted by the court.

The issue was whether the deferral of the pronouncement of the judgment under Article 231 CCP could be applied to an offender eligible for effective repentance under Article 184(5).

The Criminal General Assembly characterised Article 184(5) as a special and more favourable effective repentance provision based on restorative justice and environmental protection. It concluded that there was no need to separately consider deferral of the pronouncement of the judgment where the defendant had failed to satisfy the requirements of Article 184(5). Two members dissented.

CRIMINAL GENERAL ASSEMBLY OF THE COURT OF CASSATION, CASE NO. 2017/18-684, DECISION NO. 2018/479, DATED 25 OCTOBER 2018

The dispute concerned whether Article 184(5) applies where an unauthorised building is demolished by the administration.

The Criminal General Assembly identified the elements of effective repentance and held that demolition carried out solely by the administration does not, by itself, constitute effective repentance. However, the provision applies where the offender did not physically resist the demolition and voluntarily paid the demolition costs without coercion.

CRIMINAL GENERAL ASSEMBLY OF THE COURT OF CASSATION, DECISION NO. 2018/540 (CASE NUMBER AND DATE NOT VERIFIED)

The building was located outside municipal boundaries but within the adjacent area of a district municipality. A criminal complaint was filed because the seal had been broken following the sealing procedure.

The Criminal General Assembly held that municipal boundaries and adjacent areas are distinct concepts and that, under the principle of legality, Article 184 cannot be applied to an adjacent area that is not subject to a special zoning regime. It required the existence of such a regime to be investigated.

CRIMINAL GENERAL ASSEMBLY OF THE COURT OF CASSATION, CASE NO. 2015/176, DECISION NO. 2018/503, DATED 18 SEPTEMBER 2018

A conviction for causing zoning pollution had been entered because balconies in a duplex apartment had been enclosed.

The defendant maintained that the work had been carried out in several stages since 1997, and witnesses corroborated this account. The expert report contained no technical findings concerning the construction date or the effect on load-bearing elements.

The Criminal General Assembly stated that the subject matter of the offence must be a building, that alterations exempt from permit requirements do not constitute the offence, and that whether substantial alterations qualify as a building must be determined by examining their effect on load-bearing elements and whether they create additional floor area.

It held that a judgment could not be delivered without obtaining the land registry records, determining how the property had been acquired, and establishing the construction date.

CRIMINAL GENERAL ASSEMBLY OF THE COURT OF CASSATION, CASE NO. 2014/516, DECISION NO. 2018/47, DATED 20 FEBRUARY 2018

The dispute concerned whether the construction of an unauthorised house on a protected site constituted both the offence under Article 184(1) TPC and the offence under Article 65 of Law No. 2863, and whether real or ideal concurrence should apply.

The Criminal General Assembly first examined the limitation period and dismissed the public prosecution because the eight-year period had expired, without reaching the merits. The issue of concurrence was therefore not resolved.

CRIMINAL GENERAL ASSEMBLY OF THE COURT OF CASSATION, CASE NO. 2020/329, DECISION NO. 2022/823

The defendant had covered an apartment building’s terrace over an area of approximately 228.60 m² using a framework structure. The expert report stated that the construction required a permit and affected load-bearing elements.

The Criminal General Assembly held that the installation did not constitute a building within the meaning of Article 5 of the Zoning Law because its sides were open and it did not create additional enclosed floor area. It therefore concluded that the elements of the offence were not satisfied. The date of the decision could not be verified.

EIGHTEENTH CRIMINAL CHAMBER OF THE COURT OF CASSATION, CASE NO. 2015/18366, DECISION NO. 2017/607, DATED 17 JANUARY 2017

An attic had been enlarged to create an independent apartment. The expert report stated only that the joinery, internal doors, and ceiling panelling had been removed.

The chamber held that, for Article 184(5) to apply, the building must be regularised by obtaining a permit, brought into compliance, or completely demolished. It set aside the dismissal of the case because the expert report was insufficient.

EIGHTEENTH CRIMINAL CHAMBER OF THE COURT OF CASSATION, CASE NO. 2015/18482, DECISION NO. 2016/19572, DATED 21 DECEMBER 2016

The defendant maintained that the building had been completed in 2002.

The chamber held that the identity of the person who constructed the building and the date of construction had to be established through witnesses, utility subscription records, and aerial photographs. It also required an on-site inspection to determine whether the additions identified in the construction suspension report constituted substantial alterations. The acquittal was set aside because the investigation had been incomplete.

EIGHTEENTH CRIMINAL CHAMBER OF THE COURT OF CASSATION, CASE NO. 2015/14964, DECISION NO. 2015/12258, DATED 30 NOVEMBER 2015

It was reported that the location forming the subject matter of the offence lay within a forest area.

The chamber held that an expert report was required to determine whether the location was subject to a special zoning regime and whether it fell within the scope of Provisional Article 2 of Law No. 5216. It also required the outcome of the separate investigation concerning a violation of the Forest Law to be awaited and the case files to be consolidated.

EIGHTEENTH CRIMINAL CHAMBER OF THE COURT OF CASSATION, CASE NO. 2015/14744, DECISION NO. 2015/11330, DATED 18 NOVEMBER 2015

Separate judgments had been delivered against the same defendant for breaking a seal and causing zoning pollution.

The judgment concerning breaking the seal was found not to be appealable because of the sentence imposed. The judgment concerning zoning pollution was set aside because the court had failed to establish whether the building lay within municipal boundaries or an area subject to a special zoning regime, despite an expert report stating that it was in an adjacent area. The judgment was also set aside because the judicial fine had been calculated incorrectly.

EIGHTEENTH CRIMINAL CHAMBER OF THE COURT OF CASSATION, CASE NO. 2015/18248, DECISION NO. 2016/12034, DATED 1 JUNE 2016

It was established that a previously demolished squatter dwelling had been reconstructed within the Bosphorus Zoning Plan area.

The chamber required a supplementary expert report on whether the construction had occurred after 12 October 2004, whether it qualified as a building, and whether it violated Law No. 2960.

It stated that, if the construction qualified as a building, Article 184(1) should apply pursuant to Article 44 TPC. Otherwise, only Article 18 of Law No. 2960 would apply.

EIGHTEENTH CRIMINAL CHAMBER OF THE COURT OF CASSATION, CASE NO. 2015/32893, DECISION NO. 2015/11150, DATED 26 OCTOBER 2015

The conviction for constructing a retaining wall was set aside because a retaining wall does not qualify as a building.

CRIMINAL GENERAL ASSEMBLY OF THE COURT OF CASSATION, CASE NO. 2017/210, DECISION NO. 2018/691 (DATE NOT VERIFIED)

Electricity was disconnected at the workplace of a defendant who had failed to pay a debt, and the meter was sealed. The defendant broke the seal and continued using electricity.

The Criminal General Assembly held that the defendant knew of the sealing procedure and that formal service of the sealing report was not required. It concluded that all elements of the offence had been established.

The same principle was expressed in the Criminal General Assembly’s decision in Case No. 2017/23, Decision No. 2017/452, dated 31 October 2017.

13. Frequently Asked Questions

Is constructing a house without a permit a criminal offence?

Yes, provided that three conditions are satisfied: the construction qualifies as a building; it is located within municipal boundaries or in an area subject to a special zoning regime; and it was constructed after 12 October 2004.

The penalty under Article 184(1) TPC is imprisonment for one to five years. If any of these conditions is absent, the offence is not established, although administrative sanctions may still apply.

Is constructing a building in breach of a permit a criminal offence?

It is an offence where the breach results in construction that qualifies as a building. Minor deviations, alterations that do not require a permit, and changes that do not create additional floor area may be subject only to administrative sanctions.

The Criminal General Assembly determines whether substantial alterations qualify as a building by examining their effect on load-bearing elements and whether they create additional floor area.

Is adding an unauthorised floor a criminal offence?

Adding a floor to an existing building, constructing a setback floor, or creating an independent unit constitutes construction requiring a permit and may fall within Article 184(1). In a case involving approximately 230 m² of unauthorised floor area, the Criminal General Assembly held that the offence had been established.

What is the penalty for causing zoning pollution?

The penalty is imprisonment for one to five years under Articles 184(1) and 184(2), and imprisonment for two to five years under Article 184(3).

The provision does not directly prescribe a judicial fine as an alternative penalty. However, where the term of imprisonment imposed is one year or less, it may be converted into a judicial fine under Article 50 TPC. In the case underlying the Criminal General Assembly’s Decision No. 2014/4-806, a ten-month prison sentence was converted into a judicial fine.

Can a prison sentence for causing zoning pollution be suspended?

A prison sentence of two years or less may be suspended if the conditions under Article 51 TPC are satisfied, including the absence of a previous conviction for an intentional offence and the court’s conclusion that the offender is unlikely to reoffend. The court must assess the conditions for suspension separately.

Can the pronouncement of the judgment be deferred?

According to the Criminal General Assembly, deferral of the pronouncement of the judgment under Article 231 CCP cannot be applied where the offender is eligible for effective repentance under Article 184(5) (Case No. 2014/4-806, Decision No. 2015/167).

Debate continues in special circumstances, such as where the building cannot be brought into compliance or has been demolished. The current conditions under Article 231 CCP must also be checked.

Can imprisonment be converted into a judicial fine?

Yes, where the prison sentence imposed is one year or less, under Article 50(1)(a) TPC. Since the statutory minimum is one year, this may be possible where the court imposes the minimum sentence or applies discretionary mitigation under Article 62 TPC.

What is the offence of breaking a seal?

It consists of removing a seal placed to preserve an item pursuant to law or an order of a competent authority, or acting contrary to the purpose for which the seal was placed. The penalty is imprisonment for six months to three years or a judicial fine.

Are breaking a seal and causing zoning pollution the same offence?

No. They protect different legal interests and have different elements. Neither offence constitutes an element of the other. Article 184 protects the zoning order and the environment, whereas Article 203 protects public trust.

Can a separate penalty be imposed for breaking a seal?

Yes. A person who continues construction after the site has been sealed may be subject to separate judgments under Articles 184(1) and 203 TPC.

The debate over whether real or ideal concurrence applies is addressed in Section 9. The prevailing approach in the practice of the criminal chambers and in legal scholarship is real concurrence.

What happens if the building is subsequently brought into compliance with the permit?

Under Article 184(5), no public prosecution is initiated under Articles 184(1) and 184(2), pending proceedings are dismissed, or an imposed sentence ceases to produce its legal consequences.

The building must be brought into compliance with both the zoning plan and the building permit. The offence of breaking a seal is unaffected.

Can the offence of causing zoning pollution be committed outside municipal boundaries?

As a general rule, no. Articles 184(1) and 184(2) do not apply unless the location is subject to a special zoning regime. Article 184(3) is the exception. Administrative sanctions may nevertheless apply.

Does Article 184 TPC apply in adjacent areas?

According to the Criminal General Assembly, an adjacent area alone is insufficient. It must be investigated whether the area is subject to a special zoning regime (Decision No. 2018/540).

Will the case be dismissed if the complaint is withdrawn?

No. The offence is not subject to a complaint requirement, and the public prosecutor investigates it ex officio. Withdrawal of a complaint does not terminate the proceedings.

Is the offence of causing zoning pollution subject to a limitation period?

Yes. Under Article 66(1)(e) TPC, the limitation period for prosecution is eight years and may extend to a maximum of twelve years if interrupted (Criminal General Assembly, Decision No. 2018/47).

The date from which the limitation period begins to run remains disputed in practice, particularly whether it is the date construction began, the date the building was completed, or the date the violation was detected. The actual construction date must therefore be established through evidence.

Buildings completed before 12 October 2004 fall outside the scope of Article 184 irrespective of the limitation period.

14. Conclusion

Article 184 TPC establishes three thresholds for determining when a breach of zoning legislation becomes a criminal offence: the construction must qualify as a building, the territorial requirement must be satisfied, and the temporal limitation must be respected. None of these requirements may be disregarded when determining whether the offence has been committed.

The offence arises only where a building requiring a permit is constructed or commissioned after 12 October 2004 within municipal boundaries or in an area subject to a special zoning regime.

The Zoning Law and its implementing regulations supplement the criminal provision. The meanings of building permits, occupancy permits, buildings, and substantial alterations are determined by reference to this legislation.

Under the prohibition of analogy and the principle of legality, “structure” and “building,” as well as “adjacent area” and “municipal boundary,” cannot be used interchangeably. The Criminal General Assembly’s decisions concerning adjacent areas, the legal classification of buildings, and incomplete investigations give concrete effect to these principles.

Article 184(5) establishes a broad effective repentance mechanism capable of eliminating the legal consequences of the offence at the investigation, prosecution, and post-judgment stages. The building must be brought into compliance with both the zoning plan and the building permit; partial correction is insufficient. Where the administration carries out demolition, the offender must not have resisted the demolition and must have voluntarily paid the associated costs. According to the Criminal General Assembly, deferral of the pronouncement of the judgment is unavailable to an offender eligible for Article 184(5). This mechanism does not apply to offences under Article 184(3).

The offence of breaking a seal under Article 203 TPC is a separate offence. It is committed by removing the seal or acting contrary to its intended purpose. The validity of the sealing procedure, the physical application of the seal, and the offender’s knowledge of the procedure must be established by evidence.

There is no effective repentance provision for Article 203, and bringing a building into compliance with its permit does not eliminate this offence. Where both offences are committed, the prevailing approach in judicial practice and legal scholarship is to apply the rules on real concurrence because the offences have different elements, protect different legal interests, and involve distinct acts.

In both types of proceedings, technical evidence frequently determines the outcome. The Court of Cassation sets aside judgments where courts fail to establish whether the construction qualifies as a building, when it was constructed, the legal status of the location, whether the sealing procedure was validly carried out, and who was responsible for the conduct. These matters must be established through on-site inspections, expert reports, aerial photographs, and administrative records.

Accordingly, the first priority for persons facing investigation or prosecution for zoning offences, and for their defence counsel, should be to assess technically whether the building can be brought into compliance. If this is not possible, the defence should identify and document the specific element of the offence that has not been established.