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Is HAGB Applicable in the Crime of Zoning Pollution?
Whether the provisions of the deferment of the announcement of the verdict (HAGB) will be applied to the crime of causing zoning pollution, which has been increasing recently, is one of the most frequently asked questions, and we will discuss this issue in detail in this article.
Mar 10, 2026
Fundamentally, the Court of Cassation, General Assembly of Criminal Chambers, in its decision with Docket No. 2014/806, Decision No. 2015/167, and Date 26.05.2015, explicitly stated whether the provisions on the deferment of the announcement of the verdict shall be applied to the crime of causing zoning pollution.
Considering the fact that the legal value protected by Article 184 of the Turkish Penal Code (TCK) is the protection of the environment, and that the frequency and intensity of the commission of this crime constitute a social and public issue, it is evident that the legislator primarily aimed at eliminating the negative effects of the crime and preventing its re-commission, rather than merely punishing the perpetrator. In order to achieve this objective, it is intended not to initiate a public prosecution, to drop the initiated case, or to eliminate the imposed penalty with all its consequences.
Restorative Justice and Effective Remorse
The regulation set forth in the fifth paragraph of Article 184 of the TCK is a kind of effective remorse arising from the restorative justice approach, and it can be characterized as restoring the consequences of the unlawful act to the state prior to the crime. With Article 184/5, which is regulated in accordance with the restorative justice approach, the perpetrator is rehabilitated, the damages suffered by the victim and the society are compensated; furthermore, the perpetrator is provided with the opportunity to take responsibility, acknowledge the harm caused to the victim and the society, and compensate for them, thereby eliminating the negative effects of the crime.
For a sound resolution of the dispute, the provision on the deferment of the announcement of the verdict must also be evaluated:
"...although the high chamber determined that no direct harm was caused to the public by the commission of
this crime, it has not been found possible to agree with this determination; because, through the actions of
the defendant and those who commit such crimes, Istanbul has become a city where zoning pollution is created
the most in the global arena... the unlicensed area obtained by the defendant due to this zoning pollution
is 230 square meters in a district with a very high rent value like Bahçelievler... since the taxes
collected over the sales were calculated without taking this area into account, it is indisputable that a
clear tax loss occurred, which is undoubtedly an explicit and direct material damage to the public.
Moreover... the defendant did not engage in any such effort for his own profit and interest... completely
acting in line with his economic interests, disregarding the awareness of living together with the society
by observing the public interest, and did not even condescend to the sacrifice of giving up the economic
benefit he provided for himself by eliminating the zoning pollution during the trial phase..."
(Discussed in the decision of the General Assembly of Criminal Chambers of the Court of
Cassation.)
HAGB Conditions and Legal Assessment
In order to decide on the deferment of the announcement of the verdict, it is not sufficient that there is no statement from the defendant refusing the deferment, and that all objective conditions regarding the crime and the defendant are met. Additionally, the court must reach a positive conviction that the defendant will not commit a crime again, taking into consideration their personality traits and their attitude and behavior during the hearing. Thus, the legislator did not accept that a decision to defer the announcement of the verdict must be given absolutely for everyone who meets all the objective conditions regarding the crime and the perpetrator, but granted the judge a margin of discretion within certain limits.
When the application conditions of Article 231 of the Criminal Procedure Code (CMK) and Article 184/5 of the TCK are compared, more favorable consequences are stipulated for the perpetrator with Article 184/5, which is specifically regulated for the crime of causing zoning pollution. As a matter of fact, even if the sentence imposed on the perpetrator becomes final, if the building subject to the crime is made compliant with the zoning plan or its license, the penalty will be eliminated with all its consequences without seeking a time condition, and it will be decided to drop the initiated public prosecution, again without seeking a time condition.
The application of the provision on the deferment of the announcement of the verdict regulated in Article 231 of the CMK, on the other hand, will be possible if the objective conditions are fulfilled and the court reaches the conviction that the defendant will not commit a crime again; and in order to decide on the dropping of the initiated public prosecution, the defendant must not intentionally commit a new crime within the five-year supervision period after the decision to defer the announcement of the verdict is given.
- ✓ For the perpetrator who has the opportunity to benefit from the special regulation in Article 184/5 of the TCK by making the building they built or had built without a license or contrary to the license compliant with the zoning plan and license in the crime of causing zoning pollution, there is no possibility to apply the deferment of the announcement of the verdict regulated in Article 231 of the CMK.
- ✓ In conclusion, in the crime of zoning pollution, the legislator has based its approach on remedying the illegality and protecting the urban order rather than punishment.
- ✓ For this reason, the provision of TCK Art. 184/5, which is in the nature of a special regulation, is applied primarily compared to the HAGB provisions, which are a general regulation.
Since this issue may lead to serious consequences, especially for building owners, contractors, and practitioners, it is important to make a legal assessment based on the concrete case.
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Shared by Atty. Hüseyin Barış
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