Ulgener
Yağızalp Kırca
Associate Lawyer
As it is known, environmental pollution disputes are common in maritime law and they have two aspects; one is administrative (the pollution fine) and the second is criminal. In this article, we aim to give information on the criminal aspect of the matter.
The crime of polluting the environment is defined in the articles 181 and 182 of the Turkish Criminal Code. As one can imagine, criminal investigations are usually (though there are exceptions as can be seen below) initiated against the seafarers rather than the shipowner himself.
Pollution of the Environment Intentionally (TCC Article 181)
Article 181/1 of the TTC stipulates that “ Any person who intentionally discharges waste or refuse material into the soil, water or air, contrary to the technical procedures as defined in the relevant laws and in such a way as to cause damage to the environment, shall be sentenced to a penalty of imprisonment for a term of six months to two years.”
In the continuation of TCC Article 181, the aggravated versions of the crime are regulated as follows;
TCC Article 181/2: Any person who brings waste or residues into the country without permission shall be sentenced to a penalty of imprisonment for a term of one to three years.
TCC Article 181/3: In case the waste or residues have permanent characteristics in soil, water or air, the penalty to be imposed shall be double that of the penalty according to the above paragraphs.
TCC Article 181/4: Where an offence is committed as defined under paragraphs one and two in relation to waste or residues that has a characteristic which may cause the alteration of the natural characteristics of plants or animals, enhance or create infertility or cause an incurable illness in humans and animals, the offender shall be sentenced to a penalty of imprisonment for a term of not less than five years and a judicial fine of up to thousand days.
TCC Article 181/5: Where the offences regulated under Paragraphs one, three, and four of this article are committed by a legal entity then security measures specific to legal entities shall be imposed.
Pollution Caused by Negligence (TCC Article 182)
TCC Article 182/1: Any person who negligently causes waste or residues to be discharged into the soil, water or air in a way that harms the environment is punished with a judicial fine. If these wastes or residues have a permanent effect on the soil, water or air a penalty of imprisonment shall be sentenced for a term of two months to one year.
TCC Article 182/2: Any person who by negligence causes the alteration of the natural characteristics of plants or animals, enhance or create infertility or cause an incurable illness in humans and animals, the offender shall be sentenced to a penalty of imprisonment for a term of not less than five years a penalty of imprisonment shall be sentenced for a term of one year to five years.
Investigation Phase
The crime of intentionally or negligently polluting the environment is not among the crimes subject to complaint. Withdrawal of the complaint does not result in the dismissal of the criminal investigation or case. Since it is rather difficult for the public prosecutors to be heard of the pollution, it is a common practice to initiate an investigation on complaints from municipalities. The statute of limitations is 8 years for (the basic version of the crimes) intentionally or negligently pollution of the environment.
During the investigation, prosecutors require expert reports and appoint environmental engineers to evaluate the matter. The investigation phase is mostly carried out according to expert reports.
Litigation Phase
Although prison sentences are mentioned in the provisions regulating the crime, there are principles in Turkish Criminal Law that will abolish the penalty of imprisonment if the conditions are met.
The first of these principles is the postponement of the sentence. In cases where the sentence imposed is less than 2 years' imprisonment, the postponement of the sentence is very common in practice. If court decides to postpone the sentence, no criminal sanction applies for a 5 years period and if the perpetrator does not commit a crime deliberately for 5 years, the crime of polluting the environment is deemed to have never been committed. This option is not available for the aggravated versions of the crime since the penalty of imprisonment should be less then 2 years as mentioned above.
The second option, which can be ordered by the court instead of imprisonment, is a judicial fine. Judicial fine is a type of penalty that can be applied alone or together with a penalty of imprisonment for a crime committed. If the imprisonment sentence for the crime of polluting the environment intentionally or negligently does not exceed 1 year, it can be converted into judicial fines.
As a result, it is highly likely that the prison sentence will be postponed or converted into a judicial fine, except in cases where the perpetrator is found guilty for the aggravated versions of the crime.