Prof. Dr. Gülsün Ayhan Aygörmez
Four environmental offences are foreseen under the section of offences against the environment in the Turkish Criminal Code. These offences are intentional pollution of the environment, negligent pollution of the environment, noise pollution and unauthorized building. Within the scope of the offence of intentional pollution of the environment, there are also qualified cases of causing serious damage to the environment and the offence of unauthorised waste entry into the country, which we call waste tourism. Only three offences can directly serve climate protection. These are the offences of polluting the environment intentionally and by negligence and unauthorised waste entry into the country. Apart from these crimes, there is no other type of crime in Türkiye that has been introduced specifically centred on climate protection measures. The offences under the Environmental Act (Article 26) do not directly serve climate protection. There are also no provisions in other Special Acts other than the Environmental Act that can be directly evaluated under climate protection. However, some offences or misdemeanours (Kabahat) that indirectly serve climate protection measures are certainly included in the scope of special laws. For example, the Forestry Act dated 1956, the Land Hunting Act dated 2003, the Act on Undergroundwater dated 1960, etc. can be counted in this context.
How effective are these in enforcing climate protection goals?
The criticism that the Commission to all member states is very important here. The Commission states that there is a serious lack of effective investigation and prosecution in the field of environmental criminal law. In Türkiye, we do not have any data on investigations into environmental offences and their fate. In terms of prosecutions, we know the annual conviction rate for environmental offences. This conviction rate is not based on individual offences after 2019; on the contrary, it includes the totality of offences against the environment. If we now take into account the latest and common data available from Türkiye and Germany, we can see the following: According to 2020 statistics, the total number of convictions under the Turkish Criminal Code in Türkiye is around 1.500.000. Of these, the average number of convictions for offences against the environment is 11.000. On the other hand, the average conviction rate for offences against property is around 350.000, for offences against bodily integrity around 200.000, and for offences causing general danger around 100.000.
According to statistical data, the rate of offences against the environment in general is almost negligible compared to other offences. At this point, if we want to answer the question of which is the most convicted environmental offence, the following result emerges: It is not easy to answer the same question in terms of Türkiye. This is because the number of convictions has not been reported separately for each offence since 2018. However, when I make a comparison with the annual data before this date, the following result emerges. It would not be wrong to say that approximately 14.200 of the 16.000 convictions belong to the offence of unauthorized building, approximately 1.000 to the offence of intentional pollution, 500 to the offence of negligent pollution and 300 to the offence of noise pollution. When all these results are evaluated, it becomes clear that the convictions for offences against the environment are considerably lower than other offences.
I would like to take a cautious approach, bearing in mind that there may be numerous factors affecting the statistical data, but I would also like to state that the figures give the impression that the countries are not doing a very successful job in combating environmental crime. This is one of the most criticised issues by the Commission.
Are the shortcomings or deficiencies here only due to the inadequacy of the tools of criminal procedure law or the state’s supervisory bodies in terms of supervision and evidence gathering? Of course not. Of course, there are lessons to be learnt by all member states in this regard, but in addition to the aforementioned shortcomings, there are also serious substantive law problems in terms of environmental pollution offences different dimensions and angles in the two countries, which are of great importance in terms of climate change. This is because these offences are very narrow in terms of punishable acts.
In Türkiye, there are problems such as the inability to punish negligent acts, the fact that pollution is based only on waste, the exclusion of non-waste elements from the scope of the offence, etc. In terms of the Criminal Code, I can express these in very general terms.
As for the Special Laws, in addition to similar problems, the most important issue is that these laws do not reflect the spirit of the time. For example, the Environmental Act is dated 1983, the Forestry Act is dated 1956, and the Act on Underground Waters is dated 1960. These legal regulations must be revised in line with current needs. In addition to these, laws that are directly related to climate change, such as the Emission Protection Act and the Act on the Protection of Biodiversity, which are not available in Türkiye, should be enacted.
Countries may currently be cautious about developing new crimes in the process of climate justice and transformation, and may think that criminal law should be activated as a last resort – Ultima ratio. However, I think that not only in Türkiye, but also in the whole of Europe, it will be inevitable in the future that special danger based crimes will be foreseen for violations of the measures taken to combat climate change, and that new types of organised crime are likely to become widespread all over the world. The Commission has already recognised this and has explicitly proposed that dangerousness offences in accordance with its directives should also be normed in the criminal codes of the Member States.