The Republic of Türkiye needs a harmonization in the field of Environmental Criminal Law with the European Union climate protection legislation.
In this context, it should first be noted that the harmonization is actually a constitutional obligation for Türkiye. Two articles of the 1982 Constitution, Articles 56 and 90, which are currently in force in Türkiye, are decisive elements in this regard. According to Article 90 of the Constitution, international treaties duly put into force have the force of law. In addition to this, in case of disputes arising from the fact that international treaties on fundamental rights and freedoms duly put into force and national laws contain different provisions on the same subject, the provisions of international treaties shall prevail. Article 56 of the Constitution regulates the right to environment as a fundamental right. The Paris Agreement is an international agreement of this nature. The Republic of Türkiye signed and ratified the Paris Agreement on 22 April 2016 and ratified it by Presidential Decree on 7 October 2021. Therefore, the Paris Agreement is a part of Turkish domestic law.
In addition, Türkiye aims to become a full member of the European Union. In line with this goal, it is imperative for Türkiye to fulfil the membership conditions and harmonise with the EU legislation. The most important step at this point is the Climate Change Presidency, which was renamed as the Ministry of Environment, Urbanisation and Climate Change by the Presidential Decree issued on 29 October 2021 and established under this Ministry. The Presidency, which is obliged to harmonise with the European Union Legislation, is currently working on the “Draft Climate Law Proposal”.
Harmonisation with the European Union environmental and climate protection legislation of course also applies to European Union environmental criminal law.
Here, the European Union’s “Directive 2008/99/EC on the Protection of the Environment by Criminal Law” dated 12.08.2008 and the new “Proposal for a Directive on the Protection of the Environment by Criminal Law” in 2021 (Richtlinienvorschlag zum strafrechtlichen Schutz der Umwelt – Richtlinie 2008/99/EG), which will repeal Directive 2008/99/EC. This proposal is expected to enter into force soon.
With the new Turkish Criminal Code enacted in 2005, Türkiye has actually introduced some innovations in line with the requirements of Directive 2008/99/EC. For example, it is a very important step to regulate “offences against the environment” under a new chapter of the Turkish Criminal Code. Of all these offences, it has been accepted that measures can be applied against legal persons only in the qualified cases of environmental pollution offences. Therefore, the inclusion of intentional and negligent offences against the environment in the law and the provision of measures against legal persons are in accordance with the requirements of Directive 2008/99/EC. However, the recommendations of Directive 2008/99/EC are not limited to these. The 2005 Turkish Criminal Code has not been revised to comply fully with the requirements of the Directive in 2008 in terms of environmental criminal law. There is already a significant gap here. In addition, the European Commission has published a new Proposal for a Directive to repeal Directive 2008/99/EC in 2021. In this Directive Proposal, the European Commission drew attention to the deficiencies in the field of environmental criminal law in the member states and proposed a series of legislative proposals in order to eliminate these deficiencies and gaps. These proposals address many areas of criminal law, including substantive criminal law, criminal procedure law and criminology. There are numerous steps that need to be taken in the field of Turkish environmental criminal law, specific to the Directive Proposal.