ALP TEKİN OCAK
In its fourth section titled “Discontinuance of Proceedings and Set-Aside of Convictions”, the Turkish Penal Code (TPC) lays down matters relating to the death of the suspect or convict, amnesty, the statute of limitations, and advance payment. With these regulations, the legislature seeks to reduce the judicial burden of criminal investigations and proceedings.
The condition of advance payment entails a decision of non-prosecution or the discontinuance of existing proceedings in return for the payment of a judicial fine specified in law, by the individual charged with an offence of a particular gravity and nature, upon reminder by the public prosecutor or judge that the offence in question falls under the scope of crimes subject to advance payment.
In theory, this reduces court caseloads and speeds up case processing. In this manner, the individual in the position of suspect or defendant is expected to compensate the public damages they have caused, in exchange for which the state relinquishes its duty to exercise jurisdiction.
On November 24th, 2016, silent amendments were made to this TPC article regulating advance payment. Appearing minor at the outset, not only did this change not attract any public attention, but it also went unnoticed by the likes of me – who, as a lawyer, would have professional interest in the matter. It wasn’t until I overheard the court proceedings in the trial right before mine, as I was waiting before the Giresun 2nd Penal Court of First Instance to attend a hearing in the case against the director of an energy company that had caused damage to villagers’ homes and gardens transgressing the bounds of the land declared eminent domain during the construction of a hydropower plant, that I realized what had happened.
What was this seemingly minor amendment that had critical consequences in terms of crimes against the environment?
When I go to court for a hearing, I prefer to wait for my turn inside the courtroom watching the rest of the proceedings of the day rather than out in the hallway. This not only gives one the opportunity to witness a wide array of stories, but also to grasp just how the judiciary, as an important locus of state power, engages in the multifaceted exercise of naked violence against its own citizens – instead of sitting in the usual hustle and bustle of courthouse corridors. You also get to see the judge who will be presiding over your own hearing as well, which helps alleviate a certain amount of pre-trial stress.
On that day, as usual, I went into the courtroom where our trial would take place after consulting with the clients regarding our defense before the hearing at the Giresun 2nd Penal Court of First Instance. The trial before ours was about illegal logging. From what I could tell, an old gentleman from the Dereli district of Giresun had cut down a tree in the forest without permission and for this reason had been charged with violating Forest Law no. 6831.
The judge was explaining that due to legal amendments to the TPC, crimes classified under article 108 of the Forest Law had been made subject to advance payment, and therefore “suggesting” that the case could be dropped in return for the “appropriate payment.” As the judge repeatedly spoke of the institution of advance payment and its consequences, this grey-haired elderly villager simply could not make sense of what the judge was saying.
Article 108 of the Forest Law, which had now been made subject to advance payment, allowing the case to be dropped, states: “Anyone who knowingly transports, saws, processes, accepts, sells, buys or keeps illegally harvested or collected forest products is punishable by imprisonment or a fine.”
I was astonished – especially as someone who had spent his childhood summers on the highlands harvesting hazelnuts. Forest villagers all know what it means to illegally fell trees in the forest. They know how forest patrols keep mountain villages under constant and vigilant scrutiny, and what kinds of punishments await villagers caught illegally felling trees or transporting, selling or processing products acquired in such manner…
Crimes against the forest used to be taken so seriously that if you were caught in the act of illegal logging, your essential tools such as axes and chainsaws or the car you used to transport illicit forest products would be confiscated. So the defendant – most probably knowing the gravity of the crime he had committed – simply could not fathom that he could walk away from a prison sentence by paying a fee as offered by the judge.
When we look at the crimes regulated in the Forestry Law no. 6831, we see that there are detailed crime definitions for all types of behaviors that are likely to occur on forests, such as “occupation and exploitation, logging, transporting, harvesting, processing, accepting, using, selling, buying or keeping illegal forestry commodities (illegal commodity crimes), forest burning, intentional forest burning, unauthorized fire in the forest, misuse of personal or common need commodities.” In addition to proscribing these acts as crimes and making them subject to punishment, the same law renders others such as collecting pine cones, seeds and branches, and cutting and removing dry trees subject to permission. Concurrent sentencing, the statute of limitations, seizure of equipment used in crime, and amnesty schemes appear to be more restrictive for these crimes than for others.
These are all the direct expressions of a political preference. Ever since Ottoman times, crimes committed against forests at the command and disposal of the state have been harshly punished. This approach continued uninterrupted into the Republican era, and the matter was brought under legal protection with the constitutions of 1921, 1924, and 1982, as well as the Forest Law no. 3116 (entered into force in 1937) and Forest Law no. 6831 (entered into force in 1956; still in effect), which have sought to prevent destructive and harmful activities against forests. All of this, until that amendment in 2016…
The principle of Environmental Law that “if you pollute, you pay” has been expanded to mean “if you pollute, you pay your way out.”
With the amendment to article 75 of the Turkish Penal Code, criminal offenses committed by anyone “who knowingly transports, saws, processes, accepts, sells, buys, or keeps illegally harvested or collected forest products” regulated in the first clause of article 108 of the Forest Law no. 6831 dated 1956 had been made subject to advance payment. This signifies a serious step back in the criminal policies for forest protection and preservation that has been in place since the Ottoman era.
The same regulation also brought into the scope of advance payment other crimes against the environment, which were proscribed by the new Penal Code of 2004, in parallel with modern criminal law. The principle of Environmental Law that “if you pollute, you pay” has thus been expanded to mean “if you pollute, you pay your way out.”
Legal regulations in environmental protection
The creation of a legislative framework for crimes against the environment involving strict sanctions for perpetrators did not come to pass simply because of “environmental awareness,” but out of dire necessity. As the first quarter of the 21st century drew to a close, more than half of the world’s population were city-dwellers. This massive shift precipitated by rural-to-urban migration caused cities to grow at an unprecedented scale, the emergence of metropoles, and a rise in consumption levels, which led to terrible air pollution and a concrete invasion.
Climate change moved beyond being an academic/scientific debate and visibly reshaped our lives. What we previously heard of as glacial thawing at the poles relayed by environmental scientists and climatologists in documentaries now has a direct impact with immediate consequences on our lives in the form of creeks running dry in the summer, the melting of glacial lakes such as Karagöl that are usually under a year-round snow cover, a drop in the hazelnut yield in coastal areas due to high summer temperatures and excessive humidity, and the onset of blights previously unknown in these parts such as kernel mold on hazelnuts.
Instigated by these changing circumstances, Crimes Against the Environment – which had previously remained outside the scope of legislation – were incorporated into the Penal Code as it was undergoing reform in 2004. These marked the first positive regulations in this area. With articles 181 and following of the TPC no. 5237, acts of environmental pollution were rendered punishable by law under various types of crimes and misdemeanors. These were significant legal amendments for the protection of the environment and preservation of ecological integrity for future generations.
However, the recent change in the TPC enacted while the ameliorations that found expression in modern criminal law to prevent the pollution brought about by industrialization were still young and in need of improvement is nothing short of disappointing.
It is for this reason that including certain categories of crime regulated in the Forest Law and crimes against the environment specified in the TPC within the scope of advance payment amounts, without question, to backing out of the fight and throwing in the towel before it has even begun. In other words, this legislative change means automatically excusing, in fact turning a blind eye to crimes committed against the forest and other environmental values in order to boost our capacity to extract natural resources. If news of this were to spread, every forest villager whose potential gains outweighed the risk involved would try his chances, and forests, which are the last bastion of the country’s wildlife, would appear as a means of profit to many who found themselves in financial straits.Our governments have turned fines into a significant source of revenue. We have nothing to say about penalties for infringements we experience in traffic being converted into fines, but it is high time that we stop associating our forests and rivers with money. Isn’t it crystal clear that the seemingly minor amendment to the TPC dated November 24, 2016, is in fact anything but that?