ANALYSIS · 22 September 2024
Delegation of Environmental Duties and Unlawful Orders: Supervisory Responsibility under German and Turkish Law
Delegating environmental obligations to specialist staff does not create a sphere of managerial immunity. In hierarchical organisations, criminal responsibility must be individualised by reference to the nature of the order, superior knowledge, control over the act, personnel selection and supervisory duties.
Unlawful orders and the basis of responsibility
Environmentally harmful conduct within companies often occurs through hierarchical chains of decision and implementation. Where a superior issues an unlawful order, responsibility is determined not merely by rank but under the general rules governing perpetration and participation. The superior’s control over the act, the implementer’s knowledge and intention and the features of the offence must be examined separately.¹
Superior knowledge and indirect perpetration
Where a superior conceals environmental illegality despite having greater knowledge, falsely represents that a required permit exists or obtains an administrative authorisation through incomplete information, indirect perpetration may become relevant. If the offence is carried out by exploiting the implementer’s mistake of fact, the person behind the act may derive control from superior knowledge. German environmental criminal law also discusses the relationship between an unlawful administrative permit and the person implementing it in this context.²
Unlawful orders and pressure under Turkish law
An instruction from a superior in a private company is generally not a binding order from a competent authority within Article 24 of the Turkish Criminal Code. Article 24(3) also provides that where the subject of an order constitutes an offence, both the person issuing and the person carrying out the order are responsible. A threat of dismissal or economic pressure does not automatically reach the intensity of irresistible force or a grave and certain threat required by Article 28. Where coercion of that intensity or a mistake under Article 30 exists, the actor’s knowledge and intention must be assessed separately. Incitement, assistance and indirect perpetration must be distinguished in accordance with the presumption of innocence.
Does delegation eliminate responsibility?
Delegating environmental tasks to specialist personnel does not generally terminate all responsibility of the manager. The delegating person retains duties to select suitable personnel, give clear instructions and ensure adequate supervision. Division of labour therefore does not simply transfer responsibility; it creates duties of different content for the delegating and receiving persons. Scholarship describes this as the multiplication of responsibility.³
Non-delegable organisational duties
Core duties concerning the overall organisation of the enterprise cannot be fully delegated. Establishing a system for reporting environmental risks, defining authority and responsibility, informing management of critical violations and maintaining functioning controls remain part of senior management’s organisational responsibility.⁴
The limits of delegation under Turkish law
Under Turkish law, delegation is likewise not a general institution that automatically transfers criminal responsibility. Article 20 of the Turkish Criminal Code precludes punishment of a manager solely because of formal title or another person’s conduct. Where a duty arises from sector-specific environmental legislation, the actual allocation of functions, contract or genuine assumption of control over a source of danger, failures of selection, information, supervision and intervention may nevertheless be relevant to individual attribution. Whether the applicable offence permits commission by omission and whether liability complies with the legality principle must be examined separately.
Limits of the duty to supervise
The duty to supervise cannot be interpreted as strict liability for every act of subordinate personnel. Actual allocation of functions, expertise, access to information and practical ability to intervene are decisive. No one can be expected to perform an act that is factually impossible; title or position in an organisational chart cannot by itself determine the scope of a duty to avert harm.⁵
From defective supervision to individual attribution
Grossly careless personnel selection, failure to investigate despite signs of an environmental violation or leaving a known source of danger uncontrolled may constitute breach of a concrete duty. Liability by omission additionally requires all elements of a statutory offence, preventability of the result, causation and fault. German solutions developed under section 13 of the Criminal Code and section 130 of the Regulatory Offences Act cannot be transferred to Turkish law together with their legal consequences; they nevertheless provide a comparative model for clear allocation of functions and individualisation of supervisory failures.⁶
Implications for environmental compliance
An effective environmental compliance system must not reduce delegation to written job descriptions. It must verify professional competence, define reporting thresholds, escalate unusual measurements and complaints, make instructions traceable and ensure that intervention powers can actually be exercised. Responsibility does not end with the claim that a subordinate carried out the order or that the task was delegated to a specialist. Unlawful instructions, superior knowledge, duties of selection and supervision, organisational defects and practical ability to intervene remain decisive.
Footnotes
- 1. Saliger, Umweltstrafrecht, pp. 73–74; Achenbach/Ransiek, Wirtschaftsstrafrecht, p. 32; Müller-Gugenberger/Bieneck/Schmid, Wirtschaftsstrafrecht, p. 871.
- 2. OLG Frankfurt, 22 May 1987 – 1 Ss 401/86, NJW 1987, p. 2753 (especially p. 2757); Achenbach/Ransiek, Wirtschaftsstrafrecht, p. 32.
- 3. Saliger, Umweltstrafrecht, p. 74; Kloepfer/Heger, Umweltstrafrecht, p. 58.
- 4. Saliger, Umweltstrafrecht, p. 74; MüKoStGB/Schmitz, preliminary remarks to sections 324 et seq., para. 134.
- 5. MüKoStGB/Schmitz, preliminary remarks to sections 324 et seq., para. 134.
- 6. Kloepfer/Heger, Umweltstrafrecht, p. 58; Busch/Iburg, Umweltstrafrecht, p. 87; MüKoStGB/Schmitz, preliminary remarks to sections 324 et seq., para. 134.