Effective environmental criminal law requires more than severe penalties: a comprehensive reform of substantive criminal law and criminal procedure is needed, combining offences structured as endangerment offences appropriate to environmental criminal law, the allocation of responsibility within companies, and effective investigative measures.
Our earlier work identified three fundamental structural problems. The first concerns the material scope of environmental offences. Not every environmentally hazardous substance is legally classified as “waste”; tying criminal liability exclusively to the concept of waste may therefore create gaps in protection. The second concerns the extent to which environmental infringements committed with gross negligence are covered by criminal law. The third concerns the allocation of responsibility for environmental offences committed within companies. Rather than holding a company or its managers liable merely because of their institutional position, decision-making powers, responsibilities, supervision and information flows must be traced in order to identify the areas of responsibility that genuinely influenced the conduct in question.
Directive (EU) 2024/1203 on the protection of the environment through criminal law has significantly advanced this debate. It broadens the scope of environmental offences, requires certain conduct to be criminalised at least when committed with gross negligence, and provides for the liability of legal persons and effective, proportionate and dissuasive sanctions against them. Its aggravated-offence approach to conduct causing severe and long-lasting environmental harm places the seriousness of environmental damage at the centre of the criminal-law framework.
The importance of the Directive, however, lies not only in the creation of new offences. It also directly addresses the enforcement problems of environmental criminal law. It requires effective and proportionate investigative tools, adequate technical and technological resources for investigative and prosecutorial authorities, increased specialisation, regular training for judges, prosecutors, police and other competent authorities, and national strategies to combat environmental crime.
This approach is essential. Environmental criminal investigations must determine not only the source, timing and causal chain of pollution, but also the internal decision-making processes and the actual centres of responsibility within a company. Effective environmental criminal law must not become a form of strict liability under which a company or manager is held responsible solely because environmental harm has occurred. Technical evidence should establish who possessed what information, who made which decision, who was in a position to prevent which risk, and who actually influenced the specific infringement. Such an approach strengthens environmental protection while also protecting companies and managers who are not at fault within the limits of criminal law.
A well-drafted offence does not protect the environment when there is no investigative structure capable of applying it; a poorly conducted investigation, to the extent that it fails to identify the person truly responsible, damages both environmental protection and the rights of suspects and defendants.
Directive (EU) 2024/1203 is intended to approximate the domestic laws of the Member States of the European Union and is not directly applicable in Türkiye. Nevertheless, it provides a current and important comparative-law benchmark for reforming Turkish environmental criminal law. The issue is no longer simply whether the penalties for existing offences should be increased. The offences must be reconsidered in accordance with the distinctive endangerment structure of environmental criminal law; gross negligence, responsibility within companies, technical evidence, specialisation and effective investigative tools must be regulated through an integrated approach to substantive criminal law and criminal procedure.
The need for reform identified in 2015 is even clearer today. At the present stage of environmental and climate law, reform of Turkish environmental criminal law is long overdue. Its purpose is not to punish more people, but to detect environmental infringements in time and to allocate responsibility correctly. Effective environmental criminal law need not choose between protecting the environment and respecting the principles of culpability and personal responsibility; it must secure both within the same legal system.
Legal sources
Gülsün Ayhan Aygörmez, Çevreye Karşı Suçlar – Türk ve Alman Çevre Ceza Hukukunda Güncel Sorunlar, Yetkin Yayınları, Ankara 2015. https://www.legalkitabevi.com/cevreye-karsi-suclar-turk-ve-alman-cevre-ceza-hukukunda-guncel-sorunlar.htm
Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law. https://eur-lex.europa.eu/eli/dir/2008/99/oj
Directive (EU) 2024/1203 of the European Parliament and of the Council of 11 April 2024 on the protection of the environment through criminal law. https://eur-lex.europa.eu/eli/dir/2024/1203/oj