The determination of reasons of environmental pollution that require the impose of administrative sanctions in light of the Turkish Council of State decisions

• Author: Mehmet Hatipo?lu
• Position: Faculty of Law, Afyon Kocatepe University, Turkey, mhatipoglu@aku.edu.tr.
• Pages: 61-72

The determination of reasons of environmental pollution

that require the impose of administrative sanctions

in light of the Turkish Council of State decisions

Assistant professor Mehmet HATIPOĞLU1

Abstract

Environmental administra tive san ctions are a means of pr ecautions aiming for the

protection of the environment, reduction of environmental damages, nonrepea tion of a cts

causing the damage of the environment. The mentioned a ctions of the administra tion shall

be con cluded in a ccordance with principles of rule of law, legality, legal certa inty. It is

important to a great extent to demonstra te the legality of the sa nctions and measures when

applied subsequently for judicial remedy, dur ing which in the process of application of

such sanctions, documentation of the conta minative a ctivities and reveal of activities

transpa rently with its justification had been rea lized. In the Environment Law n umbered

2872, the procedur es and principles a re determined, which must be obeyed by the officer in

charg e assigned by the centra l or pr ovincial or ganization of the Ministry or by the

competent a uthority of state institutions a nd orga nizations authorized b y the Ministry for

the environmental supervision for detection of violations, which require the impose of

administrat ive sa nctions. It is important to consider some factor s for the establishment of

the pr ocess to be a pplied against any environmental violation by the a dministrative

institutions tha t have duties a nd powers in the field of protection of the environment, such

as the investigations to be carr ied out in order to clear ly reveal the source of the polluting

activity, the means that ca n be used in determining the violation, the conditions to regard

real or legal per sons to be r esponsible for polluting activity, which abolishes the

hesitations relevant to the source of pollution. When the decisions of the Council of State

are examined, in some of the decisions it is noteworthy that the p roblems rela ted to the

determination of the violation are mentioned and some of the sanctions esta blished by the

administratio n accor ding to the procedur e stated in the legislation are cancelled. In this

study, a discussion will be made on the decisions of the Council of State and the reasons of

the a dministration a nd an emphasis will be given to the problems in implementation a nd

legislation. Recommendations will be put forward for the procedur es and pr inciples to be

more specific in accordance with the principle of legality a nd to strengthen the lawfulness

of the sanctions, which a re followed in the area s where inspection may be ca rried ou t by

the environmental inspection teams and where sea, land, a ir and other environmental

damages may ar ise.

Keywords: administrative sanctio ns, Turkish Council of State, environmental pollution,

legality.

JEL Classification: K23, K32, K42

1 Mehmet Hatipoğlu - Faculty of Law, Afyon Kocatepe University, Turkey, mhatipoglu@aku.edu.tr.