For over 60 years the Turkish Government has denied individuals the right to own land in Turkish Forests. This article attempts to describe the ongoing battle between property owners and the Turkish Government with regard to the confiscation of privately owned property rights in areas identified as forest in Turkey.
Although the European Court of Human Rights has passed about 26 judgements since 2008 condemning the lack of compensation in such situations, this battle is not yet over because it has yet to be shown in court that most of the confiscations are illegal. (see below)
This is a summary of a detailed report which explains how property rights in areas identified as forest by the Turkish Government are confiscated by the Turkish Government. For a copy of this report in English or Turkish last revised in February 2011 go to http://www.turkeyforest.com/.
Summary
The object of this report is to examine how the demarcation of land as a forest area in Turkey is used to invalidate land ownership. The seizure of private land within Forest Areas in Turkey without the payment of compensation has been a controversial issue in Turkey since 1945 and has recently attracted the attention of the International Court of Human Rights. The ECHR has repeatedly condemned Turkey ‘for the annulment of title acquired in good faith but later restored to State ownership without compensation being paid’.Article 1 of Protocol No. 1 of the European Convention of Human Rights reads as follows:
"Article 1: Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
The view of the ECHR:
The above key words (underlined in bold) in Article 1 Protocol No. 1 are central to the Court’s assessment The ECHR recognises the validity of title deeds acquired in Turkish forest areas as long as they have been acquired in good faith. In all of the 30 judgements so far (till 15.02.2011) about the confiscation of land in forests (see section IX), once it has been established that the applicants had possession within the meaning of Article 1 of Protocol No.1 the Court has then concluded:
• that there has been an interference with the applicants property rights amounting to a deprivation;
• that the interference has been legal (the ECHR has accepted this fact because the domestic courts which have applied domestic law have found it legal);
• that the Turkish Government is pursuing a legitimate aim in the public interest (the protection of nature and forests);
• but that a fair balance has not been observed between the interests of the applicants and those of society as a whole (the lack of any compensation).
The compensation to successful applicants awarded by the ECHR has to date not reflected the full value of their loss because the basis of the violation found was the lack of any compensation, rather than the inherent illegality of the taking.
The view of the Turkish Government:
The Turkish Government (in its defense at the ECHR) contends that the annulment of deeds in Forest Areas is legal because the Turkish Constitution (clause 169) forbids the private ownership of State Forests. As a result any land surveyed as State Forest according to the Forest Laws must belong to the State and any Title Deeds to such land must have been issued in error, and are null and void. Therefore compensation for the loss of ownership is irrelevant.
This report
The protection of Forests is no doubt “a legitimate aim in the public interest”. The method of achieving this aim is prescribed by the Forest Law which lists the criteria for classifying land as “forest” and prescribes how forests should be conserved. The forest law recognises both public and private forests however. The goal of protecting forests is achieved by the classification of the land as “forest” and by the restrictions imposed on both public and private land which is classified as forest. The Forest Law does not require the annulment of Title Deeds in order to achieve the legitimate aim of protecting forests.
This report endeavours to show that the interference with property rights by the Turkish Government in Forest Areas is in most cases not legal because it is not legal to classify all forests as State Forests; it is not prescribed by Forest Law 6831 law or required by the Turkish Constitution. In addition Forest Nationalization Law 4785 is being applied illegally to take land which was not forest when the law was passed in 1945.
It also shows that Law 4785 does not fulfill the the principle of lawfulness as defined by the ECHR and that even Law 6831 lacks clarity and forseeability and therefore cannot be said to comply with the principle of lawfulness as seen by the ECHR.
Article 1 of Protocol No. 1 of the European Convention of Human Rights states that:
“No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”.
The legality of an interference is important. If the interference is illegal the breach of Article 1 of Protocol No. 1 is rendered more serious and often necessitates the awarding of just satisfaction according to the principle of restitutio in integrum. According to this principle just satisfaction should put the successful plaintiff in the position he or she would have been in had the interference not been committed. If the return of the property in question in its original state cannot be practically achieved just satisfaction is awarded according to its market value at the time of the judgement. The ECHR has in addition often awarded additional compensation to cover “lost opportunities” resulting from the interference. See:
Scordino c. Italy (No3) ( just satisfaction), no 43662/98, 09/07/2007
Carbonara and Ventura v. Italy (just satisfaction), no. 24638/94, 11/12/2003
Belvedere Alberghiera S.r.l. v. Italy no. 31524/96, 30/10/2003)
Papamichalopoulos and Others v. Greece 14556/89, 31 10/1995
Until now, the ECHR judgements (regarding the interference with property rights by the Turkish Government in Forest Areas) have accepted the judgements of the domestic courts as proof that the taking in forest areas has been carried out according to domestic law and is for that reason legal. For this reason the awards for compensation have been below the true value.
For example in the case of Devecioğlu v. Turkey (just satisfaction), no17203/03, 24/11/2009, the ECHR states in paragraph 1.
“ In this context, the Court reiterates that when the basis of the violation found is the lack of any compensation, rather than the inherent illegality of the taking, the compensation need not necessarily reflect the full value of the property (I.R.S. and Others v. Turkey (just satisfaction), no. 26338/95, §§ 23-24, 31 May 2005, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 254-259, ECHR 2006-V, and Stornaiuolo v. Italy, no. 52980/99, §§ 82-91, 8 August 2006). It therefore deems it appropriate to fix a lump sum that would correspond to the applicants' legitimate expectations to obtain compensation.”
In its judgments of Turgut and Others v. Turkey no1411/03, 8-Jul-2008 and Köktepe v. Turkey no 35785/03, 22-Jul-2008 the ECHR came to the following conclusion:
“90. La Cour constate ensuite que les requérants ont été privés de leur bien par une décision judiciaire. Malgré les protestations de ces derniers quant à la nature du terrain, les tribunaux internes ont finalement annulé leur titre de propriété en application des dispositions constitutionnelles, en se fondant sur les rapports d’expertise selon lesquels le terrain faisait partie du domaine forestier.” (Turgut)
“87. La Cour constate, ensuite, que les autorités compétentes ont, par une décision judiciaire, qualifié le terrain litigieux de domaine forestier public (paragraphes 10 et 22 ci-dessus). Malgré l’opposition exercée par le requérant en vertu du droit interne quant à la nature du terrain, les tribunaux internes ont finalement validé la délimitation en question, en application des dispositions constitutionnelles, en se fondant sur les rapports d’expertise selon lesquels le terrain faisait partie du domaine forestier.” (Köktepe)
The ECHR has not put itself in the place of the National Courts in order to assess the legality of their judgements according to domestic law. In the case of Beyler c. Italia application 33202/96 the ECHR in its judgement of 5.2.2000 states that
“it has limited power, however, to review compliance with domestic law (see the Håkansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171-A, p. 16, § 47).”
In the ECHR Grand Chamber judgement of Maestri v. Italy of 17.2.2004 the court states in paragraph 7 that:
“The Court has also underlined that it regards the courts of first instance and appeal as being the most qualified for the task of construing and applying domestic law [8].
It is thus clear that, at least to date, the Court has declined to interpret domestic law and has taken the domestic courts' interpretation to be correct and binding. The Court only exceptionally interferes, but not in reinterpreting domestic law; its intervention is limited to enquiring whether domestic law, as established by the national authorities, is compatible with the Convention.”
This report shows that the taking of private land in forest areas is not prescribed by the Constitution or forest law 6831. It also shows that Forest Law 6831 and Forest Law 4785 are not compatible with the convention.
The Constitution: None of the Turkish Constitutions since 1924 have ever forbidden the Private ownership of forests. The 1982 Constitution Clause 169 states that: “The ownership of State forests shall not be transferred to others. State forests shall be managed and exploited by the state in accordance with the law. Ownership of these forests cannot be acquired through prescription, nor shall servitude other than that in the public interest be imposed in respect of such forests.” State forests means forests owned by the state and does not include all forests.
Forest Law 6831: In addition Forest Law 6831 (introduced in 1956) does not direct that private land with forest cover should be classified as State Forest. Therefore the Constitutions and Forest Law 6831 do not provide a legal way to convert private land into State owned Forest.
Forest Law 4785: Nationalization of Forests in Turkey only occurred once, under Law 4785, passed in 1945. Law 4785 Nationalized forests which had been officially recorded by the time the law was passed in 1945. It did not Nationalize any future forests. Therefore less than half of Turkey’s current forests were Nationalized by this Law because the forests Nationalized were those forests shown on the 1:25000 Forest Management Map of Turkey, on Country Maps and in aerial photos completed by 1945. According to Official and international statistics 10.5 million hectares of land had been legally classified as forest in 1945, half the current figure of over 20 million Hectares.
This report argues that forests which did not exist in 1945 are being Nationalized today using Forest Nationalization Law 4785. This is illegal and is not prescribed by Law 4785. Since the introduction of Forest Law 6831 in 1956 the majority of Forest Surveys have resulted in the taking of land using Law 4785 in areas which were not mapped or shown as forest before 1945 but which were subsequently redefined as forest. This has been and is illegal.
This report also argues that the Law 4785 itself does not fulfil the principle of Lawfulness as defined by the ECHR. It explains that many forests which were elligible to be Nationalized by law 4785 (because they were marked on the 1:25000 Forest Management Map of Turkey, on Country Maps and in aerial photos completed by 1945), have only been surveyed on the ground recently long after the deadline for compensation has expired. Many have still not yet been surveyed. This delay of up to 65 years has resulted in these forest owners missing the 1 year deadline set by law 4785 in 1945 for requesting compensation. In its Judgment of BEYELER v. Italy (application no. 33202/96) the ECHR Grand Chamber states “109. However, the principle of lawfulness also presupposes that the applicable provisions of domestic law be sufficiently accessible, precise and foreseeable.”
Law 4785 provided no procedure for informing affected landowners and only ever offered compensation to those who came forward within one year of the law being passed. This report explains that Law 4785 does not fulfill the the principle of lawfulness as defined by the ECHR. Law 4785 is unforeseeable because it provides no procedure for informing affected landowners before the deadline for compensation.
In other words Law 4785 allows for the arbitrary taking of land based on the results of Forest Surveys conducted by Survey Commissions years and decades after the compensation deadline expired. Law 4785 lacks a compensation procedure capable of maintaining the fair balance between the demands of the general interest of the community and the requirement of the protection of the individual's fundamental rights.
The Legal way:
Expropriation of land in the public interest is allowed by the Turkish Constitution provided compensation is paid. Expropriation laws exist (Law 6830, 1956 to 1983, Law 2942, as of 1983). However the Turkish Government does not use these laws to expropriate private land in forest areas. The expropriation of forest using these laws would be legal in Turkey and, provided sufficient compensation is paid, such expropriation would not lead to the violation of property rights under Article 1 of Protocol No. 1 of the European Convention of Human Rights.
The remaining sections of this report:
Sections III, IV, and V attempt to explain the most relevant clauses in Turkish Forest Laws since 1937 and in the Turkish Constitutions since 1924. All sections relevant to the determination of forest boundaries and in any way relevant to forest ownership are described. (Sections III, IV, and V can be used for reference while reading sections VI to VIII)
Section VI explains how the Turkish Forest Area post Nationalization has doubled in size leading to allegations that much of this increase was illegally confiscated from private landowners.
Section VII explains in more detail how the law is misconstrued to justify the taking of Private Property in Forest areas without paying any compensation. It describes how the current forest law 6831 brought out to demarcate forest areas is being increasingly misused to include private land (which was not part of the 10 .5 million hectars of State Forest nationalized in 1945) in State Forest boundaries thereby changing land ownership boundaries. It focuses on Forest Nationalization Law 4785 of 1945 and explains the widely held opinion that this law does not fulill the ECHR’s criteria of lawfulness when applied today to forests that existed in 1945. It also explains that Law 4785 of 1945 is being illegally used in Turkey to Nationalize forest land identified and mapped after 1945.
Section VIII explains how title deeds are annulled in forest areas. It explains the difference between the Forest Survey aimed at identifying forest areas under Forest Law 6831, on the one hand, and the ongoing Cadastre Survey of Land Ownership for the new Land Register under law 3402, on the other and how they both can lead to the annullment of Title Deeds. The illegal use of Forest Surveys to change land ownership boundaries often results in conflicts with Land Ownership Cadastre Surveys under Law 3402 whose official aim is to determine land ownership boundaries. The right of the Cadastre Survey of Land Ownership to leave land “officially unsurveyed” is described together with the resulting effects on title deeds and property rights. The procedure in place for announcing Survey results is described. Local public announcements are used but direct notification in due form to affected landowners is not made. Appeal deadlines and the consequence of missing them are explained.
Section IX describes the increasing number of ECHR judgements condemning the Turkish Government for confiscating land because it is forest, in which the Turkish Government has been found guilty of violating Article 1 of Protocol No. 1 to the Convention of Human Rights, (Protection of property).
Section X concludes that the Turkish Constitution only forbids the purchase of land in State Forest and the Forest Law allows the ownership of forest land, but subjects all forests to strict conservation rules. However these laws are not applied in this way by the survey commissions and by the courts. In addition Forest nationalization law 4785 introduced in 1945 is being used illegally to nationalize land which has never been eligible for nationalization. Law 4785 is also not compatible with the European Convention of Human Rights. Under these circumstances the owners land in areas surveyed as forest who are faced with the annullment of their title deeds have little chance of receiving a fair trial. Their rights under the European Convention of Human Rights are, moreover, being violated by the Turkish Government firstly because they cannot receive a fair trial, a violation of Article 6, and secondly and in combination with this because their title deeds are being annulled illegally without compensation, a violation of Article 1 of Protocol No. 1. Finally if Title Deeds are annulled as a result of a Forest Survey there is no legal mechanism in Turkey for seeking compensation. This is a violation of Article 13 “The right to an effective remedy”.
For a copy of this report in English or Turkish as of February 2011 go to http://www.turkeyforest.com/
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