The ECHR is currently reviewing 57 APPLICATIONS against TURKEY about the seizure of private land within Forest Areas without the payment of compensation.(See Application no. 8186/07 and 56 other applications against Turkey)
This article comments on the observations of the Turkish Government with regard to the legality of the interference.
Among the “questions to the parties" published on the internet by the European Court of Human Rights on 9 Feb 2010 (see link on this blog), the ECHR asks:
“Have the applicants been deprived of their property in the public interest and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1 to the Convention?”
The Turkish Government replies that: “the title deeds were annulled for public interest purpose according to Article 169 of the Turkish Constitution and Article 2B of the Law no. 6831” (page 5 paragraph 2 and page 6 paragraph 1.)
It also states that “by finalised judgments of the first instance courts, the title deeds of the disputed lands were annulled considering that the plots could not be private property since they were forest. According to domestic law, forests can by no means be private property. Therefore registration of a land of this nature cannot be made in favour of private persons.” (page 8 paragraph 3.)
If the ECHR decides that there has been an interference with the applicants property rights amounting to a deprivation, it would seem that the appropriate level of compensation is very dependent upon the legality of the deprivation. Therefore it is important to examine the reality of the above statements that according to domestic law and the Article 169 of the Turkish Constitution forests can by no means be private property.
In reality, the annulment of property rights by the Turkish Government in Forest Areas is not required by Clause 169 of the Turkish Constitution and it is not prescribed by Forest Law 6831.
Only SOME of today’s forests were ever nationalized, namely all forests recorded on maps and plans valid in 1945, and this took place under Law 4785, passed in 1945.
ARTICLE 169 of the Turkish Constitution is as follows:
“The state shall enact the necessary legislation and take the measures necessary for the protection of forests and the extension of their areas. Forest areas destroyed by fire shall be reafforested; other agricultural and stock-breeding activities shall not be allowed in such areas. All forests shall be under the care and supervision of the state.
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.
Acts and actions which might damage forests shall not be permitted. No political propaganda which might lead to the destruction of forests shall be made; no amnesties or pardons specifically granted for offences against forests shall be legislated. Offences committed with the intention of burning or destroying forests or reducing forest areas shall not be included within the scope of amnesties or pardons applicable on other occasions.
The limiting of forest boundaries shall be prohibited, except in respect of areas whose preservation as forests is considered technically and scientifically useless, but whose conversion into agricultural land has been found to be definitely advantageous, and in respect of fields, vineyards, orchards, olive groves or similar areas which technically and scientifically ceased to be forest before 31 December 1981 and whose use for agricultural or stock-breeding purposes has been found advantageous, and in respect of built-up areas in the vicinity of cities, towns or villages.”
Paragraph 1 of Article 169 refers to the protection of forests in general.
Paragraph 2 is limited to the ownership of State Forests.
Paragraph 3 is about actions which might damage forests in general and how to deal with them.
Paragraph 4 is about the boundaries of forests in general.
It can be clearly seen that Clause 169 only deals with forest ownership in paragraph 2 - but the restrictions imposed only apply to STATE FORESTS. Paragraph 2 states that the ownership of State Forests shall not be transferred to others. It states that the Ownership of State Forests cannot be acquired through prescription.
The remaining paragraphs 1,3 and 4 of Clause 169 refer to forests in general and cannot be said to refer only to State Forests. They explain that the limiting (or shrinkage) of forest boundaries shall be prohibited; that forests shall be protected by the State; that forests destroyed by fire shall be reforested; that agricultural and stock-breeding activities shall not be permitted in forests; that the limiting of Forest Boundaries shall only be allowed for land that has technically and scientifically ceased to be forest before 31 December 1981. These limitations do not prohibit the private ownership of forests but are designed to protect areas classified as forest (whether public or private).
The Turkish Government uses the fact that the private acquisition of STATE Forest Land is forbidden by clause 169 of the Turkish Constitution to annul Title Deeds in ALL Forest Areas.
This argument is flawed because not all forests are state forests.
However the Turkish Government assumes that all forests in Turkey are State Forests. This may be because it believes that all forests were Nationalized in 1945 by Law 4785.
Its assumption is incorrect. In fact private forests do exist in Turkey.
Nationalization of Forests in Turkey only occurred once, under Law 4785, passed in 1945. Law 4785 only nationalized forests which had been officially recorded by the time the law was passed in 1945. It did not nationalize any future forests nor any forests which had not been officially recorded by 1945. 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 official figure of over 20 million Hectares.
It can be concluded that there are at least two types of property rights violations in Turkish forests:
1. The taking of private property which is marked as forest on official maps and plans on the date that forests were nationalized in 1945.
2. The taking of private property not marked as forest on maps and plans of 1945 but subsequently defined as forest.
In the first case the interference is arguably legal under Turkish Law and arguably in the public interest but it violates Article 1 of Protocol No. 1 of the Convention because of the total lack of compensation.
In the second case the interference is illegal and is a much more serious violation of Article 1 of Protocol No. of the Convention requiring compensation according to the principle of “restitutio in integrum.”
The date on which any such properties became private properties would seem to be irrelevant provided they were acquired in good faith. Some deeds may have been first issued before 1945 or in the Ottoman period, others may have been issued following a recent Land Ownership Cadastral Survey.
LAW 4785 OF 1945 –
Law 4785 of 1945 is the only law that ever permitted the Nationalization of forests. However even this law does not fulfill the criteria of lawfulness as defined by the ECHR for the following reasons:
Forest Law 4785 made all forests officially recorded by 1945 (with exceptions) State Property in principle but the boundaries affected were only finalised when detailed Forest Surveys were completed. Forest Law 4785 does not provide for the notification of affected landowners in due form. Indeed affected landowners cannot be identified with certainty until a Forest Survey is conducted and even then there is no obligation to inform, in due form, affected landowners of the survey.
In effect this has meant that the Government seized much private land as State Forest in 1945 but landowners may never have known if they were affected until much later when their right to obtain compensation had lapsed.
Private Landowners would have had no way of knowing if their land was even eligible for Nationalization under law 4785 because:
• Law 4785 did not require that any notification be sent to the owners of Nationalized Forests (clause 1);
• The Forest Management Maps of Turkey completed in 1945 and the Country Maps and aerial photos completed by 1945 were never published;
• Such maps plans and photos were (and still are) considered secret and were never made available to members of the public even on request;
• Accurate application of such small scale maps on the ground even if they were available is not possible. Many of the maps are not accurate and even experts have been unable to apply all of them without considerable subjective judgement;
• The results of forest surveys were not communicated to affected landowners in due form,(Law 6831, Clause 11).
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. For this reason Law 4785 does not fulfill 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. 4
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.
FOREST LAW 6831 –
The Turkish government uses forest law 6831 to classify all forests as STATE forest. This is based on the incorrect assumption (explained above) that all forest is already state owned.
For example clause 26a of the Directive published in Official Gazette no 25523 on 15/7/2004 by the Turkish Ministry of Forests and the Environment entitled “Directive concerning the implementation of the Forest Cadastre Survey in accordance with Forest Law No 6831”, requires that land that fits the official definition of Forest in Clause 1 of Law No 6831 be delimited as State Forest. Yet Clause 1 of Forest Law No 6831, (since it came into force in 1956), has always provided a Legal Definition of “FOREST”. It does not define the boundaries of “State Forests.” It describes how Forest cover should be identified and delimited.
Similarly clause 26j of the same directive instructs Forest Survey comissions to survey “Heather and Maquis land containing soil that is suitable for forest” as State Forest. Yet here again Clause 1J of Law No 6831 specifically excludes from the definition of Forest “Land covered by maquis and heather and land that does not have conservation characteristics”. Moreover although this does allow Maquis on land with “conservation characteristics” to be classified as Forest, it does not provide a definition of State Forest.
Forest Law 6831 Clause 1 provides a legal definition of ‘FOREST’ per se. This is not a definition of State Forest but a technical definition of what legally constitutes a “FOREST” irrespective of ownership.
The job of the Forest Cadastre Commission is to survey the boundaries of all forests according to Law 6831, but this should not change the ownership boundaries of the land. Indeed forest boundaries and ownership boundaries are usually in totally different locations. Responsibility for determining the ownership boundaries of Land belongs to the Land Ownership Cadastre Survey Commissions whose job it is to eventually survey the whole country for the New Land Register according to Cadastre Law 3402.
Clause 7 of Forest Law 6831 clearly states that “The surveying of government forests, forests belonging to public legal entities, private forests and of any other land boundaries that lie within or ajacent to forest boundaries shall be carried out by Forest Survey Commissions." Therefore the job of the Forest Cadastre (Survey) Commissions is to eventually survey the whole country for “FOREST COVER” boundaries both Private and Public not just State Forests boundaries according to the definition of forest provided in law 6831.
Clause 4 of Forest Law 6831 confirms that private ownership of forests is possible when states that:
“With regard to ownership and management, Forests can be divided into the following categories:”
A) “Government forests”
B) “Forests belonging to legal public institutions”
C) “Private forests”
Conclusion:
According to ECHR case law the legality of an interference with an individual’s property rights has a direct bearing on the nature of compensation awarded.
This article contends that many property rights violations in Turkish Forests are illegal and should qualify for compensation according to the principle of “restitutio in integrum.”
In about 33 judgments to date the ECHR has decided that the taking of land with title deeds in forest areas amounts to a deprivation because of the lack of compensation. However it has not sought to examine in detail the legality of the takings or whether the applicable provisions of domestic law 4785 fulfill “the principle of lawfulness” as defined by the Court.
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