Tuesday, March 20, 2012

The unforseeability of Forest Law 4785

The only law permitting forest land to be taken without compensation is Forest Amendment Law 4785 which Nationalized (with certain defined exceptions) those forests that officially existed in 1945.

The allegations that Forest Law 4785 is being applied illegally today to take land which was not forest when the law was passed in 1945 have been explained separately.

Moreover much of the misapplication of the forest law 4785 is made possible by its lack of clarity and foreseeability which is explained below.

Clause 5 of this law required the Owners of Nationalized Forest to declare their land within one year or lose the right to any compensation.

Identification of the forests that were Nationalized was to be done by Forest Survey Commissions according to forest boundaries recorded in the 1:25000 Forest Management Map of Turkey completed in 1945 and according to Country Maps and aerial photos completed by 1945.

According to these maps and Official Government (Devlet Istatistik Enstitüsü) statistics 10.5 million hectares of forest existed in Turkey at the time including 200,000 hectares of Private Forest. According to the Food and Agriculture Organization (FAO), Turkey's forest area is still currently 13 million hectares.

Law 4785 offered compensation only to those people who declared their forests within one year of 13 July 1945 when the law came into force (Clause 5).

Yet 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 Forest Commissions are responsible for deciding whether a place is Forest or not. Therefore, until the Forest Cadastre Commissions conducted a Survey of an area, even the Turkish Government did not know the exact location of its Forests on the ground. By 1946 little more than 20% of forests had been Surveyed by the Forest Commissions.

Moreover, in practice it can be concluded that Registered Title Deeds remained unaffected by Law 4785 until a Forest Survey conducted according to Law 6831 or its predecessor law 3116 decided that the registered land in question lay within the boundaries of those forests nationalized by law 4785 in 1945. Without such a decision there could be no formal transfer of private land to the Treasury as Forest, and there could be no entry to that effect on the Title Deed Register.

The controversy today is whether over sixty years later a Forest Survey conducted today can still use Law 4785 to cancel Title Deeds without compensation under the pretext that the land in question was allegedly “Forest” according to information available in 1945.

This is a serious Property Rights issue because the Survey of Turkish Forests is taking so long to complete and because the Maps and areal photos of forests Nationalized in 1945 have still not been made publicly available, leading to the suspicion that the Government is abusing the situation to aquire land without paying compensation. Such suspicions are fuelled by the fact that the size of State Forests has inexplicably increased from 10.5 million hectares (their size in 1945) to over 20 million hectares today.

Forest Law 4785 made all forests (with exceptions) State Property as of 1945 in general terms but landowners were only informed as and when Forest Surveys were completed. In effect this meant that the Government siezed much private and as State Forest in 1945 but most landowners did not become aware of it until much later when their right to obtain compensation had lapsed.

Landowners with deeds acquired in good faith whose land was eligible to be nationalized by Law 4785 were never required to be informed of this fact by law 4785 yet this law only offered them compensation if they came forward to claim it within one year.

For these reasons, Law 4785 has always been unforeseeable and therefore unlawful.

In its Judgement of BEYELER v. Italy (application no. 33202/96) the ECHR Grand Chamber states that "the principle of lawfulness also presupposes that the applicable provisions of domestic law be sufficiently accessible, precise and foreseeable” The situation is comparable to that which arose under article 38 of Turkish Law 2942.

Under Law 2942, if the Turkish Government occupied Private Property the owner’s right to seek compensation ceased 20 years after the de facto occupation and the property was transferred to the Treasury. In addition the time-limit for claiming compensation ran from the de facto occupation and this allowed the administration to benefit from a situation (the expiration of the compensation deadline), already existing at the time of coming into force of the law.

In a Forest Survey conducted today, if a plot of land is defined as state forest (according to Forest Law 4785) the appeal period for compensation would have run out on 13.7.1946. The situation is all the more unjust because neither the owner of the land nor the Turkish Government can know that the land in question was Nationalized in 1945 until a Survey is carried out many years or generations later.

Article 38 of Law 2942 was cancelled by the Turkish Constitutional Court on 10/4/2003(E. 2002/112, K. 2003/33) because it violated Clauses 2, 13, 35 and 46 of the Turkish Constitution. In the words of the ECHR (Application no. 58650/00 CASE OF BÖREKÇİOĞULLARI (ÇÖKMEZ) AND OTHERS v. TURKEY - 26/3/2007) :

“ The Constitutional Court held that limiting an individual's right to property, by maintaining that his right to bring an action against de facto occupation of his property lapses and that arguing that the property must be transferred to the authorities twenty years after the occupation, would be contrary to the Constitution. Moreover, referring to the case-law of the Court, it held that depriving individuals arbitrarily of their right of property and their right to compensation is contrary to the principle of the rule of law.”

The ECHR ruling went further saying:

“41. The Court takes into consideration the judgment of the Constitutional Court and acknowledges its reasoning. Nevertheless, the Court notes that the judgment of the Constitutional Court does not have a retroactive effect and therefore does not provide the applicants with a procedure capable of redressing the effects of a possible violation of the Convention. Consequently, it considers that the matter has not been resolved within the meaning of Article 37 § 1 (b) of the Convention (see, mutatis mutandis, Pisano v. Italy [GC] (striking out), no. 36732/97, § 42, 24 October 2002).

42. In addition to the conclusions of the Constitutional Court in its judgment of 10 April 2003, the Court notes that Article 38 of the Law no. 2942 provided that compensation for deprivation of property is not paid automatically by the authorities, but must be claimed by the landowner. That may prove to be inadequate protection (see, mutatis mutandis, Carbonara and Ventura v. Italy, no. 24638/94, § 67, ECHR 2000-VI). Moreover, the fact that the time-limit for claiming compensation ran from de facto occupation, allows the administration to benefit from a situation, already existing at the time of coming into force of the relevant law (I.R.S. and Others v. Turkey, no. 26338/95, § 53, 20 July 2004).

43. The Court considers that the application of Article 38 of the Law no. 2942, by the domestic authorities to the applicants' case, had the consequence of depriving them of the possibility to obtain damages for the annulment of their title (ibidem, § 55). In the absence of adequate compensation in exchange for their property, the interference in question, although prescribed by law, has not struck a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.

44. The Court consequently concludes that there has been a violation of Article 1 of Protocol No. 1.”


The same comments were made on 14/6/2007 by the ECHR in the CASE OF İNCİ (NASIROĞLU) v. TURKEY) Application no. 69911/01.

The same argument can be used for Forest Law 4785. In the case of Law 4785, property owners can only know if their land is State Forest after the Forest Survey is carried out and its decision is finalised. By the time most property owners were surveyed by the Forest Cadastre Survey, much more than one year since the passage of the law nationalizing their land had elapsed, and it was already far too late to ask for compensation. Still today such Property Owners can only challenge the Survey conclusion. They cannot sue for compensation. It can be said therefore that, as with Article 38 of law 2942, Law 4785 also has the consequence of depriving landowners of the possibility to obtain damages for the annulment of their title.

In addition, Clause 5 of Forest Law 4785 states that Landowners are only offered compensation if they apply to the Forestry Department within 1 year of 13/7/1945. This shows that Compensation was not offered unless Landowners came forward to claim it within 1 year. Such a situation also existed under Law 2942 and was condemned by the ECHR. In Clause 42 above, the ECHR “notes that Article 38 of the Law no. 2942 provided that compensation for deprivation of property is not paid automatically by the authorities, but must be claimed by the landowner. That may prove to be inadequate protection”

In conclusion the inability to apply for compensation under Forest Law 4785 is contrary to the Turkish Constitution of 1924, 1961 and 1982 which allows expropriation only if compensation is paid and provided it is in the National interest.

Forest Law 4785 infringes Article 1 of Protocol 1 of the European Convention of Human Rights.

It only ever offered compensation only to those people who declared their forests within one year of 13 July 1945 when the law came into force (Clause 5).

It does not provide for the notification of affected landowners in due form. Indeed affected landowners cannot be identified until a Forest Survey is conducted and even then there is no obligation to inform affected landowners of the survey.

Law 4785’s dependence on the arbitrary verdicts of Forest Survey Commissions which are made long after the expiration of the compensation deadline and which are not communicated to affected landowners in due form makes it unforeseeable. Its lack of a compensation procedure renders it incapable 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. Fot these reasons, it does not comply with the principle of lawfulness as seen by the ECHR.

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