Wednesday, October 10, 2012

The confiscation of private property in turkish forests: IS IT LEGAL ?

Abstract: 
The interference with property rights by the Turkish Government in Forest Areas is in most cases not legal because (despite claims to the contrary by the Turkish Government) it is not legal to classify as State Forest all private land with cover that fits the legal definition of forest. This it is not prescribed by Forest Law 6831 law or required by the Turkish Constitution. The European Court of Human Rights has not yet examined this question of legality because it has so far preferred not to assess the legality of the judgements of the local courts according to domestic law. It has however found the Turkish Government in violation of Article 1 of Protocol No. 1 of the Convention of Human Rights because of the lack of compensation to landowners whose deeds have been cancelled because their land has been surveyed as State Forest.

The European Court of Human rights has made over 42 judgements so far against the Turkish Government in which it has established that the failure to award any compensation to the applicants for the deprivation of their land in forest areas amounts to a violation of Article 1 of Protocol No. 1 of the Convention of Human Rights.

The case law with regard to “lack of compensation” is clear. Hundreds more applications are pending and the Turkish Government is being pressured to apply the established case law in Turkish courts.

The “legality” or "lawfulness", however, of the land deprivations suffered by the applicants in forest areas has not yet been fully examined by the Court.

The taking of private property in forest areas relies for its legality on the fact that the Turkish Constitution (clause 169) does not allow the private ownership of State Forest combined with the fact that the property in question has been surveyed as State Forest. Yet there are widespread complaints that State Forest is being created illegally in order to allow the confiscation of private land. The ECHR has not yet investigated these allegations preferring to accept the legality of the judgements made by the National Courts.

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 its judgment of Turgut and Others v. Turkey no 1411/03 on 22-Jul-2008 the ECHR came to the following conclusion:

"90. The Court further observes that the applicants were deprived of their property by a court decision. Despite the applicants’ objections as to the nature of the land, the domestic courts eventually declared their document of title void pursuant to the provisions of the Constitution, relying on surveys which included the land as part of the forest estate."

In paragraph 108 of the case of Beyler c. Italia application 33202/96 the ECHR in its judgement of 5.2.2000 states that:

“it (the ECHR) 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)."

Unfortunately for landowners in Turkey, private land whose permanent vegetative cover fits the official definition of forest is nearly always, and often incorrectly, classified as State Owned Forest after being surveyed for forest cover according to the forest law 6831. (See clause 26 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.") - http://www.mevzuat.adalet.gov.tr/html/21930.html

There is widespread belief that Forest Survey Commissions in Turkey are misdirected to classify all forest as State Forest as a result of the above diretive which does not comply with the spirit and detail Forest Law 6831.

In addition the misapplication of Forest Law 4785 by the Forest Survey Commissions also results in private land being incorrectly surveyed as State Forest.

It can also be argued that Forest Law 6831 lacks Clarity and Precision and that Forest Law 4785 is unforseeable rendering them both unlawful in the light of the European Convention of Human Rights.

Forest Law 6831 merely provides a legal definition of what constitutes a forest in order to enable the delimitation of forest cover regardless of ownership. Ownership classification should be done according to existing ownership. Forest Law 6831 is not authorised to change ownership.

Title Deeds to land incorrectly classified as State Forest are annulled by the courts on the premise that since the Turkish Constitution does not allow the private ownership of State Forest any title deeds on such land must have been issued in error, are null and void, and are subject to cancellation without compensation.

Since the ownership of State Forest is not allowed by the Turkish Constitution the ECHR has ruled that applicants deprived of their land in State Forest Areas have suffered a legal deprivation but it has also ruled that some degree of compensation must be paid to maintain a fair balance between the public benefit of preserving forests and the private loss to the landowner.

The ECHR has not yet investigated allegations that much of the land belonging to the applicants may have been illegally surveyed as State Forest or may even not be forest at all (according to the definition provided by Forest Lar 6831).

This is an extreemely important issue because the use of the Turkish Constitution to justify the legality of taking forest land depends on that land being classified as State Forest. 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. Until now, the ECHR judgements (regarding the interference with property rights by the Turkish Government in Forest Areas) have not questioned whether the forests in question are indeed legally State Forests. It has accepted the judgements of the domestic courts as proof that the takings are in State Forest areas and that they have been carried out according to domestic law and are for that reason legal. (See Devecioğlu v. Turkey (just satisfaction), no17203/03, 24/11/2009 paragraph 1 and Turgut and Others v. Turkey no1411/03, 8-Jul-2008 and Köktepe v. Turkey no 35785/03, 22-Jul-2008 paragraph 90).

In fact 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 as State Forest all private land with cover that fits the legal definition of forest. This it is not prescribed by Forest Law 6831 law or required by the Turkish Constitution.

Since 1937 Turkey has had two main Forest Laws : Law 3116 between 1937 and 1956 and Law 6831 from 1956 to the present day.

One of the main aims of these laws has been to provide a legal definition of what constitutes a forest not to define the boundaries of State Forest.

Only ammendment law 4785 (passed in 1945 as an ammendment to law 3116 and still in force today independently) attempted to give a global definition of State Forests. It did this by Nationalizing all forests which had been officially recorded by the time the law was passed in 1945 (with a few exceptions). However amendment 4785 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 only 10.5 million hectares of land had been legally classified as forest by 1945, half the current figure of over 20 million Hectares.

Unfortunately, Forest Nationalization Law 4785 is being applied illegally today to take land which was not forest when the law was passed in 1945.

The forest laws have always containded lists of criteria to be used by Forest Survey Commissions to decide which areas should be defined as forest areas. These criteria range from the type of tree and plant cover on the land being surveyed to the type of soil and physical features (such as the slope) of the land in question. These criteria providing a legal definition of “forest cover” have evolved and changed over the years as the forest laws have been ammended over time. Since Forest and State forest are erroneously considered to be one and the same thing by the Turkish Government the definition of State Forest in the eyes of the Turkish Government has changed in tandem.For example when “Heather and Maquis land containing soil that is suitable for forest” was included in the legal definition of Forest cover, (see abovementioned directive of 15/7/2004 clause 26j), the extent of forest cover in Turkey (and hence, in the eyes of the Turkish Government, the extent of State Owned Forest ) increased overnight.

The seizure of private land within Forest Areas in Turkey has affected thousands of landowners since 1945, but until 1990 complaints could only be made to the Turkish Courts. It is only since 1990 that injured parties have effectively been able to take their cases to the European Court of Human Rights.

Although Turkey subscribed to the European Convention on Human Rights in 1954 it only recognised the compulsory jurisdiction of the European Court of Human Rights (ECHR) under Article 46 of the ECHR in 1990. In addition Turkey only accepted the right to apply individually to the ECHR (Article 25) in 1987.

The first complaints about the seizure of private land in Forest areas in Turkey were made to the ECHR in about 2002 and the first judgement against Turkey was made in 2008. Between 2008 and 2011 there have been over 42 judgements in which Turkey has been repeatedly condemned “for the anullment of title (in forest areas) acquired in good faith but later restored to State ownership without compensation being paid”.

In all the above judgements once the ECHR has 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.

It remains to be seen whether the ECHR will see fit to further examine the legality of such interferences in the future.

Much of the misapplication of the forest laws 6831 and 4785 is made possible by their lack of clarity and foreseeability. According to the ECHR, “Compliance with the principle of lawfulness presupposes that the applicable provisions of domestic law be sufficiently accessible, precise and foreseeable.” (Application no. 33202/96, BEYELER v. Italy paragraph 109).

According to opinion of the 5 dissenting judges in the ECHR Grand Chamber judgement of Maestri v. Italy of 17.2.2004, “..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.”

Before venturing to interpret domestic forest law the ECHR may therefore first decide to enquire whether forest laws 6831 and 4785, as established by the national authorities, comply with the principle of lawfulness and are compatible with the Convention.

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.

For further discussion see also "The legality of the seizure of private land within forest areas in Turkey"

1 comment: