TURKISH FOREST LAWS AND THEIR EFFECT
ON PRIVATE OWNERSHIP OF LAND.
Since 1937 Turkey has had two main Forestry laws (Laws 3116 and 6831) and a host of ammendment laws. An index of these laws is provided in APPENDIX_1.
I. FORESTRY LAWS MOST AFFECTING LAND OWNERSHIP
In 1937 a law was passed legally defining all Forests in Turkey and in 1945 an ammendment was passed ammending this definition and Nationalising all Forests within the new definition . Because the detailed survey of the country for the purpose of identifying forests is still not yet complete, Government forest boundaries are still being determined and as a result the most current Legal definition of a Forest has always played a key role in deciding what land should be Nationalised.
THE FOREST LAW 3116 of 1937 (see APPENDIX_2) for latest ammended version) was the first Forest law since the establishment of the TurkishRepublic to make a legal definition of Forests and to establish Forest policies. Before it was ammended in 1950) this law (clause 21) decreed that maps of all Forest areas in Turkey should be prepared within 10 years.
AMMENDMENT 4785 of 1945(see APPENDIX_3)redefined andNationalised all Legal Forests with some exceptions. The most important exceptions were Forests of poplar, willow, alder, acasia, eucalyptus, cypress, nut bearing stone pine, oak and wild chesnut.
This law required Forest owners to declare their land within one year or lose the right to any compensation if their land was Nationalised. Compensation was to be offered based on 1936 land values and such offers were to be valid for 5 years after which no compensation would be paid.
AMMENDMENT 5653 was passed in 1950(see APPENDIX_2).This law changed clauses 1 and 3 (among others) of Forest law 3116 redefing Legal Forests as follows :
"A collection of trees or bushes occurring naturally or planted by people" with the exception of the following : "
a)All types of prickly plants
b)Trees in parks and graveyards
c)Trees not found in natural Forests such as poplar,eucalyptus,willow and acasia.
d)Clumps of trees and bushes covering less than 3 hectars on private land more than 3 km from government Forest.
e)All types of maquis "
Maquis areas were now specifically excluded from being defined as Legal Forest. Maquis Comissions were set up to conduct surveys in order to identify and reclassify Maquis areas previously defined as National Forest areas.
In addition three types of Forest were recognised: "
1)Government Forest
2)Forests belonging to legal entities such as Villages or cities
3)Private Forests "
THE CURRENT FORESTRY LAW 6831 of 1956(see APPENDIX_4). In 1956 the present Forestry law was introduced replacing law 3116 and offering its own (similar) Forest definitions and Forestry policies.
Legal Forests were again redefined as "naturally occurring or planted collections of trees or shrubs together with the land they occupy."
Exceptions were again listed as follows: "
Reedbeds
Steppes
Land containing all types of prickly plants
Ç) parks
(ammendment 2896 clause 1 of 23/9/1983) tree and shrub covered areas in city cemeteries and in old cemeteries located inside municipality and
Village limits.
Private land containing trees and shrubs which do not grow
naturally in surrounding Forests
(ammendment no 3373 clause 1 of 22/5/1987). Private registered land within Forest land or ajacent to Forest land, any private land outside Forest areas used as agricultural land containing random or orderly arranged trees or clumps of any species of tree or shrub.
(ammendment no 3373 clause 1 of 22/5/1987). Private land less than 3 hectars in area located outside Forest areas containing any kind of tree or shrub.
Private land containing or scheduled to be planted with (according to the suitability of the region) any kind of fruit bearing tree or shrub, including stone (nut bearing) pine and (acorn bearing) oak,
(ammendment no 2896 clause 1 of 23/9/1983). Private land containing grafted and ungrafted olive trees, land containing wild olive trees that has been separated from government Forest by special law provided that the improvement and ownership conditions have been met and land containing wild and grafted nut trees, mastic trees and … trees as specified by law 77 of 9//1956.
Land covered by maquis and heather and land that does not have
conservation characteristics. "
However since the National Survey of Turkish Forests had still not been completed by then (and is still ongoing) the Nationalisation Law 4785 and its ammendment law 5658 were not abolished and are still used to Nationalise newly surveyed land if it is deemed to be Legal Forest.
This current Forestry law 6831 in Clause_2B also made specific provision for the return of certain LegalForest lands to their previous owners, namely:
"Fields, vineyards, gardens, orchards, olive groves , hazelnut tree groves, nut tree groves (pistacio, pine nut) and similar agricultural areas or grazing land, winter sheltering areas, and summer mountain pastures which technicallyand scientifically ceased to be Forest before 31 december 1981 and whose use for agricultural or stock.."
II. EVALUATION
According to statistics from the Forestry Department, 26% of Turkey’s total land area of 77,056,192 hectares (20,199,296 hectares) is Forest. Needless to say the Nationalisation of Turkish Forests has affected a huge number of landowners over the last 59 years.
It is estimated that about 14% of the country has still not yet been surveyed by the Forestry Comissions. Therfore there is still a lot of private land whose Legal ownership is still uncertain because it may still be considered Forest when eventually surveyed.
APPLICATION OF THE LAW AND ITS IMPLICATIONS ON PRIVATE LAND OWNERSHIP:
- The process of surveying the whole of Turkey by Forestry Commissions still continues today. The same land cannot be surveyed twice. The principal object of the survey is to determine which areas are to be Legally defined as Forest.
- Once a survey is complete all legally defined PrivateForest areas in it are Nationalised without Compensation and the private title deeds are cancelled.
- GATHERING OF FACTS : For the purpose of Nationalisation the physical features used to determine the result of a survey should be those in maps, aerial photographs and other evidence gathered and prepared according to Forest law 3116 in the 10 years following 1937.
- INTERPRETATION OF FACTS : (are the physical features established above legal Forest or not?) This has been done over the years according to criterion in the latest ammended version of the Forestry Law in force on the date in question. Today it is done according to the most recently ammended version of law 6831 introduced in 1956.APPENDIX_4
OBJECTIONS TO THE APPLICATION OF THE LAWS
OBJECTION 1 Nationalisation of ForestLand should not occur without Compensation, yet in accordance to Clause_5and 8 of law 4785 compensation is no longer paid. This practice has been unsuccessfully challenged in the highest courts including the Constitutional Court (see below):
A Constitutional Court case was brought againstClause_5 of law 4785 which states that: ' the owners of the Nationalised Forests must declare them to their local Forestry Department within 1 year of the date of this law together with their ownership and tax documents and in the case of disputed land with their relevant court documents. If in one year they fail to carry out this duty they will lose the right to compensation for their Nationalised Forest.' This case was Rejected by Constitutional Court decision 1965/51 OF 30/9/1965 -
OBJECTION 2. Law 4785 (APPENDIX_3) Nationalises all Forests in a general announcement without directly informing individual Forest Owners that their land is classified as LegalForest and without directly informing the Owners of such land of the decision to Nationalise.
This law caused Landowners to lose their rights to compensation even if, being unaware of the Nationalisation Law, they failed to declare within 1 year that their land was Forest . In fact Law 4785 assumes the Landowner knows if his land is Legally a Forest or not before the Specific Government Survey is conducted.
These questions have been the subject of several court cases but in each instance the courts have upheld the law.
A Constitutional Court Case was brought against Clause_no1 of law 4785 where it states that : ' these Forests herby become Government property without any further procedure or notification.' The case was rejected by Constitutional Court decision 1985/5 of 19/2/1985
OBJECTION 3 Survey Procedure -
Forest surveys for the purpose of establishing nationalised Forests are conducted without informing the landowner in person (an announcement is posted in the local Village 15 days before the survey commences). The results of such surveys are not given to the landowner directly but are posted for a short period in the local Villages. (see Appendix 4 Law 6831 Clause_8 and Clause_11 - due notice procedures). Therefore the landowner may never know until long after the event that his title deeds have been cancelled and his right to appeal may lapse.
Surveys are often conducted unprofessionally based on a cursory inspection and not on maps and aerial photos prepared in the period between 1937 and 1947. The surveying comission is usually composed of retired government Agricultural and Forestry_Engineers. There is a high risk that the comissions are not objective.
OBJECTION 4 Failure of the government to return NationalisedForestLand to its previous owners as and when new ammendments to the Forestry Laws have permitted it.
Ammendment 5658 of 24/3/1950 to Law 4785 (see appendix 3 - law 4785 additional clause_2) allowed certain land described as LegalForest but surrounded by non Forest land to be returned to its previous owners. Despite this ammendment, which is still valid, few such areas have been returned to their previous owners.
Ammendment 5653 of 4/3/1950 to Forestry Law 3116Clause_1 declared that certain types of Maquis were no longer LegalForest. This amendment was abolished in 1956 by the new Forestry Law 6831
The new Forest Law 6831 of 1956 also specifically excludes many categories of land from LegalForest including Maquis (Clause_1J). Little such land has been returned.
Supreme Court Judgement 1991/182 E 1991/174 K of 19/12/1991 (Yargitay 20’inci Hukuk Dairesi) ruled that although the Maquis Survey Comissions were empowered to reclassify Forest as Maquis they could not take Maquis out of Legal Forest Boundaries or return it to the previous owners.
Ammendment 3302 of 5/6/1986 Clause 2/B (see Clause_2B) to this Law provides specific guidelines for the return of land, which used to be Forest but no longer exhibits these characteristics, to their previous owners. However Constitutional Court intervention forbade this on the basis of article ARTICLE_169 and ARTICLE_170 of the Constitution (appendix 5) (Constitutional Court Judgements 1987/31-13 of 1/6/1988 and 1988/35-13 of 14/3/1989) and the Kadastre Law 3402 clause 45/3 was changed accordingly.
Despite the regular refusal of the Government to return land to their previous owners under any circumstances, Clause_17 of law 6831 (see appendix 3) allows the Government to lease Forest Land for up to 49 years provided it is in the national interest and these leases can be extended for a further 99 years. Land has even been leased in this way for Touristic Development, to Universities and even Mining Companies.
APPENDICES
APPENDIX 1 SEE SEPARATE EXCELL FILE SUMMARY OFFORESTRY LAWS
APPENDIX 2 TURKISH FOREST LAW NO 3116 OF 18.2.1937
(ABOLISHED BY LAW 6831 CLAUSE 117 ON 31/8/1956)
SUMMARY OF IMPORTANT CLAUSES :
CLAUSES 1 TO 4 CONCERN THE DEFINITION, DIVISION AND SURVEY OF ALL FORESTS ( AMMENDED IN 1950 BY LAW 5633 AS FOLLOWS)
CLAUSE 1 THIS DEFINES A FOREST AS A COLLECTION OF TREES OR BUSHES OCCURRING NATURALLY OR PLANTED BY PEOPLE. CERTAIN EXCEPTIONS ARE LISTED NAMELY :
f)ALL TYPES OF PRICKLY PLANTS
g)TREES IN PARKS AND GRAVEYARDS
h)TREES NOT FOUND IN NATURAL FORESTS SUCH AS POPLAR,EUCALYPTUS,WILLOW AND ACASIA.
i)CLUMPS OF TREES AND BUSHES COVERING LESS THAN 3 HECTARS ON PRIVATE LAND MORE THAN 3 KM FROM GOVERNMENT FOREST.
j)ALL TYPES OF MAQUIS
CLAUSE 3 THIS RECOGNISES THREE TYPES OF FOREST :
4)GOVERNMENT FOREST
5)FORESTS BELONGING TO LEGAL ENTITIES SUCH AS VILLAGES OR CITIES
6)PRIVATE FORESTS
CLAUSE 4 ALL NON GOVERNMENT FORESTS ARE SUPERVISED BY THE GOVERNMENT AND CONTROLLED BY THIS LAW.
CLAUSES 5 TO 13 GOVERNMENT FORESTS - ESTABLISHING BOUNDARIES
CLAUSES 14 TO 15 GOVERNMENT FORESTS - EXPROPRIATION AND EXCHANGE
CLAUSES 16 TO 20 GOVERNMENT FORESTS - THE SALE AND USE OF
CLAUSES 21 TO 22 GOVERNMENT FORESTS - SURVEYING FOR REGISTRY
CLAUSES 23 TO 30 GOVERNMENT FORESTS - PROTECTING THE FOREST AREAS
CLAUSES 31 TO 40 GOVERNMENT FORESTS - EXPLOITING AND MANAGING
CLAUSES 41 TO 42 GOVERNMENT FORESTS - GRAZING RIGHTS
CLAUSES 43 TO 46 GOVERNMENT FORESTS - PRESERVATION FORESTS
CLAUSES 47 TO 50 PUBLIC FORESTS OWNED BY VILLAGES, CITY OR OTHER
PUBLIC AUTHORITIES
CLAUSES 51 TO 55 PRESERVATION OF SUCH FORESTS
CLAUSES 56 TO 59 BUILDING IN SUCH FORESTS
CLAUSES 60 TO 62 FORESTS BELONGING TO TRUSTS
CLAUSES 63 TO 64 PRIVATE FORESTS - ESTABLISHING BOUNDARIES
CLAUSES 65 TO 66 PRIVATE FORESTS - MANAGEMENT AND PRESERVATION
CLAUSES 67 TO 76 PRIVATE FORESTS - EXPLOITATION AND BUILDING
CLAUSES 77 TO 87 ALL FORESTS GENERAL CLAUSES - PLANTING TREES AND
BUILDING
CLAUSES 88 TO 94 ALL FORESTS GENERAL CLAUSES - EXTINGUISHING FOREST
FIRES
CLAUSES 95 ALL FORESTS GENERAL CLAUSES - CLEANING UP LUMBER WASTE
CLAUSES 96 TO 102 ALL FORESTS GENERAL CLAUSES - RIGHT TO CARRY FIREARMS
CLAUSES 103 TO 124 ALL FORESTS GENERAL CLAUSES - PENAL CODE
CLAUSES 125 TO 132 ALL FORESTS GENERAL CLAUSES - FOLLOWING UP OFFENCES
CLAUSE 132 (THIS WAS ABOLISHED IN 1950 BY AMMENDMENT LAW 5653).
TEMPORARY CLAUSES
- FORESTS BELONGING TO VILLAGERS AJACENT TO GOVERNMENT FORESTS (EXCEPT FOR THOSE UNDER 50 HECTARS) AND FORESTS SEPARATE FROM GOVERNMENT FORESTS BUT OVER 1000 HECTARS IN SIZE, WILL BE EXPROPRIATED. FORESTS BELONGING TO VILLAGES, MUNUCIPALITIES AND TRUSTS ARE EXEMPT. ALL EXPROPRIATONS WILL BE COMPLETED IN TWO YEARS.
- ALL EXPROPRIATIONS WILL BE ACCORDING TO OFFICIAL LAND VALUATIONS MADE IN 1936 FOR CALCULATING LAND OR IN THE ABSENCE OF THESE THE COMISSIONS MAY ESTIMATE A VALUE NOT MORE THAN 6 TIMES THE OFFICIAL VALUE IN 1331 (1915).
3 TO 8 MISCELLANEOUS SUBJECTS TO DO WITH PROCEDURES AND FOREST
MANAGEMENT
CLAUSES 133 TO 136 MOSTLY DEAL WITH THE RIGHTS AND RESPONSIBILITIES OF
VILLAGERS WITH REGARD TO THE USE OF THE NEIGHBOURING
GOVERNMENT FOREST
APPENDIX 3 LAW NO 4785 8.7.1945
ACCEPTANCE DATE : 9.7.1945
LISTING IN OFFICIAL GAZETE:13.7.1945 GAZETE NO 6056
For complete turkish version see :
THIS LAW ADDS CERTAIN CLAUSES TO THE FORESTRY LAW (3116) AND CHANGES CLAUSE 1 OF THIS LAW (1)
(1)THE PRESENT FOREST LAW 6831 CLAUSE 117 ABOLISHES FOREST LAW NO 3116 OF 8.7.1937 AND ITS AMENDMENT LAW 5653 OF 31.8.1956. HOWEVER EVEN THOUGH THIS LAW (4785) AND LAW NO 5658 OF 24.3.1950 ARE ABOUT FOREST LAW 3116 THEY HAVE NOT BEEN ABOLISHED AND THEREFORE THEY ARE INCLUDED IN OUR OUR COLLECTION)
- AS OF THE DATE OF THIS LAW ALL FORESTS WHETHER THEY BELONG TO PRIVATE PERSONS, TRUST FUNDS, VILLAGES, LOCAL MUNICIPALITIES, GOVERNMENT INSTITUTIONS OR PRIVATE LEGAL ENTITIES HAVE BEEN NATIONALISED. THESE FORESTS HERBY BECOME GOVERNMENT PROPERTY WITHOUT ANY FURTHER PROCEDURE OR NOTIFICATION.
- CLAUSE NO 1 DOES NOT APPLY TO THE FOLLOWING FORESTS:
A)FOREST AREAS THAT WERE PLANTED BY HUMAN EFFORT ACCORDING TO RELEVANT SECTIONS WITHIN LAW NO 3116 WITHIN OR ADJACENT TO GOVERNMENT FORESTS OR FORESTS NATIONALISED BY THIS LAW.
B)PRIVATE STONE PINE TREE FORESTS, ACORN OAK FORESTS AND UNGRAFTED CHESNUT TREE FORESTS.
C)POPLAR, WILLOW, KIZILAGAC, AKASYA, EUCALYPTUS, AND CYPRESS FORESTS PLANTED BY HUMAN EFFORT LYING OUTSIDE GOVERNMENT FORESTS OR FORESTS NATIONALISED BY THIS LAW.
D) FORESTS TO BE DESIGNATED BY THE MINISTRY OF AGRICULTURE
BELONGING TO PRIVATE PERSONS, TRUST FUNDS, VILLAGES, LOCAL
MUNICIPALITIES, GOVERNMENT INSTITUTIONS OR PRIVATE LEGAL
ENTITIES WHICH ARE NOT ADJACENT TO GOVERNMENT FORESTS OR
FORESTS NATIONALISED BY THIS LAW BUT WHICH CONTRIBUTE TO
THE BEAUTY OF THE ENVIRONMENT
THE REMAINDER OF THIS CLAUSE STIPULATES THAT FORESTS THAT HAVE NOT BEEN NATIONALISED AS PER THE EXEPTIONS ABOVE ARE STILL UNDER THE PROTECTION OF THE MINISTRY OF AGRICULTURE AND AS SUCH CANNOT BE BUILT ON OR PUT TO ANY OTHER USE WITHOUT THE PERMISSION OF THE MINISTRY OF AGRICULTURE.
3. ------
THIS CLAUSE WAS CANCELLED ON 23/6/1963 BY THE CONSTITUTIONAL COURT RULING NO 1963/141 DECISION NUMBER 1964/50
(THE CLAUSE HAD STIPULATED THAT COMPENSATION FOR NATIONALISED FORESTS SHOULD BE ACCORDING TO THEIR VALUE DECLARED UNDER LAW 2901 BUT COULD NOT BE MORE THAN TWICE THE VALUE USED BY THE GOVERNMENT FOR CALCULATING PROPERTY TAXES IN 1936.)
- THE FORESTRY DEPARTMENT IS OBLIGED TO BUY ANY BUILDINGS WITHIN (NATIONALISED) FORESTS IF FOREST OWNERS APPLY TO THE FORESTRY MANAGEMENT DEPARTMENTS WITHIN 6 MONTH OF THIS LAW.
THE REMAINDER OF THIS CLAUSE EXPLAINS THAT THE METHOD OF
VALUATION SHALL BE ACCORDING TO OFFICIAL TAXABLE VALUES
DECLARED IN 1936/1937.
ALL OF THIS CLAUSE EXCEPT FOR THE METHOD OF VALUATION WAS
UPHELD IN THE SAME CONSTITUTIONAL COURT RULING (ABOVE) NO
1963/141.
- THE OWNERS OF THE NATIONALISED FORESTS MUST DECLARE THEM TO THEIR LOCAL FORESTRY DEPARTMENT WITHIN 1 YEAR OF THE DATE OF THIS LAW TOGETHER WITH THEIR OWNERSHIP AND TAX DOCUMENTS AND IN THE CASE OF DISPUTED LAND WITH THEIR RELEVANT COURT DOCUMENTS. IF IN ONE YEAR THEY FAIL TO CARRY OUT THIS DUTY THEY WILL LOSE THE RIGHT TO COMPENSATION FOR THEIR NATIONALISED FOREST.
- THIS CLAUSE DESCRIBES HOW THE FORESTRY DEPARTMENT WILL REPLY TO DECLARATIONS VIA THE MINISTRY OF AGRICULTURE WTHIN 1 YEAR, AFTER FIRST ASCERTAINING THAT LAND DECLARED AS FOREST LIES WITHIN NATIONALISED FOREST
- COMPENSATION FOR THE NATIONALISED FORESTS WILL BE PAID OVER 6 YEARS IN 6 EQUAL INSTALLMENTS STARTING FROM THE DATE THE MINISTRY OF AGRICULTURE ACCEPTS THE DECLARATIONS AS PER CLAUSE 6.
- IF THOSE TO WHOM COMPENSATION HAS BEEN OFFERED DO NOT APPLY TO COLLECT IT WITHIN 5 YEARS OF THIS LAW FROM THE LOCAL TREASURY OFFICE OR FROM THE LOCAL FORESTRY DEPARTMENT THEY WILL BE DEEMED TO HAVE RELINQUISHED THEIR RIGHTS TO SUCH COMPENSATION. SUCH PEOPLE WHO LOSE THEIR RIGHTS IN THIS MATTER CAN NO LONGER MAKE ANY LEGAL APPEAL TO REGAIN THEM.
- THIS CLAUSE DECLARES THAT ALL RESTRICTIVE CLAUSES SUCH AS MORTGAGE, TRUST CLAUSES ETC ON NATIONALISED FOREST LAND ARE INVALID AND THAT ANY COMPENSATION FOR SUCH LAND WILL BE HELD IN AN ACCOUNT AT THE ZIRAAT BANK UNTIL THE VERITABLE OWNER IS DETERMINED.
- BUILDINGS IN NATIONALISED FOREST BOUGHT ACCORDING TO CLAUSE 4 SHALL BE SUBJECT TO NO TRANSFER TAX OR DUTY WHEN THEY ARE
REGISTERED IN THE NAME OF THE TREASURY.
- BUILDINGS IN NATIONALISED FOREST BOUGHT ACCORDING TO CLAUSE 4 OF THIS LAW SHALL BE PAID FOR BY AN ALLOWACE PUT INTO THE FORESTRY DEPARTMENT'S BUDGET EVERY YEAR FOR THE PURPOSE.
12. THIS CLAUSE WAS CANCELLED ON 24.3.1950 BY LAW NO 5653 CLAUSE 3