ARTICLESLAW ON THE PROTECTION OF CULTURAL AND NATURAL ASSETS (CULTURE, NATURAL ASSETS AND PROTECTED AREAS)

A limitation on the right to property protected by the Constitution was introduced by the Law No. 2863 on the Protection of Cultural and Natural Assets. A privately owned immovable property is included within the scope of immovable property that must be protected by law, and the public interest is preferred over private property. As it is known, property rights can only be limited by law. However, the legislator has not been given absolute authority in this regard, and “acquired rights” constitute the limit of this authority.
EXPROPRIATION PROVISIONS OF THE LAW NO. I-2863 ON THE PROTECTION OF CULTURAL AND NATURAL ASSETS
According to Law No. 2863, Cultural and Natural assets and protected areas that need to be protected differ.

Article 3 of the Law No. 2863 states: -Cultural properties: Above ground and underground belonging to prehistoric and historical periods, related to science, culture, religion and fine arts, or having scientific and cultural unique value that were the subject of social life in prehistoric or historical periods. or all movable and immovable assets under water. Natural assets: They belong to geological periods, prehistoric and historical periods, and are values ​​found above ground, underground or under water, which are rare or need to be protected in terms of their features and beauty. Site: They are the product of various civilizations from prehistory to the present day, and they are the social, social and cultural values ​​of the periods in which they lived. Cities and city ruins that reflect economic, architectural and similar characteristics are places where cultural assets are concentrated, places that were subject to social life or where important historical events took place, and areas that need to be protected with identified natural features.

Article 15 of Law No. 2863 titled Expropriation states: “Immovable cultural assets and their protected areas are expropriated according to the principles set out below:

a)Immovable cultural and natural assets and protected areas that need to be protected, which are partially or completely owned by real or legal persons, are expropriated in accordance with the programs to be prepared by the Ministry of Culture and Tourism. For this purpose, sufficient funds are included in the budget of the Ministry of Culture and Tourism. Public institutions and organizations, municipalities, special provincial administrations and local government unions can expropriate registered immovable cultural assets, provided that they are used in the function determined by the conservation regional boards.

b) If the conservation areas of immovable cultural and natural assets that need to be protected coincide with roads, parking lots, or green areas in the zoning plan, these should be determined by the municipalities; It is essential that such cultural assets, which are protected or used by other public institutions and organizations, are expropriated by these institutions and organizations.

c) In expropriations, the age, rarity and artistic value of immovable cultural assets are not taken into account in the valuation.

d) Expropriation procedures are carried out in accordance with the provisions of this Law and the provisions of the Expropriation Law No. 2942, which are not contrary to this Law.

Article 15 of the Law No. 2863 titled Expropriation f) Parcels containing immovable cultural and natural assets that need to be protected, which have been declared as protected areas and for which a definitive construction ban has been imposed in the 1/1000 scale approved conservation zoning plan, (…) (1) other Treasury plots or lands and It can be changed as detached or shared. Claims of those who subsequently acquired immovable properties annotated in the land registry where they were declared as protected areas are not evaluated, except for inheritance and death-related dispositions. However, for parcels located in areas where excavations are carried out with the permission of the Ministry, the condition regarding the application and acceptance of the owners is applied to the parcel and the requirement for an approved conservation zoning plan with a scale of 1/1000 is not required.
If there is a building or facility on these parcels, upon application of the owner, the market price is determined and paid in accordance with the provisions of Article 11 of Law No. 2942. The procedures and principles regarding this clause are determined by the regulation issued by the Ministry, with the approval of the Ministry of Finance.

In order to benefit from the exchange opportunity within the scope of Law No. 2863, the real estate must;

1- It is owned by real and private law legal entities,

2- There is no ownership dispute,

3-From the protected areas I. and II. It is located in an area registered as a 1st degree archaeological protected area, a strict construction ban has been imposed in the 4-1/1000 scale approved conservation zoning plan, or it is one of the excavation areas carried out with the permission of the Ministry,

5- If there is shared or joint ownership on the real estate, all of the stakeholders or partners must have applied together or their representatives acting on their behalf together with a notarized power of attorney.

6- There is no restriction or annotation other than the annotation stating that the immovable property within the scope of this regulation remains in a protected area in the owner’s title deed registers,

7- After an annotation is made in the land registry stating that it is a protected area, it should not be acquired subsequently, except for inheritance and dispositions due to death,

8- It does not include roads, car parks, green areas in the zoning plan, or it is not among the areas for which other public institutions and organizations are responsible within the scope of their duties or are responsible for maintenance and repair.

9- It should not be located in the areas determined within the scope of law no. 3573, 383, 3621, 2873, 3083, 2565, 6831, 2634, 7269, 4342, and there should be no annotation in the land registry accordingly.

As a result of the limitations imposed within the scope of Law No. 2863, a situation of EXpropriation WITHOUT EXPROPRIATION occurs when the administration actually or legally seizes private property through direct expropriation or exchange without taking any proper action.
The concept of Actual and Legal Confiscation Without Expropriation can be briefly defined as the payment of the price of the relevant immovable property by the state to its owner, in case of interference with the right to property, which is one of the fundamental human rights, through seizure without expropriation, which is also described as a tort. Practices considered as confiscation without expropriation may be in the form of the administration actually taking possession of the real estate in the classical sense, without any legal basis, or it may be in the form of restricting the powers granted by the right of property through an administrative decision.

When private property is seized, the case must be filed in the judicial judiciary, whereas when it is legally confiscated, it must be filed in the administrative judiciary.

YIn its decision dated 03.03.201, numbered 2014/22889 E., 2015/4171 K. of the Court of Appeals 5th Civil Chamber, “The case is about the request for the collection of the price of the immovable property confiscated without expropriation.” The court accepted that the immovable property in question was not actually seized and that the case should be considered as a full jurisdiction case in the administrative judiciary and decided to reject the petition in terms of DUTY in terms of judicial remedy; The decision was appealed by the plaintiff’s attorney. The real estate in question is “1. It has been understood that it was reserved as a “degree natural protected area” and that the real estate was not actually seized by the defendant administrations.With the amendment made in Article 21 of the Law No. 6487, which came into force on 11.06.2013, and the temporary article 6 of the Expropriation Law; “A lawsuit can be filed in the administrative judiciary after the administrative applications and procedures foreseen in the Zoning Law No. 3194 dated 03.05.1985 are completed, regarding immovable properties whose disposal is restricted by being reserved for public services and official institutions in the implementation zoning plans or by the application of the relevant laws. The provisions of this article apply to all cases that have not been decided or whose decision has not been finalized.” provision has been made. On the other hand, in the decision of the Constitutional Court dated 25.09.2013, numbered 2013/93 Principles, Decision 2013/101; “In order to be able to talk about confiscation without expropriation, the ownership of the real estate must be transferred to the administration and the real estate must be actually allocated to public service; It has been accepted that in zoning restrictions, the possession of the real estate continues to remain with the owner, only the owner’s power of disposition is subject to some restrictions arising from the relevant legislation, therefore compensation cases arising from zoning restrictions can be filed in administrative jurisdiction.For this reason, and especially according to the reasons written in the court decision, there was no wrong in deciding to reject the petition due to the court’s lack of jurisdiction in terms of judicial remedies.

In one of its decisions, the General Assembly of the Supreme Court of Appeals stated that “a request was made for compensation and cancellation of the title deed record and registration for the immovable property remaining within the 2nd Degree Archaeological Site, due to the seizure without expropriation, and the acceptance decision given as a result of the trial was finalized after being audited by the Supreme Court, and that the immovable property in question was included in the scope of the file.” Although the part of the property belongs to the plaintiffs, it was not possible to build on it because it was a protected area and a cultural monument, the olive trees on the property could not even be maintained, the area around the property was fenced against the wishes and will of the owners, and usage was restricted, and the property was declared a protected area in 1989. No expropriation has been carried out since that date, the plaintiffs’ exchange offer was not processed because the real estate was also within the borders of the national park, and in this case, the plaintiffs were not at fault; When the request is evaluated in line with the Constitution of the Republic of Turkey No. 2709, international conventions and the decisions of the European Court of Human Rights, if the expropriation of the real estate has not been carried out even though 21 years have passed after it has been declared a protected area, the law will not protect this process from being left to the program and discretion of the defendant, and the real estate is a cultural and natural asset that needs to be protected. It is a national value, the protection process restricts the property rights of the plaintiffs, and in this respect, a request for seizure without expropriation is made for the immovable property, which is seized by installing a wire around it, in order to protect the property rights of the plaintiffs and to preserve the cultural and natural assets within the archaeological site and the values ​​​​in it. It was decided to accept the case in terms of.