DAGALAS AND OTHERS v. TURKEY
Inadmissible
The applicants, whose names appear in the annex, are Turkish nationals. They are represented before the Court by Ms M. Umut Akarçay, a lawyer practising in Istanbul. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants were heirs to plots of land in the village of Zekeriyaköy in Sarıyer, Istanbul. On 29 June 1938 the Forest Directorate conducted a cadastral survey pursuant to Law on Agricultural Land Planning and designated the applicants’ land as private forest. On 13 July 1945, the Law no. 4785, which provided for the nationalisation of all forest areas, came into force. On 21 May 1947 the applicants’ land was nationalised and it was registered in the name of the Treasury as “Hamitağa State Forest”. In 1957 the applicants brought an action before the Sarıyer First Instance Court in Civil Matters. Relying on Article 2 (b) of Law no. 4785, they filed a claim for the restitution of the land. The court requested the Ministry of Agriculture’s opinion concerning the legal status of the land. On 28 January 1958 the Ministry informed the court that, in view of the requirements provided under Article 2 (b) of Law no. 4785, the land in question did not have the necessary characteristics to be removed from “nationalised land” status. Following the notification of the Ministry’s opinion, the applicants did not pursue their case. The case was consequently struck off. In 1967 some of the applicants initiated another action before the Sarıyer First Instance Court in Civil Matters with the same claim. The court requested the Ministry of Agriculture’s opinion once again. In a letter dated 30 January 1968 the Ministry reiterated its opinion given in the previous case. In 1969 the applicants challenged the Ministry of Agriculture’s opinion of 30 January 1968 before the Supreme Administrative Court. In 1971 the Supreme Administrative Court dismissed the applicants’ case. Subsequently, the Sarıyer First Instance Court in Civil Matters also dismissed the applicants’ claim. In 1984, due to the amendments made in the Law on Forests (amended by Law no. 2896), the Forest Cadastral Commission conducted a cadastral evaluation (aplikasyon çalışması) in the area. The purpose of this evaluation was to detect the forests which were not yet included in the cadastral map and to remove the forest status of the lands which had lost their characteristics defined in the law. The Forest Cadastral Commission’s report was made public on 29 November 1985. It concluded that a plot of land which was located within the borders of the Hamitağa State Forest had lost its characteristics as a forest in accordance with Article 2 of the Law no. 4785. It was therefore necessary to remove it from the “state forest” status. The report became final after one year as there were no objections lodged against it. The plot was still registered in the name of the Treasury; however, it was no longer designated as forest area. In 1988, due to the recent amendments in the Law on Forests (amended by Law no. 3302), the Forest Cadastral Commission re-evaluated the status of the Hamitağa State Forest once again. The Commission concluded in its report that another plot of land had to be removed from the “state forest” status as it had lost its characteristics as a forest. The commission’s decision was pronounced on 7 March 1988. On 7 September 1988 some of the applicants lodged a complaint with the Sarıyer Court of first Instance in Civil Matters demanding restitution of the property rights of the Hamitağa State Forest and the registration of the land in their names. They contended that the land in question never had the qualifications to be nationalised in accordance with the Article 2 of the Law no. 2785. In the meantime, on 12 September 1988 the rest of the applicants initiated a separate case before the Sarıyer Court of first Instance in Civil Matters, concerning the same subject matter and claim. On 19 December 1988 the court decided that it did not have jurisdiction and transferred both cases to the Sarıyer Cadastral Court. The first case was registered under no. 1989/71 and the second under no. 1989/47. The first hearing of the case no 1989/47 was held on 16 March 1989. The applicants’ lawyer requested the court to delay the hearings in order to submit evidence. On 23 May 1989 the applicants’ lawyer submitted the evidence. At the hearing of 9 August 1989 the applicant’s lawyer contended that the land registry records submitted to the court by the administrative authority were not correct. He therefore requested additional time to provide the accurate records. The next hearing was scheduled for 26 October 1989. At the hearing of 26 October 1989 the land registry records were not yet provided before the court. Neither the applicants nor their representative attended the following six hearings. In the case no. 1989/71 the applicants did not attend the hearings until January 1990. At the hearing of 25 January 1990 the applicants’ lawyer requested the court to grant additional time in order to submit evidence. At the hearing dated 3 December 1990 the court decided to join the two case files. Furthermore it requested from the applicants to provide the court with the certificates of inheritance. On 4 February 1991 the court decided to assign an expert to translate the register of the title-deeds which were written in Ottoman Turkish, in the Arabic alphabet. At the following three hearings the court waited for the expert’s report. On 29 July 1991 the expert requested the court to grant him an extension for preparing his report. The applicants’ lawyer did not attend the hearing. On 21 November 1992 the expert report was submitted with the court. Both parties requested time to submit their observations on the report. The court granted their request. Moreover other heirs to the land in question requested to intervene in the proceedings. At the hearing of 10 March 1992 the court decided to obtain the opinion of the Forest Administration on the land in question. At the hearing of 25 May 1992, upon the requests of both parties, the court rescheduled the next hearing for 6 August 1992. On 14 August 1992 the court carried out an on-site inspection together with the cadastral experts. On 6 October 1992 the experts submitted their report to the court. Both parties requested the court to grant additional time to examine the report. On 19 November 1992 the court decided to ask further information from the Forest Administration concerning the nationalisation procedure of the land. The Forest Administration submitted its reply on 19 February 1993. The court decided to send this reply to the cadastral experts and ask their opinion. Furthermore, the court decided to appoint another expert to determine the applicants’ shares of inheritance. The report on the heritage was submitted to the court on 23 March 1994. On 19 January 1996 the Sarıyer Cadastral Court ruled in favour of the applicants. The Treasury appealed. On 13 December 1996 the Court of Cassation quashed the decision of the Sarıyer Cadastral Court. It held that the applicants’ claim for restitution of property provided under Law no. 4785 was already dismissed by the Sarıyer First Instance Court in Civil Matters in the beginning of 1970’s. Moreover, as regards the applicants’ objection to the cadastral commission’s report dated 7 March 1988 the court held that the action was filed out of time. It maintained that according to the law on forests the actions brought against the cadastral evaluations had to be lodged within one year from the pronouncement of the commission’s decision. The commission report pronounced in 29 November 1985 already concluded that the land in question, except a small part which no longer had the necessary qualifications, had “state forest status” and it was called “Hamitağa State Forest”. This report became definitive on 29 November 1986 as there were no objections lodged against it. The re-evaluation carried out in 1988 was, in essence, the same as the previous one. The only difference was that, in 1988, the Cadastral Commission decided to remove a further part of the land from state forest status. Thus the objection should have been filed with the court following the first evaluation of the land. The Court of Cassation therefore concluded that the applicants’ case must be rejected for failure to comply with the statutory time limit. It further concluded that, in any event, the land in question did not have the necessary physical characteristics to change its status to private forest. The applicants requested rectification of the Court of Cassation’s decision. On 22 October 1997 their request was rejected. On 16 January 1998 the Sarıyer Cadastral Court followed the Court of Cassation’s reasoning and dismissed the applicants’ case. On 11 May 1998 the Court of Cassation upheld the decision of the Sarıyer Cadastral Court. On 26 October 1998 the Court of Cassation rejected the applicants’ request for rectification of the judgment. Article 1 provides that the forests which belong to the private or legal persons, foundations, villages, municipalities, provincial administration or public corporate bodies at the date of the entry into force of this law are nationalised in accordance with this law. These forests are registered in the name of the Treasury without any notification or procedure. Article 2 lists the physical characteristics of the land in question which could form an exception to the rule provided under Article 1. Article 5 provides that the landowners whose lands were nationalised in accordance with this law should submit an application with the forest administration within one year from the date of the entry into force of this law. If they fail to do so within the statutory time-limit they will lose the right to receive compensation for the nationalisation of their lands. Article 1 provides that the lands which were nationalised in accordance with the Law no. 4785 can be returned to their previous owners if they have certain physical characteristics listed in this Article. In accordance with the provisional Article of the same law, those who failed to bring an action within the time-limit provided in Article 5 of the Law no. 4785, can request compensation for nationalisation of their land within one year from the date on which this law has come into force. Article 11 provides that it is possible to challenge the Cadastral Commission’s reports by filing an action before the cadastral courts within six months (Law no. 3302 amended this time limit to one year) from the date on which these reports are announced. This time-limit is ten years for those who have the title deed of the land in question. Article 12 provides that the statutory time-limit to file an objection against the rights, limitations, and assertions found in the cadastral records, is ten years starting from the date on which these records become definitive. After the expiration of this time-limit, it is not possible to file an action by relying on the legal facts prior to the cadastral planning. Article 22 of the same law evokes that the cadastral planning of a location can be carried out only once.