CASE OF OZDEN v. TURKEY (No. 2)
Violation of Art. 6
Nicolas Bratza
5. The applicant was born in 1929 and lives in Istanbul. 6. In 1950, in accordance with Law no. 4753 regarding the distribution of lands to farmers in need, a plot of land measuring approximately 220,000 m2 on Maden Island, in the Ayvalık District of the Balıkesir Province, was sold to R.K. by the State authorities and registered in his name. 7. In 1968, pursuant to Law no. 6831, the Forest Cadastral Commission conducted a boundary-marking exercise (tahdit çalışması) on the Maden Island. The purpose of this exercise was to detect the forest areas which had not been included on the cadastral map. The outcome of the evaluation was publicly announced and as no opposition was made, this decision became definitive in 1970. It was concluded that the whole of Maden Island had the characteristics of a forest and it therefore could not be the subject of private ownership. This conclusion was annotated in the title deed registry in 1978. 8. In 1985 R.K. signed an agreement with the applicant, promising to sell the land in question. 9. Between 1985 and 1987, the Forest Cadastral Commission conducted an evaluation (aplikasyon çalışması) of the area to detect the lands which had lost their characteristics as a forest and to remove their forest status. Its decision was announced on 27 January 1988. It was concluded that the plot of land in question had not lost its characteristics as a forest within the meaning of Article 2 of the Law no.4785. 10. On 20 September 1989 the applicant purchased the land in question and registered it in his name. 11. On 10 June 1988 R.K. filed an action before the Ayvalık Civil Court of General Jurisdiction against the Forestry Directorate and the Forestry Ministry, objecting to the Cadastral Commission's decision of 27 January 1988. 12. On 15 June 1989 the Ayvalık Civil Court of General Jurisdiction held that it had no jurisdiction to examine the case and transferred the file to the Ayvalık Cadastral Court. The Forestry Directorate appealed against this decision. On 15 December 1989 the Court of Cassation quashed the judgment of the first-instance court on procedural grounds. The case was remitted to the Ayvalık Civil Court of General Jurisdiction. On 30 May 1990 the court declared that it had no jurisdiction to examine the case and transferred the file to the Ayvalık Cadastral Court. The proceedings resumed before the Cadastral Court. 13. On 9 December 1992 the Ayvalık Cadastral Court decided to annul the Forest Cadastral Commission's decision of 27 January 1988 and to remove the land's forest status. Furthermore, it ordered that the land be registered in the name of the Treasury. 14. Both parties appealed against the decision. On 15 February 1994 the Court of Cassation quashed the decision of the first-instance court. It held that forests could not be the subject of private ownership and therefore could not be distributed to landless farmers for agricultural purposes. Any property claim over a forest was therefore considered legally invalid. The court found that R.K. was not entitled to request the removal of the land's forest status. 15. The case was resumed before the Ayvalık Cadastral Court. On 3 April 1995 the Cadastral Court maintained its initial decision of 9 December 1992. 16. The Forestry Directorate and the Forestry Ministry filed an appeal. On 3 April 1996 the Joint Civil Chambers of the Court of Cassation supported the reasoning of the relevant chamber of the Court of Cassation and quashed the decision of the Ayvalık Cadastral Court. The case file was sent back to the Cadastral Court. 17. On 26 November 1998 the Ayvalık Cadastral Court decided to abide by the decision of the Joint Civil Chambers of the Court of Cassation. It consequently dismissed R.K.'s case and held that there was no legal benefit for private persons to act as a plaintiff in cases concerning the revocation of forest status. 18. On 22 October 2001 the Court of Cassation upheld the decision of the Ayvalık Cadastral Court. This decision was served on the applicant on 14 December 2001. 19. On 12 August 1986 the Forestry Directorate initiated proceedings before the Ayvalık Magistrate's Court against R.K. to annul the registration of title and for an order preventing further use of the land by R.K. On 23 February 1987 the applicant intervened in the proceedings. On 25 June 1987 the Ayvalık Magistrate's Court decided that it had no jurisdiction to examine the case and transferred the file to the Ayvalık Civil Court of General Jurisdiction. 20. In 1988 the court decided to stay the proceedings as the determination of the case depended on the outcome of the case pending before the Ayvalık Cadastral Court (see paragraphs 11-18 above). 21. Following the decision of the Joint Civil Chambers of the Court of Cassation, the proceedings before the Ayvalık Civil Court of General Jurisdiction resumed (see paragraph 16 above). On 5 June 1998, in view of the decision of the Joint Civil Chambers of the Court of Cassation, the first instance court held that the plot of land in dispute was designated as part of a forest area and could not be the subject of private ownership. It therefore decided to annul the applicant's title and register the land in question in the name of the Treasury. The applicant appealed. 22. On 21 May 2002 the Court of Cassation found the applicant's grounds for appeal unfounded and upheld the decision of the first instance court.