INTRODUCTION
As it is known, with the 11th article of the Law No. 7442 on the Amendment of the Forestry Law and Certain Laws, which entered into force after being published in the Official Gazette dated 05.04.2023 and numbered 32154, the second paragraph of Article 17 of the Forestry Law No. 6831 was amended and it was regulated that all structures and facilities confiscated in the State Forests, including those under construction, shall be demolished immediately by the General Directorate of Forestry without the need for any decision, or shall be used for forestry services if deemed necessary. However, despite the improvement made in the relevant article of the Forestry Law No. 6831 (“Forestry Law” and/or “Law“), even though the administration aims to intervene immediately when an offence is committed and to play a deterrent role for possible new offences, in practice, only offence reports are issued and no actual seizure of the illegally constructed structure or facility is carried out, It is seen that the General Directorate of Forestry (“GDoF“) is of the opinion that the protection and continuity of forests are endangered due to situations such as the failure to stop the construction of new buildings and protracted litigation processes. In this respect, the Regulation on the Implementation of the Second Paragraph of Article 17 of the Forest Law No. 32659 (“Regulation“), which entered into force after being published in the Official Gazette on 11.09.2024, contains comprehensive regulations regarding the construction of all kinds of buildings, structures and facilities in forest areas in order to protect forests from illegal interventions.
A. REVIEW OF THE REGULATION ON THE IMPLEMENTATION OF THE SECOND PARAGRAPH OF ARTICLE 17 OF THE FOREST LAW
a) Scope of the Regulation
The Regulation covers the activities of occupation, utilisation, opening, construction of all kinds of structures and facilities for the purpose of settlement in State forests, and the activities of confiscation, demolition, removal, dismantling, harvesting and evaluation by the General Directorate of Forestry in the places to be obtained by cutting, dismantling, pruning or strangling, planting and planting. In this direction, the definition of State Forest is defined separately within the scope of the Regulation and refers to “the places declared and finalised as forests as a result of cadastral surveys and the places under the provision and disposal of the State or under the ownership of the Treasury, which are considered forests according to the first paragraph of Article 1 of the Law No. 6831“. It has been determined that the Regulation defines the State Forest by reference to the Law as a forest together with the places declared and finalised as forests as a result of cadastral surveys and the places where trees and shrubs grow naturally or are cultivated by labour. At this point, the places that are not considered forests according to the relevant provision of the Law are as follows: “Reeds; places covered with steppe vegetation; all kinds of thorns; parks; places covered with trees and woods in old (ancient) cemeteries located within the boundaries of city cemeteries and towns and villages, places where trees and shrubs that are located on owned land and do not grow naturally in the surrounding forests; Orman sınırları içinde veya bitişiğinde tapulu, orman sınırları dışında ise her türlü tasarruf belgeleriyle özel mülkiyette bulunan ve tarım arazisi olarak kullanılan, dağınık veya yer yer küme ve sıra halinde ki her nevi ağaç ve ağaçcıklarla örtülü yerler, Orman sınırları dışında olup, yüzölçümü üç hektarı aşmayan sahipli arazilerde tabii olarak yetişen her nevi ağaç ve ağaççıklarla örtülü yerler; Orman sınırları içinde veya bitişiğinde tapulu, orman sınırları dışında ise her türlü tasarruf belgeleri ile özel mülkiyette bulunan ve muhitin hususiyetlerine göre yetişmiş veya yetiştirilecek olan (…All kinds of fruit trees and shrubs, including pistachio pines and acorn oaks; grafted and ungrafted olive groves on the owned land, wild olive groves that have been separated from the State Forests in accordance with the special law and the conditions of zoning, rehabilitation and assignment have been fulfilled, and wild or grafted pistachio, mastic and carob groves described in the Law dated 9/7/1956 and numbered 6777; Places covered with heather or maquis that do not have forest and soil conservation character and places covered with all kinds of trees and shrubs grown by sowing and planting on owned lands, regardless of the size of the area, which are outside the forest boundaries“.
b) Intervention to the Offence, Actions to be taken on Planted and Planted Places, Structures and Facilities
Within the scope of this Directive, facilities and buildings illegally constructed in State forests, cultivated and planted areas and their crops shall be confiscated and/or removed by the administration without the need for any decision. All costs related to the removal procedures such as demolition and/or dismantling shall be collected from the suspect.
According to the Regulation, all structures and facilities built in violation of the law, including those that have not yet been completed and those under construction in forest areas within the forest boundaries according to the finalised forest cadastre, must be sealed, measures must be taken to prevent damage to third parties, and then the crime report to be issued must be transferred to the Public Prosecutor’s Office. Subsequently, a confiscation decision shall be issued immediately by the Public Prosecutor or the Criminal Judge of Peace, the immovables to be demolished shall be determined by the examination and decision-making committee to be established within the Regional Directorates of Forestry, the General Directorate of Forestry shall notify the relevant persons that the costs to be incurred by the General Directorate of Forestry will be collected from them and the demolition process shall be carried out by the forest management chief. A criminal complaint shall be filed with the Chief Public Prosecutor’s Office in accordance with the relevant provisions of the Turkish Criminal Code No. 5237 (“TCK“) against those who obstruct the works and procedures related to evacuation and demolition.
c) Seizure and Safeguarding of the Instruments and Similar and Other Property Subject to the Crime
Forest conservation officers carry out the duty of forest law enforcement officers in the follow-up of forest offences. They are authorised to confiscate the forest property obtained in the event of the commission of acts contrary to the Forest Law and the property used in the commission of offences under this Law in accordance with the provisions of the Code of Criminal Procedure No. 5271 (“CPC“). In cases where the public prosecutor cannot be reached, the seizure is made with the written order of the chief of forest management. The offence reports issued by forest enforcement officers are official documents and are valid until proven otherwise. Furthermore, forest protection officers are authorised to arrest suspects in accordance with the provisions of the Criminal Procedure Code.
Seizure and taking under protection shall be carried out with the decision of a judge, or in cases where delay is inconvenient, with the written order of the public prosecutor, or in cases where the public prosecutor cannot be reached, with the written order of the forest management chief. The confiscation decision issued without a judge’s decision shall be followed up by law enforcement officers and in case the request for confiscation is rejected, this decision shall be appealed.
d) Establishment and Duties of the Investigation and Determination Committee
In order for the works to proceed more regularly and easily, an inspection and determination committee is established by the General Director of Forestry. The primary duty of the committee is to examine the place where the act subject to the crime is committed in terms of ownership, as well as the demolition of all kinds of unauthorised structures and facilities within the forest boundaries, demolition of unauthorised structures and facilities in areas where there is no forest cadastre and where there is no ownership problem, and demolition of unauthorised structures and facilities in places that are understood to be forest by evaluating the MAH and the actual situation together, In areas where there is no forest cadastre, by evaluating the MAH and the actual situation together, it prepares a report as a result of the examination and determination of the execution of the legal and administrative process by the administration in places where it is not clear whether it is within the borders of the State forest and there is no ownership problem. Subsequently, it sends the minutes to the relevant forest management directorate immediately. The actions to be taken in accordance with this report are implemented by the relevant administration.
e) Establishment and Duties of the Demolition Committee
In order to carry out demolition operations, a demolition committee is established by the Regional Director of Forestry. The demolition committee carries out the demolition or removal of unauthorised structures or facilities by demolishing or removing them in the places where the investigation and determination committee determines that they are forest areas in accordance with the fourth paragraph of Article 8, in places where the prosecution has ended and the confiscation decision has been finalised, in places where the investigation or prosecution is ongoing and where the investigation and determination committee determines that they need to be demolished or removed. The demolition of the structures and facilities is started with the inspection and determination minutes and confiscation decision. In addition, unauthorised structures and facilities that need to be demolished but are deemed beneficial to be used in forestry services may be opened for use only for forestry services with the approval of the General Director of Forestry.
CONCLUSION
Even though the relevant articles of the Forestry Law aim to ensure that the administration intervenes immediately when an offence is committed and plays a deterrent role for possible new offences, in practice, the protection and continuity of forests were jeopardised due to situations such as only the issuance of offence reports and not actually confiscating the illegally constructed building or facility, not stopping the construction of new buildings, and protracted litigation processes. For this reason, in order to eliminate the contradictions and confusion experienced during the implementation of the second paragraph of Article 17 of the Forestry Law, the Regulation on the Implementation of the Second Paragraph of Article 17 of the Forestry Law No. 32659 entered into force in order to implement the relevant article in accordance with the purpose of the Law.
Within the scope of the Regulation, facilities and buildings illegally constructed in State forests, planted and planted areas and their crops shall be confiscated and/or removed by the administration without the need for any decision. According to the Regulation, it is necessary to seal all structures and facilities built in violation of the law, including the constructions that have not yet been completed and are under construction in the forest areas within the forest boundaries according to the finalised forest cadastre, to take measures to prevent damage to third parties, and then the crime report to be issued must be transferred to the Public Prosecutor’s Office. Subsequently, a confiscation decision shall be issued immediately by the Public Prosecutor or the Criminal Judge of Peace, the immovables to be demolished shall be determined by the examination and decision-making committee to be established within the Regional Directorates of Forestry, the General Directorate of Forestry shall notify the relevant persons that the costs to be incurred by the General Directorate of Forestry will be collected from them and the demolition process shall be carried out by the forest management chief.
In addition, forest conservation officers are authorised to confiscate forest property obtained in the event of the commission of acts contrary to the Forest Law and the property used in the commission of offences under this Law.
In addition, the examination and decision-making committee will determine the immovable properties to be demolished, the expenses to be incurred by the administration during demolition will be collected from them, and the demolition process can be carried out after notifying the relevant parties. In addition to these regulations, it is also seen that the General Directorate of Forestry aims to prevent new construction by continuously controlling the areas.
