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June 14, 2022

Identification And Registration Of Immovable Properties As Archaeological Sites

Administrative Cases
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In Turkey, which has been home to many civilizations for many years, the concept of archaeological sites has an important place. The concept of archaeological protected area is defined in the principle decision of the High Council for the Protection of Cultural and Natural Heritage No. 658 dated 05.11.1999 (“Principle Decision“) and the Regulation on the Identification and Registration of Immovable Cultural and Natural Property to Be Protected published in the Official Gazette dated 13.03.2021 and numbered 28232 “habitation and areas where all kinds of cultural assets reflecting the underground, aboveground and underwater products of ancient civilizations that have survived from the existence of humanity to the present day, and the social, economic and cultural characteristics of the periods they lived”. In this Principle Decision, the protection and utilization conditions of archaeological sites are discussed and archaeological sites are divided into three (3) groups according to their importance and characteristics. With this distinction, the limits of the extent to which construction is allowed in archaeological sites are determined.

In this context, it should be noted that the Ministry of Culture and Tourism has established the High Council for the Protection of Cultural Assets and the regional boards of protection, with the aim of ensuring that the duties related to the immovable cultural assets that need to be protected in the country, are carried out according to scientific principles. As a matter of fact, pursuant to Article 7 and the following provisions of the Law No. 2863 on the Protection of Cultural and Natural Assets (“PCNA“), it is stated that the determination of immovable cultural and natural assets and natural protected areas are carried out by the Protection Boards. The determination of whether an immovable is an archaeological site by the relevant Protection Boards is carried out in accordance with the procedures and principles specified within the framework of the legal regulations of the immovable cultural assets that need to be protected as defined in Article 3 and explained in Article 6 of the PCNA.

Article 6 of the Regulation sets out that the coordination processes are carried out for the registration of the identified protected areas. Within the scope of the aforementioned article, reference is made to Article 7 of the PCNA and it is stated that the General Directorate of Cultural Heritage and Museums or the relevant Regional Board of Protection Boards shall take the opinions of the institutions and organizations related to the area subject to registration and whose activities are affected.

The relevant institutions are required to give an opinion within 45 (forty-five) days based on this opinion request. Moreover, if no opinion is submitted by the relevant institutions at the end of this period, the Ministry of Culture and Tourism directly intervenes in the works and ensures the completion of the process. During this process, measures are taken by the relevant governorship, special provincial administration, district governorship, regional directorate of conservation board and/or municipality in order to prevent any damage to the identified areas. Likewise, at the end of this process, those identified by the Ministry of Culture and Tourism are evaluated and registered by the regional conservation boards. This registration decision is notified to the owners of the immovable property. The registration decisions, together with the cadastral information of the registered immovable, are notified to the relevant land registry office for annotation in the land registry.

Consequently, at the end of all these processes, it is of course open to those whose legal status is affected to initiate an administrative lawsuit against the identification and registration procedures within the framework of the Administrative Procedure Law No. 2577. (“APL”) However, it is accepted both in the decisions of the Council of State and in the doctrine that the determination process cannot be subject to an annulment action within the framework of the APL due to the fact that it is in the status of a practical transaction and has not yet had an executive character. However, since the registration process touches upon the property rights of the immovable owners, it is accepted by the Council of State that there is a right to apply to the administration within the scope of Article 10 of the APL against the registration decision.

Administrative Cases
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