Turkey: Cultural Asset Or Natural Asset? This Is The Question

Through recent developments, the ministry structure of the Republic of Turkey has been reformed, including the division of the Ministry of Environment and Forestry into two separate ministries, now (i) the Ministry of Environment and Urbanzation (Çevre ve Şehircilik Bakanlığı) and (ii) the Ministry of Forestry and Waterworks (Orman ve Su İşleri Bakanlığı). In line with the new structure, Decree No. 644 (the "Decree"), introducing the principles of the new Ministry of Environment and Urbanization, was enacted. This Decree was followed by Decree No. 648 (the "Amendment Decree") that amends several laws and decrees, including the Law on Preservation of Cultural and Natural Heritage numbered 2863, dated 1983 ("Law No. 2683") ("Kültür ve Tabiat Varlıklarını Koruma Kanunu").

Until the recent amendments to Law No. 2683, the Preservation Boards, having autonomous board members who were directly appointed either by the Ministry of Culture and Tourism or by the Higher Education Council, were only established under the Ministry of Culture and Tourism. Law No.2863 sets forth that all movable and immovable properties having a genuine cultural value related to a specifi c historical period in terms of science, culture, religion or fine art are defined as "cultural assets," while the environmentally or archeologically reserved properties established under or above ground are defined as "natural assets." As per Law No. 2863, the Preservation Boards were entitled to assess any property and define whether it is a natural or cultural asset. Upon such assessment, the Preservation Boards were entitled to set forth the preservation principles that are designated specifically for such asset and are applicable during the transactional period and, and remain in full force until the completion of the preservation zoning plan (the "Transactional Period Preservation Principles"), in coordination with the members of the relative professional chambers, non-governmental organizations and civilians, who will be affected by such decision. Furthermore, the Preservation Boards had also been entitled to impose orders and instructions upon such property owners regarding their maintenance and repair works on these assets, and all issues related to these assets were subject to the Preservation Board's approval. In other words, all construction related issues regarding any building that is defined as either a "cultural asset" or "natural asset," were subject to the Preservation Board's approval.

The Amendment Decree brought with it a completely new set of fundamentals regarding the structure and operation of the Preservation Board. Accordingly, the authority of the Preservation Board covers both "natural assets" and "cultural assets."

Cultural assets are continuing under the auspices of the Preservation Board under the supervision of the Ministry of Culture and Tourism (the "Cultural Preservation Board"). The Cultural Preservation Board will continue to determine whether an asset falls under the definition of a "cultural asset." Furthermore, the Cultural Preservation Board is also authorized to take required measures for the protection of cultural assets, and to determine the terms and conditions for the maintenance, repair and renovation of "cultural assets." However, the memberships associated with the Cultural Preservation Boards have been terminated in line with Provisional Clause 10 of Law No. 2683. Accordingly, no decision may be made by the Cultural Preservation Boards until the new members have been appointed. This causes delay in investments relating to "cultural assets" and, therefore, investors are looking forward to the appointment of new board members.

On the other hand, "natural assets" are excluded from the authority of the Ministry of Culture and Tourism, and the Ministry of Environment and Urbanization has assumed full authority with respect to "natural assets." Accordingly, natural assets will be subject to the examination and approval of the General Directorate of the Preservation of Natural Assets to be established under the Ministry of Environment and Urbanization (the "Directorate"). In other words, the former Preservation Board's powers and duties with respect to natural assets have been revoked, and their duty to assess and preserve natural assets has been transferred to the Directorate.

The Decree set forth a wide range of powers given to the Ministry of Environment and Urbanization over the regulation of secondary legislation, application and controlling of the legislation on zoning, construction and environment, preparation of zoning and parcelling plans, and taking relevant measures against the environmental pollution. With the recently delivered powers, the Ministry of Environment and Urbanization is also authorized to directly appoint the members of the Directorate.

The Ministry of Environment and Urbanization is assigned to review all of the necessary former decisions made regarding natural assets within six months and re-evaluate such decisions. Until the re-evaluation is fi nalized, in line with Provisional Clause 6 of the Decree, all of the previous decisions remain in full force and effect. However, as the duties of the former Preservation Board members have been terminated and the new boards and directorates are not yet formed, it has thus become virtually impossible to apply for or receive any further decisions before the establishment of the new boards/directorates. Furthermore, the former decisions of the Preservation Boards regarding natural assets may also be reversed by the Ministry of Environment and Urbanization. As per Article 13/A of the Decree, the newly established Directorate will not be required to co-ordinate with any other legal or real person, other than the Ministry of Environment and Urbanization. This provision is criticized as it gives ultimate authority to the Ministry of Environment and Urbanization for the determination and disposition of "natural assets."

This recent change introduced by the Amendment Decree gives great flexibility to the current government to set the criteria for development of treasury lands and/or former forestry areas. The main discussion regarding the Amendment Decree is the amendment of a law, along with a decree. The implementation of a law requires certain procedures and the approval of the National General Assembly; however, a decree may be implemented by the sole discretion of the government. This constitutes a breach of the hierarchy of norms along with a breach of Article 91 of the Turkish Constitution that defines the decrees. Therefore, as the content of the Amendment Decree has also given rise to criticism, it is highly likely that a lawsuit regarding the annulment of the Amendment Decree will be fi led before the Constitutional Court due to such inconsistency with the Turkish Constitution.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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