20 December 2018 Thursday
E.2018/33 K.2018/113, 20 December 2018
In the impugned provisions, it is set forth that announcement to be made through posting a list shall be considered as notifications addressed personally to those concerned; that reports and maps which have not been sued shall become final; and that any complaint and case cannot be filed, relying on the legal grounds prevailing before the cadastral survey, upon the expiry of 10 years as from the finalization date of the reports and maps issued by the forest cadastral commissions.
Grounds for the Requests for Annulment
In the petition, it is maintained that owners are not aware of the determination of the forest boundaries by the forest cadastral commissions, which lead to finalization of the forest cadastral report without the owners raising no objection to such determinations; and that upon the expiry of 10 years, no case may be filed in respect of the final reports. It is accordingly claimed that the contested provisions are unconstitutional.
The Constitutional Court’s Assessment
It is obvious that the contested provisions constitute a restriction on the rights to property and to legal remedies. However, regard being had to the fact that these provisions do not completely preclude the right to sue against the cadastral determinations but rather impose certain restrictions in respect of the notification procedure and the term of litigation, it has been concluded that they do not infringe upon the essence of the right to access to court as well as the right to property. Accordingly, it must be assessed whether the imposed restriction is in compliance with the principle of proportionality.
In the event that any action is not brought against the reports and maps concerning the decisions taken by the forest cadastral commissions, which have been announced by way of posting a list, within 30 days as from the posting date, these reports and maps will become final. Thereby, the boundaries of both forests and other immovables are re-assigned. It appears that the intent of notifying cadastral determinations to those concerned through posting a list is to end uncertainties concerning the ownership of all immovables located on the land where cadastral survey is carried out. Given the fact that forest cadastral survey concerns many plots of land and is carried out, in certain circumstances, also on lands with no records of land registry, the practice of notification through posting a list was found to be a convenient and necessary means for attaining the aim pursued.
In addition, although a period of thirty days as from the notification of the said reports and maps through posting a list is prescribed for filing an action before cadastral courts, expiry of this period does not prevent those concerned from bringing an action.
In this respect, those concerned may enjoy their right to sue before the general incumbent courts within ten years as from the finalization date of the reports and maps issued by the forest cadastral commissions. It cannot be said that these periods are short and insufficient to bring an action. For the balance between the general interest of the public order requiring legal certainty and stability in terms of the ownership of immovables and individual interest of individuals not being informed of their immovables for a long time, it can neither be alleged that setting a lapse of time of 10 years for the said claims is unnecessary, or that the period granted is insufficient.
Accordingly, the contested provisions introduced with a view to ensuring legal clarity in terms of the ownership of immovables and thereby maintaining legal certainty as well as stability can in no way be found to be unnecessary and inconvenient for attaining the aim pursued. It has been observed that the reasonable balance is struck, by these provisions, between the individuals’ rights and the public interest; and that the provisions do not thereby constitute a disproportionate restriction on the rights to property and to legal remedies, as well as do not in any aspect breach the principle of state of law.
For the reasons explained above, the Court found the impugned provisions constitutional and accordingly dismissed the request for annulment.