PROTECTION OF CULTURAL AND NATURAL ASSETS UNDER TURKISH LAW

In the considerations regarding the determination of the basis of societies to appear as nations, a common history is of a large importance.

The common values put forward in the process of the constitution the conscious of being one and together constitute the basis of being a nation.

One of the most important parts of national culture is concrete cultural values.

And along with the concrete cultural values, original natural assets of the environment lived which is an important part of the life of a society, which are effective in the process of the formation of those, has been effective on the conscious of being a nation as well.

The protection of cultural and natural assets is the function of societies bearing the values inherited from the past to the future.

Cultural and natural assets are values belonging to a society along the line that goes from the past to the present and from the present to the future.

Protection works will let as much to protect the historical memory of a society as to do so the future.

Societies being enough conscious about the protection of cultural and natural assets will take the necessary measures that the protection would require.

Within this context, countries have put into practice necessary protective arrangements in their national law orders about the protection of cultural and natural assets they have and established a legal protection system regarding the protection of these values.

At the point of the protection of its cultural and natural assets, every country has established a legal order on par with the need it feels and the level of its conscious of protection that it has reached.

On the other hand, cultural and natural assets a country has are of importance as a common world heritage as well.

The phases that the humanity had, cultural values that it produced, natural conditions/ways that directly formed the evolution process of these values are effecting and concerning as much the nations that have these assets as other nations.

In a world getting globalized on par with the technological developments, a society of communication has aroused. In this new society, political boundaries have lost their importance, societies the financial and cultural structures of which are strong begun to be effective on other ones, and a new global order has risen.

In this new world order, the necessity of the protection of cultural and natural assets, no matter where they are, helping us to understand the history of the humanity has become a general recognition.

In line with this recognition, international law texts urging the responsibility of protection of cultural and natural assets have appeared.

Universal laws for the protection of cultural and natural assets have been arranged in multi-sided contracts.

Cultural and natural assets taken under protection as common values to the humanity shall be taken under protection by the countries of this contract.

Turkey being a side of international law texts, of global level as World Cultural and Natural Assets Protection Agreement, of regional level as European Architectural Heritage Protection Agreement, has established a national law order about the protection of cultural and natural assets.

The protection of cultural and natural assets has been arranged as a mission in the constitution of 1982 of Turkey.

And according to the constitution and international contracts, legal arrangements have been made, rules for the protection of cultural and natural assets have been determined and the necessary order has been established.

In this study, for the protection of cultural and natural assets, the practice in Turkey has been focused.

I-CULTURAL AND NATURAL ASSETS IN TURKISH LAW

The protection of cultural and natural assets is a responsibility attributed to the state itself in Turkish law.

The state puts into practice its responsibility for the protection of cultural and natural assets through legal arrangements and organizations formed in line with this direction.

The protection of cultural and natural assets in Turkish law is directly related with a correct understanding of the concepts and the classification of the assets.

A.THE CONCEPT OF CULTURAL AND NATURAL ASSETS

The concept of cultural and natural assets is a concept that includes movable and immovable assets needed to be taken under protection as cultural and natural assets.

The assets, the protection of which is accepted as a necessity in terms of national and universal culture, subject to similar measures when the process of protection begins, the presence of which happens naturally and the ones the existence of which is a result of human will and effort are gathered under the same title.

Cultural and natural assets are cultural richness of the whole humanity[1].

When the concept of cultural and natural assets is mentioned, actually, it is undisputed that the concepts of cultural asset and natural asset are meant[2].

However, regulating power, while bringing up the principles and facts relative to the protection of cultural and natural assets, moves from the thoughts that the necessity of protection and the rules to be followed should be in line and that there should be no difference among cultural and natural assets in terms of obligation and priority of protection.

  1. 1.      Cultural Assets

In many regulatory texts, we come across the concept of “cultural asset”.

The names to the headlines of international law texts relative to the protection of a cultural asset are derived from this concept.

The context of the protection to be realized under the title of the “cultural asset” concept shall be determined and shaped according to the definition of “cultural asset” concept.

All movable and immovable assets, aboveground, underground, or underwater, having a scientifically and culturally original worth, related with science, culture, religion, and fine arts belonging pre-historical and historical periods, or subject to social life in pre-historical and historical periods has been defined by the law maker in the Cultural and Natural Assets Protection Law as “Cultural assets”

The definition which has been determined by the law maker has appeared regarding human life and considered all movables and immovables being of qualities important in terms of scientific researches and culturally subjective as cultural assets.

This definition is a definition made in a view of functionality.

However, the criteria of “being a production of human hand mind, will, and effort” seems to be the main differential in the differentiation of the concepts of “cultural asset” and “natural asset”.

That an asset is considered as a cultural asset depends on its being produced/created by a human willingly, in a certain forms, and with a certain purpose.

Assets, which are not produced by men by working hard and designing, created by the shaping of natural conditions, shall not be included in the concept of “cultural asset”.

It is evident that the statement about the concept of “cultural asset”, which is in the Law, as “…belonging to pre-historical and historical periods, related with science, culture, religion and fine arts, and having culturally an original worth” could be considered, should be considered, in a way that includes the assets of today origine.

For the term “historical periods” covers the present day as well.

Our age is included in historical periods and the actual time period, in which we are living, is flowing towards history.

That an object is a work of recent times or even of today does not prevent it from being considered as a cultural asset, if it has the qualifications that should be inherited by the future[3].

  1. 2.      Natural Assets

“Natural asset” means natural formations which are subject to the arrangements and measures related with the protection of cultural and natural assets, are an inseparable part of human life, and have a value in term of understanding human history.

Natural asset is a concept that is brought up to express the natural assets that need to be scientifically and culturally protected.

Law maker has defined natural asset as values belonging to geological, pre-historical and historical periods, needed to be protected because of their uncommon presence or specifications and beauties.

B.THE CLASSIFICATION OF CULTURAL AND NATURAL ASSETS

The classification of the assets to be taken under protection in terms of the necessity of the protection of cultural and natural assets is not of importance.

Nevertheless, it is obligatory to act according to the specifications that cultural and natural assets subject to these activities have, in the process of determination and application of protective measures.

The protective measures that are to be determined in the process of the protection of cultural and natural assets require that the subjective qualifications of the asset to be taken under protection should be considered along with the general ones as well.

In order to be able to be successful in the protection on cultural and natural assets, it is necessary that the assets to be primarily protected be subjected to a classification.

  1. 1.      Classification In terms of Movable and Immovable

Law systems are inclined to differentiate the goods subject to law procedures as movable and immovable and to form different law status corresponding to that differentiation.

According to the approach that is in the Cultural and Natural Assets Protection Law, numbered 2863, Cultural and natural assets have been divided in two groups, movable and immovable, and for each group, has been created a different law status.

  1. a.      Movable Cultural and Natural Assets

The determination of what movable cultural and natural assets are is of importance in terms of the success of the administrative activities to be performed for the protection of these assets.

Which type of assets should be included when “movable cultural and natural assets” term is mentioned has been specified by the law maker.

The latter has chosen to determine which concrete assets should be considered as movable cultural and natural assets by considering the value that they have in terms of history and social life of man, religious, national, cultural, and so on.

In the arrangement that is in the 3rd part of Cultural and Natural Assets Protection Law, numbered 2863, movable cultural assets are divided in two groups of title.

According to the Law maker’s approach, in the first group, movable assets having an historical value in general are defined. Consequently, “any cultural and natural assets that belong to geological, pre-historical and historical periods, that have a value of evidence in terms of prehistory, archeology and art history, that reflect the level of the period which they belong to by their social, cultural, technical and scientific specifications, have been defined as “movable cultural and natural asset”.

  1. b.      Immovable Cultural And Natural Assets

Immovable cultural ad natural assets are the assets that come to mind in the first place when the term “cultural and natural assets” is mentioned.

Immovable cultural and natural assets are more often noticed since they are more common.

The immovable cultural and natural assets, though they can be so seldom transported, are basically the assets that should be protected where they are and within their relative environment.

It is beyond dispute that, in case that the assets that have been taken under protection as immovable cultural and natural assets are transported to a place different from where they have bee, there shall been a certain loss in the historical values they have.

Immovable cultural and natural assets are the assets that have a certain value together with the inter-relations with their environments where they are.

  1. 2.      Classification In Terms of Cultural and Natural Assets

Another differentiation coming forth after the differentiation in terms of movable and immovable, in the protection of cultural and natural assets, is the differentiation of the assets in terms of cultural assets and natural assets.

The protective activities to be executed and measures to be taken in the protection of cultural and natural assets shall differ according to whether the value that is under protection is a cultural assets or a natural asset.

  1. a.      Cultural Assets

Cultural assets are basically the assets which are the product of human hand and efforts, designed by man, and are produced for a certain purpose.

These assets are concrete evidences that enlighten the history of the humanity in terms of the way they are produced, the purpose of production, the materials of which they are made, the method of usage, the purpose of usage, and so on.

Man, in line with the need of maintaining the life, has designed various devices, established facilities, and fought the difficulties they have faced.

Events experienced during the history of man, the problems confronted, and solutions have established the whole of the efforts of living better.

Causes, consequences of the events happening in this process, struggle been in, identification and of the achievements obtained and a correct understanding of the history, will be possible just through the protection and minute examination of the cultural assets

Law maker has defined the cultural assets, as all movable and immovable assets that are aboveground, underground or underwater, related with science, culture, religion and fine arts belonging to pre-historical and historical periods, or being subject to social life in pre-historical or historical periods, and having a unique value in terms of science and culture.

When considering this definition, which is in the Law, efforts of man for technological improvement, cultural activities related with the social life, religious activities and worship rituals of a society, products of fine arts, and any movable and immovable  asset created related with the mentioned cases have been defined as cultural assets.

b.Natural Assets

Nature is an inseparable part of human life.

Natural values are indispensable in terms of social life.

It is unavoidable that the values to be protected as “natural assets” have a certain relations with the history of man.

Correspondingly, movable and immovable values that are taken under protection as “natural assets” are being taken under protection for their quality of having uncommon features and beauties just by themselves.

3. Classification In terms of Concrete Cultural Asset and Non-concrete Cultural Asset

In the protection of natural assets, it is out of question that there should be a differentiation in term of concrete and non-concrete.

In contrast with this, in the protection of cultural assets, the approach of concrete and non-concrete cultural assets has been clearly exposed in the Law texts that we come across.

a. Concrete Cultural Assets

“Concrete cultural assets” means movable and immovable cultural assets the protection of which are considered necessary within the context of the activities of the protection of cultural and natural assets.

Concrete cultural assets are the values that have come up as a result of human hand, effort mind and life, that have a materialistic presence, tangible, and the presence of which is taken under protection.

b. Non-concrete Cultural Assets

Non-concrete cultural assets include subjects, that don’t have a materialistic presence but do need to be protected as a common value to humanity, such as narrations, demonstrations, rituals, and so on.

The necessity for the protection of non-concrete cultural values creates the result that the activities of protection of cultural and natural assets get a soul.

The protection of a stone, metal, earth etc. shall be much more comprehensive by correct understanding of life sequences displayed on these assets.

The subject of protection of non-concrete cultural assets has been brought forward mainly in “the protection of intangible cultural heritage agreement”[4].

The agreement has chosen to define what non-concrete cultural heritage is.

According to the provision of the agreement, “non-concrete cultural heritage” means the practices, representations, narrations, knowledge, faculties, that communities, groups and sometimes individuals define as a part of their cultural heritage, and the devices, tools, and cultural places concerning them.

This non-concrete cultural heritage, which is transferred from generations to generations, is continuously recreated depending on the interactions of communities and groups with their environments, the nature and their history, and this gives them the feeling of continuity and identity; thus, it contributes to cultural variety and the respect given to the creativity of man.

Within the context of this agreement, only non-concrete cultural heritage that suits the principles of international human rights documents and that matches the requirements of mutual respect of communities, groups and individuals and the principles of sustainable development shall be considered.

“Non-concrete cultural heritage” defined in the agreement, appears particularly in following cases. These are the values that are to be protected within the coverage of non-concrete cultural assets.

-Verbal traditions and narrations together with the language that is a communicative function in transferring non-concrete cultural heritage,

-Performance arts,

-Social practices, rituals and fetes,

-Knowledge and practices related with the nature and the universe,

-Traditions of handcrafts

II-THE MEASURES FOR THE PROTECTION OF CULTURAL AND NATURAL ASSETS

It is possible to group in two headings, the measures determined for the protection of cultural and natural assets in Turkish law.

In the classification of the measures, the evaluation shall be made according to their effects on protection.

Consequently, measures are considered in two groups in terms of supporting the protection and preventing the damage.

A.MEASURES SUPPORTING THE PROTECTION OF CULTURAL AND NATURAL ASSETS

Although cultural and natural assets are considered as a public property according to the Turkish law, proprietors’ right to use them and responsibility to protect them may continue.

In other words, there is no obligation that the freehold of the immovable cultural or natural asset be passed on to the state.

Proprietors, as long as they meet the requirements of protection, keep using the immovable cultural or natural asset.

This situation brings forward some restrictions in terms of effective usage of proprietary right.

In order to reduce the effect of the restrictions on proprietary right, which come out of it being taken under control as a cultural or natural asset, Law maker has determined some supportive measures.

The latters come forth in terms of exemption or direct support.

1. Exemptions

As a requirement of being a proprietor of an immovable, the financial liabilities that proprietors have to apply, are not asked from the proprietors of immovable cultural or natural assets.

Immovable cultural and natural assets are not subjected to taxation in Turkish Law.

Immovable cultural and natural assets are exempt from public liabilities such as property tax, transaction tax, etc.

Additionally, there is no tax payment or such like at customs concerning technical equipment needed to be provided from abroad for the protection of immovable cultural and natural assets.

2. Direct Supports

In the protection of immovable cultural and natural assets, it is important that proprietors are financially supported.

Because of the lack of sufficient financial sources, some difficulties may be experienced in the protection of immovable cultural and natural assets.

Proprietors may not be able to take necessary measures even though they will.

In this case, the State provides with direct financial support for the protection of immovable cultural and natural assets.

Depending on the request of relevant person, direct financial supports for the measures from project designing to their execution.

B.MEASURES FOR PREVENTING CULTURAL AND NATURAL ASSETS FROM BEING DAMAGED

In the protection of cultural and natural assets, measures for preventing the damage get involved in the case that people cause the damage on purpose or by negligence.

Against people who damage a cultural and natural asset, administrative or judicial sanctions apply.

  1. 1.      Administrative Sanctions

There is no hesitation that administrative sanctions should be more effective for the protection of cultural and natural assets, without entering “administrative” and “judicial” difference and comparison in sanctions.

What is done by relevant administration for fixing the against-the-law status by removing the contradictory practices that private law people who act against the orders and instructions that administration has given for the protection of cultural and natural assets caused/realized confront us as a kind of administrative sanctions by administration itself.

The prevention of the interventions to cultural and natural assets without permission by the administration are measures that have been determined for preventing unauthorized physical or constructional activities of private law people.

Measures for the removal of the results of unauthorized interventions into immovable cultural and natural assets secure the removal of the results of illegal practices made without permission or by cutting across the boundaries of the permission given.

In case of cutting across the permissions taken during the practices for the protection of immovable cultural and natural assets, law maker has prescribed sanctions be applied to the people who are technically responsible of the practice.

For the protection of cultural and natural assets, Law maker has set the imposition of administrative sanctions about technical executive managers by bringing the provision “Those who are responsible of performing an application or letting it to be performed outside the approved plan and project in sit areas, cultural assets that need to be protected and in the sit areas of those are forbidden to arrange a plan and project and to be responsible of execution for 5 years.”

2. Judicial Sanctions

Those who harm immovable cultural and natural assets on purpose, those who cause any of them to disappear, to be damaged, to be demolished, to be destroyed, shall receive imprisonment from two to five years and a judicial fine up to five thousand days.

The punishment to be given to those who commit these acts in order to take the immovable cultural and natural assets out of the country shall be doubled.

Concerning those who are engaged or instigate physical and constructional activities without permission, against the construction conditions of transitional period, the plan for protection and the conditions of usage, prescribed for protected areas which had been specified by regional protection committees, an imprisonment of two to five years and up to fıve thousand days judicial fine applies.

The one who gives an illegal permission for demolishing or building up shall receive an imprisonment of two to five years and five thousand days judicial fine.

About those who commit or instigate renovation, modification, physical intervention of construction, without receiving permission from the administrations in which Protection Execution Review Bureau is embodied for the protection of immovable cultural and natural assets, applies an imprisonment of six months to three years or judicial fine.

Additionally, many acts such as smuggling, hiding, acting against the rules of collectorship, etc., committed against cultural and natural assets have been criminalized.

III-ADMINISTRATIVE ORGANİZATİON FOR THE PROTECTION OF CULTURAL AND NATURAL ASSETS

In Turkish Law, there is a discrimination of three-way, concerning the protection of cultural and natural assets.

According to this discrimination, for movable cultural and natural assets, immovable cultural assets and immovable natural assets, different administrative organizations take charge.

  1. A.    ADMINISTRATIVE ORGANİZATİON FOR THE PROTECTION OF IMMOVABLE CULTURAL ASSETS

For the protection of immovable cultural assets, central and local administrative departments take charge.

Ministries and local administrative institutions are in charge on the subject of the protection of immovable cultural assets, on behalf of the central administration.

Administrations which are in charge for the protection of immovable cultural assets split in two in terms of the administrations having the authority to take decision for the protection and to direct the execution, and the executive administrations.

Administrations which are in charge in taking decision and directing the execution for the protection of immovable cultural assets come forth as Regional Boards of Protection of Cultural and Natural Assets and High Council of Protection of Cultural and Natural Assets.

The assessment for the protection of immovable cultural and natural assets, determination of the need for the protection, the specification of the outline of the protective activities, project designing, and controlling and directing the execution are realized by regional protection commissions.

Regional protection commissions consist of people specialized on protection.

Architects, art historians, planners, archeologists, and lawyers are in charge in regional protection commissions.

In the protection of immovable cultural assets, the protection of an individual body and the protection practices, proclaiming a protected area on the scale of the body’s area are applied as a whole, according to the need, in the direction of the decisions of regional protection commissions.

Cultural Assets Protection High Council is authorized on the subject of the determination of regulatory rules for the general outlining of the practices related with the protection of immovable cultural assets.

The High Council, along with the determination of regulatory rules, is responsible of concluding objections made against the decisions of regional protection commissions.

Cultural Assets Protection High Council is an institution of 15 members consisting of senior officers of central administrative departments executing protective activities, only six members elected, by Ministry of Culture and Tourism, out of the presidents of regional protection commissions.

B.ADMINISTRATIVE ORGANİZATİON FOR THE PROTECTION OF IMMOVABLE NATURAL ASSETS

While the function of the protection of immovable natural assets has been being executed, until 2011, in the body of the Ministry of Culture and Tourism, with the immovable cultural assets protection practice, it has been passed on to the Ministry of Environment  and City Planning, with a change in the law.

Collective protection measures are being taken in individual and areal scale, by forming a regional protection commission for the protection of natural assets and central protection commission for the protection of natural assets.

The decisions of regional and central commissions become applicable upon the approval of the Minister.

C.ADMINISTRATIVE ORGANİZATİON FOR THE PROTECTION OF MOVABLE CULTURAL AND NATURAL ASSETS

The protection of movable cultural and natural assets can be realized through public and private sector.

The function of protection of movable cultural and natural assets is realized by public museums.

When movable cultural and natural assets are the case, it is necessary that these assets should be taken into public museums first.

The delivery of the movable cultural and natural assets decided to be taken by public museums is of obligation.

It is of obligation for those who have movable cultural and natural assets to follow the decisions about their being taken in to the museums.

While a movable cultural and natural asset being legally had is taken in to the museums by paying its value, for those that are found, a premium is given over its value to the person who found it.

Within the context of the protection of movable cultural and natural assets, it is possible that the values having no need to be taken in to public museums are protected in private museums and collections.

Private museum and collectorship activities may be realized by receiving permission from the administration and under its close surveillance.

CONCLUSION

In the Turkish law, there is a quite sensitive practice regarding the protection of cultural and natural assets.

It is admirable that public and private sector are taking pains at a certain level on the subject of the protection of cultural and natural assets.

However, the high number of the cultural and natural assets leads to some failures in the practice.

A great number of cultural and natural assets needed to be protected requires a lot of specialized people and a need of financial sources quite large.

Supporting the private sector through public sources makes contributions to the protection activities getting faster.

It creates a dual look that the administrative organizations which shape and direct the practice of protection of cultural and natural assets are within the Culture and Tourism Ministry’s and Environment and City Planning Ministry’s bodies.

How much a two-headed practice would be of success is open to argument.

Additionally, there is a pressure by “tourism” side over “culture” and by “city planning” side over “environment”, all being within the coverage of these ministries.

Ministers may be giving permission to the practices that do not serve the protection of immovable cultural assets for the sake of tourism[5].

As for the Environment and City Planning Ministry, it is possible that “city planning” activities should create a pressure on “environment” by opening up the natural sit areas for construction.

It is not possible as well to say that administrative units, boards and commissions have the autonomy that the task requires as to overlook the effect of the political preferences of the related ministries on the formation of the boards and commissions.

There is a need for the boards and commissions to be re-arranged according to the requirements of the protection.

In the actual case, there are no significant differences between the presence and the absence of the boards and commissions, in term of protection.

 

 


[1] PROTT,Lyndel v., “The International Movement Of Cultural Objects”, International Journal of Cultural Property, V:12, Usa 2005, p.230.

[2] For the concept of “cultural and natural asset” various concepts are used. In Asar-ı Atika Nizamnamesi, the text arranging the subject in the Ottoman Law, the concept of “asar-ı atika” has been used. In the teaching, ERKUT, has used “cultural heritage”. ERKUT, Celal, Cultural Heritage Protection Law, gift to Yıldızhan Yayla, İstanbul 2003, p.285 vd.-Akipek, remarks that is is meaningless that the word”varlık” be used instead of “mal”, with the claim that the word “varlık” has a context  that has a feeling ephasizing rather the quantity, and that she preferred to use “kültür malları” for the term “cultural property”,  commonly used in literary especially written in English. Akipek, Serap, Ulusal ve Uluslar arası Hukuk Açısından Kültür Malları, Ankara 1999,p 26 vd.

[3] UMAR, Bilge/Çilingiroğlu, Altan. Ancient Arts Law/Eski Eser Hukuku, Circulating Capital Enterprise Press of The Faculty of Law of Dokuz Eylül University, No:11, Ankara-1990, P.41-42.

[4] The agreement carried out by The United Nations Science and Culture Organzation and accepted by the attendees, on 17.10.2003, in Paris.

[5] “Tourism” may apply a pressure over “culture”, as is in the example in which Culture and Tourism Minister, in 2009, gave permission that the outside guard facility, that is situated within The Topkapı Palace that has been taken under protection as a common heritage of humanity, could be used as restaurant, despite the declaration of negative opinion of the Regional Protection Board.