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The Judgment on the Elmali Hoard

According to Articles 4 and 5 of Law No. 2863: The State has 'absolute right of immediate possession' and sufficient 'proprietary interest' on movable cultural properties requiring protection that are known to exist or may be discovered in the future.

The Elmalı Hoard uncovered in illicit digs in 1984 and smuggled out of the country contains about 2000 ancient Greek and Lycian coins as well as 14 decadrachmae of the 5th century BC. The Republic of Turkey, as the 'proprietor', sought to recover the hoard from the defendants, who acquired the hoard after it was smuggled out of Turkey, in an 'action of replevin' and 'action of conversion'.
The defendants claimed that the Law No. 2683 did not give the Republic of Turkey the proprietary right on the coins and thus, that only the owner of the antiquity could litigate for an action of replevin. As the judicial ground for their case, the defendants claimed that the basic change done by Article 5 of the Law No. 2863 in the final wording of the phrase defining the State's interest and right in antiquities and Articles 24, 25 and 64 established a new regime providing that antiquities 'are not State property; the landowner-finder is the original owner of antiquities'.

The Republic of Turkey stated that the abovementioned changes to the rule in force since 1906 did not introduce a new meaning and that 2683 also accepts the proprietary right of the State.
On June 8th 1994, the First Degree Federal Court of Boston, dismissing/denying the claim of the defendants, ruled that the Republic of Turkey has sufficient title to open an action of replevin and described the 'legislative regime of 2863' as follows:
a. Antiquities such as the coins forming the subject matter of this lawsuit have been considered State Property since the Regulations of Antiquities of 1906 to the Law No. 2863 and in many law articles they are stated as 'state property'.

b. Despite the use of 'devlet malı niteliğindedir' phrase in the Law No. 2863 of 1983, both of the expert witnesses of the Republic of Turkey, who are both professors of law in Turkish universities, have clearly stated using the relevant course books that the change in the wording did not introduce any change in the meaning.

c. It is clear, as three of the four expert witnesses have testified, that persons learning of the existence of previously undiscovered 'movable antiquities', such as the coins at issue in this case, must report the discovery to officials of the state within a specified time; is the relevant state offices determine that the objects are deserving of protection by the state, the state keeps the objects, but pays a reward to the finder and the owner of the land where the objects were found not as purchase value (Articles 4, 24, 25). This interpretation is further confirmed by the discussions at the National Assembly and the legislation of the law.

d. An important point to note is that, if the finder has not complied with the notice and delivery requirements of the Article 4, the state may take permanent possession of the antiquities without the payment of any money at all. As a matter of fact, the finders did not comply with Article 4 of the 1983 law and did not inform and deliver to the state officials of the discovery of the Elmalı Hoard; thus, it is accepted that when the State could secure possession of the hoard, it would be entitled to keep it without payment.

e. Finally, Articles 24 and 25 and related regulations deal with the classification, evaluation and purchase procedures after the submission of such antiquities such as these coins; therefore, these articles do not contradict the 'direct proprietary right' of the State on antiquities as entitled by Articles 4 and 5.

*Prof. Dr. Sait Güran, İstanbul University, School of Law, Department of Administrative Law, Beyazıt-Istanbul.

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