Diminishing protected land for the purpose of…

High-level corruption cases in the Western Balkans and Turkey

Diminishing protected land for the purpose of hotel construction in Adalıyalı,

Introduction

Three tourism and hotel companies, specifically ETS Tours, Voyage Hotels and Maxx Royal Resorts, which were founded by Mehmet Ersoy, Culture and Tourism Minister since 2018, have been the subject of a prolonged legal battle over development in the Adalıyalı protected area of Bodrum, in Turkey’s Muğla province. In 2005, Adalıyalı was allocated to the three tourism and hotel companies for three separate hotel constructions for a sum of TL19.7 million (€11.7 million) for 49 years in return for payment of only 1% of their revenue to the state. In 2006 and 2007, following a petition from the Mavi Yol Platform and other activists dedicated to protecting the area from development, the Council of State ordered a stay of execution and the Constitutional Court overturned the allocation.

Country: Turkey

Sector: Culture and tourism

Offence: Misuse of trust

Phase: Suspicion

Description of the case

In 2013, the Ministry of the Environment and Urbanisation revised the environmental plans and designated Adalıyalı as a “tourism area”, and the prior authorisation given to Ersoy’s companies for hotel construction in the area was restored. Then, in 2014, at the companies’ request, the requirement for an environmental impact assessment (EIA) report for the area, which is classified as both an archaeological site of the 1st and 3rd degrees and a naturally protected area of the 2nd degree, was waived by decision of the governor.

In 2015, a court overturned the environmental plans at the scales of 1:1000 and 1:5000.

Once again at the companies’ request, however, an additional 4.9 acres (2.5 hectares) was allocated after the proposed plans at the scales of 1:1000, 1:5000 and 1:25000 received approval from the Ministry of the Environment and Urbanisation and were announced by the Muğla Provincial Directorate of the Environment and Urbanisation in 2018. The plans at the scales of 1:1000 and 1:5000 were overturned in November 2019.

Despite the conflict of interest involving Culture and Tourism Minister Ersoy, there is no criminal procedure open in the case. Nevertheless, the issue has been raised publicly in Parliament by MP Çetin Osman Budak of the Antalya Republican People’s Party, who has submitted a question on the issue. His question remains unanswered (see here and here).

However, there are open administrative cases that seek to have the changes to the environmental plans overturned (see here, here, here, here, here, here, here and here).

Applicable corruption offence

Misuse of trust, Article 155 of the Turkish Penal Code No. 5237

Other laws breached

Law No. 2863 on the Protection of Culture and Natural Assets; the 1:5000 and 1:1000 Scale Conservation Master and Implementation Plan

Suspects’ institutional affiliation

Mehmet Ersoy, founder of ETS Tours, Voyage Hotels and Maxx Royal Resorts and the Culture and Tourism Minister

Date of offending

28 November 2018

Sector affected

Culture & tourism; construction & urbanism

Mehmet Ersoy, who is the owner of specifically ETS Tours, Voyage Hotels and Maxx Royal Resorts and entered the cabinet as Culture and Tourism Minister in 2018, has worked to amend the 1:5000 and 1:1000 Scale Conservation Master and Implementation Plan.

Court

Council of State (Muğla İdare Mahkemesi, Danıştay); Constitutional Court (Anayasa Mahkemesi)

There have been several administrative cases open regarding the state of environmental plans that have allowed Ersoy’s companies to develop construction projects in a protected area. One case was concluded after 14 years with a decision to cancel the 1:5000 and 1:1000 Scale Conservation and Implementation Development Plan that had been suspended in 2018. Other administrative cases are still ongoing. (See here and here.)

Current phase of the case in criminal procedure

Suspicion raised publicly

Procedural history (charges, deeds, appeals, suspension decision, etc. about the case including the dates)

First, the zoning plan of the ETS Tours hotel was cancelled in 2015 because it failed to comply with the zoning plan for the protected area. In November 2018, however, additional land was allocated to Ersoy’s company when changes to the environmental plan received approval. In November 2019, the additional allocation was overturned in court. Other administrative cases are ongoing. In September 2019, MP Çetin Osman Budak of the Antalya Republican People’s Party submitted a question to Parliament on Culture and Tourism Minister Ersoy’s conflict of interest in the case (see here and here). Budak’s question remains unanswered.

A criminal procedure has not been opened in the case.

Obstacles

Several obstacles stand in the way of opening a criminal procedure for corruption cases involving high-level officials in Turkey. Abuse of trust is deemed a corruption-related offence, but the Turkish Penal Code makes no such distinction, nor does it contain a section dedicated to corruption offences. An investigation against ministers and vice presidents can be launched with an absolute majority vote in Parliament according to the Constitution (Art. 106) (see here).

In practice, no official inquiry has been opened in spite of publicly known corruption cases such as those called the 17-25 December cases or the recently uncovered Alexion Pharmaceuticals case (see here and here).

In relation to the administrative aspect of the case, another obstacle is that compliance with court orders and laws in general is a problematic area for the government in Turkey. Checks and balances mechanisms become obsolete when court orders or pre-existing laws are not respected and corporations close to the government try to move forward with their projects, promoting tailor-made law-making or pigeonholing court rulings. In the case of Adalıyalı, the amendments were accepted even though the plans did not comply with the 1:100000 scale environmental plan. The process has continued and the company has persevered in its construction plans despite court orders against construction in the area and the area’s environmental and regional value (see here).

In the end, the government through its institutions, such as different departments in various ministries and the governorship, enabled construction by the company of a well-known businessman because of personal and business relationships, as witnessed by the appointment of the company’s founder Mehmet Ersoy as Culture and Tourism Minister in 2018.

The allocation of an additional piece of land after Ersoy’s appointment as minister in 2018, despite the court’s overturning of environmental plans in 2015, is a testament to the persistence of government institutions to carry out their ideas and projects, often irrespective of the public interest and the environment. The decisions taken by state government departments go against the universality of law. Also, making an amendment about an environmentally protected area, a site ecologically and economically crucial and relevant to all citizens of the country, for the benefit of a single company not only puts the integrity and credibility of state institutions and the government at risk, but also endangers the welfare of posterity.

Applicable minimum and maximum penalty

From one to seven years in prison, according to Article 155 of the Turkish Penal Code (see here)

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