Events
In the 1936 Declaration submitted by the applicant’s attorney, the church and its land, which was listed as Aya Yani Church and Monastery subject to the Great Monastery of Tur-u Sinai in the 1936 Declaration, was included among the excused foundations on 6/6/1977 in accordance with the report prepared by the Foundations Administration as a result of the inspection. The applicant, with his application to the administration, requested that the aforementioned Foundation’s vested status be terminated and its management be returned to the community. In addition, it was also requested that the immovable property belonging to this Foundation be returned to the management of the Foundation to be formed from the community.
The administration tacitly rejected the application by not responding to the application. The applicant filed an action for annulment against this action before the administrative court; the court rejected the action on the grounds that the conditions for inclusion among the vested foundations had been fulfilled since no administrator had been appointed for 10 years to the foundation, which had acquired legal personality in accordance with the 1936 Declaration. The Council of State, which examined the applicant’s appeal, upheld the court’s decision.
Allegations
The applicant claimed that his right to property was violated due to the rejection of his request for the return of his property, which consisted of a church building and land and which had been transferred to the status of a vested foundation.
The Court’s Assessment
The applicant, a foundation of Egyptian nationality, complained that an immovable property belonging to him was recognised as a foundation in its own right, first as annexed foundations, like all community foundations, and then as excused foundations, since it did not have a community to fulfil its purpose, and managed by the Foundations Administration.
Although the immovable property was included among the mazbut foundations with the decision of the Foundations Administration and its management was transferred to the administration, such decisions did not remove the ownership in the title deed, but restricted the owner’s power of disposal. Although it was stated in the decisions of the administration and the administrative judicial authorities that the church and monastery became an independent foundation in accordance with the 1936 Declaration and that the conditions to be included among the excused foundations were fulfilled, the court and the Council of State did not examine the content of the 1936 Declaration regarding the immovable property subject to the individual application and did not answer the claim that foundation status could not be granted to an asset that did not have an independent foundation and did not claim to be an independent foundation according to the Declaration. On the other hand, the court could not explain how a foundation, which the court deemed to be a community foundation and which, with this characteristic, could not be included among the mazbut foundations in accordance with Law No. 5404, could be included among the mazbut foundations. The Court also did not make any assessment as to the conditions of the applicant’s request for restitution based on the provisional Article 11 of Law No. 5737, although it accepted it as a community foundation.
In this case, in the application alleging that an immovable property consisting of a church and its land, which was actually used by the community until 1977, and which was determined by the administration itself to have been used by the community until 1977, was seized by the unilateral action of the administration without relying on a clear provision of law, and that its management was confiscated by being included among the vested foundations by the unilateral action of the administration, and that the request for restitution was rejected based on this administrative action, the applicant’s claims and objections regarding the legality of the interference, which requires a separate and clear answer, which is effective on the outcome of the case, have not been answered by the courts with a relevant and sufficient justification. In addition, the practice of recognising the assets subject to religious activities as an independent foundation and including them among the vested foundations based on a case law that emerged many years after the date of the 1936 Declaration, which is the basis of the administrative action, is not foreseeable.
For the reasons explained above, the Constitutional Court held that the right to property was violated.
You can access our other article examples and petition examples by clicking