Events
The applicants, established by members of the Armenian community and located in Hatay and Istanbul, are community foundations as defined in Article 3 of Law No. 5737 on Foundations.
Applicant Samandağ Vakıflı Village Armenian Orthodox Church Foundation
The applicant applied to Hatay Regional Directorate of Foundations for the registration of 36 immovable properties located within the borders of Samandağı district of Hatay in accordance with the first paragraph of the provisional Article 11 of Law No. 5737; the request for 33 of these immovable properties was rejected by the Foundations Council of the General Directorate of Foundations on the grounds that the Foundation did not have a declaration dated 1936. The request for the other 3 immovables was rejected on the same grounds. Separate lawsuits against both procedures were dismissed.
Applicant Yedikule Surp Pırgiç Armenian Hospital Foundation
A.H., a member of the Armenian community, donated his immovable property in Istanbul to the applicant Foundation by will dated 25/3/1968, but sold it to A.K. and S.Ö. after the Court of Cassation ruled in 1974 that it was not legally possible for community foundations to acquire immovable property by will. Upon the death of A.H. on 11/5/1976, the Treasury filed a lawsuit against A.K. and S.Ö. before the Civil Judge of First Instance; the Judge annulled the will, stating that the will containing a donation in favour of the applicant was invalid as it was legally impossible for a community foundation to acquire immovable property by will. The court also ruled for the cancellation of the sale transaction and registration on the grounds of collusion and for the return of the immovable property to the estate of A.H. to be transferred to the Treasury.
With the provisional Article 7 of Law No. 5737 (provisional Article 7), which entered into force on 7/2/2008, the possibility of returning the immovable properties registered in the title deed in the name of the Treasury or the General Directorate of Foundations to the community foundations was introduced on the grounds that they were willed or donated to the community foundations after the 1936 Declaration but could not acquire property.
On 28/12/2010, the applicant filed a lawsuit against the Treasury for the enforcement of the will and cancellation and registration of the title deed in the civil court of first instance. The court accepted the case and decided to register the immovable property in the name of the applicant, but the decision was reversed by the Court of Cassation. In the reasoning of the reversal decision, after drawing attention to the cancellation of the will, it was stated that the enforcement of the cancelled will could not be requested and therefore the lawsuit should be dismissed. The Court dismissed the case by complying with the reversal decision.
Allegations
The applicants claimed that their right to property was violated as the immovables belonging to the community foundation and registered in the name of the Treasury were not returned.
Assessment of the Court
For the Applicant Samandağ Vakıflı Village Armenian Orthodox Church Foundation
It should be pointed out that at the time when the obligation to submit the declaration envisaged by provisional Article 1 of the abrogated Law No. 2762 (provisional Article 1) arose and had to be fulfilled, the applicant Foundation was not under the sovereignty of the Republic of Turkey and the immovable properties to which it claimed rights were not part of the territory of the Republic of Turkey. Therefore, it was not legally and de facto possible for the applicant to submit the 1936 Declaration. On the other hand, it has not been established that, in the period following the annexation of Hatay to the Republic of Turkey, legislation requiring the community foundations established in Hatay to submit a declaration similar to the 1936 Declaration was enacted. In this case, making the applicant’s benefit from the opportunities provided by the provisional Articles 7 and 11 of Law No. 5737 (provisional Articles 7 and 11) dependent on the fact that he had submitted a declaration in 1936 imposed a heavy burden on the applicant that could not be fulfilled.
On the other hand, it should be recalled that the legal basis for the registration of the immovable properties of the community foundations in Hatay in the name of the state due to their failure to fulfil the obligation to submit the declaration stipulated by Provisional Article 1 is unclear. For the immovables belonging to the foundations established in Hatay, which joined Turkey after the entry into force of Provisional Article 1 and the expiry of the declaration period pursuant to the article – on 7/7/1939 – it is not foreseeable to accept that these immovables will be registered in the name of the Treasury due to the failure to fulfil this obligation.
One of the purposes of the provisional Articles 7 and 11 is to ensure the return to the community foundations of the immovable properties that were included in the 1936 Declaration and registered in the title deed in the name of the names of the namesake or nam-ı müstear or nam-ı mevhum, or whose owner’s name is open in the title deed, and which were registered in the name of the Treasury or other institutions during the process. It is inconceivable that the legislator intended to exclude the immovable properties in Hatay, which was annexed to Turkey on 7/7/1939 and which have similar conditions, from the registration opportunity provided by the provisional Articles 7 and 11. There is no reason justifying the exclusion of the community foundations established in Hatay, which date back to the Ottoman period, from other foundations meeting the same conditions. The fact that the courts of first instance did not take into account the unique situation of the foundations in Hatay, which was not able to submit the 1936 Declaration, led to a different practice between the applicant foundation and the community foundations established in other provinces.
Due to this interpretation of the courts of first instance, the applicant was deprived of the opportunity to have the immovables registered in his name by proving that the other conditions under Provisional Articles 7 and 11 were met. Subjecting the applicant to the condition of having submitted the 1936 Declaration -which the applicant was unable to fulfil due to the annexation of Hatay to Turkey on 7/7/1939- rendered the provision of the aforementioned opportunities meaningless for the applicant and imposed an excessive burden on the applicant. In this case, it was concluded that a fair balance between the public interest and the applicant’s individual interest could not be established and that the interference with the right to property was not proportionate.
The Constitutional Court decided that the right to property was violated for the reasons explained.
For the Applicant Yedikule Surp Pırgiç Armenian Hospital Foundation
The immovable property in the concrete case was willed in favour of the applicant on 25/3/1968. On the other hand, it is clear that the main reason for the decision to register this immovable property in the name of the Treasury was the inability of community foundations to acquire property (even through a will). It is understood that the fact that led the Court of Cassation to conclude that the applicant’s situation did not fall within the scope of Provisional Article 7 was the cancellation of the testament. As a matter of fact, in the decision of the Court of Cassation, it is stated that there is no will that can be enforced due to the cancellation of the will.
It must be stated that the interpretation of the Court of Cassation that the applicant’s situation does not fall within the scope of the aforementioned article based on the fact that the will has been cancelled is in clear contradiction with the purpose for which the said possibility was introduced. This is because the cancellation of the will is based on the idea that it is not legally possible for community foundations to acquire property and therefore to make wills in favour of them.
On the other hand, if the Court of Cassation has concluded that the applicant’s immovable property does not fall within the scope of the aforementioned Law by taking into consideration that “the invalidity of the will has been determined by a court”, then it will be accepted that the scope of the possibility of restitution may change depending on the attitude of the Treasury. Accordingly, while the community foundations in whose favour the wills that have been annulled by the Treasury before the courts may benefit from the opportunity introduced by the provisional Article 7, it will be accepted that the beneficiaries of the wills that the Treasury has not filed a lawsuit for annulment do not fall within the scope of the said article. It is obvious that this interpretation, which narrows the scope of the right depending on the attitude of the administration, will be in the nature of a clear disregard of the right.
It should also be emphasised that the circumstances which led to the creation of Provisional Article 7 have been ignored. It has been argued that the 1974 judgement of the Court of Cassation led to violations of rights. As a matter of fact, this judgement led to the ECtHR’s decision of violation against the Republic of Turkey. The regulation in question was enacted in order to eliminate these violations. One of the objectives of the regulation is to ensure the return of immovable properties transferred to the Treasury due to the invalidation of wills. The interpretation of the Court of Cassation, which indicates that it distinguishes between wills whose invalidity has been determined by the court (cancelled) and those that have not been determined in this direction (not subject to an action for annulment), clearly contradicts this purpose of the legislator. Subjecting a law enacted to remedy a violation and granting rights to an interpretation that clearly contradicts the purpose for which it was enacted contradicts the principle of foreseeability.
As a result, since it was determined that the rejection of the lawsuit filed by the applicant was based on an unpredictable interpretation of the provision of Provisional Article 7, it was evaluated that the interference with the applicant’s property right did not have a legal basis.
The Constitutional Court decided that the right to property was violated for the reasons explained.
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