CASE OF FENER RUM ERKEK LİSESİ VAKFI v. TURKEY
Violation of P1-1;Not necessary to examine Art. 14;Pecuniary damage - payment of compensation or re-registration of the applicant's title to the disputed property at the Land Registry;Costs and expenses partial award - Convention proceedings
András Baka;Ireneu Cabral Barreto;Jean-Paul Costa;Volodymyr Butkevych
11. The applicant is a foundation existing under the laws of Turkey whose purpose is to provide educational facilities at the Greek Orthodox High School in Fener, Istanbul. It operates in accordance with the provisions of the Lausanne Treaty, which afforded protection to old foundations providing public services for religious minorities. It is one of a number of foundations dating from the Ottoman era. After the proclamation of the Republic it fell under Law no. 2762 of 13 June 1935, by virtue of which it obtained legal personality. In 1936, in accordance with section 44 of that Act, the applicant foundation filed a declaration indicating its aims and its immovable property. 12. On 10 October 1952 the applicant foundation acquired, by way of donation, title to part of a building situated in Istanbul. That acquisition was based on a certificate issued on 3 October 1952 by the Governor of Istanbul. The relevant part of that certificate read as follows: “Fener Rum Erkek Lisesi Vakfı is a legal entity authorised to acquire immovable property by virtue of the Foundations Act. It is run by an administrative board consisting of ... Further to a request of 3 October 1952 by the Beyoğlu Land Registry, the present document is issued for the purposes of the transaction concerning immovable property located at ... by virtue of section 2 of the Land Registry Act [Law no. 2644 of 29 December 1934 on the Land Registry – see paragraph 27 below].” 13. The immovable property in question was subsequently registered at the Land Registry. The applicant foundation duly paid property taxes in respect of its property. 14. Similarly, on 16 December 1958, the applicant foundation acquired, by purchase, co-ownership of another part of the same building. On 15 November 1958 the Governor of Istanbul had issued the certificate required by section 2 of the Land Registry Act, again indicating that “Fener Rum Erkek Lisesi Vakfı [was] a legal entity authorised to acquire immovable property by virtue of the Foundations Act”. The applicant’s title to that property was accordingly registered at the Land Registry and the relevant property taxes were duly paid. 15. On 15 July 1992 the Treasury lodged an application with the District Court of Beyoğlu (Istanbul) seeking the annulment of the applicant foundation’s title to the above-mentioned immovable property and the registration thereof in the name of the former owners, by virtue of the established case-law of the Court of Cassation. In support of its application, it argued in particular that the applicant did not have the capacity to acquire immovable property. In addition, given that the property in question was not mentioned in its declaration of 1936, an instrument regarded as the legal foundation constitution (vakıfname) of those establishments in accordance with the case-law of the Court of Cassation, the applicant was not entitled to obtain the relevant title. The Treasury therefore requested that the property be re-registered in the name of its former owner. 16. On 19 December 1994, further to a request from the District Court, an expert in cartography and land surveys filed a report on the case. Referring to the case-law of the combined civil divisions of the Court of Cassation, as established on 8 May 1974 (see paragraph 28 below), he observed that foundations belonging to religious minorities as defined by the Lausanne Treaty which had not indicated in their constitution a capacity to acquire immovable property were precluded from purchasing or accepting gifts of such property. Consequently, the real estate of such foundations was limited to the property indicated in their constitutions, which had become final with the declarations of 1936. In conclusion, the expert considered that the applicant foundation’s title should be annulled, as it lacked the capacity to acquire immovable property, and that the property in question should be re-registered in the name of its former owners. 17. Before the District Court, the applicant foundation objected to the characterisation given to the 1936 declarations by the Treasury. It contended in particular that these declarations had been required by the State for the registration of the assets and income of foundations and that they could not be regarded as constitutive instruments. It further argued that such foundations did have the capacity to acquire property, by virtue of the Land Registry Act. 18. In a judgment of 7 March 1996 granting the request of the Treasury, the District Court ordered both the annulment of the applicant’s title and the re-registration of the property in the name of the former owners. It found in particular as follows: “As the Treasury stated, the defendant foundation did not indicate in [its] declaration of 1936 ... its [disputed] acquisitions by way of donation and purchase. Thus, as observed in the expert’s report, those acquisitions are devoid of legal basis and must accordingly be struck out of the land register and re-registered in the name of the former owners.” 19. On 17 April 1996 the applicant foundation appealed to the Court of Cassation. It relied in particular on its right to the peaceful enjoyment of its possessions under Article 1 of Protocol No. 1. Its appeal was dismissed on 11 June 1996. 20. On 9 December 1996 the Court of Cassation dismissed an application by the applicant foundation for rectification of the judgment of 11 June 1996. 21. On 16 October 2000 the applicant foundation submitted a request to the Directorate-General of Foundations (the “Directorate”) for the amendment of its constitution. It sought a new constitutive instrument that would grant it the capacity to acquire immovable property. The request was rejected on 20 October 2000. In the grounds for its decision, relying on the judgment of the combined civil divisions of the Court of Cassation of 8 May 1974, the Directorate observed that the 1936 declarations by foundations of religious communities were to be regarded as the “constitutive instruments” of those establishments and that amendment of those constitutions was impossible for reasons of public policy. 22. The Government argued that the striking-out of the applicant’s title from the land register did not take place until 2002. In this connection they referred to a decision taken by the Beyoğlu Municipal Council on 13 March 2001 whereby the applicant foundation, as owner, together with its tenant, had been fined for adding an additional storey onto the building without authorisation. 23. Prior to 1912, foundations (vakıf) were not recognised as legal entities in the legal system of the Ottoman Empire. Not having legal personality, they used to have their property registered at the Land Registry in the name of a holy person who had died or of a living person in whom they trusted. A Law of 16 February 1328 anno Hegirae (1912), granting foundations the right of ownership, thus recognised their legal personality. Under that Law, foundations were entitled to have their property registered at the Land Registry. 24. After the Republic was proclaimed in 1923, the Civil Code and Law no. 864 on the implementation and application of the Civil Code came into force on 4 October 1926. Section 8 of Law no. 864 provided as follows: “A special Law will be enacted to govern the operation of foundations established before the entry into force of the Civil Code. Establishments founded after the entry into force of the Civil Code shall be governed by the provisions of the said Code.” 25. Law no. 2762 was thus enacted on 13 June 1935 and it recognised the legal personality of foundations set up under the Ottoman Empire. The legal status of foundations established after the entry into force of the Civil Code of 4 October 1926 was, however, governed by the Code itself. 26. Law no. 2762 imposed an obligation for foundations that had been created under the Ottoman Empire to submit a declaration indicating, among other things, the nature and amount of their income. For that purpose it contained the following transitional provision: “A. Representatives ... of foundations which have not registered with the Directorate-General of Foundations ... shall file with it a declaration [beyanname] indicating the nature and amount of their income ... for the previous year ..., within three months from the entry into force of the present Act ...” 27. The Land Registry Act (Law no. 2644 of 22 December 1934) provided in section 2 as follows: “Legal entities, in order to register transactions at the Land Registry, shall request the higher authority of the district in which their registered offices, or those of their branches, are located, to issue them with a certificate indicating their capacity to acquire immovable property and the power of the legal entity’s representative to enter into such transactions. ...” 28. In the case-law established by its judgment of 8 May 1974, the Court of Cassation decided that the declarations of 1936 were to be regarded as the constitutive instruments of the vakıf, finalising their constitutions. Unless the declaration included an express provision to such effect, foundations were not entitled to acquire immovable property other than that declared in the said document. The Court of Cassation appeared to consider that the acquisition by foundations of this type of property, in addition to that which was indicated in their constitution, could constitute a threat to national security. The court stated in particular as follows: “The acquisition of immovable property by legal entities set up by persons who are not Turkish is prohibited. It is evident that the State would be exposed to various risks if it granted such foundations the capacity to acquire immovable property ... The last paragraph of section 1 of the Foundations Act provides that the management of foundations belonging to religious communities and artisans is to be entrusted to the persons and organs appointed by them. A legal status is thus created for them, without prejudice to their legal personality. Under section 44 of the Foundations Act, the places [yerler] indicated in the registers and other similar documents filed with the Land Registry following the enactment of the Law of 16 February 1328 are transmitted, by this means, to the register of foundations. Consequently, it is appropriate to regard the declarations filed under section 44 of the above-mentioned Act by such organisations – now foundations – belonging to communities and engaged in charitable, scientific or aesthetical activities, as being their legal foundation constitutions [vakıfname]. A foundation is not entitled to acquire property unless it expressly indicated its capacity to do so in its constitution and the same applies to charities. They are not entitled to acquire immovable property, whether directly or by inheritance, if it is not clearly stipulated in their declaration that they can accept gifts ...” 29. Lastly, the legislation governing foundations was changed in 2002. Section 4 of Law no. 4771 of 9 August 2002 provides as follows: “A. The following paragraphs shall be added at the end of section 1 of the Foundations Act of 5 June 1935. Religious community foundations, whether or not they have a constitution, shall be entitled to acquire or possess immovable property, with the authorisation of the Council of Ministers, in order to meet their needs for religious, charitable, social, educational, sanitary or cultural purposes. If a request is made within six months from the entry into force of the present Act, immovable property of which any form of possession is recorded in tax registers, leases or other documents shall be registered at the Land Registry in the name of the foundation in order to meet the needs of such foundations for religious, charitable, social, educational, sanitary or cultural purposes. Property that has been donated or bequeathed to the foundation shall be governed by the provisions of the present section.” 30. Moreover, section 3 of Law no. 4778 of 2 January 2003 provides that “religious community foundations” are now entitled to acquire and alienate immovable property, whether or not they have a constitutive instrument.