S.O., A.K. AND Ar.K. v. TURKEY
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
The three applicants, S.Ö, A.K. and Ar.K. are Turkish citizens of Armenian origin, resident in İstanbul They are members of Yedikule Surp Pırgıç Ermeni Hastahanesi Vakfı (the Foundation), a hospital founded by Armenians in İstanbul. Before the Court, the applicants are represented by Mr Diran Bakar and Mr Setrak Davutkan, lawyers practising in İstanbul. The facts of the present case, as submitted by the applicants, may be summarised as follows. A.H., who had been a patient at the Foundation, made her will in 1968 and bequeathed her real estate to the Foundation. On 19 October 1971 the Joint Civil Chambers of the Court of Cassation held that the Foundation was a “community foundation” whose charter had been definitively established in 1936. They also recalled that such foundations were only entitled to enter into transactions prescribed in their founding charter. Accordingly, the Joint Civil Chambers held that the foundation in question could not acquire property bequeathed to it by will given that the founding charter did not specify such a right. Consequently, shortly before her death in 1976, A.H. sold her two shops in İstanbul to the first three applicants S.Ö., A.K. and Ar.K, who are members of the Foundation and donated the proceeds of this transaction to the Foundation. On 14 August 1978, the Treasury instituted civil proceedings against the applicants in the İstanbul Civil Court of General Jurisdiction. The Treasury declared to be sole beneficiary of A.H.’s estate under Section 448 of the Civil Code, which provides that the estate of a deceased person shall pass to the Treasury if the person dies intestate and has no relatives. The Treasury also maintained that the sales contract between the first three applicants and A.H. had been signed under false pretences. It alleged that A.H.’s intention in entering into the contract was to donate her real estate to the foundation during her lifetime through the sale of her property to S.Ö., A.K. and Ar.K, who are members of the foundation. Accordingly, it requested the court to order that the shops, which had been transferred under the sales contract, be restored and that the donation to the Foundation be revoked. On 8 April 1986 the İstanbul Civil Court of General Jurisdiction rejected the Treasury’s request on the ground that the Treasury’s claim of being the sole beneficiary of the A.H. estate required clarification. On 25 December 1986 the Court of Cassation quashed this judgment on the ground that the first-instance court should have adjourned the case for the Treasury to prove that it had a legal right over A.H.’s estate. On 24 June 1987 the Court of Cassation dismissed the applicants’ request for rectification of this decision. On 15 October 1987 the İstanbul Civil Court of General Jurisdiction applied the decision of 25 December 1986 and decided to adjourn the case for the Treasury to prove that it was entitled to pursue it. Later, the Treasury submitted to the court a certificate of inheritance issued by the İstanbul Magistrate’s Court in Civil Matters dated 15 December 1988 to the effect that the Treasury was the true beneficiary of the estate as A.H.’s sister had predeceased her and that A.H. had no other living relatives. Accordingly, the İstanbul Civil Court of General Jurisdiction decided to examine the merits of the case. After examining the expert report, the court stated that although there was a difference between the real value of the estate and the amount stated in the sales contract, this was not in itself sufficient to conclude that the applicants had acted under false pretences. Consequently, on 8 October 1992, the court dismissed the case on the ground that the Treasury had failed to provide sufficient evidence in support of its claims. On 5 April 1993 the Court of Cassation quashed this judgment. Referring to the will signed on 25 March 1968 and the expert report, which stated that there was a significant difference between the real value of the estates and the amount paid to A.H., the Court of Cassation found that the first instance court had sufficient evidence before it to give a decision. On 10 December 1993 the applicants’ request for rectification of this decision was rejected by the Court of Cassation.  On 3 March 1994 the İstanbul Civil Court of General Jurisdiction applied the decision of the Court of Cassation. The court found that the sales contract had been signed under false pretences and accordingly annulled it. Consequently it decided that the shops in issue be included in A.H.’s estate. The court dismissed the remainder of the case.  On 14 July 1994 the Court of Cassation once again quashed the decision of the first-instance court. It held that the İstanbul Civil Court of General Jurisdiction should have accepted the Treasury’s claims as a whole. On 4 November 1994 the Court of Cassation dismissed the applicants’ request for rectification of this decision. On 29 December 1994 the İstanbul Civil Court of General Jurisdiction applied the decision of the Court of Cassation. It decided that the will signed on 25 March 1968 and the donation made to the foundation should be annulled. On 18 May 1995 the Court of Cassation upheld the judgment of the first-instance court. On 9 October 1995 the Court of Cassation dismissed the applicants’ request for rectification.