Individual Application

The Facts

The applicants are the children of Z.Y., who died on 15 April 2013, and the descendants of the founder of the "El-Hac Ebubekir and İbrahim Beşe bin Topal Mehmet Ağa Foundation", known as Burduroğlu İbrahim'in Menzili ve Dükkanları Foundation established by legal constituent document (vakfiye) dated 18 January 1722 (the Foundation).  This Foundation is a kind of foundation named “zürri,” which is not obliged to engage in charity works, and the whole revenue (galle) of which is allocated to the descendants of the founder. According to the legal constituent document of the Foundation, following the death of the founder, a lineage order will be determined (batın tertibi) and the sons will accordingly be the equal beneficiaries entitled to the use of the foundation (mutasarrıf) and if there are no sons to be beneficiaries, the daughters will be the beneficiaries as determined by the order of the inheritance line (veraset tertibi). The Foundation is under the administration of the Directorate General of Foundations as a fused foundation (mazbut vakıf), which is the foundation established before the entry into force of the repealed Law no. 743 and governed by the Directorate General of Foundations pursuant to the repealed Law no. 2762.

On 25 September 2012, Z.Y., the testator of the applicants brought an action against the Directorate General of Foundations before the 7^th Civil Court, seeking the determination that he was the son of the firstborn of the lineage (batn-ı evvel evlad) who was entitled to benefit from the surplus of revenue. The ancestor of the applicants died on 15 April 2013 while the case was pending, and upon the requests of the heirs to pursue the case, the proceedings continued. Nevertheless, the court dismissed the case on the grounds that since the founder had sons, it was not possible for the daughters to benefit from the surplus of revenue. On appeal by the heirs, the Court of Cassation upheld the impugned decision.

The Applicants’ Allegations

The applicants claimed that the prohibition of discrimination taken in conjunction with the right to property was violated due to inability of the female descendants of the founder to benefit from the fused foundation’s surplus of revenue.  

The Court’s Assessment

At the outset, it must be emphasized that the impugned legal dispute does not relate to the inheritance law. The impugned dispute concerns the distribution of the Foundation’s surplus of revenue. Therefore, the Constitutional Court would confine its examination to whether the procedure for distributing the surplus of revenue complies with Articles 10 and 35 of the 1982 Constitution.

The request of the applicants’ testator to benefit from the surplus of revenue was rejected on the basis of the legal constituent document of the Foundation. In the said legal constituent document, the entitlement of daughters to the surplus of revenue is conditioned upon the requirement that there are no sons of the founder. According to this document, as long as the founder has male children (descendants) from the same lineage, daughters cannot benefit from the surplus of galle.  Rejection of the daughters' request to benefit from the surplus of revenue on the grounds that the same lineage has a son and therefore a daughter cannot benefit from the surplus of revenue as long as there is a son from the same lineage clearly constitutes differential treatment on the basis of gender.

It has been understood that the impugned differential treatment derives from the need to respect the founder’s will and to ensure legal security.  Firstly, it is understandable for the public authorities to pursue the aim of respecting the will of the founder.  Additionally, the differential treatment in the present case was intended for ensuring legal security by protecting the interests of those who are entitled to the surplus of revenue. Therefore, it has been concluded that the differential treatment, which was in pursuance of the will of the founder and for ensuring legal security, had an objective and justified reason.

However, it has been assessed that the purposes of respecting the founder's will and ensuring legal security do not correspond to the public's best interest to the extent that it justifies the non-allocation of a share of the surplus of revenue to the daughters. Although legal security entails the maintenance, to some degree, of the legal issues that were completed and finalized during the Ottoman period, the allocation of the surplus of revenue of a foundation founded during the Ottoman Period is an ongoing phenomenon.  The persons who will be entitled to the surplus of revenue are determined on the date when the right in question arises. Therefore, disputes as to the allocation of surplus revenue cannot be deemed as completed and finalized legal facts. Accordingly, the public authorities cannot reject the requests to allocate the surplus of revenue of a foundation established during the Ottoman Period based on legal security.

In consideration that the effects of the distribution of the surplus of revenue come into play at the time of the allocation of the share, the proportionality test should be applied by taking into account the burdens at the time of allocation. Discrimination based on gender is currently prohibited both by international and national legal documents, and the States are entrusted with the obligation to take measures to prevent differential treatments based on gender. Pursuant to Article 10 of the Constitution, it is not possible to tolerate differential treatment based on gender in today’s societal order. Likewise, such a treatment is deemed as a practice undermining public order. Within this context, it has been concluded that the public interest sought to be achieved by respecting the will of the founder can be ignored in light of today’s interpretation of the public order. In other words, it has been evaluated that the burden incurred by individuals on the grounds of the deprivation of their right to property due to differential treatment based on gender weighs more heavily than the public interest of protecting the will of the founder and ensuring legal security.

Furthermore, in cases where differential treatment based on gender is at stake, the margin of appreciation exercised by the public authorities should be restricted. Having regard to the circumstances of the present case, the Court has concluded that the public authorities exceeded their margin of appreciation in their duty to balance the needs of society by allowing for differential treatment based on gender. The aim of protecting the will of the founder and ensuring legal security cannot be deemed to override the burdens incurred by the applicants due to the denial of the daughters to receive allocations of the surplus of revenue.

 Under these circumstances, it has been concluded that the different treatment on the basis of gender by denying to allocate a share of the surplus of revenue to the ancestor of the applicants, who is the daughter of the founder, on the grounds that a son from the same lineage is still living had no relationship of proportionality between the aim pursued and the means employed -regardless of having a reasonable or justified ground- and therefore constituted discrimination.

Consequently, the Court has found a violation of the prohibition of discrimination in connection with the right to property.