Individual Application

The Facts

The applicants, established by members of the Armenian community and located in Hatay and Istanbul, are community foundations within the meaning of Article 3 of Law no. 5737 on Foundations.

The Applicant Samandağ Vakıflı Village Armenian Orthodox Church Foundation

The applicant applied to the Hatay Regional Directorate of Foundations for the registration of 36 properties within the borders of the Samandağ district of Hatay in accordance with Provisional Article 11 § 1 of Law no. 5737; the application for 33 of these properties was rejected by the Council of Foundations under the Directorate General of Foundations on the grounds that the Foundation did not have the 1936 Declaration. The application for the other three properties was rejected for the same reasons. Separate actions against both procedures were dismissed.

The Applicant Yedikule Surp Pırgiç Armenian Hospital Foundation

A.H., a member of the Armenian community, donated his/her immovable property in Istanbul to the applicant Foundation by a will dated 25 March 1968, but later 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 property by will. After the death of A.H. on 11 May 1976, the Treasury brought an action against A.K. and S.Ö. before the Civil Court of First Instance; the judge annulled the will on the grounds that the will containing a donation in favour of the applicant was invalid, as it was legally impossible for a community foundation to acquire property by will. The court also ordered the cancellation of the sale and registration on the grounds of collusion and the return of the property to the estate of A.H., to be transferred to the Treasury.

Provisional Article 7 of Law no. 5737 (Provisional Article 7), which entered into force on 7 February 2008, introduced the possibility of returning property which was bequeathed or donated to community foundations after the 1936 Declaration, but which is still registered in the title deeds in the name of the Treasury or the Directorate General of Foundations due to the inability to acquire property.

On 28 December 2010, the applicant brought an action against the Treasury before the Civil Court of First Instance for the enforcement of the will and the cancellation and registration of the title deed to the property. The court accepted the action and decided to register the property in the applicant’s name, but the decision was reversed by the Court of Cassation. In the grounds of the reversal decision, it was stated, after noting that the will had been annulled, that the annulled will could not be enforced and that the action should therefore be dismissed. The court dismissed the action in accordance with the reversal decision.

The Applicant’s Allegations

The applicants claimed that their right to property had been violated because the properties owned by the Community Foundation and registered in the name of the Treasury had not been returned.

The Court’s Assessment

As Regards the Applicant Samandağ Vakıflı Village Armenian Orthodox Church Foundation

It should be noted that at the time when the obligation to submit the declaration provided for in 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 Türkiye and the properties over which it claimed rights were not part of the territory of the Republic of Türkiye. It was therefore neither legally nor de facto possible for the applicant to submit the 1936 Declaration. On the other hand, it was not established that, in the period following the annexation of Hatay to the Republic of Türkiye, any legislation was enacted requiring the community foundations established in Hatay to submit a declaration similar to the 1936 Declaration. In the present case, to make the applicant’s access to the possibilities offered by Provisional Articles 7 and 11 of Law no. 5737 (Provisional Articles 7 and 11) conditional on the fact that the applicant had submitted a declaration in 1936 would have imposed a heavy burden on it which could not be met.

On the other hand, it is important to recall the ambiguity regarding the legal basis for the registration of the properties of the community foundations in Hatay in the name of the State, due to their failure to comply with the obligation to submit the declaration provided for in Provisional Article 1. It is not foreseeable that the properties of the foundations established in Hatay, which joined Türkiye after the entry into force of Provisional Article 1 and the expiry of the declaration period provided for in the Article - on 7 July 1939 - will be registered in the name of the Treasury because of the failure to fulfil this obligation.

One of the purposes of the introduction of Provisional Articles 7 and 11 is to ensure the return to the community foundations of properties included in the 1936 Declaration and registered in the title deed in the name of a pseudonym or a deceased person, or whose owner’s name is unknown in the title deed and which have been registered in the name of the Treasury or other institutions during the process. It cannot be assumed that the legislator intended to exclude immovable property in Hatay, which was annexed to Türkiye on 7 July 1939, from the possibility of registration provided for in Provisional Articles 7 and 11. There is no reason that justifies the exclusion of the community foundations established in Hatay during the Ottoman period from the other foundations that fulfil the same conditions. The fact that the lower courts did not take into account the specific situation of the foundations in Hatay, which were not able to submit the 1936 Declaration, led to a difference in practice between the applicant Foundation and the community foundations established in other provinces.

As a result of this interpretation by the lower courts, the applicant was deprived of the possibility of registering the properties in its name by proving that the other conditions of Provisional Articles 7 and 11 were fulfilled. Subjecting the applicant to the obligation of submitting the 1936 Declaration - considering that it was not possible for the applicant to fulfil this condition due to the annexation of Hatay to Türkiye on 7 July 1939 - rendered the provision of the aforementioned opportunities meaningless to 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 individual interest of the applicant could not be maintained and that the interference with the right to property was not proportionate.

Consequently, the Court has found a violation of the right to property.

As Regards the Yedikule Surp Pırgiç Armenian Hospital Foundation

In the present case, the property was bequeathed to the applicant on 25 March 1968. On the other hand, it is clear that the main reason for the decision to register this property in the name of the Treasury was the inability of community foundations to acquire property (even by will). It is evident that the fact which led the Court of Cassation to conclude that the applicant’s situation did not fall within the scope of Provisional Article 7 was the annulment of the will. In fact, the judgment of the Court of Cassation states that there is no will that can be enforced because of the annulment of the will.

It should be noted that the interpretation of the Court of Cassation, according to which the applicant’s situation does not fall within the scope of the aforementioned Article because the will was annulled, is in clear contradiction with the purpose for which the aforementioned possibility was introduced. This is because the annulment of the will was based on the idea that it was not legally possible for community foundations to acquire property and therefore to make wills in their favour.

If, on the other hand, the Court of Cassation concludes that the property of the applicant does not fall within the scope of the aforementioned law because “the invalidity of the will has been declared by a court”, it is accepted that the scope of the possibility of restitution may change depending on the attitude of the Treasury. Consequently, while the community foundations in whose favour the wills annulled by the Treasury before the courts may benefit from the possibility provided for in Provisional Article 7, it is accepted that the beneficiaries of the wills in respect of which the Treasury has not brought an action for annulment do not fall within the scope of the said Article. It is obvious that this interpretation, which limits the scope of the right according to the attitude of the Administration, will be in the nature of a clear disregard of the right.

It should also be stressed that the circumstances which led to the introduction of Provisional Article 7 have been ignored. It has been argued that the 1974 ruling of the Court of Cassation led to violations. In fact, this ruling led to the European Court of Human Rights’ decision of violation against the Republic of Türkiye. The regulation in question was enacted to remedy these violations. One of the objectives of the regulation is to ensure the return of property transferred to the Treasury as a result of the invalidity of wills. The Court of Cassation’s interpretation, according to which it distinguishes between wills which have been declared null and void by the court (annulled) and those which have not been declared null and void (not subject to an action for annulment), is clearly contrary to this legislative objective. It is contrary to the principle of foreseeability to interpret a law enacted to remedy an infringement and to confer rights in a way that is clearly contrary to the purpose of the enactment.

Since it was found that the rejection of the action brought by the applicant was based on an unforeseeable interpretation of the provision of Provisional Article 7, the interference with the applicant’s right to property was found to have no legal basis.

Consequently, the Court has found a violation of the right to property.