FORMER SECOND SECTION
CASE OF FENER RUM
ERKEK LİSESİ VAKFI v. TURKEY
(Application no.
34478/97)
JUDGMENT
[Extracts]
STRASBOURG
9 January 2007
FINAL
09/04/2007
This
version has been rectified in accordance with Rule 81 of the Rules of Court on 22
May 2007
In the case of Fener Rum Erkek Lisesi Vakfı v. Turkey,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Jean-Paul Costa,
President,
András Baka,
Ireneu Cabral Barreto,
Rıza Türmen,
Volodymyr Butkevych,
Danutė Jočienė,
Dragoljub Popović, judges,
and Stanley Naismith, Deputy Section Registrar,
Having deliberated in private on 20 September 2005 and 5
December 2006,
Delivers the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
The case originated in an application (no. 34478/97)
against the Republic of Turkey lodged with the European Commission of Human
Rights (“the Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a foundation
existing under the laws of Turkey, Fener Rum Erkek Lisesi Vakfı (“the
applicant”), on 25 November 1996.
The applicant was represented by Mrs G. Alkan, a
lawyer practising in Istanbul.
The applicant alleged, in particular, that the
legislation on foundations and the interpretation thereof by the domestic
courts, had interfered with its right to the peaceful enjoyment of its
possessions, as guaranteed by Article 1 of Protocol No. 1. It also
considered that it had been a victim of discrimination within the meaning of
Article 14 of the Convention taken in conjunction with Article 1 of Protocol
No. 1.
The application was transmitted to the Court on 1
November 1998, when Protocol No. 11 to the Convention came into force (Article
5 § 2 of Protocol No. 11).
The application was assigned to the Third Section
of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the
Chamber that would examine the case (Article 27 § 1 of the Convention) was
constituted as provided in Rule 26 § 1.
By a decision of 8 July 2004, the Court declared
the application admissible.
The applicant and the Government each filed observations
on the merits of the case (Rule 59 § 1).
On 1 November 2004 the Court changed the
composition of its Sections (Rule 25 § 1). This case was assigned to the newly
composed Second Section (Rule 52 § 1).
A hearing took place in public in the Human
Rights Building, Strasbourg, on 20 September 2005 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr A.M. Özmen, Co-Agent,
Mr B. Yıldız,
Mrs V. Sirmen,
Mrs İ. Yaşar,
Mrs N. Çetin,
Mrs O. Ercil,
Mr Z.B. Avcioğlu,
Mrs Ö. Gazialem, Advisers;
(b) for the applicant
Mrs G. Alkan,
Mr M.A. Hatemi, Counsel
Mr P. Filipos, chairman of the applicant
foundation’s
administrative board,
Mr T. Angelidis, member of the foundation, Advisers.
The Court heard addresses by Mr Alkan and Mr Özmen.
On 1 November 2006 the Court again changed the
composition of its Sections (Rule 25 § 1). The present application continued,
however, to be examined by the Chamber of the former Second Section as it
existed before that date.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
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.
A. Acquisition of immovable property
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].”
The immovable property in question was subsequently
registered at the Land Registry. The applicant foundation duly paid property
taxes in respect of its property.
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.
B. Annulment of title
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.
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.
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.
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.”
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.
On 9 December 1996 the Court of Cassation
dismissed an application by the applicant foundation for rectification of the
judgment of 11 June 1996.
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.
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.
II. RELEVANT DOMESTIC LAW AND PRACTICE
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.
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.”
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.
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 ...”
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. ...”
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 ...”
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.”
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.
THE LAW
...
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.
1
The applicant foundation alleged that the
legislation on foundations and the interpretation thereof by the domestic courts
had interfered with its right to the peaceful enjoyment of its possessions, as
guaranteed by Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.”
A. The parties’ submissions
1. The applicant foundation
The applicant foundation mainly argued that there
had been no legal basis on which to prohibit it from acquiring immovable
property, as a result of which its title to property had been annulled.
It observed that the prohibition in question was
not provided for by legislation but was based on the case-law of the Court of
Cassation. That court, in a judgment of 8 May 1974, had decided that the
declarations made in 1936 by religious minorities’ foundations were to be
regarded as the constitutive instruments of the vakıf (foundations),
finalising their constitutions. Unless the declaration contained an express
provision to such effect, foundations were not entitled to acquire immovable
property other than that which had been indicated therein. Moreover, the court
had considered that the acquisition by foundations of this type of property, in
addition to that indicated in their constitution, could constitute a threat to
national security (see paragraph 28 above).
2. The Government
The Government argued that the applicant
foundation did not have a “possession” within the meaning of Article 1 of
Protocol No. 1. That provision only applied to property actually owned and the
annulment of the applicant’s title corresponded simply to the rectification of
a registration error. Following the annulment of its title, it transpired that
the foundation had not possessed the property in question ab initio and
that it had been re-registered in the name of its original owners and not in
that of the Treasury. The property had been transferred under the law on
inheritance.
In the alternative, the Government contended
that, even supposing that there had been interference with the applicant’s
right under Article 1 of Protocol No. 1, the matter simply concerned a restriction
imposed on the capacity to acquire immovable property.
The Government pointed out that foundations were
entitled to acquire immovable property only to the extent provided for in their
constitutions. If the applicant foundation was not so entitled, this had to be
regarded as the consequence of the fact that, in its declaration of 1936, it
had not reserved for itself the legal capacity to acquire other immovable
property by purchase or donation.
In the Government’s submission, the impugned restriction
was based on the various provisions of Turkish legislation, namely those
governing foundations, the legal basis of which was to be found in Articles
73-81 of the Civil Code and in Law no. 2762. Under those provisions, if
foundations wished to acquire property other than that which had been indicated
in their declaration, they had to have expressly stipulated their capacity to
acquire, by purchase or donation, any other property that they might need in
order to achieve their objectives. This was not the case for the applicant foundation.
It did not have such capacity and was not therefore entitled to acquire
immovable property.
The Government further submitted that the
applicant foundation had acquired legal personality after filing the declaration
in question in March 1936. That declaration was the foundation’s constitutive
instrument, covering all the immovable property in its possession. The
foundation thus recognised had also been required to include therein an express
provision for the acquisition of other property by purchase or donation,
failing which it was precluded from relying on such legal capacity to acquire
other immovable property. Only by virtue of such a provision did legal entities
have the necessary power and legal standing to enter into transactions in the
same manner as individuals.
Consequently, the acquisition of immovable
property by the applicant foundation was an act that had not fallen within its
legal capacities and it was the task of the domestic courts to protect the
public interest by annulling an acquisition that was devoid of legal basis.
Moreover, it could be seen from the judgment of the Beyoğlu District Court
that there was no suggestion that the applicant foundation enjoyed foreign
legal personality. That court had not in fact referred to the judgment of 8 May
1974 of the combined civil divisions of the Court of Cassation (the “1974
case-law”) concerning foreign communities.
B. The Court’s assessment
...
2. Compliance with the requirement of lawfulness
The first and most important requirement of Article
1 of Protocol No. 1 is that any interference by a public authority with the
peaceful enjoyment of possessions should be lawful. The rule of law, one of the
fundamental principles of a democratic society, is inherent in all the Articles
of the Convention (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR
1999‑II). The requirement of lawfulness means that rules of domestic law
must be sufficiently accessible, precise and foreseeable (see Hentrich v. France,
22 September 1994, § 42, Series A no. 296‑A; Lithgow and Others v. the
United Kingdom, 8 July 1986, § 110, Series A no. 102; and La Rosa and
Alba v. Italy (no. 1), no. 58119/00, § 76, 11 October 2005).
As it has stated on numerous occasions, the
Court does not consider it necessary to decide in the abstract whether the role
in the continental-law system of a rule established by the courts is comparable
to that of statutory provisions, it being more important – in any event – to
ensure that the legal basis meets the requirements of foreseeability,
accessibility and precision. The Court remains convinced that the existence per
se of a legal basis does not suffice to meet the requirement of lawfulness
and considers it appropriate to address the question of the quality of the law
(see, among other authorities, La Rosa and Alba (no. 1), cited above, §
77).
Admittedly, Article 1 of Protocol No. 1 does not
guarantee the right to acquire property (see Jantner v. Slovakia, no.
39050/97, § 34, 4 March 2003). There is no doubt that Contracting States should
enjoy a wide margin of appreciation in regulating the acquisition of land and
other immovable property by legal entities such as foundations. They are thus
entitled to implement the necessary measures, in accordance with the general
interest, in order to ensure that such entities can pursue their declared aims
and objectives and to protect public policy and the interests of their members.
The Court observes first of all that it is clear
from the judgment of 7 March 1996 that the Beyoğlu District Court
relied on the conclusions of the expert’s report of 19 December 1994 (see
paragraph 18 above) in finding that the acquisitions in question were devoid of
legal basis. That report indicated that the acquisitions had no legal basis
because, by virtue of the 1974 case-law, religious minorities’ foundations
which had not indicated in their constitution their capacity to acquire
immovable property could not acquire such property by any means whatsoever (see
paragraph 16 above).
However, no provision of Law no. 2762 prohibited
foundations governed by that legislation from acquiring property other than that
which had been included in the 1936 declaration. Since the transactions in
question had not been opposed by a public authority at the time the property
was acquired in 1952 and 1958 (see paragraphs 12-14 above), it was a judicial interpretation
of the provisions of Law no. 2762 by the Court of Cassation in 1974 that gave
rise to the said restriction.
In this connection the Court observes that the
acquisition of 10 October 1952 was validated by a certificate issued by
the Istanbul Governor’s office on 3 October 1952 (see paragraph 12 above). This
document, drawn up on the basis of the Land Registry Act (Law no. 2644 of 22
December 1934), expressly mentioned that the applicant foundation, as a legal
entity, was entitled to acquire immovable property. This was also the case for
the acquisition by purchase of 16 December 1958. It was on that basis that the applicant’s
title as co-owner of the property was entered in the land register (see
paragraph 14 above).
The Court finds that it is not in doubt that, at
the time of the acquisitions in 1952 and 1958, the applicant foundation was
certain of having acquired the property lawfully under the then applicable
Turkish law. Moreover, until the 1974 case-law was adopted, it had the “legal certainty”
that it was entitled to acquire immovable property.
Consequently, the annulment of the title to the property
in question, pursuant to case-law adopted sixteen and twenty-two years
respectively after its acquisition, was not foreseeable for the applicant
foundation. It could not reasonably have foreseen that its title, obtained many
years earlier, would one day be annulled because of a new judicial
interpretation of the applicable legislation, which in fact remained silent as
to its capacity to acquire property. Moreover, by issuing it with certificates
validating its acquisitions, the authorities had indeed acknowledged that it enjoyed
such capacity. Since the registration of its acquisitions, thirty-eight and
forty-four years earlier, the applicant foundation had been able to enjoy its
property peacefully, as rightful owner, and had paid the various property taxes
in respect thereof.
The Court further notes that the Turkish legal
system has been changed precisely to ensure that the capacity of religious community
foundations to acquire immovable property is expressly recognised (see
paragraph 29 above). It is bound to conclude, however, that this development
did not inure to the benefit of the applicant foundation.
In the light of the foregoing considerations,
the Court finds that the impugned interference does not comply with the
requirement of lawfulness and that it has thus breached the applicant
foundation’s right to the peaceful enjoyment of its possessions.
Accordingly, there has been a violation of
Article 1 of Protocol No. 1.
...
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
...
The Court considers, in the circumstances of the
case, that the re-registration of the disputed property in the land register in
the applicant’s name would place it, as far as possible, in a position
equivalent to that which it would have enjoyed had the requirements of Article
1 of Protocol No. 1 been complied with. Failing such re-registration by the
respondent State within three months from the date on which this judgment
becomes final, the Court holds that it is to pay the applicant, in respect of
pecuniary damage, an amount corresponding to the current value of the property
in question.
As to the damage arising from the non-enjoyment of the possessions,
the Court takes note of the Government’s argument that the relevant
registrations of title were not annulled until 2002.
Moreover, the documents submitted by the applicant foundation provide only a
hypothetical calculation and do not suffice for a precise quantification of the
loss resulting from the non-enjoyment of the possessions concerned.
Having regard to all the evidence before it, the
Court decides that, if the property is not re-registered as indicated above
(see paragraph 74), the State is to pay the applicant foundation ... 890,000 [euros]
for the pecuniary damage resulting from the annulment of its title and the effective
non-enjoyment of its possessions from 2002 onwards.
...
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of
Article 1 of Protocol No. 1;
...
3. Holds
(a) that the respondent State is to re-register the
disputed immovable property in the land register in the name of the applicant
foundation, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention;
(b) that if the property is not re-registered, the
respondent State is to pay the applicant foundation, within the same three-month
time-limit, EUR 890,000 (eight hundred and ninety thousand euros) in
respect of pecuniary damage, to be converted into new Turkish liras at the rate
applicable at the date of settlement;
...
Done in French, and notified in writing on 9 January 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Jean-Paul Costa
Deputy Registrar President
