Communicated on 22 January 2018
SECOND SECTION
Application no. 69446/17
BOYACIKÖY PANAYİA EVANGELİSTRA KİLİSESİ VE MEKTEBİ VAKFI
against Turkey
lodged on 4 September 2017
SUBJECT MATTER OF THE CASE
The applicant, Boyacıköy Panayia Evangelistra Kilisesi ve Mektebi Vakfı, is one of a number of religious foundations established during the Ottoman era. After the proclamation of the Republic the foundation’s status was regulated by 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, including a building, which is the subject matter of this application.
The building in question is located in Sarıyer district in Istanbul and, was registered in the name of the fused Abdulhamit Han Foundation (mazbut Abdulhamit Han Vakfi). On 20 August 2009 the applicant lodged an application with the General Directorate of Foundations as per Provisional Article 7 of the Law No. 5737 on the Foundations (“Law No. 5737”), for the registration of the building in its name, its request was rejected on the grounds that the property in question fell outside the scope of Article 7 of Law no. 5737. On 24 May 2010 the applicant brought an action in the Istanbul Administrative Court challenging the administration’s decision. On 25 February 2011 the Istanbul Administrative Court dismissed the application for the same reason given by the administration. The applicant appealed against this decision. On 25 June 2015 the Supreme Administrative Court approved the judgment of the Istanbul Administrative Court. On 11 November 2015 the applicant lodged an individual application with the Constitutional Court, which dismissed the application on 1 February 2017 holding that the applicant did not exhaust the domestic remedies. On 14 March 2017 the decision was served on the applicant.
The applicant relies on Article 6 of the Convention claiming that his right to access to court was infringed. The applicant further complains under Article 1 of Protocol No. 1 to the Convention that the building in question was not registered in its name.
QUESTIONS tO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2. Has there been a breach of the applicant’s right of access to court within the meaning of Article 6 § 1 of the Convention on account of the Constitutional Court’s dismissal of its application for non‑exhaustion of domestic remedies?
Your Government are invited to provide civil court decisions that are related to the annulment of title deeds and registration claims for the properties declared in 1936 Declarations, such as the decision of the First Civil Chamber of the Court of Cassation dated 6 February 2012 (case no. 2011/12924, decision no. 2012/818).
3. What was the scope of the right of ownership enjoyed by the applicant in respect of the property in question? In particular, in the light of the decision of the Sixth Chamber of the Istanbul Administrative Court dated 26 January 2012 (case no. 2010/1941, decision no. 2012/106), what is the status of the “fused foundations” (mazbut vakıflar)?
4. Has there been an interference with the applicant’s peaceful enjoyment of possessions within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, has the applicant been deprived of its possessions in the public interest and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1 to the Convention? Did such deprivation impose an excessive individual burden on the applicant?
Full & Egal Universal Law Academy