Information Note on the Court’s case-law No. 117
March 2009
Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi Vakfi v. Turkey - 37639/03
Judgment 3.3.2009 [Section II]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Possessions
Refusal to enter Greek Orthodox Church foundation in land register as owner of property it had held without interruption for more than twenty years: violation
Facts: The applicant is a Foundation of the Greek Orthodox Church. It submitted that it had acquired by donation or legacy three pieces of land and a building. However, although the applicant foundation had owned the property for many years, it had never been registered in the land register in its name. In May 1991 the land register was reorganised and the pieces of land in question were divided into a number of plots, each with a new registration number. The boxes in which the owners’ names were to be entered in the land register were left empty, the applicant foundation having failed to submit its declaration of the property it owned, as required under Law no. 2762 on foundations. The land registry entries for the properties concerned stated that no title had been recorded in the land register in the applicant foundation’s name, although experts and witnesses had confirmed that the foundation did own them. As the foundation did not lodge an objection within the 30 days allowed by law, the cadastral plans were published and became final. In 2001 and 2002 the applicant foundation applied to the land registration tribunal to have its title to each of the properties recorded in the land register. The tribunal allowed the application and ordered the properties to be registered in the applicant foundation’s name. The Court of Cassation quashed that judgment. In August 2002 Law no. 4771, amending Law no. 2762, entered into force. It opened up the possibility for foundations to have real estate which they could prove, in one way or another, that they owned recorded in the land register. The land registration tribunal, in keeping with the judgments of the Court of Cassation, dismissed the applicant foundation’s requests and ordered title to the disputed property to be vested in the Treasury. The Court of Cassation dismissed appeals lodged by the applicant foundation, thereby upholding the first-instance judgments. In the meantime, based on Law no. 4771, the applicant foundation had filed an application with the General Directorate of Foundations to have the properties in question registered in its name in the land register. Its application was dismissed on the grounds that ownership was already listed in the register in the name of the Treasury or third parties. The Administrative Court rejected the applicant’s subsequent appeal to have that decision set aside. The Council of State upheld the first-instance judgment.
Law: That the applicant foundation had not been in possession of the title deeds to the properties concerned was not in dispute. The question was whether the foundation could rightfully claim to have acquired the property by adverse possession, and therefore request its registration in the land registry under its name. In this case the applicant foundation could legitimately have believed that it had satisfied all the requirements for its title to the real property it had owned for a very long time to be recognised. Its proprietary interest was of a sufficient nature to constitute a substantive interest and hence a “possession” within the meaning of the rule laid down in the first sentence of Article 1 of Protocol No. 1, which provision was therefore applicable to this aspect of the complaint. The interference with the right to peaceful enjoyment of possessions seen here in the refusal to register the property in the applicant foundation’s name and its registration in that of the Treasury instead, ought, above all, to have been legal. However, the relevant legislative provisions in force were sufficiently clear. Section 14 of the Land Registry Act listed the conditions for acquisition of a property by adverse possession. In addition, Law no. 2762 on foundations, as amended after 2002, recognised the capacity of foundations of religious minorities to acquire property on the basis of possession. Consequently, and in the light of the above considerations, the Turkish courts’ refusal to register the disputed property in the land register in the applicant foundation’s name could not be regarded as sufficiently foreseeable for the foundation, which had possessed it uninterruptedly for more than 20 years for the purposes of section 14 of the Land Registry Act. The interference complained of was incompatible with the principle of legality.
Conclusion: violation (unanimously).
Article 41 – Disputed property to be registered in the land register in the applicant foundation’s name; failing that, payment of EUR 100,000 to the applicant foundation in respect of pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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