Communicated on 11 May 2020
Published on 2 June 2020
SECOND SECTION
Application no. 13176/13
MİDYAT Mor Gabriel Monastery Foundation
against Turkey
lodged on 22 January 2013
SUBJECT MATTER OF THE CASE
The applicant is a religious minority foundation, whose members are Assyrian Orthodox Christians in Midyat, Mardin. The application concerns the domestic authorities’ refusal to register a plot of land, which, according to the applicant foundation, was part of a cemetery belonging to its members, and the registration of that property in the name of the Treasury.
In 1986 a cadastral land survey was carried out in the area, which had been used by the Assyrian Orthodox community as a cemetery. As a result of the cadastral survey, the land, which had not been registered to anyone in the land register until that time, was entered in the name of the Treasury as a constructible land.
In 2006 a road and several shops were constructed on part of the land. Subsequently, the applicant foundation lodged two separate actions before the Dargeçit Cadastral Court, requesting the annulment of the cadastral records and claiming the registration of four plots of land in its name, as “Assyrian cemetery”. In that connection, the applicant foundation drew the domestic court’s attention to the conditions of acquisitive prescription, as well as its specific legal status as a minority foundation and the relevant provisions of the Lausanne Treaty.
The two cases were joined and dismissed by the Dargeçit Cadastral Court in 2009. In 2011 the Court of Cassation quashed part of that judgment, holding that three of the plots concerned should be registered to the applicant foundation, as they had been in its use as a cemetery and as the conditions of acquisitive prescription had been fulfilled before their registration to the Treasury in 1986. The appellate court upheld the judgment in so far as it concerned one of the plots, namely, plot no. 15 on which the shops had been constructed. It found that the conditions for acquisitive prescription had not been satisfied for that plot, as the applicant foundation did not hold the possession of that piece of land long enough to acquire it in line with the plot’s purpose. That decision became final on 13 September 2012.
The applicant foundation complains of a violation of its right to freedom of religion under Article 9 of the Convention on account of the construction of shops and a road on its cemetery and the registration of part of the cemetery to the Treasury. Relying on Article 1 of Protocol No. 1 to the Convention, it argues that the construction made on plot no. 15 and its registration in the name of the Treasury violated its right to property. In that connection, it maintains, in particular, that the finding of the Court of Cassation’s decision was contradictory in itself, as it reached a different conclusion regarding plots of the same nature. Lastly, the applicant foundation relies on Article 14 in conjunction with both Article 9 and Article 1 of Protocol No. 1, arguing that it was discriminated against on the grounds of religion, race and association with a national minority.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant foundation’s freedom of religion, within the meaning of Article 9 § 1 of the Convention, on account of the results of the cadastral survey carried out in 1986 in the area where its cemetery was located, and in particular, the subsequent construction of a road and several shops on the land, which it claimed was part of the cemetery (see, mutatis mutandis, Johannische Kirche and Peters v. Germany (dec.), no. 41754/98, 10 July 2001, and Association for Solidarity with Jehovah’s Witnesses and Others v. Turkey, nos. 36915/10 and 8606/13, §§ 98 and 103, 24 May 2016)?
If so, was that interference prescribed by law and necessary in terms of Article 9 § 2, in particular, in view of the protection provided to the cemeteries of religious minorities under Article 42 § 3 of the Lausanne Treaty?
Did the domestic authorities act in compliance with their positive obligations under Article 9? In that connection, did the Court of Cassation assess whether plot no. 15 had been part of the cemetery as alleged by the applicant foundation and provide sufficient reasoning for its conclusion?
2. Did the applicant foundation have a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention? In view of the fact that all the neighbouring plots of plot no. 15 were eventually registered as a cemetery belonging to the applicant foundation, did the applicant foundation have a legitimate expectation to obtain the registration of the property in its name (see, mutatis mutandis, Depalle v. France [GC], no. 34044/02, §§ 65-68, ECHR 2010, and Hamer v. Belgium, no. 21861/03, § 76, ECHR 2007-V (extracts))?
If so, has there been an interference with the applicant foundation’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 on account of the registration of plot no. 15 to the Treasury? Was that interference in the public interest and in accordance with the conditions provided for by law? In particular, did that interference impose an excessive individual burden on the applicant foundation?
In that connection, was the applicant foundation provided with sufficient procedural guarantees during the proceedings in which its claims were examined?
3. Has the applicant suffered discrimination on the grounds of its religion and association with a national minority, contrary to Article 14 of the Convention in conjunction with Article 9 and Article 1 of Protocol No. 1?
In particular, has the applicant been subjected to a difference in treatment regarding the protection provided to places of worship, that is, its cemetery in the present case? If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification (see, mutatis mutandis, Cumhuriyetçi Eğitim ve Kültür Merkezi Vakfi v. Turkey, no. 32093/10, § 49, 2 December 2014)?
Does the applicant belong to a particularly vulnerable group in society, whose members have suffered considerable discrimination in the past? If so, what were the “very weighty reasons” for the restrictions in question on its fundamental rights (see, mutatis mutandis, Horváth and Kiss v. Hungary, no. 11146/11, § 128, 29 January 2013)?
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