Information Note on the Court’s case-law No. 104
January 2008
Nacaryan and Deryan v. Turkey - 19558/02
Judgment 8.1.2008 [Section IV]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Refusal to allow Greeks to inherit property located in Turkey, on the ground that the criterion of reciprocity between Greece and Turkey had not been met: violation
Facts: In 2000 a Turkish national died unmarried and without any direct descendants. In 2001 the District Court found that the applicants were related to the deceased and recognised them as the heirs to his movable property. As to his immovable property, the District Court found that as the applicants were Greek nationals they had no claim to the estate, on the ground that the condition of reciprocity between Greece and Turkey had not been met.
Law: According to the Turkish Land Act in force at the material time, the inheritance of real estate by non-nationals was subject to a condition of reciprocity. Ownership of the immovable part of the deceased’s estate was never transferred to the applicants, in conformity with Turkish law. It followed that the applicants had no “existing possessions”. It remained to be determined whether an asset existed by virtue of which the applicants could claim to have a legitimate expectation of being recognised as the heirs to the immovable property and, consequently, to have a right of ownership over that property. That meant ascertaining whether the applicants could be considered to have met the reciprocity requirement contained in the Land Act. The Court considered it unnecessary to examine in abstracto whether the application of the principle of reciprocity in Turkish law was compatible with the Convention, but set out to determine whether the way it had affected the applicants constituted a violation of the Convention. In the instant case the District Court had based its finding that the reciprocity requirement had not been met on the conclusions of a report of the Ministry of Justice. However, the report expressly mentioned that there were no restrictions in Greece on the inheritance of immovable property. Although the report mentioned information according to which there were various obstacles to this form of acquisition, it admitted that the information concerned was not based on concrete proof. On the other hand, according to documents produced by the Greek Government, Turkish nationals had been able to inherit immovable property located in Greece. That being so, the applicants, whose family ties with the deceased had been established with certainty, could hardly have foreseen that the District Court would consider that the reciprocity requirement had not been met. Accordingly, the applicants had had a “legitimate expectation”, within the meaning of the Court’s case-law, that their rights to inherit the deceased’s immovable property and, consequently, their title to it, would be acknowledged. The refusal of the domestic courts to acknowledge that title had amounted to an interference with their right to the peaceful enjoyment of their property. Given that the application of the impugned provision of the Land Act could not be considered to have been sufficiently foreseeable for the applicants, the impugned interference was incompatible with the requirement of lawfulness and was therefore not in conformity with Article 1 of Protocol No. 1.
Conclusion: violation (five votes to two).
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This summary by the Registry does not bind the Court.
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