Communicated on 18 December 2019
SECOND SECTION
Application no. 1574/12
THE CHIEF RABBINATE OF THE JEWISH COMMUNITY IN IZMIR
against Turkey
lodged on 2 December 2011
SUBJECT MATTER OF THE CASE
The applicant is the Chief Rabbinate of the Jewish Community in Izmir. The application concerns the registration of a property, which the applicant claims to be in its use since 1605, in the name of the Treasury, and the domestic courts’ dismissal of the applicant’s claim to have it registered in its name.
Following a cadastral work carried out in 1930, the property at issue was entered in the land register with an annotation noting that it was a rabbinate. The owner part was left blank. By a zoning act in 1989, it was registered as a block comprising two separate plots; plots 10 and 11 of block no. 7378.
In 2000 the applicant lodged an action before the Izmir Cadastral Court, claiming the registration of both plots in its name in the land register. That case was dismissed by the domestic court, which found that the cadastral works needed to be completed before it could reach a decision. That judgment became final in 2003.
As a result of the cadastral work carried out in 2004, the owner of approximately half of the shares of plot 10 and all of plot 11 was determined as the Treasury, on the grounds that the applicant had not provided the permit from the Directorate of Foundations and the decision of the Committee of Ministers. The building on plot 11 was found to belong to the applicant.
Subsequently, in 2005 the applicant lodged another action, this time claiming the registration of the property in its name on account of acquisitive prescription. On 21 March 2008 the Izmir Cadastral Court dismissed the case in line with the findings of the last cadastral work, concluding that the impugned plots had been registered to the Treasury due to the applicant’s failure to provide the required documents from the Directorate of Foundations and the Committee of Ministers, both of which it considered were required for the registration of the property in the applicant’s name. The domestic court held that there had not been sufficient proof to support the applicant’s claim to the property and declared that it should be registered in the name of the Treasury, with an annotation in the land register which would state that the owner of the building on plot 11 was the applicant.
On 15 March 2011 the Court of Cassation upheld the judgment. Besides the reasoning provided by the Cadastral Court, the appellate court added that the applicant had also failed to register the property in 1912 and 1913, as required by the Provisional Law on the Legal Persons’ Ownership of Immovable Property dated 1912 (Eşhas-ı Hükmiyenin Emval-ı Gayr-i Menkûleye Tasarruflarına Mahsus Kanun-i Muvakkat).
The applicant complains under Article 1 of Protocol No. 1 to the Convention that the registration of the property to the Treasury violated its right to peaceful enjoyment of possessions. In that connection, the applicant challenges the domestic court’s conclusion regarding the lack of sufficient proof, noting that it has been using the impugned property since 1605. It also argues, in particular, that it was not clear why the domestic court assessed the ownership of the land and the building separately, and considered the applicant as a foundation.
QUESTIONS TO THE PARTIES
1. What is the applicant’s legal status? In view of the domestic court’s conclusion that the applicant had been required to obtain a permit from the Directorate of Foundations and a Committee of Ministers decision, is the applicant considered as a foundation by the domestic authorities?
2. Did the applicant have a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention? In particular, taking account of both the annotation in the land register, stating that the property at issue was a rabbinate, and the conditions for acquisitive prescription under domestic law, did the applicant have a legitimate expectation to obtain the registration of the property (see, mutatis mutandis, İpseftel v. Turkey, no. 18638/05, 26 May 2015)? Moreover, did the applicant’s use of the property at issue as a rabbinate for a long period, for which it claims to have paid taxes, provide it with a legitimate expectation to have the property registered in its name (see, mutatis mutandis, Depalle v. France [GC], no. 34044/02, §§ 65-8, ECHR 2010, and Hamer v. Belgium, no. 21861/03, § 76, ECHR 2007‑V (extracts))?
If so, has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1, on account of the domestic courts’ dismissal of its case and the registration of the property in the name of the Treasury? Was that interference in the public interest and in accordance with the conditions provided for by law? In that connection, to what extent did the applicant’s ownership of the property at issue rely on its registration of the said property under the Provisional Law on the Legal Persons’ Ownership of Immovable Property? Was the domestic courts’ refusal to register the property to the applicant on that ground sufficiently foreseeable (see, mutatis mutandis, Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi Vakfı v. Turkey, nos. 37639/03 and 3 others, 3 March 2009)?
Did that interference impose an excessive individual burden on the applicant?
3. Was the applicant provided with sufficient procedural guarantees during the proceedings in which its claims were examined? In that connection;
(i) Did the domestic court provide adequate reasoning in dismissing the applicant’s case? In particular, did the court examine the applicant’s claims regarding acquisitive prescription and assess whether the conditions had been fulfilled for the property at issue?
(ii) What was the basis of the domestic court’s decision to register the land and the building separately?
The parties are invited to provide the Court with the documents pertaining to the case at issue, submitted during the course of the proceedings before both the Izmir Civil Court of General Jurisdiction (quashed by the Court of Cassation decision no: 2007/3870) and the Izmir Cadastral Court (E: 2008/2, K: 2008/3).
They are also invited to submit expert reports on the value of the property at issue and the alleged loss suffered by the applicant. The reports should point out all the objective criteria they rely on in reaching their conclusions.
Full & Egal Universal Law Academy