AS TO THE ADMISSIBILITY OF
Application No. 25755/94
by Y.S.P.E.H.V.
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 9 April 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 July 1994 by
the Y.S.P.E.H.V. against Turkey and registered on 22 November 1994
under file No. 25755/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Armenian foundation located in istanbul. It
is represented before the Commission by Mr. Diran Bakar and Mr. Setrak
Davuthan, both lawyers practising in istanbul.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
K.S.G., who resided in Lisbon, died on 20 July 1955. He made his
will on 18 June 1953 which included a provision for his office
building, named S, in istanbul to be endowed to the applicant.
Upon K.S.G's death the applicant applied to the istanbul first-
instance court for administration of the will. On 14 November 1958 the
court decided to authorise the applicant to register the property in
its name.
Following this decision, the applicant applied to register title
to the property with the Land Registry. During the proceedings, the
Security Department and the Governor of istanbul sent declarations to
the Land Registry stating that the property in question could not be
registered in the applicant's name. These declarations pointed out that
Law no. 3523, amending Article 1 of the Foundations Law no. 2762,
stated that, as community foundations were managed by non-legal
entities, they were entitled only to enter into those transactions
which were prescribed in their foundation charter. They referred to the
applicant's charter and noted that this foundation was not authorised
to receive any donations. Therefore, on 25 October 1967, they ordered
the property not to be registered in the foundation's name.
Following these developments, on 7 December 1983 the General
Directorate of Foundations declared that the owner of the above-
mentioned property was fugitive. According to the provisions of the
Liquidation Law, properties belonging to fugitives are transferred to
the General Directorate of Foundations Treasury, as abandoned property.
On May 1984 the General Directorate of Foundations, pursuant to
these provisions, instituted proceedings in order to obtain an
authorisation to register the property in question in its own name. On
17 September 1984 the istanbul first-instance court decided to register
the property in the name of the General Directorate of Foundations and
following this judgment, the property was registered before the Land
Registry on 29 January 1988.
When the applicant learnt that the property in question had been
registered in the name of the General Directorate of Foundations name,
on 21 September 1989 it instituted civil proceedings against that
authority for this registration to be cancelled.
The istanbul first-instance court rejected the applicant's
demand. It stated that the plaintiff foundation was a community
foundation and that according to Article 1 of Law no. 3523, amending
Article 1 of the Law on Foundations no. 2762, foundations run by the
communities can only acquire property if they are clearly authorised
by their charter to do so. The court referred, in this context, to the
final decision of the istanbul first-instance court in which it was
established that it was not clearly stated in the foundation's charter
that it could acquire property donated to it by will.
The applicant's appeal was rejected on 19 October 1993 by the
Court of Cassation.
The applicant also applied for a correction of the decision but
the Court of Cassation rejected its request on 19 October 1993.
COMPLAINTS
1. The applicant complains under Article 1 of Protocol No. 1 to the
Convention that the foundation has been unlawfully deprived of the
property which was endowed to it, as a result of a judicial decision
in which it was declared that the property could not be registered in
its name.
2. The applicant also complains of discrimination within the meaning
of Article 14 in conjunction with Article 1 of Protocol No. 1 of the
Convention. The applicant maintains that it is contrary to Article 14
of the Convention to impose special regulations only on community
foundations.
THE LAW
The applicant complains under Article 1 of Protocol No. 1 (P1-1)
to the Convention that the foundation has been unlawfully deprived of
its property and was subject to discrimination within the meaning of
Article 14 in conjunction with Article 1 of Protocol No. 1
(Art. 14+P1-1) of the Convention. In this respect the applicant
maintains that it is contrary to Article 14 (Art. 14) of the Convention
to impose special regulations only on community foundations.
However, the Commission recalls that the declaration made on
28 January 1987, pursuant to Article 25 (Art. 25) of the Convention,
by which Turkey recognised the Commission's competence to examine
individual petitions, extends only to facts and judgments based on
events occurring after that date.
The Commission notes in the present case that the complaints
under Article 1 of Protocol No. 1 and Article 14 (P1-1+14) of the
Convention concern the refusal of the Administration, on 25 October
1967, to register the property in question under the applicant's name.
The Commission therefore observes that the facts alleged relate to a
period prior to 28 January 1987.
The Commission also notes that the first-instance court decision
of 17 September 1984 held that the will in which the property in
question was donated to the applicant, was not valid on the grounds
that the owner of the above-mentioned property was fugitive and such
properties belonging to fugitives as being abandoned properties could
not be subject to any kind of transaction. The refusal of the
applicant's heritage right also relates to a period prior to
28 January 1987.
It follows that the applicant's complaints fall outside the
competence ratione temporis of the Commission and therefore must be
rejected as incompatible with the provisions of the Convention within
the meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy