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|Publication:||[not yet received]|
|Title:||Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi Vakfi v. Turkey (no. 2)|
|Application No:||37639/03, 37655/03, 26736/04, 42670/04|
|Date of reference by Commission:|
|Date of reference by State:|
|Date of Judgment:||03-03-2009|
|Conclusion:||Not necessary to examine article 6|
Not necessary to examine article 9
Not necessary to examine article 13
Not necessary to examine article 14
Violation of article P1-1
The applicant, Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi Vakfi (Foundation of the Bozcaada Kimisis Teodoku Greek Orthodox Church) is a foundation under Turkish law based in Çanakkale (Turkey). Its statute complies with the provisions of the Treaty of Lausanne on foundations of religious minorities. The case concerns the impossibility for the applicant foundation to have land and property which it had owned for many years registered in the land register in its name. The foundation submitted that it had acquired by donation or legacy three pieces of land (of 3,792.54 sq. m., 2,251.72 sq. m. and 2,219.69 sq. m.) and a building 37.82 sq. m. in area used as a chapel.
In May 1991, the land register was reorganised and the land was divided into a number of plots, each with a new registration number. However, the applicant foundation had not submitted within the time allowed a declaration of its title to the property, as required by Law no. 2762 on foundations. Consequently, the land registry entries did not mention any title recorded in the land register in the applicant's name, although experts and witnesses had confirmed that the foundation was actually the owner of the properties in question. As the foundation did not lodge an objection within the 30 days allowed by law, the cadastral plans became final. In 2001 and 2002 the applicant foundation applied to the domestic courts to have its title to the property recorded in the land register. The Turkish courts found, among other rulings, that the applicant foundation, as a legal person, could not obtain ownership of real property by adverse possession because it had not filed the declaration required by Law no. 2762. The foundation lost the case and the courts further ordered title to the disputed property to vest in the Treasury.
Relying on Article 1 of Protocol No. 1 (protection of property), Article 6 (right to a fair trial), Article 9 (right to freedom of thought, conscience and religion), Article 13 (right to an effective remedy) and Article 14 (prohibition of discrimination), the applicant foundation complained in particular of the Turkish courts' refusal to register its real property in the land register under its name.
Article 1 of Protocol No. 1
The Court considered that 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. It also noted that Article 1 of Protocol No. 1 required, primarily and above all, that interference by a public authority with the right to peaceful enjoyment of possessions should be legal.
In the Court's opinion, 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, the Court observed that the Turkish courts' refusal to register the disputed property in the land register in the applicant'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 Court concluded that the interference complained of was incompatible with the principle of legality. There had accordingly been a violation of Article 1 of Protocol No. 1.
Articles 6, 9, 13 and 14
Having regard to its finding regarding Article 1 of Protocol No. 1, the Court held that it was not necessary to examine separately the complaints under Articles 6, 9, 13 and 14.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 100,000 euros (EUR) in respect of pecuniary damage and EUR 5,000 for costs and expenses.
|Last Modified: 26-02-2013 10:24:53 (Documentation SIM)