Refusal to register church land: Arnavutkoy

The Arnavutkoy Greek Orthodox Taksiarhis Church Foundation [Arnavutköy Taksiarhis Rum Kilisesi Vakfı] is a foundation under Turkish law of the Greek Orthodox Community of Istanbul. In Arnavutkoy Greek Orthodox Taksiarhis Church Foundation v Turkey [2022] ECHR 1001, the issue was the refusal to register property which, according to the Foundation, had been in its continuous possession for a long period and had been mentioned in its founding document in 1936.

Background

Under the Ottoman laws in force until 1912, foundations belonging to religious minorities could not own real property in their own names, so they registered their property in the land register under the name of natural persons – sometimes fictitious ones. From 16 February 1912, they were for the first time allowed to own property as a legal person, and the applicant Foundation had asked in August 1913 to be registered as the owner of a property in Istanbul. Further, in accordance with Law No. 2762 13 June 1935 on Foundations, the property in question had been listed in the applicant Foundation’s declaration, filed in 1936 under the name Ayanikola ayazması [Saint Nicholas’s Spring]. In 1952, it had again told the Cadastral Commission that it was the owner of the disputed property and that it had been registered in the land register in the name of a fictitious person; however, the Cadastral Commission decided not to tick the box corresponding to the owner of the disputed property [4].

The arguments

The Foundation alleged a breach of its right to the peaceful enjoyment of its property, contrary to Article 1 of Protocol No. 1. Even if the formal acknowledgement of its status as owner of the property in question had never been ratified, it maintained that it had exercised effective and uninterrupted possession of the property for at least a century and that the pecuniary interest at issue was sufficiently important to constitute “property” within the meaning of the first sentence of A1P1. It had been deprived de facto of that property for several years and the state’s failure to register its ownership had therefore amounted to a breach of its Convention rights [38].

The Government argued that the Foundation’s interest did not have a sufficient basis in domestic law to be classified as “property” within the meaning of A1P1. It had been legally established that the property in dispute did not appear in the 1936 declaration filed by the Foundation and that it had never been in its possession. It contended that the complaint should be dismissed for incompatibility ratione materiae or, alternatively, as manifestly ill-founded [39].

The judgment

The Court reiterated that it had only limited jurisdiction to verify whether national law had been correctly interpreted and applied; it was not its role to replace the national courts but, rather, to ensure that their decisions were not tainted with arbitrariness or manifest irrationality [48]. The present case was neither about direct deprivation of property formally belonging to the Foundation nor about the regulation of the use of that property. It could not be classified in a precise category under A1P1 and the Court would therefore examine it in the light of the general standards of that Article [49].

The national court had not really examined the question as to whether or not the property mentioned in the 1936 declaration corresponded to the property claimed by the Foundation, though the Foundation’s claim was supported by the declaration of 1936 and two decisions of the administration. The Council of the General Directorate of Foundations had indicated in its decision of 13 November 2003 that the property was included in the declaration of 1936 and had also recognised the Foundation’s status as owner [53]. In its judgment of 18 July 2007, however, the domestic Appeal Tribunal had dismissed the Foundation’s case on the basis of legislation relating to missing persons and it had not addressed the factual basis of the case when it ordered the registration of the property in the name of the Public Treasury. The arguments raised by the Foundation had not been fully heard [54].

The Appeal Tribunal had not, therefore, fulfilled the legitimate expectation that it would adopt a reasoned and fair approach in establishing the facts and explain why it had rejected the elements established in the cadastral decision of 1952 and the administrative decision of November 2003 adopted by the Council of the General Management of Foundations. Since that legitimate expectation had not been satisfied, the judgment of the Appeal Tribunal – confirmed by the Court of Cassation without any additional examination ­– could not be said to have established the facts of the case clearly and fairly, even though the outcome of the litigation had depended on them. [55].

The obligation to provide judicial proceedings with the required procedural safeguards had not been respected in the present case [56]. There had therefore been a violation of Article 1 of Protocol No. 1 [57].

Cite this article as: Frank Cranmer, "Refusal to register church land: Arnavutkoy" in Law & Religion UK, 18 November 2022, https://lawandreligionuk.com/2022/11/18/refusal-to-register-church-land-arnavutkoy/

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