Lexploria

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

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Y.S.P.E.H.V. v. TURKEY

Y.S.P.E.H.V. v. TURKEY

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