SECOND SECTION

DECISION

Application no. 69446/17 BOYAC I KÖY PANAYIA EVANGELISTRA CHURCH AND SCHOOL FOUNDATION against Turkey

The European Court of Human Rights (Second Section), sitting on 2 April 2019 as a Chamber composed of:

Robert Spano, President, Işıl Karakaş, Valeriu Griţco, Stéphanie Mourou-Vikström, Ivana Jelić, Arnfinn Bårdsen, Darian Pavli, judges, and Hasan Bakırcı , Deputy S ection Registrar ,

Having regard to the above application lodged on 4 September 2017,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Boyacıköy Panayia Evangelistra Church and School Foundation, is a foundation established under the laws of Turkey. It was represented before the Court by Mr I. Ktistakis, a lawyer practising in Athens.

2. The Turkish Government (“the Government”) were represented by their Agent.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant foundation was established in 1834 to carry out religious and charitable activities on behalf of the Greek Orthodox minority in Istanbul. It is one of a number of foundations dating from the Ottoman era and operates in accordance with the provisions of the Lausanne Treaty, which afforded protection to foundations providing public services for religious minorities. After the proclamation of the Republic and the entry into force of the Foundations Act (Law no. 2762) of 13 June 1935, the applicant foundation obtained legal personality.

5. In 1936, in accordance with section 44 of Law no. 2762, the applicant foundation filed a declaration stating its aims and listing its immovable property. The property at issue in the present case, a plot of land with a building, was on that list. The property was, however, registered in the name of a third party.

6. On 14 November 1959 the applicant foundation acquired, by way of a donation, title to nine of the twelve parts of the property. On 15 October 1970 the remaining three parts were registered to a certain Sultan Abdülhamid Han-ı Evvel Vakfı (hereinafter “the Abdulhamid Han Foundation”), a foundation which had been registered as defunct ( mazbut vakıf ) under Law no. 2762.

7. On 27 February 2008 a new Foundations Act (Law no. 5737) entered into force. Subsequently, on 20 August 2009 the applicant foundation applied to the Directorate General of Foundations (hereinafter “the Directorate”), requesting the registration of a number of properties in its name under provisional section 7 of that Act, which provided for the registration of certain categories of property belonging to community foundations (see paragraph 18 below).

8. On 28 December 2009 the Directorate accepted the applicant foundation ’ s request in so far as it concerned one of the properties it had listed. It rejected the rest of the request, either due to the absence of certain documents or as the properties listed did not fall within the scope of provisional section 7 of Law no. 5737. Registration of the property at issue in the present case was refused on the latter grounds.

9. On 24 May 2010 the applicant foundation initiated proceedings before the Istanbul Administrative Court, requesting the annulment of the Directorate ’ s decision and the registration of the property in its name. It noted that in line with the practice following the proclamation of the Republic, part of the property had been registered to the person who had been using it and an explanatory note indicating “foundation” had been put in the land register. However, for reasons unknown to it, that registration had been annulled at a certain point and the property had been registered to the Abdulhamid Han Foundation. In that connection, the applicant foundation submitted that although the Abdulhamid Han Foundation appeared as a third person, it was managed by the Directorate, which also had the right to benefit from all of its income. It stated accordingly that the property at issue fulfilled the conditions to benefit from provisional section 7 of Law no. 5737 in that it had been listed in its declaration of 1936 and had been registered in the name of the Directorate. Lastly, the applicant foundation argued that the Directorate should have assessed its request after having carried out a detailed examination of the cadastral records and the land register, but had not done so. Lastly, it maintained that the documents requested by the Directorate had either been lost or did not exist, which had rendered the application of provisional section 7 impossible in practice.

10. On 25 February 2011 the Istanbul Administrative Court dismissed the applicant foundation ’ s action. It noted that a property which had been registered in the name of a third person and not used by the foundation could not be registered to that foundation. It therefore found that the Directorate ’ s rejection of the applicant foundation ’ s request was lawful as the property at issue had not fulfilled the conditions specified in provisional section 7.

11. The court went on to state that in the event that the administration found that a property was registered in the name of a third person – be it a public or private legal person or an individual – any requests for the registration of that property could only be assessed by bringing a case for the annulment of the title deed before the civil courts ( tapu iptali ve tescil davası ). As the property at issue appeared to have been registered to a third person, namely, the Abdulhamid Han Foundation, the request regarding the status of its title could not be assessed by the administration.

12. The applicant foundation appealed, arguing that although the Directorate had rejected its request on the grounds that the property did not fall within the scope of provisional section 7, the reasoning provided by the Administrative Court had not clarified why that had been so. The court had also failed to address its submissions that the conditions set out in that provision had been satisfied. Referring to a judgment of the Administrative Court in a separate case raising a similar issue, the applicant foundation argued that before giving its decision the Directorate should have examined all documents regarding the property ’ s registration.

13. On 25 June 2015 the Supreme Administrative Court upheld the judgment of the first-instance court.

14. On 11 October 2015 the applicant foundation lodged an individual application with the Turkish Constitutional Court. It complained of a violation of its right to property under Article 35 of the Constitution, arguing that the Directorate ’ s rejection of its request for registration on the grounds that the property at issue did not fall within the scope of provisional section 7 of Law no. 5737 had been unlawful. The applicant foundation maintained that although the property had been listed in whole in its declaration of 1936, which substantiated its claim of ownership, three-twelfths of it had been registered in the name of the Abdulhamid Han Foundation at a certain date, without its knowledge. However, the Directorate had given its decision without having carried out any research into the changes in the ownership of the property and without providing any reasoning for its conclusion. In that connection, the applicant foundation stressed that the Abdulhamid Han Foundation was under the management and control of the Directorate, which proved that the property satisfied the conditions of provisional section 7.

15 . On 1 February 2017 the Constitutional Court found the application inadmissible on account of the applicant foundation ’ s failure to exhaust domestic remedies. After recapitulating at length the developments in the legislation regarding religious-minority foundations and citing the relevant sections of Law no. 5737, the Constitutional Court noted that the Directorate ’ s rejection of the applicant foundation ’ s request had been based on the fact that the property at issue did not satisfy the conditions set out in provisional section 7, as it had not been registered to any of the persons or institutions listed in either subsection of that provision, but to a third person, the Abdulhamid Han Foundation. It stated that if more than one potentially effective remedy was available, the applicant foundation was only required to have used one of them. However, it was not possible for the administration to annul a registration to a third person. Accordingly, in the present case recourse before the administrative courts could not be considered as effective. Instead, the applicant foundation ’ s claim could only be assessed by bringing an action for the annulment of registration before the civil courts, provided that the foundation could prove that the property at issue had been listed in its declaration of 1936. In that connection, the Constitutional Court referred to the case-law of the Court of Cassation in similar cases brought by other religious-minority foundations and stated that proceedings before the civil courts for the annulment of registration to third persons had proved to be an effective remedy for complaints such as the one raised by the applicant foundation.

The Constitutional Court further noted that the applicant foundation had also had the possibility to claim compensation under provisional section 11 of Law no. 5737, which had entered into force in 2011.

16 . The president of the Constitutional Court, who voted against that decision, argued in his dissenting opinion that as the applicant foundation ’ s case concerned the annulment of an administrative decision, an administrative action constituted an effective remedy. He stated that where one effective remedy has been attempted, use of another remedy which has essentially the same purpose is not required. Requiring the applicant foundation to initiate proceedings before the civil courts for its claim was, he said, against the principle of procedural economy.

B. Relevant domestic law and practice

1. General overview

17. A historical overview of the situation of foundations, and in particular religious-minority foundations, in the legal system of the Ottoman Empire and in that of the Turkish Republic until the entry into force of the last Foundations Act (Law no. 5737) may be found in the cases of Fener Rum Erkek Lisesi Vakfı v. Turkey (no. 34478/97, §§ 23-30, 9 January 2007) and Fener Rum Patrikliği (Ecumenical Patriarchy) v. Turkey (no. 14340/05, §§ 27 and 36-44, 8 July 2008).

2. Foundations Act (Law no. 5737)

18 . The relevant provisions of the Foundations Act (Law no. 5737), which entered into force on 27 February 2008, read as follows:

Section 3

“... Community foundations: foundations belonging to religious-minority communities in Turkey, which obtained legal personality under Law no. 2762 and whose members are Turkish nationals.

...”

Provisional section 7

“The properties of community foundations which satisfy the conditions set out below shall be registered in the name of these foundations in the land register ... upon the approval of the Council of Foundations ( Vakıflar Meclisi ), provided that the foundations apply to the Directorate General of Foundations within eighteen months of the entry into force of this Act.

(a) Properties which were listed in the declarations of 1936 and which, despite being at the foundations ’ disposal, are registered in the names of either a holy person ( nam-ı mevhum ) or an individual in whom they trusted ( nam-ı müstear );

(b) Properties which, despite being bought by or donated to community foundations following the declarations of 1936, remain registered in the name of the Treasury, the Directorate General of Foundations or those who donated them due to the restrictions regarding these foundations ’ acquisition of property.

Provisional section 11 (added on 22 August 2011)

“...

(b) Immovable properties of community foundations, which were listed in their declarations of 1936 and registered in the name of the Treasury, the Directorate General of Foundations, or the municipality for reasons other than expropriation, sale or exchange,

...

shall be registered in the names of these foundations in the land register ... upon the approval of the Council of Foundations, provided that [the foundations] apply to the Directorate General of Foundations within twelve months of the entry into force of this provision.

The value of the immovable properties, which, despite having been bought by or donated to community foundations, had been registered in the name of the Treasury or the Directorate General of Foundations owing to the restrictions on these foundations ’ acquisition of property, and which were subsequently registered in the names of third persons, shall be paid by the Treasury or the Directorate General.

...”

3. Case-law of the Court of Cassation

19 . By a decision delivered on 6 February 2012 the Court of Cassation upheld a judgment of the Istanbul Civil Court of General Jurisdiction, whereby the first-instance court had accepted a religious-minority foundation ’ s action for the registration of a certain property in its name and had annulled the registration made in 1936 in the name of another foundation, which was represented by the Directorate. The Civil Court had found that the property at issue had been listed in the plaintiff foundation ’ s declaration of 1936 and that documents issued prior to that declaration had also revealed that the property belonged to that foundation. The court had concluded accordingly that the registration of the property in the name of another foundation had been unlawful.

20 . In two separate actions brought by two religious-minority foundations for the annulment of the registration of their properties to third persons and seeking the registration of the properties in their names, the Court of Cassation quashed judgments dismissing the foundations ’ actions.

In the first case, which had initially been dismissed by the Fatih Civil Court of General Jurisdiction, the Court of Cassation held on 20 November 2008 that the foundation ’ s action had to be accepted pursuant to provisional section 7 of Law no. 5737, which had entered into force during the course of the proceedings. It found that the property ’ s fictitious registration to a third person who had later died ( nam-ı müstear ) had to be annulled and the property registered to the minority foundation concerned, in line with subsection (a) of that provision.

The second case also concerned the annulment of registration to a third person and a minority foundation ’ s claim for the property ’ s registration in its name. Following the first-instance court ’ s dismissal of the minority foundation ’ s case, on 1 March 2016 the Court of Cassation quashed that judgment, finding that the case should have been assessed in the light of the relevant provisions of Law no. 5737, in particular provisional sections 7 and 11.

COMPLAINTS

21. The applicant foundation complained that it had been denied access to a court as the Constitutional Court had rejected its application for non ‑ exhaustion of domestic remedies. In its view, the Constitutional Court ’ s decision had been excessively formalistic and had not been in line with the principle of effectiveness in the administration of justice.

22. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant foundation argued that the domestic authorities ’ failure to register the property in its name had violated its right to peaceful enjoyment of possessions. In that connection, it claimed that the property at issue had fallen within the scope of provisional section 7 of Law no. 5737 as it had been listed in its declaration of 1936 and as the Abdulhamid Han Foundation, to which three-twelfths of the property had been registered, had been managed by the Directorate General of Foundations.

THE LAW

A. Article 1 of Protocol No. 1 to the Convention

23. The applicant foundation complained of a violation of its property rights on account of the domestic authorities ’ refusal to register its property in its name in the land register. It relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

1. The parties ’ submissions

24. The Government argued firstly that the applicant foundation had failed to exhaust domestic remedies, as it had not brought an action before the civil courts for the annulment of the registration of three-twelfths of the property to the Abdulhamid Han Foundation. According to them, such an action would have been the effective remedy for its complaint. In that connection, they referred to three decisions of the Court of Cassation (see paragraphs 19 and 20 above) and stated that the applicant foundation could not have had the property registered by means of administrative proceedings.

The Government also pointed out that the applicant foundation could have claimed compensation under provisional section 11 of Law no. 5737, which had entered into force in 2011. However, it had failed to do so.

25 . The applicant foundation stated that it had exhausted domestic remedies as it had brought an action for the annulment of the Directorate ’ s decision, an administrative decision the lawfulness of which could be assessed only by the administrative courts. It maintained that in La Compagnie des Filles de la Charité de Saint ‑ Vincent-de-Paul v. Turkey , a similar case before the Court, the Government had argued that the applicant should have had recourse to administrative proceedings for its claim regarding the annulment of a decision issued by the Directorate, as the latter was an administrative body ((dec.), no. 19579/07, § 41, 27 January 2015). It also noted that the decisions of the Court of Cassation, which the Government claimed were proof of the effectiveness of the remedy before the civil courts, differed from the present case in that in those cases the other party had either been a third-party legal person or individuals, not a defunct foundation.

26. The applicant foundation submitted that the gist of the matter was whether a defunct foundation such as the Abdulhamid Han Foundation would be considered as an independent third person or as a foundation directly linked to the Directorate. The fact that the Directorate was responsible for managing defunct foundations and their properties had already been established by the Court ’ s judgment in the case of Fener Rum Patrikliği (Ecumenical Patriarchy) v. Turkey (no. 14340/05, § 68, 8 July 2008). Consequently, the property fulfilled the conditions in provisional section 7 of Law no. 5737 as it had been listed in its declaration of 1936 and, despite appearances to the contrary, had actually been registered in the name of the Directorate.

27. The applicant foundation further argued that in any event it could not bring an action for the annulment of the title deed before the civil courts as the Land Registry had refused to provide the documents proving its ownership of the property, a point it had raised in its application before the Administrative Court. Lastly, referring to the dissenting opinion of the president of the Constitutional Court (see paragraph 16 above), it maintained that it was not required to have had recourse to numerous procedures when there was more than one effective remedy available.

2. The Court ’ s assessment

(a) General principles

28. In accordance with Article 35 § 1 of the Convention, the Court may only deal with an issue after all domestic remedies have been exhausted. The purpose of this rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V). Thus, the complaint submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see Micallef v. Malta [GC], no. 17056/06, § 55, ECHR 2009). However, the rule of exhaustion of domestic remedies requires an applicant to have normal recourse to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 71, 25 March 2014, and also Akdivar and Others v. Turkey , 16 September 1996, § 66, Reports of Judgments and Decisions 1996 ‑ IV).

29. The Court reiterates that, in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance (see O ’ Keeffe v. Ireland [GC], no. 35810/09 , § 109, ECHR 2014 (extracts), and also Leja v. Latvia , no. 71072/01, § 46, 14 June 2011 ). In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see KozacıoÄŸlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009, and Micallef , cited above, § 58). An applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999 ‑ III, and Lagutin and Others v. Russia , nos. 6228/09 and 4 others, § 75, 24 April 2014).

30. Lastly, Article 35 § 1 of the Convention provides for a distribution of the burden of proof. As far as the Government are concerned, if they claim non-exhaustion they must satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 71, 17 September 2009, and Nada v. Switzerland [GC], no. 10593/08, § 141, ECHR 2012 ). Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Vučković and Others , cited above, § 77, and the cases cited therein ).

(b) Application to the present case

31. The Court observes that, as noted above, in dismissing the action brought by the applicant foundation for the annulment of the Directorate ’ s decision, the Istanbul Administrative Court stated that the property did not fall within the scope of provisional section 7 and that the applicant foundation ’ s claim for the annulment of the registration of part of the property to a third person could be assessed only by the civil courts, by bringing an action for the annulment of the title deed. In line with that conclusion, the Constitutional Court also held that the applicant foundation could not benefit from the terms of provisional section 7 for the property at issue and that it had failed to exhaust domestic remedies concerning its complaint, as it had not brought an action before the civil courts, which had competence to deal with its registration claim. It further pointed out that the applicant foundation could have claimed compensation under provisional section 11 of Law no. 5737 and found that that opportunity had not been taken by the applicant foundation either.

32. The Court notes at the outset that it will assume for the purposes of its consideration of the application that the applicant foundation had a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention (compare La Compagnie des Filles de la Charité de Saint Vincent-de-Paul , cited above).

33. Given that the applicant foundation pursued an administrative remedy, the Court has to determine whether in this particular case it was incumbent on it to have recourse to the remedy available in the civil courts in order to fulfil the obligation to exhaust domestic remedies (see Dumpe v. Latvia (dec.), no. 71506/13, § 61, 16 October 2018).

34. The Court notes that despite the finding of both the Administrative Court and the Constitutional Court, the applicant foundation did not bring an action before the civil courts. Although it contended that its case should be distinguished from the cases to which the Government had referred, as the other party in those cases had not been a defunct foundation but either an independent legal person or an individual, the Court observes that in the first of the said three cases the defendant party was indeed a foundation directly linked to the Directorate, like the one in the present case (see paragraph 19 above). In the other two cases, the defendants were individuals in whose names the property had been registered in the past ( nam- ı m üstear ) and who were represented by the revenue office ( defterdarl ı k ) following their death. Accordingly, the Court finds that the said cases raised the same issue as that raised in the present case.

35 . Moreover, notwithstanding the classification of the defendant party, the Court observes that in the said decisions the Court of Cassation took account of the recent developments in the legislation governing religious-minority foundations and the declarations of 1936. It then ruled in favour of the foundations concerned, finding that the properties at issue should have been registered in their names in the land register. In so doing, the appellate court either assessed the ownership of the property concerned on the basis of the declarations of 1936, as it did in the first case, or examined the case from the standpoint of provisional section 7, as it did in the other two cases.

36. Consequently, on the basis of the Court of Cassation ’ s decisions referred to by the Government, all of which had been delivered before the applicant foundation brought the present case, the Court considers that proceedings before the civil courts has proved to be an effective remedy available in theory and in practice. They are capable of providing redress in respect of complaints concerning a change in the title deed of a property, such as the one raised by the applicant foundation, and of offering reasonable prospects of success.

37. As regards the applicant foundation ’ s contention that the civil courts would have found against it in any case owing to the domestic authorities ’ failure to furnish it with the required documents, the Court reiterates that mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Vučković and Others , cited above, §§ 74 and 84, and Mehmet Hasan Altan v. Turkey , no. 13237/17 , § 99, 20 March 2018). In the first Court of Cassation decision referred to by the Government, the plaintiff foundation ’ s action for the registration of a property had been accepted mainly on the basis of its declarations of 1936 (see paragraph 19 above). Moreover, the Constitutional Court had found that a claim for registration could be brought before the civil courts if the foundation proved that the property had been listed in its declaration of 1936 (see paragraph 15 above).

38. There remains the question whether the administrative proceedings constituted an effective and sufficient remedy for the applicant foundation ’ s claim to register the property in its name so as to relieve it of the requirement to pursue the remedy available in the civil courts.

39. In that connection, the Court notes firstly that both the Administrative Court and the Constitutional Court found that the type of property at issue was not one of those listed in provisional section 7. It finds no reason to question that finding. It considers accordingly that in the present case administrative proceedings were unlikely to be as successful as the civil-law remedy, as their scope was limited to the examination of the applicability of provisional section 7 and the lawfulness of the Directorate ’ s decision. Although the applicant foundation argued that the management of the Abdulhamid Han Foundation by the Directorate affected the determination of that provision ’ s applicability, the Court does not consider that point relevant. In view of the decisions of the Court of Cassation, that matter could also be assessed by the civil courts, which were competent to examine the applicant foundation ’ s claim for registration of the property without being confined to that specific provision (see paragraph 35 above).

40. In so far as the applicant foundation pointed to the Government ’ s observations in a previous case brought before the Court by another foundation, in which it had been argued that administrative proceedings were an effective remedy (see paragraph 25 above), the Court notes that in that case the Government ’ s preliminary objection regarding Article 1 of Protocol No. 1 was not examined by the Court and the complaint regarding the domestic authorities ’ refusal to register a certain property to the applicant was found inadmissible on account of incompatibility ratione materiae (see La Compagnie des Filles de la Charité de Saint Vincent ‑ de ‑ Paul , cited above). It accordingly does not consider the applicant foundation ’ s reference to the Government ’ s preliminary objection in that case relevant for the assessment of the present case.

41. Lastly, the Court notes that the applicant foundation did not attempt to use the remedy provided for by provisional section 11, which was added to Law no. 5737 during the course of the administrative proceedings and provided it with a possibility to claim compensation, as pointed out in the Constitutional Court ’ s decision. Nor did it make any submissions on this point in its observations in response to the Government ’ s argument that the remedy under provisional section 11 should have been exhausted.

42. Consequently, the applicant foundation cannot be considered to have done everything that could reasonably be expected of it to exhaust domestic remedies. The Court therefore allows the Government ’ s objection and rejects the complaint regarding the applicant foundation ’ s right to peaceful enjoyment of possessions for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

B. Article 6 § 1 of the Convention

43. The applicant foundation complained under Article 6 § 1 of the Convention that the Constitutional Court ’ s formalistic approach, which resulted in the rejection of its complaint concerning its right to property, had violated its right of access to a court. In that connection, it reiterated its argument regarding the difference between its case and the cases where the Court of Cassation had delivered the decisions relied on by the Government.

44. The Government contended that there was no issue regarding the applicant foundation ’ s right of access to a court. In view of the decisions of the Court of Cassation in similar cases, the effective remedy in the applicant foundation ’ s case was the one available in the civil courts, to which it had failed to have recourse.

45. As noted above, the Court observes that in lodging its application before the Constitutional Court, the applicant foundation complained of a violation of its right to property, without making any submissions regarding its right of access to a court or the Administrative Court ’ s conclusion about the competence of the civil courts on the matter. Accordingly, the applicant foundation ’ s complaint under this head relates solely to the Constitutional Court ’ s rejection of its individual application on account of non-exhaustion of domestic remedies.

46. In view of its finding above regarding the exhaustion of domestic remedies, the Court holds that the Constitutional Court ’ s rejection of the applicant foundation ’ s individual application for its failure to initiate civil proceedings or claim compensation under provisional section 11 of Law no. 5737 does not raise an issue regarding the applicant foundation ’ s right of access to that court.

47. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 May 2019 .

Hasan Bakırcı Robert Spano Deputy Registrar President