FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31138/96

by S.Ö., A.K., Ar.K .

against Turkey

The European Court of Human Rights ( First Section ) sitting on 14 September 1999 as a Chamber composed of

Mrs E. Palm, President , Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, Mr R. Türmen, Mr B. Zupančič, Mr T. Pantiru, Mr R. Maruste, Judges ,

with Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 April 1996 by S.Ö., A.K., Ar.K . against Turkey and registered on 23 April 1996 under file no. 31138/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The three applicants, S.Ö, A.K. and Ar.K . are Turkish citizens of Armenian origin, resident in İstanbul They are members of Yedikule Surp Pırgıç Ermeni Hastahanesi Vakfı (the Foundation), a hospital founded by Armenians in İstanbul . Before the Court, the applicants are represented by Mr Diran Bakar and Mr Setrak Davutkan , lawyers practising in İstanbul .

The facts of the present case, as submitted by the applicants, may be summarised as follows.

A.H., who had been a patient at the Foundation, made her will in 1968 and bequeathed her real estate to the Foundation. On 19 October 1971 the Joint Civil Chambers of the Court of Cassation held that the Foundation was a “community foundation” whose charter had been definitively established in 1936. They also recalled that such foundations were only entitled to enter into transactions prescribed in their founding charter. Accordingly, the Joint Civil Chambers held that the foundation in question could not acquire property bequeathed to it by will given that the founding charter did not specify such a right.

Consequently, shortly before her death in 1976, A.H. sold her two shops in İstanbul to the first three applicants S.Ö., A.K. and Ar.K , who are members of the Foundation and donated the proceeds of this transaction to the Foundation.

On 14 August 1978, the Treasury instituted civil proceedings against the applicants in the İstanbul Civil Court of General Jurisdiction. The Treasury declared to be sole beneficiary of A.H.’s estate under Section 448 of the Civil Code, which provides that the estate of a deceased person shall pass to the Treasury if the person dies intestate and has no relatives. The Treasury also maintained that the sales contract between the first three applicants and A.H. had been signed under false pretence s. It alleged that A.H.’s intention in entering into the contract was to donate her real estate to the foundation during her lifetime through the sale of her property to S.Ö., A.K. and Ar.K , who are members of the foundation. Accordingly, it requested the court to order that the shops, which had been transferred under the sales contract, be restored and that the donation to the Foundation be revoked.

On 8 April 1986 the İstanbul Civil Court of General Jurisdiction rejected the Treasury’s request on the ground that the Treasury’s claim of being the sole beneficiary of the A.H. estate required clarification. On 25 December 1986 the Court of Cassation quashed this judgment on the ground that the first-instance court should have adjourned the case for the Treasury to prove that it had a legal right over A.H.’s estate. On 24 June 1987 the Court of Cassation dismissed the applicants’ request for rectification of this decision.

On 15 October 1987 the Ä°stanbul Civil Court of General Jurisdiction applied the decision of 25 December 1986 and decided to adjourn the case for the Treasury to prove that it was entitled to pursue it.

Later, the Treasury submitted to the court a certificate of inheritance issued by the İstanbul Magistrate’s Court in Civil Matters dated 15 December 1988 to the effect that the Treasury was the true beneficiary of the estate as A.H.’s sister had predeceased her and that A.H. had no other living relatives. Accordingly, the İstanbul Civil Court of General Jurisdiction decided to examine the merits of the case. After examining the expert report, the court stated that although there was a difference between the real value of the estate and the amount stated in the sales contract, this was not in itself sufficient to conclude that the applicants had acted under false pretences.  Consequently, on 8 October 1992, the court dismissed the case on the ground that the Treasury had failed to provide sufficient evidence in support of its claims.

On 5 April 1993 the Court of Cassation quashed this judgment. Referring to the will signed on 25 March 1968 and the expert report, which stated that there was a significant difference between the real value of the estates and the amount paid to A.H., the Court of Cassation found that the first instance court had sufficient evidence before it to give a decision.

On 10 December 1993 the applicants’ request for rectification of this decision was rejected by the Court of Cassation .

On 3 March 1994 the İstanbul Civil Court of General Jurisdiction applied the decision of the Court of Cassation . The court found that the sales contract had been signed under false pretences and accordingly annulled it. Consequently it decided that the shops in issue be included in A.H.’s estate.  The court dismissed the remainder of the case.

On 14 July 1994 the Court of Cassation once again quashed the decision of the first-instance court. It held that the İstanbul Civil Court of General Jurisdiction should have accepted the Treasury’s claims as a whole.

On 4 November 1994 the Court of Cassation dismissed the applicants’ request for rectification of this decision.

On 29 December 1994 the Ä°stanbul Civil Court of General Jurisdiction applied the decision of the Court of Cassation . It decided that the will signed on 25 March 1968 and the donation made to the foundation should be annulled.

On 18 May 1995 the Court of Cassation upheld the judgment of the first-instance court.

On 9 October 1995 the Court of Cassation dismissed the applicants’ request for rectification.

COMPLAINTS

1. The applicants complain under Article 1 of Protocol 1 to the Convention that they were unlawfully deprived of their property as a result of a judicial decision.

2. The applicants also complain of discrimination on grounds of race or ethnic origin in the enjoyment of the right guaranteed by Article 1 of Protocol 1 to the Convention. In this regard they invoke Article 14 of the Convention in conjunction with Article 1 of Protocol 1 to the Convention.

THE LAW

1. The applicants complain under Article 1 of Protocol 1 to the Convention that they were unlawfully deprived of their property as a result of a judicial decision.

The Court observes that although the actual transfer of ownership was in the present case enforced by a court order and thus by an act of a State organ, it is based on the provisions of the Turkish Civil Code governing the rules of succession. However, the Court recalls that in all State Parties to the Convention the legislation governing private-law relations between individuals includes rules which determine the effects of these relations with respect to property and in some cases, compel a person to surrender a possession to another. In such cases, the passing of property, resulting from legal limitations inherent in private property and succession rights, should not be considered as constituting a deprivation of possessions for the purposes of the second sentence of Article 1 (No. 12462 /86, Dec. 13.7.1987, D.R. 53, p. 234, Nos. 8588/79 and 8589/79, Dec. 12.10.1982, D.R. 29, p. 64[82]).

In the present case, the Court observes that the Treasury was the legal successor to A.H. pursuant to the Turkish Civil Code in the absence of any other legal successor. The Treasury, in its quality of successor, instituted legal proceedings in the İstanbul Civil Court of General Jurisdiction for an order to compel the applicants to release the real estate in dispute. In this respect it requested the revocation of the sales contract, which had been made under false pretences prior to A.H.’s demise.

The Court notes that it makes no difference in this respect whether the applicant's adversary in the proceedings was the Treasury or an individual. The Treasury was only acting as a party in civil litigation. If A.H. had other successors, they would use exactly the same procedure as the Treasury did in this case. In any event, a court's decision as to who is the owner of certain property according to the rules of private law cannot be seen as constituting an unjustified State interference with the property rights of the losing party, as it is the very function of the courts to determine such disputes (cf. No. 10000/82, Dec. 4.7.1983, loc. cit.).

Furthermore, the Court observes that there is no indication in the file as to the proceedings in question being arbitrary or unfair in any manner. The Court notes that the applicants have been afforded reasonable opportunity to present their case, under conditions that do not place them at a substantial disadvantage viv-à-vis their opponent, the Treasury (see mutatis mutandis Stran Greek Refineries and Stratis Andreadis judgment of 9 December 1994, Series A Vol. 301, p. 81, § 46).

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §3 of the Convention.

2. The applicants also complain of discrimination on grounds of race or ethnic origin in the enjoyment of the right guaranteed by Article 1 of Protocol 1 to the Convention. In this regard they invoke Article 14 of the Convention.

The Court recalls that Article 14 of the Convention only prohibits discrimination with respect to the enjoyment of rights and freedoms set forth in the Convention. It is true that the applicants have invoked Article 1 of Protocol No. 1 to the Convention, read in conjunction with Article 14 of the Convention; however as set out above, the Court finds that the applicants’ complaint concerns a civil-law dispute under private-law and that the proceedings in question do not amount to an interference with the right to the peaceful enjoyment of their possessions. The Court further notes that in the instant case, there is no indication that the Turkish courts subjected the applicants to a different treatment on the ground of their race or ethnic origin, as compared to other persons.

It follows that there is no appearance of a violation of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1. Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Michael O'Boyle Elisabeth Palm Chamber Registrar Chamber President