ceHearingsSeptember2005.htm

Tuesday 20 September 2005
Chamber

Hearing on the merits

9 a.m. Fener Rum Erkek Lisesi Vakfi v.Turkey (no. 34478/97) and
Yedikule Surp Pirgic Ermeni Hastanesi Vakfi v. Turkey (nos. 50147/99 and
51207/99)

Both applicants are foundations under Turkish law that were established at
the time of the Ottoman Empire. Fener Rum Erkek Lisesi Vakfi was set up to
provide educational facilities at the Greek Higher Secondary School in Fener
(Istanbul). Yedikule Surp P?rgic Ermeni Hastanesi Vakf? is the foundation
for the Armenian hospital Surp P?rgic in Yedikule. The status of both
foundations complies with the provisions of the Lausanne Treaty of 1923
affording protection to foundations that provide public services for
religious minorities.

In accordance with Law no. 2762 of 13 June 1935, by virtue of which they
obtained legal personality, the applicant foundations filed a declaration in
1936 of their aims and of their immovable property.

In 1952 the Fener Rum Erkek Lisesi Vakfi Foundation received a gift of part
of a building in Istanbul. It purchased another part of the building in
1958. The Yedikule Surp P?rgic Ermeni Hastanesi Vakf? Foundation received
gifts of two properties in Istanbul in 1943 and 1967, one in Beyoglu, the
other in Kad?koy.

In 1992 the Treasury applied to the Turkish courts for an order setting
aside the applicants’ title to the properties and deleting their names from
the land register. In three judgments (on 7 March 1996 in the case of Fener
Rum Erkek Lisesi Vakfi and on 30 October 1997 and 24 February 1998 in the
case of Yedikule Surp P?rgic Ermeni Hastanesi Vakf?), the Istanbul High
Court granted the Treasury’s applications. Referring to a decision of the
Court of Cassation of 8 May 1974, it held that the foundations, whose
membership was made up of religious minorities as defined by the Treaty of
Lausanne and whose constitutive documents did not contain a statement that
they had capacity to acquire immovable property, were precluded from
purchasing or accepting a gift of such property. Accordingly, their
immovable property was restricted to that set out in their constitutive
documents and finalised in the declaration made in 1936, so that they were
precluded from acquiring immovable property.

On appeals on points of law by the applicants, the Court of Cassation upheld
the judgments of the Istanbul High Court in decisions of 9 December 1996, 22
September 1998 and 20 October 1998.

In October 2000 Fener Rum Erkek Lisesi Vakfi applied to the Foundation
Commissioners for permission to amend its status to permit it to acquire
immovable property. However, its application was turned down.

In both cases, the applicants complain of the orders setting aside their
title to the properties. They argue that the Turkish legislation as
interpreted by the domestic courts deprives foundations established by
religious minorities within the meaning of the Lausanne Treaty of all
capacity to acquire immovable property. In their submission, that incapacity
amounts to discrimination when their position is compared to that of other
foundations. The applicants rely on Article 1 of Protocol No. 1 (protection
of property), and Article 14 (prohibition of discrimination) taken together
with Article 1 of Protocol No. 1. Yedikule Surp P?rgic Ermeni Hastanesi
Vakf? further complains under Article 6 (right to a fair hearing) that it
did not receive a fair hearing in the Turkish courts.

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