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THIRD
SECTION
CASE OF FOKAS v. TURKEY
(Application
no. 31206/02)
JUDGMENT
(merits)
STRASBOURG
29 September 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Fokas v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Boštjan M. Zupančič,
Alvina
Gyulumyan,
Ineta Ziemele,
Luis López
Guerra,
Işıl Karakaş,
Ann Power,
judges,
and Stanley Naismith, Deputy
Section Registrar,
Having
deliberated in private on 8 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31206/02) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Greek nationals, Mr Ioannis Fokas and
Mr Evangelos Fokas (“the applicants”), on 6 March
2002.
- The
applicants were represented by Mr D. Geldis, Mr A. Demetriades
and Mr O. Hemşinlioğlu, lawyers practising in
Katerini (Greece), Nicosia (Cyprus), and Istanbul (Turkey)
respectively. The Turkish Government (“the respondent
Government”) were represented by their Agent.
- Relying
on Articles 6, 8, 13 and 14 of the Convention and Article 1 of
Protocol No. 1 the applicants complained that they had been deprived
of their right to peaceful enjoyment of their possessions as a result
of the national authorities’ refusal to recognise them as the
legal heirs in respect of the immovable property which had been owned
by the late Polikseni Pistika, their sister. They further
alleged that they had been discriminated against on the basis of
their ethnic origins and religious convictions.
- On
11 June 2007 the President of the Third Section decided to give
notice of the application to the Turkish Government. It was also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 3).
- Third party comments were received from the Greek
Government, who had exercised their right to intervene in the
procedure (Article 36 § 1 of the Convention and Rule
44 § 1 (b) of the Rules of Court). The respondent Government
replied to those comments (Rule 44 § 5).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1945 and 1948 respectively and live in
Katerini, Greece.
- Ms
Polikseni Foka was a Greek national who was born in 1943. In 1954 she
was adopted by Mr Apostolos Pistikas and his wife Mrs Elisavet
Pistika, who were both Turkish nationals of Greek origin. The
adoption was made in accordance with the decisions of both the Greek
and Turkish courts.
- Following
the death of Mr Apostolos Pistikas on 24 November 1981, all his
property was inherited by his wife Mrs Elisavet Pistika. Upon the
death of the latter on 6 March 1987, Polikseni Pistika (Foka) was the
sole heir to the property. The relevant property consisted of both
immovable and movable property. In particular, it comprised three
buildings in Istanbul and income from rent, deposits and valuable
documents/deeds.
- On
3 July 1987 the Istanbul 3rd Civil Court (Asliye Hukuk)
decided that the total of the above-mentioned immovable and movable
property of Mrs Elisavet Pistika would be transferred by way of
inheritance to Ms Polikseni Pistika (Foka).
- On
15 July 1991 Ms Polikseni Pistika (Foka) was transported by the
police to a hospital for treatment. She was admitted to the
psychiatric department of the Balıklı Rum (Greek) hospital
in Zeytinburnu, Istanbul, because she was not capable of taking care
of her personal affairs. The authorities thus appointed a guardian
for Ms Polikseni Pistika despite the first applicant’s efforts
to appoint a guardian of his choice.
- On
31 July 1996 the Turkish authorities filed an application for the
annulment of the decision by which Ms Polikseni Pistika (Foka) had
inherited the above-mentioned property. This was due to, inter
alia, Legislative Decree no. 1062 and Decisions no. 6/3706
of 25 September 1964 and no. 6/3801 of 2 November 1964,
according to which a natural person holding Greek nationality has no
right to inherit in Turkey and, also, because the Greek Government
applied similar provisions to persons of Turkish origin living in
Greece.
- On
27 November 1997 the Istanbul 7th Civil Court annulled the
decision on inheritance (decision no. 1197/1261), although Ms
Polikseni Pistika had already paid the inheritance tax which was due
to the State. The Court of Cassation upheld this judgment by a
decision of 2 February 1998. On 12 October 1998 the latter court also
dismissed the request for rectification of its decision. As a result,
the immovable property was transferred to the Treasury and Ms
Polikseni Pistika (Foka) was deprived of all her income and accounts
and thus remained without resources in the psychiatric department of
the Balıklı Rum hospital.
- In
the meantime, Ms Polikseni Pistika’s legal guardian had
commenced two legal challenges against the above decision. In this
connection on 10 March 1999 the legal guardian filed an action in the
7th Chamber of the Istanbul Magistrate’s Court
for the re-opening of the proceedings. His request was dismissed on
27 May 1999. The appeal proceedings against this decision came to an
end as a result of the death of Ms Polikseni Pistika. A further
action in the 4th Chamber of the Ankara Administrative
Court was also terminated for the same reason. It is to be noted that
the applicants did not submit any document pertaining to the legal
proceedings before the Ankara Administrative Court.
- On
24 April 2000 Ms Polikseni Pistika died in Istanbul whilst she was
under guardianship and confined in an institution due to psychiatric
illness.
- On
26 September 2000 the applicants, who are the sole heirs to the
property of their sister, filed a petition with the Beyoğlu
Magistrates’ Court for the issuance of a certificate of
inheritance.
- On
19 April 2001 the Beyoğlu Magistrates’ Court dismissed the
applicants’ request to inherit their sister’s immovable
property, but accepted it in respect of the movable property. In its
decision, the court took into account the Ministry of Justice’s
opinion concerning the practice of the Greek authorities in respect
of the inheritance rights of the Turkish minority in Greece, which
stated:
“...The Turkish nationals who are not of Greek
origin are entitled to acquire property only by permission and within
the limits of the law which regulates 55% of the total Greek
territory. In practice, the condition of “permission”
functions as a mechanism aimed at preventing the Turkish nationals to
acquire property. In other areas, which are not covered by the said
law, the Turkish nationals of non-Greek origin and the Greek
nationals of Turkish origin are prevented by various means from
acquiring immovable property either by purchasing or inheriting.
These people are compelled to sell their immovable property. Yet the
Turkish nationals of Greek origin are able to acquire immovable
property in the areas covered by that law on the condition that they
obtain the requisite permission. While there is information on the
subject, it is not based on concrete evidence and therefore its
assessment should be made by the courts...”
In
view of this opinion, the court held that the applicants were not
entitled to the right of inheritance for immovable property in Turkey
on account of their nationality and in view of the principle of
reciprocity between Greece and Turkey. The applicants appealed
against this judgment.
- On
14 September 2001 the Court of Cassation rejected the appeal. By a
decision of 20 November 2001 it also dismissed the applicants’
request for rectification of its decision.
II. RELEVANT DOMESTIC LAW
- Relevant
domestic law and practice can be found in the judgments of Apostolidi
and Others v. Turkey (no. 45628/99, §§ 49-56, 27 March
2007), and Nacaryan and Deryan v. Turkey (nos. 19558/02
and 27904/02, §§ 17 24, 8 January 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicants complained that they had been deprived of their right to
peaceful enjoyment of their possessions as a result of the national
authorities’ refusal to recognise them as the legal heirs in
respect of the immovable property which had been owned by the late
Polikseni Pistika. They alleged a violation of 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.”
A. Admissibility
- The
respondent Government invited the Court to dismiss the application
for failure to observe the six-month rule. They noted that the Court
of Cassation’s decision of 12 October 1998 was the final
domestic decision for the purposes of the running of six months,
since on that date the late Polikseni Pistika’s title to the
immovable property had already been revoked.
- The
applicants disputed the respondent Government’s argument. They
claimed that the final domestic decision in respect of their claims
had been rendered on 20 November 2001 by the Court of Cassation,
which had rejected their request for an inheritance certificate in
respect of the immovable property owned by the late
Polikseni Pistika. They further pointed out that, following the
Court of Cassation’s decision confirming the lower court’s
judgment to revoke Ms Pistika’s status as the heir in
respect of the immovable property, her legal guardian had pursued the
proceedings by challenging the impugned decision. Therefore, the
respondent Government’s contention concerning the date on which
the six months should start running could not be accepted.
- The
Court notes that the applicants’ complaint mainly concerns the
national authorities’ refusal to issue them an inheritance
certificate in respect of the immovable property owned by Polikseni
Pistika. Given that the final domestic decision on the dispute was
given on 20 November 2001 by the Court of Cassation, which
re-examined the question of ownership of the immovable property in
the proceedings (see paragraph 16 above), and that the application
was submitted to the Court on 6 March 2002, it is clear that the
six-month time-limit was observed by the applicants in compliance
with Article 35 § 1 of the Convention.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Parties’ submissions
a. The respondent Government
- The
Government submitted that the applicants did not have possessions
within the meaning of Article 1 of Protocol No. 1. They maintained
that this provision applied to a person’s existing possessions
and that it did not guarantee the right to acquire possessions. In
the circumstances of the present case, given that the deceased did
not own the immovable property in question, it could not be
transferred to the inheritors, namely, to the applicants.
- The
Government also asserted that under Article 35 of Law no. 2644 on
Land Registry non-Turkish persons were entitled to acquire property
by way of inheritance under two conditions. Firstly, there should be
reciprocity between their country and Turkey. Secondly, foreign
nationals should act within the restrictive legal provisions. The
principle of reciprocity, which could be de jure or de
facto, required that foreign nationals could acquire immovable
property in Turkey provided that the same right was accorded in their
country to Turkish nationals under the same conditions. Furthermore,
Article 1 of Law no. 1062 on Reciprocity provided that the property
of foreign nationals could be confiscated by a decree of the Council
of Ministers if Turkish nationals were treated in the same way in
their country of origin. At the material time, the Greek legislation
and practice did not allow Turkish nationals to acquire immovable
property in Greece. Thus, the restriction applied to the Greek
nationals on their right of inheritance of immovable property was in
conformity with the principle of reciprocity between Turkey and
Greece.
- The
Government thus concluded that the applicants had neither had
existing possessions nor a legitimate expectation of acquiring the
immovable property in question by way of inheritance since the
above-mentioned conditions had not been met.
b. The applicants
- The
applicants contended that, contrary to the respondent Government’s
assertions, the deceased, Ms Polikseni Pistika, had owned the
immovable property in question since the Turkish courts had issued
her a certificate of inheritance and all three buildings had been
registered in her name at the local land registry office upon payment
of the requisite tax. Polikseni had only been deprived of her
property following unlawful confiscation by the Turkish authorities
on the basis of a secret Government decree of 1964 which had already
been annulled in 1988. Thus, the confiscation of the property of
Polikseni had been illegal, arbitrary and abusive even under the
domestic law of Turkey. Furthermore, the annulment of the certificate
of inheritance had not met the requirements of precision and
foreseeability implied by the concept of law within the meaning of
the Convention. Had it not been for this unlawful act and the
respondent Government’s continuous reliance on reciprocity, the
applicants would have inherited the property in question as the sole
heirs of Polikseni.
- The
applicants claimed that the question of reciprocity raised by the
Government had already been addressed by the Court in its judgments
in the cases of Apostolidi and Others and Nacaryan and
Deryan (both cited above) where it found a breach of Article 1 of
Protocol No. 1 when a validly granted certificate of inheritance had
later been revoked on the basis of alleged lack of “reciprocity”.
- In
view of the above, the applicants claimed that there had been a
violation of their right protected by Article 1 of Protocol No. 1.
c. The Greek Government
- The
Greek Government contended that the applicants had possessions within
the meaning of Article 1 of Protocol No. 1 to the Convention. In
their opinion, the Turkish courts’ reliance on reciprocity and
their ill-founded and unproven finding that this principle was not
applied in Greece constituted a clear interference with the
applicants’ right to peaceful enjoyment of their possessions.
Furthermore, they claimed that the principle of reciprocity did not
apply in matters of protection of human rights and that, in any
event, in Greek law there was no provision prohibiting Turkish
citizens from inheriting immovable property in any place or region in
Greece.
- The
Greek Government maintained that the Turkish courts had recognised
the relation between the applicants and the deceased and their
undisputed capacity as her heirs. Thus the applicants had at least a
legitimate expectation of acquiring a hereditary right not only to
the movable but also the immovable assets of the estate of their
predecessor in title.
- The
Greek Government noted also that the national courts’
interpretation and application of the domestic law, particularly
Article 35 of the Law on Land Registry, was arbitrary and had lacked
legal security and foreseeability. They thus concluded that the
impugned interference with the applicants’ right to peaceful
enjoyment of their possessions had not been prescribed by law, had
violated the principle of the rule of law and had upset the fair
balance required by the principle of proportionality.
2. The Court’s assessment
a. Applicable principles
- The
Court reiterates that an applicant can allege a
violation of Article 1 of Protocol No. 1 only in so far as the
impugned decisions related to his “possessions” within
the meaning of this provision.
Furthermore, the concept of “possessions” in the first
part of Article 1 of Protocol No. 1 has an autonomous meaning which
is independent from the formal classification in domestic law (see
Beyeler v. Italy
[GC], no. 33202/96, § 100, ECHR 2000-I). “Possessions”
can be either “existing possessions” or assets, including
claims, in respect of which the applicant can argue that he or she
has at least a “legitimate expectation” of obtaining
effective enjoyment of a property right. By way of contrast, the hope
of recognition of a property right which it has been impossible to
exercise effectively cannot be considered a “possession”
within the meaning of Article 1 of Protocol No. 1, nor can a
conditional claim which lapses as a result of the non-fulfilment of
the condition (see Prince Hans-Adam II of Liechtenstein v. Germany
[GC], no. 42527/98, §§ 82-83, 2001 VIII, and
Gratzinger and Gratzingerova v. the Czech Republic
(dec.), no. 39794/98, ECHR 2002 VII).
b. Whether there were “possessions”
- In
the instant case, the Court notes that the national courts did not
recognise the applicants’ right to inherit the immovable
property in question. Nor did the applicants acquire inheritance
rights automatically after the death of Polikseni Pistika, since the
national courts considered that at the relevant time non-Turkish
nationals’ right to acquire immovable property by way of
inheritance was subject to the condition of “reciprocity”
in accordance with Article 35 of the Law on Land Registry and that
this condition had not been met in the case of Greek nationals.
Accordingly, the immovable property in question was never transferred
to the applicants because of the domestic courts’ perception of
the national law then in force. As a result, the applicants did not
have existing possessions within the meaning of Article 1 of Protocol
No. 1 (see Nacaryan and Deryan, cited above, § 45).
- In
view of the above finding, the Court will next ascertain whether
there was an “asset” by virtue of which the applicants
could claim to have a legitimate expectation of being recognised as
heirs in respect of the immovable property.
- In
this connection, the Court reiterates that a claim may be regarded as
an “asset” only where it has a sufficient basis in
national law (see Kopecký v. Slovakia [GC], no.
44912/98, § 52, ECHR 2004 IX). Accordingly, the essential
question which needs to be determined is whether there was a
sufficient legal basis in domestic law, as interpreted and applied by
the domestic courts, in order to qualify the applicants’ claim
as an asset within the meaning of Article 1 of Protocol No. 1. To
that end, it must be ascertained whether the applicants have
fulfilled the condition of “reciprocity” laid down in
Article 35 of the Law on Land Registry.
c. The Court’s findings in the case
of Nacaryan and Deryan
- The
Court recalls that in the above-mentioned Nacaryan and Deryan
case, which also concerned the national courts’ refusal to
recognise the applicants’ status as heirs in respect of
immovable property, it examined the question whether the manner in
which the reciprocity principle was applied in the applicants’
case had complied with the Convention (see Nacaryan and Deryan,
cited above, §§ 47-57).
- In
this context, the Court examined how the application of the principle
of “reciprocity” in Turkish law had affected the
applicants’ rights under the Convention. It found that, unlike
the national courts’ conclusions based on the report of the
Ministry of Justice, Turkish nationals could inherit immovable
property in Greece, including in regions where restrictions were
imposed by the Law of 1990 concerning the purchase and sale of
immovable property (see Nacaryan and Deryan, cited above, §§
52 and 53).
- Furthermore,
having examined the relevant legislation then in force, the Court
found that there was no legal obstacle preventing Greek nationals
from acquiring immovable property in Turkey since the Council of
Ministers had issued a decree on 3 February 1988 abolishing the
decree dated 2 November 1964 which had prohibited the acquisition of
immovable property by Greek nationals. Article 35 of the Law on Land
Registry had also been modified with a view to allowing non-nationals
to inherit immovable property in Turkey. The Court thus concluded
that the applicants, whose lineage had been established with the
deceased, could legitimately have believed that they had satisfied
all the conditions for inheriting immovable property, as was the case
in respect of the movable property. In those circumstances, the
applicants could not have foreseen that the national courts would
consider that the condition of “reciprocity” had not been
met.
- Thus,
the Court held that the applicants had had a “legitimate expectation”
of being recognised as heirs to the immovable property of the
deceased and, consequently, their right to peaceful enjoyment of
their “possessions” and that Article 1 of Protocol No. 1
applied in the circumstances. In the Court’s opinion, there had
therefore been an interference with the applicants’ right to
peaceful enjoyment of their possessions as a result of the national
courts’ refusal to recognise their status as heirs in respect
of the immovable property. This interference fell to be examined in
light of the principle laid down in the first sentence of the first
paragraph of Article 1 Protocol No. 1.
- Finally,
as regards the lawfulness of the interference, the Court concluded
that the impugned interference had been incompatible with the
principle of lawfulness and had therefore contravened Article 1 of
Protocol No. 1 because the manner in which Article 35 of the Law on
Land Registry had been interpreted and applied by the national courts
was not foreseeable for the applicants (see Nacaryan and Deryan,
cited above, §§ 58-60).
d. Whether the applicants had “legitimate
expectation” of obtaining effective enjoyment of a property
right
- In
the instant case, the Court sees no reason to depart from its
findings in the above-mentioned Nacaryan and Deryan case. It
notes that in dismissing the applicants’ claims to the
immovable property in question, the national courts erred in their
consideration that reciprocity was a primary condition to be met.
They then concluded that the requisite condition had not been met
between Greece and Turkey (see paragraphs 11, 12, 16 and 38 above).
Furthermore, in annulling the inheritance certificate of Polikseni
Pistika in respect of the immovable property, the domestic courts had
wrongly relied on the legislative decree dated 2 November 1964,
whereas that decree had already been abolished by the Council of
Minister’s decree of 3 February 1988, which was well before the
annulment of the inheritance certificate in 1996, and therefore was
not applicable at the time of the impugned decision (see paragraphs
11, 12 and 38).
- This
being so, in the circumstances of the present case, the applicants
could legitimately have believed that they had satisfied all
conditions to inherit immovable property as well as the movable
property of the deceased. They could not have foreseen that the
national courts would consider that the condition of “reciprocity”
had not been met. Accordingly, the applicants had a
“legitimate expectation” of being recognised as
heirs to the immovable property inherited by their sister Polikseni
Pistika (see paragraph 42 above). Therefore the national courts’
refusal to recognise the applicants’ status as heirs in respect
of the immovable property constituted an interference with the
applicants’ right to peaceful enjoyment of their possessions.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the impugned interference was incompatible with the
principle of lawfulness and therefore contravened Article 1 of
Protocol No. 1 because the manner in which Article 35 of the Law on
Land Registry had been interpreted and applied by the national courts
was not foreseeable for the applicants (see Nacaryan and Deryan,
cited above, §§ 58-60).
- There
has accordingly been a violation of Article 1 of Protocol No. 1 to
the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicants further complained of violations of
Articles 6, 8, 13 and 14 of the Convention. In this connection, they
alleged that they had been denied a fair trial as a result of the
national courts’ decisions based on the opinion of the Ministry
of Justice. The interference in question had also constituted a
breach of their right to family life protected by Article 8 of the
Convention. Furthermore, the applicants claimed to have been denied
an effective remedy for their grievances in breach of Article 13.
Finally, they alleged that the violations in question had occurred as
a result of their Greek ethnic origin and their Christian Orthodox
faith.
- The
Government contested these arguments.
- The
Court notes that these complaints are linked to the one examined
above and must therefore likewise be declared admissible.
- Having
regard to the facts of the case, the parties’ submissions and
its finding of a violation under Article 1 of Protocol No. 1, the
Court considers that it has examined the main legal question raised
in the present application. It therefore concludes that there is no
need to make a separate ruling under this head (see, as an example of
this practice, Mehmet and Suna Yiğit v. Turkey, no.
52658/99, § 43, 17 July 2007, and K.Ö. v. Turkey,
no. 71795/01, § 50, 11 December 2007).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicants claimed 18,913,083 euros (EUR) in respect of pecuniary
damage resulting from the loss of use of the three buildings in
question. In addition to this amount and in case the respondent
Government is unable or refuses to deliver vacant possession of the
three buildings, they claimed EUR 5,459,026 for the value of the
property in question.
- Furthermore,
the applicants each claimed EUR 100,000 for non pecuniary
damage. They noted in this connection that they had not only lost
their sister but had been prevented from looking after her. The
respondent Government’s insensitivity and unlawfulness in
handling this matter had also caused them stress and distress.
- As
regards the costs and expenses, the applicants contended that the
amount of EUR 44,244.43 would be an appropriate amount to be awarded
by the Court. They asserted that the seriousness of the case had
required the services of a Cypriot lawyer as well as Greek and
Turkish lawyers.
- The
Government submitted that the amounts claimed by the applicants were
speculative and unsubstantiated.
- In
the circumstances of the case, the Court considers that the question
of the application of Article 41 is not ready for decision and must
be reserved, due regard being had to the possibility of an agreement
between the respondent State and the applicants.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that there is no need to examine the
complaints under Articles 6, 8, 13 and 14 of the Convention;
- Holds that the question of the application of
Article 41 of the Convention is not ready for decision;
accordingly,
(a) reserves
the said question;
(b) invites
the Government and the applicants to submit,
within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the
Convention, their written observations on the matter and, in
particular, to notify the Court of any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 29 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Josep Casadevall
Deputy Registrar President
