ECLJ Welcomes the ECHR Decision in the Christian Orphanage Case v. Turkey

Article Completion

(Strasbourg, France) – In a recent Judgment issued by the European Court of Human Rights (“ECHR”) on June 15th, a Chamber composed of seven judges unanimously held that the Turkish government had to return the Büyükada Orphanage it had taken from the Ecumenical Patriarchate of Constantinople in order to comply with Article 41 of the Convention (Just Satisfaction).

The European Centre for Law and Justice (ECLJ), who took an active role in this case, welcomes the ECHR decision. You can find the legal analysis here, prepared by the ECLJ in support of the Ecumenical Patriarchate rights.

The taking of the Büyükada property stands as a symbol of the systematic approach of the Respondent State in completely eliminating the Greek minority from Turkey despite the legal safeguards of both the European Convention of Human Rights and the Treaty of Lausanne. The Patriarchate purchased this large piece of historic property in 1902 in Istanbul. A year later, the Patriarchate allowed the Foundation of the Büyükada Greek Orphanage for Boys (“the Orphanage”) to use the property, but still retained ownership. However, in 1935, the Turkish Government officially gave recognition to the Orphanage and listed it as the owner of the property; and in 1964, the Orphanage vacated the premises for safety reasons after being ordered to do so by Turkish authorities. Then, in 1997, seeing that the Orphanage was “defunct,” the Turkish Government took over management of the property, and two years later had the Patriarchate’s title annulled. Turkish Courts upheld the annulment of title.

At the heart of this case lies the issue of the denial of legal personality to the entity of the Ecumenical Patriarchate. This fact was made clear by the counsel for the Respondent State during the oral hearing before the Court and by the dismissal of the counter-claim of the Applicant against the Directorate of Foundations in the Turkish domestic courts due to lack of standing, which resulted from the refusal to recognize the legal personality of the Applicant Patriarchate. This refusal of recognition extends far beyond this one case and has brought into jeopardy the very existence of the Patriarchate within Turkey, despite a century’s long presence in the area. Furthermore, the denial of legal personality as a means of barring the Applicant from pursuing its counter-claim at the domestic level has done irreparable damage to the substance of its claim.

The ECHR held in a first Judgment, delivered on July 8th 2008, that there had been a violation of Article 1 of the Convention, which guarantees the right to property. The Court noted that because the Patriarchate never transferred its title to the property, the Turkish Government could not legally strip it of its title without providing adequate compensation. After the judgment was issued, compensation was not provided, and therefore the case again came before the Court.

In its second Judgment, delivered on June 15, 2010, the Court once again found in favor of the Patriarchate, focusing on the failure of Turkey to implement the original judgment. In fact, the Court quoted its decision of July 2008, which said Turkish authorities were not entitled to deprive the applicant of its property without providing appropriate compensation: “The church had not received any compensation and it therefore had to bear an individual and excessive burden, entailing a violation of Article 1 of Protocol No. 1 [property protection].” The Court held that no reason existed for depriving the Patriarchate of its title and because “granting compensation to the applicant [would not] constitute adequate redress,” full title to the property at issue had to be returned. The Patriarchate was also awarded 6,000 Euros for prejudice suffered as well as 20,000 Euros for costs and expenses.

The question of the legal personality and rights of the Orthodox Patriarchate of Constantinople has recently been addressed by the Venice Commission in an “Opinion on the legal status of religious communities in Turkey and the Right of the Orthodox Patriarchate of Istanbul to use the adjective “Ecumenical,” published on 15 March 2010. The Venice Commission, in particular, concluded its analysis stressing “that the fundamental right of freedom of religion as protected by Article 9, read in conjunction with Article 11, of the ECHR includes, inter alia, the possibility for religious communities as such to obtain legal personality. This is important not least to ensure access to court, and the protection of property rights. The Venice Commission can see no justification, which would be in conformity with the strict requirements of Articles 9 paragraph 2 and 11 paragraph 2 ECHR, for not granting such rights to the non-Muslim religious communities.”

Also, during their January 2010 session, the Parliamentary Assembly of the Council of Europe (PACE) has recently adopted a resolution in support of “Freedom of religion and other human rights for non-Muslim minorities in Turkey and for the Muslim minority in Thrace (Eastern Greece)” RES 1704 (2010).

The ECLJ welcomes the ECHR decision, the PACE Resolution and the Venice Commission opinion, and will continue to advocate for the rights of Religious Minorities in Turkey. In this effort, the ECLJ is involved in the preparation for, and will participate in, the “Conference on the Treatment of Religious Minorities in Turkey”, at the European Parliament (Brussels), next 16-17 November 2010.