In a recent judgment against Turkey, the European Court of Human Rights dealt with land registration in favor of a religious institution, which, due to the sacral nature of the site, had maintained uninterruptedly possession for a long time.

 

The Midyat Saint Gabriel’s Syriac Monastery Foundation claimed the property of the land. It is a religious body established at the time of the Ottoman Empire, its statute is currently governed by Law 13 June 1935, n. 2762, recognizing it as a legal entity. The Foundation, among other things, manages the Monastery of San Gabriel, one of the oldest in the world.

In 2007, the disputed land was registered in the land register of the city of Mydiat in the name of the Turkish Treasury. The Foundation, for its part, claimed that before that moment, the land had been part of the local Syriac community’s cemetery. The Foundation also observed that foundations belonging to religious communities benefit from a special legal regime, allowing them to become the owners, through adverse possession – otherwise prohibited by Turkish Law –, of the cemeterial land of their respective community.

A long judicial dispute arose, at the end of which the Court of Cassation rejected the religious body’s requests, considering that, among others, the necessary conditions for the adverse possession were non-existent.

 

After the exhaustion of domestic remedies, the Foundation applied to the Strasbourg Court, alleging the violation of Art. 1 of the First Additional Protocol, read in the light of Art. 9 ECHR. According to the interpretation provided by the applicant and adopted by the Court itself, the norm would in fact also cover judicial proceedings relating to the right to property, to be exercised in compliance with the principles of reasonableness and fairness.

The Court, even without being able to replace national judges, considered that the judicial proceedings in question had not ensured adequate protection of the rights enshrined in the Convention. The facts on which the Foundation's claim was based – particularly its uninterrupted possession of the disputed land before its registration – had not in fact been adequately investigated.

In light of the above, the Court found that in the present case the State has been in breach of its obligation to ensure an adequate judicial remedy to protect the applicant's right to property.

 

(Comment by Andrea Cesarini)