ECHR RULING SETS PRECEDENT FOR DISPUTED MINORITY

C O N F I D E N T I A L SECTION 01 OF 02 ISTANBUL 000083

SIPDIS

SIPDIS

DEPARTMENT FOR EUR/SE

E.O. 12958: DECL: 01/30/2017
TAGS: PHUM PGOV PREL TU
SUBJECT: ECHR RULING SETS PRECEDENT FOR DISPUTED MINORITY
PROPERTIES IN TURKEY

REF: A. 06 ANKARA 6529

B. 06 ANKARA 6593

C. 06 ISTANBUL 0524

Classified By: Consul General Deborah K. Jones for reasons 1.4 (b) and
(d).


1. (C) Summary: The European Court of Human Rights (ECHR)
announced on January 10 it had ruled in favor of the Fener
Greek Boys' High School Foundation in the latter's
application against the GOT regarding the expropriation of
two properties. The court ordered Turkey to return the two
properties or pay the Foundation 890,000 Euro in compensation
plus an additional 20,000 Euro in court costs. Attorneys for
the Ecumenical and Armenian Patriarchates are optimistic that
this ruling, coupled with changes incorporated in the new Law
on Foundations (ref A),foreshadows better days for minority
property rights. End summary.


2. (C) We met separately with Professor Ata Sakmar, legal
advisor to Ecumenical Patriarch Bartholomew I, and Luiz Bakar
an attorney for the Armenian Patriarch of Istanbul and all of
Turkey Mesrob II, to discuss the ECHR's ruling and its
implications for other minority property disputes in Turkey.
The two Patriarchates were not parties to the ECHR case but,
with their own property dispute cases pending before the ECHR
and many more pending in domestic courts, they do have a
stake in the Court's decision.

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How Did it Come to This?
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3. (C) Sakmar explained that in 1974 (contemporaneous with
the rapidly deteriorating situation in Cyprus) the Turkish
High Court made a "political decision" that was not
compatible with existing laws. This decision made minority
foundations ineligible to acquire new properties and was
retroactively applied to 1936 when minority foundations were
asked to declare their properties in a registry. The Greek
community in particular was affected by this decision because
as its members began to emigrate en masse (especially after
anti-Greek riots in Istanbul during September 1955),many
properties were donated to charity foundations. Subsequent
to the 1974 ruling, civil courts began to annul the land
registries of minority properties acquired after 1936 and
re-registered the properties in the name of the public
treasury, which could then sell the properties to third
parties.


4. (C) Such was the case for the Fener Greek Boys High
School Foundation properties that were the subject of the
recent ECHR ruling -- a building in the Beyoglu district of
Istanbul and a plot of land in the Kadikoy neighborhood. The
properties were donated to the Foundation in 1952 and 1958
and after decades of bureaucratic wrangling stemming from the
1974 decision their respective deeds were canceled in 1996.
According to Sakmar, the properties were later sold at public
auction to third parties. After unsuccessfully suing the
government for compensation in domestic courts, the
Foundation brought the case to the ECHR claiming the GOT had
violated its rights to private property as well as freedom
from discrimination.


5. (C) In its decision, the ECHR acquitted the GOT of
discrimination but ruled it had violated the Foundation's
right to property. Sakmar told us that rather than pay the
910,000 Euro, the GOT could seek a compromise with the
Foundation, but he believed this was unlikely and that
instead it would appeal the ruling to the ECHR's Grand
Chamber for a final and enforceable decision. He predicted
that should this happen, the chances that the decision would
be overturned were slim.

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Where do We Go From Here?
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6. (C) Sakmar estimated 900 to 1000 minority properties were
expropriated by the State under similar circumstances. He
noted that while the ECHR ruling could be used as a precedent
for decisions relating to any existing or future property
disputes, the new Law on Foundations (ref A),currently under
parliamentary review after being passed by Parliament in
November 2006 and subsequently vetoed by President Sezer (ref
B),would go a long way toward solving such problems.
Specifically, the 2006 draft Law on Foundations provides that
properties confiscated under the 1974 high court decision and
still registered in the name of the Treasury or other public
entity would be returned. The draft Foundations law,

ISTANBUL 00000083 002 OF 002


however, does not provide compensation to minority
foundations in cases where properties have been sold to third
parties.


7. (C) According to Sakmar, the Justice and Development
Party (AKP)-led government invited attorneys for the minority
communities to provide proposals for the new Law on
Foundations, and had accepted many of the attorneys'
proposals before backtracking due to public pressure. He
characterized the AKP as more "democratic and human" than
other parties -- especially the opposition Republican
People's Party (CHP) which he opined was acting like "an
extreme right party." Sakmar believes the ECHR decision will
provide political cover for the government to follow through
with its original intentions. Underscoring his point,
Sakmar noted that Deputy Prime Minister Mehmet Ali Sahin
stated the ECHR decision would oblige the GOT to pay large
amounts of compensation for expropriated properties and, as a
result, the government would look into incorporating a
compensation clause in the new Foundations Law.


8. (C) Bakar shared with us her optimism regarding a pending
ECHR decision on a similar case brought to the Court by the
Armenian Hospital Foundation. She explained that because of
identical charges and similar property expropriation
circumstances, the case proceedings were originally conducted
concurrently with those associated with the Fener Greek Boys'
High School Foundation's case. Differences in procedural
preferences later caused the cases to be separated but Bakar
sees no reason why the ECHR would rule differently and
expects a decision within the next three months. Like
Sakmar, she believes a new Law on Foundations would obligate
the government to return properties currently under its
control. However she does not think the ECHR decision will
lead Parliament to revise the law to include a compensation
clause. Rather, Bakar told us Parliament will likely re-pass
the draft in its current form.

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Is Something Rotten in the Danistay?
--------------


9. (C) Sakmar, who represents the Ecumenical Patriarchate in
the critical Buyukada Orphanage suit (ref C) pending before
the ECHR, told us he expects the Court will announce its
decision in that case within the coming months. Though the
ECHR decision in the Fener Greek Boys' High School
Foundation's case is not likely to affect the outcome of the
Buyukada Orphanage litigation, the latter is critical to the
Patriarchate's GOT-disputed claim to juridical personality.
Speaking off the record, Sakmar all but accused the Turkish
High Administrative Court (Danistay) of succumbing to outside
pressure when it ruled the property was mistakenly deeded to
the Patriarchate and should be registered in the name of an
expropriated Greek Foundation.


10. (C) Comment: Despite the advances the draft Law on
Foundations would have made for minority property rights in
Turkey, many of our minority community contacts were
disappointed that it did not go further in providing
compensation for properties which had been sold to third
parties. The ECHR decision in the Fener Greek Boys' High
School Foundation case could prompt the GOT to fill that gap.
Even if Bakar is correct in thinking Parliament will not
revise the draft to include a compensation clause, the ECHR
decision will certainly give attorneys representing minority
property rights added ammunition for their arguments in
domestic courts. Deputy Prime Minister Sahin's comments
suggest the GOT may have come to this realization, as well.
End comment.
JONES