Cablegate: Buyukada Orphanage: Positive Outcome For

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DE RUEHIT #0381/01 1980636
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UNCLAS SECTION 01 OF 02 ISTANBUL 000381

SIPDIS

E.O. 12958: N/A
TAGS: PGOV PHUM TU AA
SUBJECT: BUYUKADA ORPHANAGE: POSITIVE OUTCOME FOR
ECUMENICAL PATRIARCH AT ECHR

REF: A. 06 ISTANBUL 524
B. 07 ISTANBUL 83

1. Summary: On July 8 the European Court of Human Rights
entered judgment in favor of the Ecumenical Patriarchate and
against the Government of Turkey (GOT) in a case concerning
the Patriarchate's title to a former orphanage that had been
annulled by the Turkish authorities. The GOT claimed that
under Turkish law the Patriarchate does not enjoy the status
of a 'legal personality' and therefore is not entitled to
property ownership. The Patriarchate's case relied on Article
14 (prohibiting discrimination based on religion and other
protected characteristics) and Article 1 (protection of
property) of the First Protocol of the European Convention on
Human Rights. End summary.

2. Built originally as a hotel by French architect Alexandre
Vallaury in the 1890s, the wife of Georges Zarifi, banker of
Ottoman Sultan Abdul Hamid II, purchased the buildings and
subsequently donated them to the Patriarchate in 1902 with
the stipulation that the property be used as a dormitory for
Greek orphans.
- In 1903, the Patriarchate ceded the use of the property
(but not the title) to the Orthodox "Foundation of the
Buyukada Greek Orphanage for Boys" (OB).
- The Foundations Act of 1935 recognized the legal
personality of the Orphanage, and the property was mentioned
in the registry of properties declared by the Foundation in
1936.
- In 1964, the Turkish authorities closed the facility for
safety reasons.
- In 1999, the General Directorate of Foundations undertook a
court case to revoke the Patriarchate's deed of
ownership(Ref).
- In October 2004, the Court of Cassation held that,
subsequent to the declaration registered by the OB in 1936,
the property had belonged to the OB and no longer to the
Patriarchate. As the government had previously taken over the
OB in 1997 due to dwindling numbers of administrators within
the community, the building reverted to government control.

3. The ECHR determined that Turkey had violated Article 1 of
the First Protocol of the European Convention on Human
Rights. This article states that "every natural or legal
person is entitled to the peaceful enjoyment of his
possessions
and that he shall not 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." According to the ECHR, the key to the
case
is the distinction between usage and ownership. The
declaration of registration in 1936 stated that the OB ran
the
orphanage but not that it was the owner of the premises. The
ECHR found nothing in the record of the case to suggest
that the usage had the effect of nullifying the original
title. The ECHR will announce its verdict on monetary
indemnities at a later date. Turkey has the option to apply
for a rehearing of the case within three months.

4. The case against Turkey is not solely about property
rights issues, but more importantly about minority rights.
In 1935, the Turkish Government passed the Law of
Foundations, requiring that all community foundations list
their
immovable properties and submit the list to the government.
Many Greeks who departed Turkey after 1936 left their
property to local churches; however, these properties remain
in the hands of GOT or third party owners because the
government did not recognize these post-1936 transfers to the
foundations. Because the original owners were absent
upon investigation, and the GOT does not recognize the legal
personality of churches, the title then reverted to the
state. The minority population began bringing property claims
to the ECHR thus internationalizing the issue and pushing
the GOT to amend the Foundations Law which was enacted in
early 2008 following a presidential veto in 2006. The
Foundations Law as amended will return properties that have
not been sold and are still under state control. It will
neither return nor provide monetary compensation for
properties that were confiscated by court orders or sold to
third
parties by the state, nor return to foundations the control

ISTANBUL 00000381 002 OF 002

of properties whose administration was taken over by the
state. The current law does not end the confiscation of the
properties of community foundations when the property is
vacant or the title owner absent.

5. The Patriarchate is not optimistic that this case will
have a broad impact on the treatment of other confiscated
properties. Paul Gikas, a representative of the Greek
Ecumenical Patriarchate, explained that the orphanage is the
only property to which the Patriarchate had clear title,
making the case before the ECHR very strong. While the Greek
community and churches claim ownership of nearly 2000 other
properties, according to Gikas, the Turkish government
still refuses to consider property claims arising after the
1936 property registration.

6. Comment: GOT has not yet officially reacted to the
verdict. Theoretically, it could request a rehearing of the
case
within three months, comply with the verdict, or ignore it
and force the Patriarchate to seek enforcement measures.
Past ECHR decisions have resulted in the Government of Turkey
(GOT) paying monetary damages rather than returning
confiscated properties. In this case, where the Ecumenical
Patriarch would prefer to retain title to the site, it
remains to be seen whether the GOT will comply with the court
via monetary damages, dashing the Patriarchate's hope
to regain the property, or whether they will return the
actual orphanage site. There is not a specific timeframe for
the Court's remuneration deliberations, but prior experience
with ECHR decisions suggests compliance on part of the GOT.
End Comment.

WIENER

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