Press Release No: Individual Application 27/22
Press Release concerning the Judgment Finding a Violation of the Right to Property due to the Request for the Handing Over of Cultural Assets to the Museum without any Compensation
On 13 January 2022 the First Section of the Constitutional Court found a violation of the right to property safeguarded by Article 35 of the Constitution as regards the objects registered in the applicant Company’s collection in the individual application lodged by Alexandra Liana and Others (no. 2018/20732).
The natural person applicants are the children and heirs of Y.E.S. On the other hand, the fifth applicant is a legal entity established by the applicants. Y.E.S. is a cultural asset collector registered to the Underwater Archaeology Museum Directorate (“the Directorate”). There are more than 300 cultural assets registered in the collection of Y.E.S..
After the death of Y.E.S., the natural person applicants established a company named Steiner Gayrimenkul Yatırım ve Danışmanlık Limited Şirketi (“the fifth applicant” or “the Company”) to carry out collecting activities. On 19 February 2014 the Company obtained a collection licence and started collecting activities under the supervision of the Directorate. All cultural assets registered in the collection belonging to Y.S.E. were transferred to the Company’s collection.
The Directorate issued a written notification that the immovable cultural assets registered in the Company’s collection should be handed over to the Directorate, stating that it was not possible for them to be the subject of collecting activities. The action brought by the applicants before the First Chamber of the Administrative Court (“the Administrative Court”) for the annulment of the aforementioned act was dismissed. In its reasoning, the Administrative Court noted that the pieces that had become movable by separation or removal from immovable cultural assets could not be qualified as movable cultural assets that could be the subject of collecting activities and that accepting otherwise would have an impact of leading to further destruction and trade of old works. The natural person applicants’ request for appeal on points of law and facts against the decision in question was dismissed by the Regional Court of Appeal, and their request for appeal on points of law was dismissed by the Council of State.
The Applicants’ Allegations
The applicants alleged a violation of their right to property due to the request for the handing over of the immovable cultural assets registered in a private collection to the museum without any compensation.
The Court’s Assessment
In the present case, it was noted that the immovable cultural assets registered in the applicant Company’s collection had been erroneously registered in the inventory. As a result, the authorities conducted an administrative act entailing the handing over of those assets to the museum.
The Law no. 2863 on Protection of Cultural and Natural Heritage contains no provision prohibiting movable and immovable cultural assets from being subject to private ownership. Thus, it has become possible for movable cultural assets to be in private ownership under the surveillance and supervision of the State on the condition that a collection licence be obtained. Moreover, the Law no. 2863 also allows for the transfer to the public of the ownership of the immovable cultural assets set out in Article 15 thereof and the movable cultural assets set out in Articles 24 and 25, whichever appropriate, in accordance with the procedures and principles laid down in the relevant articles.
While the impugned works in the present case had been in fact a part of immovable cultural assets, they somehow separated or were separated from their originals. In this sense, their registration in collections as movable properties after 11 March 2005 has been absolutely prohibited. As regards the assets registered in collections prior to that date, their transfer and sale between collectors has been prohibited. Moreover, the public authorities have been afforded the authority to place them in the museum without any compensation.
On the other hand, it should be underlined that Provisional Article 8 added to the Law no. 2863 by Article 4 of the Law no. 5835 does not necessarily require that the immovable cultural assets which were somehow obtained by collectors and registered in the inventory book of the relevant museum prior to 11 March 2005 be handed over to the museum in any event and that the public authorities are afforded a margin of appreciation in this regard.
The public authorities, on account of their own attitude and conduct, led to the formation of a belief that the complementary pieces which had been separated from immovable cultural assets could be registered in the inventories of private collectors. The trust of the persons, who obtained the relevant cultural assets by trusting the legal status arising as a result of the inaction and even the active contribution of the public authorities, must be maintained.
This fact certainly does not mean that the ownership of the works constituting a part of immovable cultural assets cannot be transferred to the public. However, there must be much stronger reasons in order for such works to be handed over to the museum without any compensation. In the present case, the public authorities did not provide any reason other than the need to protect those works. Moreover, the public authorities did not raise an allegation to the effect that the applicant Company failed to protect the relevant works properly or that those works would be provided better protection in the event of their being handed over to the museum.
Even Provisional Article 8 added to the Law no. 2863 by Article 4 of the Law no. 5835 does not automatically revoke the status of ownership as regards the assets registered in the inventories of collectors prior to 11 March 2005 and affords the administration a margin of appreciation in this regard. Thus, the reason provided by the Administrative Court, stating that the legislation did not allow for immovable cultural assets to be the subject of collecting activities, cannot be considered relevant and sufficient.
In these circumstances, a means which imposed severe burden on the applicant in the form of requiring the handing over, to the museum, without any compensation, of the immovable cultural properties registered in the Company’s collection cannot be considered as the least intrusive means to achieve the aim of protecting cultural assets. In this case, it has been considered that the interference with the applicant’s right to property did not satisfy the requirement of necessity.
Consequently, the Constitutional Court has found a violation of the right to property as regards the works registered in the Company’s collection.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.