Individual Application 53/19

Press Release concerning the Judgment Finding a Violation of the Right to Property for Non-Recognition of Heirship due to Lack of Inter-State Reciprocity

On 8 May 2019, the First Section of the Constitutional Court found a violation of the right to property safeguarded by Article 35 of the Constitution in the individual application lodged by İoanis Maditinos (no. 2015/9880).

The Facts

The applicant, who was a Turkish national, was deprived of Turkish citizenship by virtue of a Cabinet Decree for voluntarily acquiring citizenship of a foreign state without any permission. The applicant, a Greek who is still residing in Athens, became the only heir of an immovable located in İstanbul. However, the incumbent civil court assigned the whole inheritance to the State Treasury as the applicant was no longer a Turkish nation.

He then filed an application with the incumbent civil court to obtain a certificate of inheritance, and the civil court accepted his application. Thereafter, the Treasury filed an action against the applicant for the revocation of his certificate of inheritance, which was subsequently revoked by virtue of a court decision. On the other hand, the action brought by the applicant before the civil court for the revocation of the Treasury’s certificate of inheritance was dismissed. He appealed the dismissal decision before the Court of Cassation; however, the decision was ultimately upheld.  

The Applicant’s Allegations

The applicant maintained that there had been a violation of his right to property as he had a right to inheritance in terms of the immovable under dispute.    

The Court’s Assessment

By a Decree-law issued in 1964, Greek citizens’ right to transfer ownership of their immovable in Turkey was suspended; however, this Decree-law was ultimately annulled by the Council of Ministers in 1988.

In the present case, it is explicit that the Decree-law which imposed a temporary restriction on the Greek citizens’ right to transfer ownership of their immovable in Turkey was not in force by the date when the testator died.

The inferior courts refused to recognize the applicant’s capacity as the heir of the testator’s immovable for the lack of reciprocity between Turkey and Greece.

In reaching this conclusion, the inferior courts relied on the instruments related to inter-state reciprocity, which were issued by the Ministry of Justice, Directorate General for International Law and Foreign Relations. However, regard being had to these instruments, it has been explicitly observed that there is no finding as to the fact that individuals of Turkish nationality were not allowed, by the date of testator’s death or date of the relevant proceedings, to acquire property by inheritance in Greece, even in the regions where certain restrictions were in question.  

According to these instruments, although a requirement for obtaining authorization to perform legal acts such as purchase and sale of any immovable has been introduced in certain regions of Greece, there is no concrete information indicating that such authorization also covers the process of acquisition of property by inheritance. As a matter of fact, the European Court of Human Rights also notes that, as indicated in certain instruments, Turkish citizens in Greece are allowed to acquire, by inheritance, immovable properties located in areas under such restriction.

However, it must be highlighted that the principle of reciprocity in acquisition of property by inheritance was rescinded through the legal arrangements of 2005 and 2012. It is accordingly set forth that in cases where the immovable acquired by inheritance has not been sold off by its owner, it will be sold off and the relevant sale price will be paid to the beneficiary.

As a result, it has been observed that the inferior courts failed to show the legal basis, with a reasonable and sufficient justification, for the revocation of the applicant’s certificate of inheritance in the absence of any explicit finding, as a requirement of the principle of reciprocity, that Turkish citizens were not allowed to acquire properties by inheritance in Greece within the framework of the provisions of law which were in force at that time. It has been therefore considered that the interference with the applicant’s right to property due to non-recognition of his capacity as an heir was devoid of any foreseeable legal basis.

Consequently, the Court has found a violation of the right to property safeguarded by Article 35 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.