The church and its land, listed as Aya Yani Church and Monastery of the Great Monastery of Tur-u Sinai in the 1936 Declaration submitted by the applicant’s lawyer, were included in the list of excused foundations on 6/6/1977. In line with the report prepared by the Foundations Administration as a result of the examination. The applicant, in an application to the administration, requested that the acquired status of the Foundation be terminated and that its administration be returned to the community. It was also requested that the immovable properties belonging to this Foundation be returned to the management of the Foundation to be formed from the community.
The administration did not respond to the application and tacitly rejected it.Applicant filed an annulment lawsuit against this case before the administrative court, which dismissed the case on the grounds that the conditions for inclusion among foundations had been fulfilled since no administrator had been appointed for 10 years to the foundation, which had acquired legal personality in accordance with the 1936 Declaration. The Council of State, which examined the appl
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Allegations
The applicant claimed that his right to property was violated due to the rejection of his request for the return of his property, consisting of a church building and land, which had been transferred to foundation status.
The Court’s Assessment
Applicant, an Egyptian national, complained that an immovable belonging to him was deemed to be a foundation in its own right and, like all community foundations, was first included among the independent foundations and then among the mazbut foundations. It had no community to fulfill its purpose and was managed by the Foundations Administration.
Although the decision of the Foundations Administration included the immovable property among the excused foundations and transferred its management to the administration, these decisions did not remove the ownership in the title deed, but rather restricted the owner’s authority to dispose of it. Although the decisions of the administration and administrative judicial authorities stated that the church and monastery had become an independent foundation in accordance with the 1936 Declaration and that the conditions for inclusion among the excused foundations were fulfilled, the court and the Executive Council of the State did not examine the content of the 1936 Declaration regarding the immovables subject to the individual application, nor did they respond to the claim that foundation status could not be granted to an entity that did not have an independent foundation and did not claim to be an independent foundation, according to the declaration.
On the other hand, the court did not explain how a foundation that it recognized as a community foundation, and with this characteristic could no longer be included in the list of vested foundations under Law No. 5404, could be included in the list of vested foundations. The Court also did not make any assessment of the circumstances of the applicant’s request for restitution based on provisional Article 11 of Law No. 5737, despite recognizing it as a community foundation.
The Court’s Assessment
In this case, in an application alleging that an immovable property consisting of a church and its land, which was actually used by the congregation until 1977 and which was determined by the administration itself, was seized by the unilateral decision of the administration without any basis whatsoever, the applicant’s claims and objections regarding the lawfulness of the interference upon its inclusion among foundations and seizure of their management on the basis of an explicit provision of law and the rejection of the request for restitution on the basis of this administrative regulation, the separate and clear answer, which was effective on the outcome of the case, was not answered by the courts with relevant and sufficient reasoning.
Moreover, the practice of recognizing the properties subject to religious activities as independent foundations and including them among the foundations based on a case law that emerged years after the date of the 1936 Declaration, which is the basis of the administrative case, is extremely objectionable. not foreseeable.
For the reasons explained above, the Constitutional Court ruled that the right to property was violated.
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