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Viewing cable 08ISTANBUL381, BUYUKADA ORPHANAGE: POSITIVE OUTCOME FOR

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Reference ID Created Released Classification Origin
08ISTANBUL381 2008-07-16 06:36 2011-08-24 01:00 UNCLASSIFIED Consulate Istanbul
VZCZCXRO7870
PP RUEHAG RUEHAST RUEHDA RUEHDF RUEHFL RUEHIK RUEHKW RUEHLA RUEHLN
RUEHLZ RUEHPOD RUEHROV RUEHSR RUEHVK RUEHYG
DE RUEHIT #0381/01 1980636
ZNR UUUUU ZZH
P 160636Z JUL 08
FM AMCONSUL ISTANBUL
TO RUEHZL/EUROPEAN POLITICAL COLLECTIVE PRIORITY
RUEHC/SECSTATE WASHDC PRIORITY 8323
INFO RUEHAK/AMEMBASSY ANKARA PRIORITY 7799
RUEHTH/AMEMBASSY ATHENS PRIORITY 0864
RUEHIT/AMCONSUL ISTANBUL PRIORITY
RHEHNSC/NSC WASHDC PRIORITY
RUEAIIA/CIA WASHDC PRIORITY
RHEHAAA/WHITE HOUSE WASHDC PRIORITY
RUEKJCS/DIA WASHDC PRIORITY
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