Turkish Constitutional Court Decision Regarding The Issuance Of The Inheritance Certificate to Foreigners

In this information note, our legal evaluations about the Constitutional Court's Decision No. 2017/16211 published in the Official Gazette dated 21.08.2020 as well as the decisions implications for foreigners’ rights as per inheritance law will be shared.

I. SUMMARY OF DECISION

The case subject to application in the Constitutional Court is the allegation that the applicants cannot exercise their rights arising from the inheritance law due to the failure of the Turkish Republic to issue the certificate of inheritance. The applicants, who are citizens of Syria and Jordan, filed a compensation lawsuit with the allegation that the immovable property in Istanbul which was part of their inheritance was confiscated without expropriating.

The first degree court granted the applicants the authority and time to present a certificate of inheritance, and applicants have requested that the certificate of inheritance be issued to be submitted to this case. However, the first degree court subsequently rejected their request on the grounds that Syrian nationals are not able to acquire real estate due to a lack of reciprocity between the States.

The Defendant, Treasury of Finance, argued that it is not possible to inherit confiscated goods by the Regulation on the Determination and Seizure of the Property of Syrian Nationals (1966 dated Regulation) published in the gazette dated 1/10/1966 and numbered 12428. The court rejected the case on 29/12/2010. The justification of the court decision is that there is no reciprocity agreement between Turkey and Syria, and all rights and interests and all movable and immovable properties located in Turkey of Syrian Nationals are confiscated by the 05/28/1927 dated and 1066 numbered Law, and the administration of confiscated immovable properties was left to the General Directorate of Real Estate of the Ministry of Finance,therefore, the Ministry of Finance is the competent authority whose opinion should be taken into account regarding the transactions to be carried out regarding the inheritance of Syrian Nationals.

The applicants appealed the decision, but the Court of Cassation rejected the appeal in terms of the limitation of time. The Court of Cassation, which examined the applicants' request of the revision of decision, rejected the appeal as a result of the review on the merits and decided to uphold the decision on 15/11/2016.

The Constitutional Court decided that the Property Right guaranteed in Article 35 of the Constitution was violated by the Court of Cassation’s decision; thereby leaving the Court of Cassation 's settled case-law without any valid and sufficient ground.

II. EVALUATION

In order to assess the decision summarized above, it is necessary to review the relevant legal rules. With the 1966 Regulation, the immovable property of Syrian nationals in Turkey was confiscated.The management of the confiscated immovable properties by the Treasury was regulated by the 1967 Regulation.As stated in the case-law of the Court of Cassation, it was emphasized that the property rights of Syrian nationals were restricted but not abolished with the aforementioned confiscation and that the property rights of the heirs still continue.

In terms of the concrete event, the inheritance has not been directly transferred to the applicants as there is no reciprocity requirement specified in the law in force at the time of the death. However, this does not constitute an obstacle to the issuance of the certificate of inheritance.

As a result, the Constitutional Court decided that the failure to issue a certificate of inheritance without any a valid and sufficient ground was a violation of the "Property Right" which is guaranteed by Article 35 of the Constitution, and decided to hold a retrial because the violation was due to a court decision. With this decision, the Constitutional Court has effectively held that persons’ right to property supersedes the reciprocity principle of international law upheld in Turkish Law regarding the issuance of certificates of inheritance. This is in line with settled case law of the Court of Cassation as well as the European Court of Human Rights. However, it should be kept in mind that the issuance of a certificate of inheritance is not a guarantee that foreign heirs will be able to gain title of movable and immovable properties of inherited. The gaining of title is an issue that must be answered in light of any specific laws in Turkey relating to the foreigners’ nationality.

If you have any questions regarding inheritance law or property law in Turkey, please do not hesitate to contact us.

Regards,

ESİS LAW OFFICE