Violation Of The Right Of Property Due To The Request For The Delivery Of Cultural Property To The Museum Without Charge
Events
The natural person applicants are the children and heirs of Y.E.S. The fifth applicant is a legal entity established by the applicants. Y.E.S. is a collector of cultural property registered with the Directorate of the Underwater Archaeological Museum (the Directorate). Y.E.S. has over 300 cultural artefacts registered in his collection.
After Y.E.S.’s death, the real person applicants established Steiner Gayrimenkul Yatırım ve Danışmanlık Limited Company (fifth applicant/Company) to carry out collecting activities. The Company obtained a collection permit on 19/2/2014 and started collecting activities under the supervision of the Directorate. All cultural assets registered in the collection of Y.E.S. were transferred to the collection of the Company.
The Directorate stated that it was not possible to subject the immovable cultural assets registered in the collection of the Company to collecting activities and notified the Directorate to deliver them to the Directorate. The lawsuit filed by the applicants at the 1st Administrative Court (Court) for the cancellation of this action was rejected. In the reasoning of the decision, it was stated that it is not possible to qualify the parts that become movable by being detached or separated from immovable cultural assets as movable cultural assets subject to collecting activity, and that the acceptance of the contrary would lead to an effect that increases the destruction of antiquities and the accompanying trade. The appeal of the real person applicants against this decision was rejected by the Regional Administrative Court and the appeal was rejected by the Council of State.
Allegations
The applicants claimed that their right to property was violated as the immovable cultural assets registered in the private collection were requested to be handed over to the museum free of charge.
The Court’s Assessment
In the concrete case, it was stated that the immovable cultural assets registered in the collection of the applicant company were mistakenly recorded in the inventory and an administrative action was taken to deliver them to the museum.
When the Law No. 2863 on the Protection of Cultural and Natural Assets is examined, it is seen that both movable and immovable cultural assets are not prohibited to be subject to private ownership. It has been made possible to keep movable cultural assets in private ownership under the supervision and control of the state, provided that a collecting certificate is obtained. In addition, Article 15 and Articles 24 and 25 of the Law No. 2863 allow the transfer of the ownership of immovable cultural assets and movable cultural assets, respectively, to the public within the framework of the procedures and principles stipulated in the aforementioned articles.
While the artefacts subject to the concrete case were actually part of immovable cultural assets, they were somehow detached or severed from their originals. In this sense, after 11/3/2005, it is strictly prohibited to record them in collections like movable property. In terms of the ones recorded in collections before this date, transfers and sales between collectors are prohibited, and public authorities are authorised to take them to museums free of charge.
On the other hand, it should be emphasised that Provisional Article 8, which was added to the Law No. 2863 by Article 4 of the Law No. 5835, does not impose the obligation to transfer immovable cultural property acquired by collectors before 11/3/2005 and registered in the inventory book of the museum to which it is affiliated, to museums in all cases, and gives discretionary authority to public authorities in this regard.
The public authorities, by their own attitudes and behaviours, have caused the formation of a belief that immovable cultural assets are integral and that the parts of them can be recorded in the inventory of private collectors. The trust of the persons who acquired the cultural assets in question by relying on the legal situation created due to the inaction and even active contribution of the public authorities should be protected.
Undoubtedly, this does not mean that artefacts forming part of immovable cultural property cannot be transferred to public ownership. However, much stronger reasons are needed for them to be handed over to the museum without compensation. In the concrete case, the public authorities could not show any other reason than the need to protect them. Moreover, the public authorities did not claim that the applicant Company did not protect them properly and that they would be better protected if they were handed over to the museum.
Even the provisional Article 8 added to the Law No. 2863 by Article 4 of the Law No. 5835 does not automatically abolish the ownership status of the items recorded in the inventories of the collectors before 11/3/2005, and gives discretionary power to the administration in this regard. Therefore, it is not possible to accept the Court’s reasoning that the legislation does not allow collecting immovable cultural property as relevant and sufficient.
In these circumstances, it could not be concluded that a tool that imposes a heavy burden on the applicant in the form of handing over the immovable cultural assets included in the Company’s collection to the museum without compensation is the least intervention in order to achieve the purpose of protecting cultural assets. In this case, it was assessed that the interference with the applicant’s right to property did not meet the criterion of necessity.
For the reasons explained above, the Constitutional Court decided that the applicant’s right to property was violated in terms of the artefacts registered in the collection of the Company.
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