Lausanne and the High Courts

As a scholar specializing in Turkish legal history, I have been researching the role of Lausanne in the Turkish legal system for ten years and have published a book and a series of articles on the treaty. In the framework of my research into the role of the Treaty of Lausanne in the judgments of the Turkish high court to coincide with its centenary, it has become evident that the Treaty and associated agreements on the population exchange, residence and jurisdiction continue to serve as points of reference for the high courts of Türkiye, particularly in matters such as the protection of fundamental rights and freedoms. The Treaty and some agreements like population exchange, residence and jurisdiction continue to serve as points of reference for disputes within the Turkish judicial system. Over the following century, the Turkish judiciary’s interpretation of the law evolved in dialogue with these Lausanne documents.

The origins of the Court of Cassation and the Council of State can be traced back to the Ottoman period, whereas the Constitutional Court was established during the Republican period, under the Constitution of 1961. The Constitutional Court plays a crucial role in protecting fundamental rights and freedoms, not only through judicial review but also as an authority to which individual applications can be made.

In the context of judicial review, references to the Treaty have been made on several issues, including abandoned properties, the acquisition of property by foreigners, and the independence of the judiciary. When it comes to court decisions, however, minorities, minority schools, marriage powers of muftis and community foundations have received the most attention. Within the scope of the individual application that started in 2012, Lausanne has been referenced in seventeen decisions. Presented with allegations of property right infringements due to the population exchange or legislation related to abandoned properties, the Constitutional Court ruled these applications inadmissible, due to subject matter jurisdiction or being out of time.

Of the individual application decisions where violations were identified, four related to property claims, one to freedom of religion, and another to the right to demand respect for religious and philosophical beliefs in education and training. The Constitutional Court has demonstrated its effectiveness in addressing numerous issues resolved by the Treaty of Lausanne. So has the Court of Cassation, which aims to ensure the unity of precedents across the judiciary. The 1940s in particular saw a number of decisions regarding property rights and abandoned properties. Its much more recent ruling that community foundations constitute foreign legal entities has been subject to criticism, on the grounds that these foundations were established by Turkish citizens in accordance with Turkish law. [1] The Court has also weighed in on questions surrounding the acquisition of real estate by foreigners and the inheritance of foreigners.

Finally, there is the Council of State, that has adjudicated disputes involving minority foundations and schools, addressing their administration, tax exemption, and ownership of real estate. Additionally, the acquisition of Turkish citizenship related to the population exchange, especially the resident (établis) document has also been the subject of litigation.

As a result, the Treaty of Lausanne resolved many important international questions a century ago. In the Turkish national judicial system during the Republican era, it guided the high courts on various issues. Rather than being concentrated in a certain period of time, high court decisions referring to the Treaty of Lausanne can be found in every period. In the case of the Constitutional Court, references have increased since the practice of individual application was introduced in 2012. However, the full protection of the rights and guarantees provided by the Lausanne Treaty by the judiciary depends on the historically correct understanding and interpretation of its legal effects and consequences.

Note

[1] Decision of the 2nd Civil Chamber of the Court of Cassation, 6 July 1971. Esas/Docket E. 1970/4449, Karar/Decision K. 1971/4399.