Violation Of The Prohibition Of Discrimination Due To The Inability Of The Female Descendants Of The Endower To Benefit From The Galle Surplus Of The Foundation
Events
The applicants are the children of Z.Y., who died on 15/4/2013, and they are the descendants of the founder of the “El-Hac Ebubekir and İbrahim Beşe bin Topal Mehmet Ağa Foundation” (the Foundation), known as Burduroğlu İbrahim’in Menzili ve Dukkanları Vakfı (Burduroğlu İbrahim’in Menzili ve Dukkanları Vakfı), which was established with a waqf dated 18/1/1722. The Foundation in question is a zurri foundation and according to the Foundation’s foundation deed, after the death of the Waqf, after the death of the Waqf, the sons will be the equal beneficiaries in the order of descent, and if there is no one left from the sons, the daughters will be the beneficiaries in the order of succession. The foundation is under the management of the General Directorate of Foundations as a mazbut foundation.
On 25/9/2012, Z.Y., the applicants’ murisi Z.Y. filed a lawsuit against the General Directorate of Foundations in the 7th Civil Court of First Instance to determine that he was the son of the firstborn who was entitled to benefit from the surplus. The applicants’ deceased died on 15/4/2013 during the pendency of the lawsuit and the proceedings continued upon the request of the heirs to follow the lawsuit. The court dismissed the case, stating that since the founder had sons, it was not possible for daughters to benefit from the surplus. The heirs appealed against the decision and the Court of Cassation upheld the court decision.
Allegations
The applicants claimed that the prohibition of discrimination in connection with the right to property was violated as the female descendants of the endower could not benefit from the surplus of the mazbut foundation.
The Court’s Assessment
First of all, it should be emphasized that the legal issue in the concrete case is not a question of inheritance law. The issue here concerns the distribution of the Foundation’s surplus. The question to be examined by the Constitutional Court is whether the procedure for the distribution of the surplus violates Articles 10 and 35 of the 1982 Constitution.
The applicants’ request to benefit from the surplus was rejected on the basis of the terms of the waqf. The waqf in question stipulated that daughters could benefit from the galle surplus on the condition that there were no sons. Accordingly, as long as the endower has male children (descendants) from the same lineage, it will not be possible for daughters to benefit from the galle surplus. It is clear that the rejection of the request of the daughters to benefit from the Foundation’s surplus on the grounds that there is a son from the same line of descent and that it is not possible for the daughter to benefit from this as long as there is a son from the same line of descent constitutes different treatment on the basis of gender.
It is understood that the different treatment in the concrete case is based on the purpose of respecting the will of the endower and ensuring legal security. First of all, it should be noted that it is understandable that the public authorities aim to protect the will of the founder. In addition, it can also be said that the different treatment has the purpose of ensuring legal security within the framework of protecting the interests of the beneficiaries of the surplus in its current form. Therefore, it is concluded that there is an objective and justifiable reason for the different treatment based on the purpose of protecting the will of the endower and ensuring legal security.
However, it has been evaluated that the purpose of respecting the will of the endower and ensuring legal security does not have a high public interest to justify the denial of a share of the surplus to the daughters. While it is important to preserve the legal situations that were completed and finalized during the Ottoman Period in order to ensure legal security, the distribution of the surplus of a foundation established during the Ottoman Period is an ongoing phenomenon. The decision as to who will be allocated a share of the galle surplus is made on the date the right arises. Therefore, disputes regarding the distribution of surplus gallees cannot be approached as completed and finalized legal facts. Therefore, the allocation of the income of a foundation established in the Ottoman period is not a matter that public authorities can avoid on the grounds of legal security.
Considering that the effects of the distribution of the Galle surplus arise at the time of the distribution of the share, the proportionality test should be applied by considering the burdens at the time of distribution. Today, discrimination on the basis of sex is prohibited under both international and national law and states have a duty to take measures to prevent differential treatment on the basis of sex. In the face of Article 10 of the Constitution, differential treatment on the basis of sex cannot be tolerated in today’s social order. Moreover, such treatment is considered as a practice that undermines public order. At this point, it is understood that the public benefit to be obtained by protecting the will of the endower is negligible in the face of today’s understanding of public order. In other words, it has been evaluated that the burden incurred by individuals by depriving them of their property rights due to gender-based differential treatment is quite high compared to the public interest in protecting the will of the endower and the security of law.
On the other hand, the margin of appreciation of the public authorities will be narrower in the case of different treatment on the basis of gender. Considering the circumstances of the concrete case, it has been concluded that the public authorities have exceeded their margin of appreciation in terms of differential treatment in order to meet social needs. It is not possible to prefer the purpose of respecting the will of the endower and ensuring legal security to the burden caused by not giving the daughters a share of the galle surplus.
In this case, it has been concluded that the different treatment on the basis of gender by denying a share from the galle surplus to the applicants’ murali, who is the daughter of the endower, on the grounds that there is a son living from the same lineage -even if there is a reasonable and justifiable reason- is not based on a reasonable proportionality relationship between the end and the means and therefore constitutes discrimination.
For the reasons explained, the Constitutional Court held that the prohibition of discrimination in connection with the right to property was violated.