The European Court of Human Rights (ECHR) condemned Turkey on Tuesday July 5 for having enforced a text governing a foundation dating from the Ottoman era, in the 16th century, and which established discrimination on the basis of sex.
The Örfioglu Foundation was established in 1536, during the Ottoman era, in Diyarbakir.
In Turkish law, it falls under the category of “
mülhak
” foundations, that is to say, managed by the descendants of the founder.
“
Its income is allocated to certain charities and the excess income is paid to the + descendants of the founder + by degree of direct line of kinship
”, notes the ECHR, judicial arm of the Council of Europe.
In 2015, Örfioglu's wealth was estimated at around €207 million and his annual income was around €3.7 million.
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In this case, the applicants complain that a direct descendant of the founder could not benefit from the excess income due to her on the grounds that she was a woman.
The constitutive act of the foundation in fact provided that only male descendants could benefit from these surplus incomes.
“
This practice stems from social and moral conceptions and an archaic vision of the role of women which no longer prevails in Turkish society and more broadly in European societies
”, underlines the ECHR.
But the Turkish courts “
have contented themselves with establishing and then applying the will of the founder, as expressed in the constitutive act, without seeking to confront it with the rules of public order
”, regrets the court based in Strasbourg ( France).
"
They do not seem to have taken the slightest care to verify the conformity of the founder's will with the Convention, the Constitution or the laws, even though it clearly raised a question with regard to the principle of non-discrimination and the principle of equality between men and women
”.
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Turkey has thus violated Article 14 of the European Convention on Human Rights (prohibition of discrimination), combined with Article 1 of Protocol No. 1 (protection of property).
In compensation, the ECHR considers that "
the most appropriate way to redress the violation found would be a reopening of the proceedings
" in Turkey.
In the name of the principle of legal security, however, it exempts the Turkish State “
from calling into question legal acts or situations prior to this judgment
”.