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Authors

Carla Gharibian

Abstract

On April 27, 2015, the Armenian Catholicosate (“Armenian Church” or “Church”) filed a lawsuit with the highest court in Turkey to recover the Sis Catholicosate (“Sis”), its ancient headquarters that was seized during the Armenian Genocide. The Church’s legal team has been careful to frame the suit primarily as a property claim, distinct from a call to Turkey to recognize the events of 1915–23 as genocide. Following the Turkish Constitutional Court’s rejection of the Church’s lawsuit the following year, its attorneys submitted the case to the European Court of Human Rights (“ECHR” or “Court”) on December 6, 2016, alleging violations of both property and religious rights under the European Convention on Human Rights (“Convention”). Following the Court’s rejection of the lawsuit in March 2017 for failure to exhaust domestic remedies, the Catholicosate is evaluating its next steps, including whether to file the lawsuit in Turkey’s lower courts.

Framing the lawsuit primarily as a property dispute is wise as a tactical matter, given Turkey’s ongoing refusal to acknowledge the massacres as genocide. However, as a legal question, a property claim is potentially troublesome for two reasons. First, the Court’s typical characterization of property seizures as “instantaneous violations” prevents the application of its “continuing violation” doctrine, which provides jurisdiction over events that took place before the Convention’s entry into force, but which continue to have effects into the present. Second, and more significantly, the damage of the seizure goes beyond the physical bounds of Sis. The centrality of the Church itself to Armenian spiritual, cultural, and social life underscores how this dispossession was but one manifestation of the concerted eradication of an entire people. This Note argues that the Church’s most convincing route to restitution before the Court is a claim for violation of the freedom of thought, conscience, and religion under Article 9 of the Convention because such a claim can conversely be conceived of as a continuing violation. Short of recognition of the Armenian Genocide, this approach would also most explicitly acknowledge the issues of cultural erasure inherent in the dispossession of Sis.

Framing the lawsuit primarily as a property dispute is wise as a tactical matter, given Turkey’s ongoing refusal to acknowledge the massacres as genocide. However, as a legal question, a property claim is potentially troublesome for two reasons. First, the Court’s typical characterization of property seizures as “instantaneous violations” prevents the application of its “continuing violation” doctrine, which provides jurisdiction over events that took place before the Convention’s entry into force, but which continue to have effects into the present. Second, and more significantly, the damage of the seizure goes beyond the physical bounds of Sis. The centrality of the Church itself to Armenian spiritual, cultural, and social life underscores how this dispossession was but one manifestation of the concerted eradication of an entire people. This Note argues that the Church’s most convincing route to restitution before the Court is a claim for violation of the freedom of thought, conscience, and religion under Article 9 of the Convention because such a claim can conversely be conceived of as a continuing violation. Short of recognition of the Armenian Genocide, this approach would also most explicitly acknowledge the issues of cultural erasure inherent in the dispossession of Sis.

More broadly, this Note also argues that claims for access to places of worship before the Court are most cogent when construed primarily as violations of the freedom of thought, conscience, and religion under Article 9 rather than as property claims. A May 2016 ECHR decision involving Jehovah’s Witnesses in Turkey may provide guidance for future lawsuits in this area.

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Link to publisher version (DOI)

https://doi.org/10.15779/Z38M61BP9Q