The Concept of Movable Cultural Property as Exemplified by the Relief at the Tur-i Sina Church

The Tur-i Sina Church (Balatkapı Ioannes Prodromos Metochion Church), one of many churches located in the Balat neighborhood of Istanbul’s Fatih District, is one of the Greek Orthodox structures in Istanbul. The church is affiliated not with the Patriarchate of Istanbul but with the Archdiocese of Sinai in Egypt and the Monastery of St. Catherine. However, another notable feature is the hand relief that was located above the door on the main street until a few years ago. According to legend, the hand relief on the gate is said to belong to the Islamic prophet Muhammad and was reportedly handed over by order of the Ottoman sultan of the time, Yavuz Selim. Considering the timing of Yavuz’s campaign in Egypt, this is not particularly surprising. On the other hand, it is a depiction we are not accustomed to seeing in a Greek Orthodox church. With this unique feature, it serves as both a religious symbol and an important cultural heritage site.

In recent years, the relief was damaged and a portion of it was broken off, leaving nothing behind. Rumors about the fate of the relief aside—and although there has been no official statement—it is believed that the relief was moved to the churchyard.

So, if the relief could be removed from its original location and transferred, can it be considered movable property in its current state and said to possess independent legal value separate from the whole from which it was separated? Or should it be considered, despite being removable and transportable, to be inherently a part of the main immovable property?

The answer to this question is closely related to the preservation of cultural heritage. In the broadest sense, the preservation of a cultural heritage asset is possible in two ways: If there is an immediate threat to the cultural heritage asset—and if that threat is one that could result in its destruction the moment it materializes—interventions to eliminate that threat constitute one method of preservation. For example, protecting cultural assets during a fire or restoring a cultural structure damaged by an earthquake can be cited as examples. Another form of conservation is directly related to movable and immovable cultural assets and the property rights associated with them. This issue comes to the fore particularly in the context of the return of works that have been removed from their original locations. The conservation method to be discussed specifically regarding the relief is the second one.

The issue of ownership of the Tur-i Sina Monastery and the relief on its gate is evaluated in terms of the assets of the Community Foundations located in Turkey. Therefore, aside from theoretical debates (Merryman, 1986), there is no legal dispute regarding the ownership of the relief.

Determining whether it qualifies as movable or immovable property is significant for establishing the status of the integral part—which must have the same legal status as the main object to which it is attached—as well as for determining the competent court and the applicable law.

Considering that the Bergama Altar was dismantled piece by piece and moved in the mid-19th century, and Hasankeyf was recently dismantled piece by piece and moved, it is by no means far-fetched to imagine that, with today’s technology, even an immovable property—in whole or in part—could be dismantled and illegally transported from its original location to another.

The issue of classifying cultural property as movable or immovable arises in the Foundation Abegg v. Ville de Geneva case (Prott, 1992). Eleventh-century frescoes removed from the wall of a church in southern France were sold by two of the four owners. They later resurfaced in Switzerland. The other two owners, who had not consented to the sale, filed a lawsuit against both the City of Geneva and the Abegg Foundation (a Swiss-based art gallery). The legal nature of cultural property emerged as an issue regarding the court’s jurisdiction. The local court ruled that, since the frescoes had been separated from the immovable property, they must also be considered immovable property under Article 517 of the French Civil Code. The Court of Appeals, however, ruled that they were “in good faith” considered immovable property under Article 524 of the French Civil Code. The Court of Appeal’s reasoning is quite interesting: It stated that “legally, immovable property is better protected than movable property, and this protection is necessary for items of artistic, historical, and archaeological significance, as they are under threat of looting and plunder.” The Cour de Cassation (Court of Cassation), however, took a completely different approach and ruled that the frescoes were movable property.

In an 1881 French court decision, it was ruled that mosaics removed from the floor of a Roman villa were immovable property in and of themselves but became movable objects once removed. In another ruling from 1931, the court ordered the return of a painting that had been mounted on a wall—and was therefore, by “intent,” an immovable object—on the grounds that it was considered part of the immovable property. (Prott, 1992)

The conclusion drawn from these cases is that if a movable cultural artifact is mounted on an immovable property and is intended to remain there permanently (which is precisely what we mean by “intent”), it continues to be classified as immovable property.

Within the framework of all these interpretations, the relief at the Tur-i Sina Monastery must be accepted as an inseparable part of the immovable property, given the monastery’s founding, its affiliation with a religious center, and, of course, the fact that it was intended to be permanently displayed at the monastery’s entrance. Indeed, Article 6/III of Law No. 2863 on the Protection of Cultural and Natural Assets recognizes that “reliefs” are also immovable cultural assets.

In summary, the protection of the cultural inventory—which constitutes the collective knowledge of all humanity—should be regulated by a common law enacted by an independent international authority recognized by all states, and a significant and bold step should be taken toward the protection of cultural assets through clear regulations free from interpretation. The issue we have discussed specifically regarding reliefs is an area of debate that we may encounter in numerous potential disputes, ranging from the legal status of an inscription on an Ottoman fountain to the ownership of the original staircase balustrades of an old mansion.

Attorney Mert ERDOĞAN

This article was written by Attorney Mert ERDOĞAN. The entire text may not be used without prior permission, even if the source is cited. However, a portion of the quoted text may be used provided an active link is provided. Partial or complete publication without citing the author and source constitutes a violation of personal and intellectual property rights.