TURKEY: RELIGIOUS FREEDOM VIA STRASBOURG
By Otmar Oehring
Greek News, New York
April 9 2007
Two issues remain at the forefront of attention for Turkey’s non-Muslim
religious minorities:
* whether the controversial Foundations Law will be adopted (and if
so in what form);
* and whether the authorities will take any steps towards religious
freedom and towards recognising the legal status of religious
communities in the wake of a momentous 9 January ruling by the European
Court of Human Rights (ECHR) in Strasbourg.
In case No. 34478/97, the ECHR ruled in favour of a Greek Orthodox
community foundation running a High School in Istanbuls Fener area
(Fener Rum Erkek Lisesi Vakfý) that acquired a building in Istanbuls
Beyoglu area in 1952 by donation. The building was confiscated
by the state as a result of a court case launched by the Turkish
authorities in 1992 based on a ruling of the Court of Cassation of
1974 referring to the so-called 1936 declaration on the registration
of community foundations. The ECHR held that the Foundation’s rights
to its property had been violated and ordered the property legally
returned to the Foundation or, if the authorities failed to do so,
to award compensation of 890,000 Euros. It also awarded costs of
20,000 Euros to the Foundation.
The ECHR decision is positive – even if it is quite narrow in its
scope. It shows that the Court does not accept the Turkish state’s
argumentation over the seizure of non-Muslim minorities’ property.
Significantly, even the Turkish judge at the Court had no objections
to the ruling.
The Foundation has been seeking to protect its rights through the
Turkish courts since 1992. In the wake of the rejection of this
attempt in 1996, the Foundation lodged the case at the ECHR as far
back as 1998 – an unusually long time to reach a ruling even by the
Strasbourg court’s standards. The Turkish government showed close
interest in the case, with eight representatives involved at the
court. Most probably the number of submissions from the Turkish
government prolonged the case.
Although the Turkish press speculated excitedly about changes to the
legal rights of foundations in the aftermath of the ECHR ruling,
I doubt that changes will be far-reaching: the ruling itself will
probably have an impact only on the community foundations that are
allowed to some of Turkey’s religious minorities. Even so, under the
Lausanne Treaty there is no reason why other non-Muslim minorities
should not have such community foundations. The impact on religious
freedom more broadly is likely to be minimal.
Yet far more significantly, the ruling will provide a boost to
religious minorities who will be encouraged to see the ECHR as a
route to seeking the vindication of their rights. The Ecumenical
Patriarchate has already lodged a number of cases in Strasbourg over
property and the Armenian Patriarchate is likely to follow.
In one of its cases already at Strasbourg, the Ecumenical Patriarchate
is challenging the confiscation of its orphanage in Buyukada,
Princes Islands, arguing, in accordance with the title in the land
deed – Owner: Greek Orthodox Patriarchate – that the orphanage is the
property of the Patriarchate, a right Turkey says does not exist. The
authorities do not recognise the legal existence of the Patriarchate
– whether under the name the Greek Patriarchate (Rum patrikhanesi),
as the Turkish authorities prefer, or under the name the Ecumenical
Patriarchate, to which the Turkish authorities virulently object –
and therefore claim that it cannot own property.
Experts say that it does not matter either whether the Court rules
that the Patriarchate exists (therefore it can own property), or
whether the Court rules that the orphanage belongs to the Patriarchate
(therefore the Patriarchate must exist in law). Either way the Court
will recognise the Patriarchate’s right to a legal existence.
Moreover, presuming that the ECHR will rule in favour of the
Patriarchate, this would provide a precedent that should force the
Turkish authorities to treat other religious-owned properties and
their owners in the same way.
The Vincentians, a Catholic Congregation, are also considering lodging
a case over a confiscated orphanage in Istanbul, originally run by
nuns, which it argues was church property. The Vincentians explain that
the orphanage was originally registered as the property of one of its
priests, as foreigners could not then generally buy property. After
his death, the Turkish authorities sought the seizure of all property
registered in his name and in 1991 the nuns were "shamefully" expelled
as the Directorate General for Foundations (which should never have
been involved as this property was not owned by a community foundation)
had sublet the property to a private company.
But even more crucially, potential new cases from religious minorities
are likely to tackle head-on the religious freedom itself of Turkey’s
religious minorities, not just their ownership of properties either
through their foundations or directly as for example in the case of
property of Catholic religious orders.
Progress elsewhere has been slow. During Pope Benedict’s visit to
Turkey at the end of last year, according to information given by
media outside Turkey, Vatican representatives and government officials
discussed the possibility of establishing a mixed working group to
resolve the Catholic Church’s problems in Turkey, especially over
property and work permits for clergy and nuns. Catholics in the country
heard nothing about any progress on the working group during the visit,
and on 7 January the Vatican’s Secretary of State Cardinal Tarcisio
Bertone renewed the Church’s urging to the government to initiate
the working group. The Turkish government has still not reacted at
all to the Vatican proposal – at least in public – even though prime
minister Recep Tayyip Erdogan himself proposed setting up a number
of joint working groups when he met members of the Turkish Bishops’
Conference back in 2004.
The long-running saga of the Foundations Law – which might have
resolved property problems for the foundations allowed to some
non-Muslim ethnic/religious communities – reached a new twist on 2
December, when President Ahmet Necdet Sezer, a committed secularist,
vetoed the Law which had been approved by the Turkish Parliament on
9 November.
The Foundations Law (No.5555) – which was intended to replace the
Foundations Law No.3027 of 1935 – was due to regulate the rights
of all foundations, whether Muslim or non-Muslim, though much of
the attention focused on the way it would have affected non-Muslim
foundations. Muslim foundations would have found their lives little
changed – the Law would merely have codified existing law.
Contrary to expectations, the Parliament’s version of the Law did
not offer what the non-Muslim minorities had expected over defunct
foundations, or over the property confiscated from foundations by
the state in the wake of a 1974 High Court ruling and then sold on
to third parties.
Before Parliament approved the Law, non-Muslim circles were abuzz
with discussion over whether they should hope for this law’s adoption
or not. Many argued that any law adopted would be in a very negative
version that could not then be amended for another ten or twenty years.
When Parliament adopted the law, reaction among Christian and Jewish
communities was mixed. Some were happy that at least a few of the
points put forward by minorities had been considered, such as the
demand for return of or compensation for properties confiscated by
the state as a result of the 1974 High Court ruling and still in
state hands.
On the negative side, reciprocity – a principle that has been deployed
especially to restrict the rights of the Ecumenical Patriarchate, with
its treatment tied to the Greek government’s treatment of its Turkish
Muslim minority – was enshrined in law for the first time. Although
Greece does unfairly restrict the rights of its Muslim minority, such
restrictions are not as extensive as those imposed by the Turkish
government on its Greek Orthodox minority. Yet it is quite clear
that the formal inclusion of the reciprocity principle in Turkey’s
Foundations Law was done deliberately as an excuse to restrict Greek
Orthodox rights.
President Sezer’s veto of the Foundations Law was harshly
criticised even in the Turkish liberal media. Most of the President’s
justification was based on points he disliked which affected non-Muslim
minorities. He argued that some of these provisions went too far in
their favour and went too far against the Turkish interpretation of its
obligation to its ethnic/religious minorities under the 1923 Lausanne
Treaty. On one point the President insisted that it is impossible
to recognise a foundation and its ownership of properties for which
there is no certificate as a foundation.
One leading journalist from the Istanbul-based Radikal newspaper argued
that this was strange as when such properties were accumulated no
community foundations existed – such properties were simply social
and educational institutions. Permits to own them were issued in
a different way, as in the Ottoman Empire even in the late 19th
century ownership regulations comparable to those valid today did
just not exist.
Although the President vetoed the Foundations Law it has not returned
to parliament. Deputy Prime Minister Mehmet Ali Sahin declared in the
wake of the ECHR ruling on the Greek Orthodox college Foundation that
some parts of the Law would have to be redrafted. Any changes ought
to cover foundations’ properties seized by the state and then sold on
to third parties, an issue not even mentioned – let alone resolved
– in Parliament’s version of the Law. Yet it will be difficult to
overcome many deputies’ view that compensating religious minorities
for such seized property will be too expensive and that the issue
should therefore be dropped.
Implementation of the Law – had it been adopted – would also have run
into problems as some provisions contradict other legal provisions,
especially those found in the Civil Code.
But such contradictions already abound. Even though Article 110
of the Civil Code bans the formation of foundations with religious
purposes, at least three such foundations – two Protestant and one
Syrian Catholic – have been founded during the last few years.
Whether this means that the related congregations as such have got
legal personality as foundations or whether these foundations are
foundations of congregations which as such still are not recognised
legally still has to be discussed as more and more cases will go to
the ECHR not just on the principle but on establishing foundations.
Alevis – a Muslim group the government does not recognise as a distinct
religious minority – could also demand religious foundations – so far
their places of worship are recognised only as cultural associations
(see F18News 22 November 2006.
Property ownership for minority communities has been and remains
beset with problems. Places of worship of minority communities which
are allowed to maintain legally-recognised community foundations –
such as the Greek Orthodox, the Armenians, the Syrian Orthodox and
the Jews – are owned by these foundations.
But for Catholics and Protestants, who have not historically been
allowed such foundations, title deeds indicate that the congregations
or church communities themselves own the buildings. Yet the state
often refuses to recognise this. For example, it argued in ECHR case
No. 26308/95 that the Assumptionist Fathers, a Catholic Order, are
unknown in Turkey, so cannot own property. Places of worship which
belong to communities which do not have foundations are in a worse
legal situation than those owned by foundations.
In several extreme cases in the recent past, the state has argued
that some Christian churches owned by foundations are in fact the
property of individual saints (they are after all named after them).
The state has gone on to argue from this that the saints concerned
cannot be located – nor their heirs – so these places of worship
cannot be returned to the community foundations that claim ownership
and should therefore be seized by the state. Nowadays, the state is
more willing to accept that minority communities’ foundations own
such places of worship.
But the problems for communities without foundations do not end with
insecure legal ownership of their places of worship. Such communities
cannot run bank accounts. A priest, bishop, individual or group of
individuals has to set up a personal bank account on behalf of the
community. The same even holds for communities with foundations, such
as the Orthodox or Jews: their community foundations themselves are
recognised but not the churches or Jewish congregations behind them.
Such a restriction could be challenged at the ECHR – it is part of
the whole issue of the lack of recognition of religious minority
communities.
Publication of books and magazines is also more complicated – they
have to be published in the name of an individual, who therefore has
to take personal responsibility for their content. This has created
problems in the past, though less so today.
Religious communities’ charitable bodies also have no legal status.
Caritas Turkey, for example, functions under the control of the Turkish
Catholic Bishops’ Conference (which also legally does not exist)
and even works with government agencies, but has no legal status.
Religious leaders’ status is not recognised in law. The one exception
is with the leaders of Protestant associations that have recently
been allowed to register, though even then they are recognised as
leaders of an association, not of the religious community per se.
As to the vetoed Foundations Law, the government can send it to
parliament again for further discussion – as President Sezer indicated
in his veto – although if it is again approved the president cannot
veto it a second time. His only option if he still disagrees with
provisions in it is to refer it to the Constitutional Court. The
government’s other alternative is to abandon it – or wait until
the next presidential elections expected in May, which many predict
Erdogan will win.
Although Sezer did not spell it out bluntly, his comments on the
vetoed Foundations Law make clear that he does not want any of the
properties confiscated from foundations over the years to be given
back. He sticks to the understanding of the Kemalists, the followers
of Mustafa Kemal Ataturk, of how Turkey should be governed. Erdogan,
on the other hand, is no more in favour of religious minorities’
foundations, but takes a different view of the state’s role.
Yet sadly, neither of the two big parties, the governing Justice
and Development Party (AKP) or the opposition Republican People’s
Party (CHP), is willing to accept the principle that all people have
rights, regardless of what was determined at Sevres back in 1920 and
Lausanne back in 1923. Neither party gives any sign that it has read
or understood Article 9 of the European Convention on Human Rights,
which spells out individuals’ rights to religious freedom, still less
that it is ready to implement it.
Now that negotiations with the European Union over Turkey’s potential
accession have gone quiet – and the Turkish government feels less
constrained to make concessions over religious freedom – the European
Court of Human Rights in Strasbourg appears to have taken over as the
best route for Turkey’s religious minorities to assert their rights.
*** Dr Otmar Oehring, head of the human rights office of Missio, a
Catholic charity based in Germany. Although we disagree his opinion
about "unfair treatment of Greek Muslim minority", we republished
the article because it offers an analytical overview about Turkish
policies towards the Ecumenical Patriarchate.
–Boundary_(ID_pQzFA0oNDu/QHV3Ltl8z YQ)–