TURKEY: WHAT DIFFERENCE DOES THE LATEST FOUNDATIONS LAW MAKE?
By Dr. Otmar Oehring
Forum 18
March 13 2008
Norway
Turkey has passed the long-promised new Foundations
Law. However, it does not allow Muslim or non-Muslim
religious communities to legally exist as themselves,
Otmar Oehring of the German Catholic charity Missio
en/themen/menschenrechte
notes in a commentary for Forum 18 News Service
Bizarrely, religious communities are therefore
not themselves allowed to own their own places of worship.
For most non-Muslim communities, these are owned by community
foundations. This leads to serious problems. For example, only the
state can legally make even basic building repairs. As Dilek Kurban of
the respected Turkish TESEV Foundation noted, the Law is "incompatible
with the principle of freedom of association, which is guaranteed
by the European Convention on Human Rights, the Constitution and the
[1923] Treaty of Lausanne". Dr Oehring argues that the way to guarantee
freedom of thought, conscience and belief is to make the European
Convention on Human Rights’ commitments a concrete reality in Turkey.
Turkey’s Prime Minister Recep Tayyip Erdogan finally managed to
push the long-promised revised Foundations Law (No. 5737) through a
reluctant parliament in mid-February. President Abdullah Gul signed it
into law on 26 February. The new Law will make life slightly easier
for the community foundations allowed to some of Turkey’s non-Muslim
communities, which the Turkish Republic has always understood in
ethnic/religious terms. Yet it does nothing to change the legal
position of non-Muslim religious communities.
As before, religious communities themselves – including Muslims –
have no legal status in their own right and therefore no right to own
property in their own name. Sadly, the many observers who are not
legal specialists fail to realise this – and its huge implications
for the life of Turkey’s non-Muslim religious communities.
Indeed, a closely-argued analysis of the then-draft Foundations Law
– prepared in December 2007 by Dilek Kurban of the Istanbul-based
TESEV Foundation on the basis of views
from Turkey’s smaller communities – criticised many elements of
it. The TESEV analysis noted that although provisions in the Law
"introduce some improvement, they are far from solving the most basic
and urgent problems of these foundations". It also warned that some
provisions might "pose the risk of exacerbating the existing problems
of non-Muslim foundations and providing legal legitimacy to unlawful
bureaucratic practices".
Laws and bureaucratic practices operate in a social context which,
in Turkey, has seen violent attacks on and even murders of members of
the country’s smaller communities. Three trends have been identified
as lying behind this intolerance and violence: disinformation by
public figures and the mass media; the rise of Turkish nationalism;
and the marginalisation of smaller groups from Turkish society. All
three trends feed off each other, and all of Turkey’s smaller religious
communities – those within Islam and Christianity, as well as Baha’is
and Jehovah’s Witnesses – are affected by this (see F18News 29 November
2007 ).
The new Foundations Law allows – in theory – community foundations
(which only belong to some non-Muslim communities) to apply to
recover seized properties, if they are still in the hands of the
state, and Muslim and non-Muslim foundations to receive foreign
funding. It also theoretically permits non-Muslim foundations to
"engage in international activities and opportunities for cooperation,
establish branches and representation offices abroad, set up umbrella
organisations and become members of organisations established abroad,"
on condition that these activities are mentioned in their charter
(vakif senedi).
However, Kurban of the TESEV Foundation has pointed out that non-Muslim
foundations do not have charters. The term and legal status of
community foundation was invented by the Turkish Republic to provide
a legal framework for the properties of non-Muslim minorities that
existed in Ottoman times. For all these properties, the only legal
document that existed and referred to the ownership was a decree
(firman) issued by one of the sultans granting the right to a piece of
land and – for example – to build a church on it. So as Kurban noted,
"non-Muslim foundations cannot satisfy the condition set forth by
the Law." She described this as "an example of direct discrimination
against non-Muslim foundations" and "incompatible with the principle of
freedom of association, which is guaranteed by the European Convention
on Human Rights, the Constitution and the [1923] Treaty of Lausanne."
The new Law has had a tortuous passage. Originally adopted by
parliament in 2006 under heavy pressure from the European Union (EU),
it was promptly vetoed by the then President Ahmet Necdet Sezer, a
committed secularist, who complained that "it could serve to strengthen
minority foundations". It was reintroduced to parliament in spring
2007 but the process soon ground to a halt (see F18News 10 July 2007
=990). After the July 2007
parliamentary election and the appointment of a new president, work
on the Foundations Law was revived. The text approved by parliament in
early February 2008 was the same as the text vetoed by President Sezer.
Media reports indicate that unhappiness over the new Foundations
Law remained endemic, with many in the ruling party, the Justice
and Development Party (AKP), opposed. Also opposed were members of
other parties, especially the Republican People’s Party (CHP) and the
Nationalist Movement Party (MHP). Erdogan was probably afraid to go
any further than he did. Many thought earlier that he was prepared
to end smaller religious communities’ problems, especially over their
"seized properties", but it seems he thought this would have been too
costly for the state in financial compensation to those communities.
Few in society would have welcomed large-scale state compensation
for injustices such as property seizures.
It is possible to argue that some good will come of this Law – at the
least it demonstrates that the current government is keen to show
that it is concerned for the country’s non-Muslim communities. Yet
whether this is a real concern or merely a show for the outside world
is not known.
The new Law covers foundations of all kinds – including Muslim
foundations – under the control of the Directorate-General for
Foundations, not only those allowed to some of Turkey’s non-Muslim
communities. Many Muslim foundations exist, for example those that
offer food to the poor in exchange for their prayers for the deceased
founder. In recent years many large companies have launched charitable
foundations. But the focus of most comment, inside and outside Turkey,
has been on the foundations of the non-Muslim communities.
Mosques are mostly the property of the so-called Diyanet Vakfi,
which is a foundation (vakif) under the Civil Code, established on 13
March 1975. Its purpose is to foster knowledge of Islam and religion,
to build mosques where necessary, and to support people in need (see
its website ). The President of the
board is Professor Ali Bardakoglu, who also heads the Presidency
of Religious Affairs, or Diyanet (see F18News 12 October 2005
=670). There are also
mosques which are owned by, for example, municipalities.
The non-Muslim religious communities are generally not allowed to
own property – the handful of exceptions are those that have slipped
through over the years and exist in a legal grey zone (see F18News 13
December 2005 ) . For
example, the Istanbul Protestan Kilisesi Vakfi ()
was founded on 10 November 1999. According to the State Gazette,
this gained legal recognition on 24 June 2001 in accordance with the
Civil Code.
However, Article 101 of the Civil Code does not allow the establishment
of a foundation with a religious goal. In 2005, the Supreme Court of
Appeals in Ankara finally rejected the Seventh-day Adventist Church’s
application to establish a foundation, basing its judgment on Article
101. The Court found that the purpose of the foundation was to "meet
the religious needs of Turkish citizens who adopt the beliefs of
Seventh-day Adventists, and foreigners of the same belief who are
domiciled or are temporarily staying in Turkey", which it regarded
as unacceptable and illegal.
This argument could even be applied to the Diyanet Vakfi, whose
goals include "fostering Islam and the building of mosques". The
court’s argument could also be applied to the Istanbul Protestan
Kilisesi Vakfi and to the Syrian Catholic Church Foundation. This
latter foundation uses property in Istanbul seized from the Jesuits.
According to the Turkish state, this is now the property of the State
Treasury and is separate from the Syrian Catholic community foundation.
In Ottoman times the then existing non-Muslim communities were
allowed to acquire property on the basis of a firman issued by the
Sultan. These covered only Armenian Catholic, Armenian Apostolic,
Armenian Protestant, Bulgarian Orthodox, Chaldean Catholic, Georgian
Catholic, Greek Catholic, Greek Melkite Orthodox, Jewish, Syrian
Catholic, Syrian Orthodox and Syrian Protestant foundations. After
the foundation of the Turkish Republic in 1923, community foundations
were created by the state as a legal framework for those properties.
Such foundations typically owned not just places of worship but
religious colleges, hospitals, orphanages and old people’s homes.
Some have been given property since 1923 – such as private homes
bequeathed to foundations in wills – which they use as sources of
funds, but most properties are directly used to provide community
services.
The situation of Latin-rite Catholics is different, as they were in
Ottoman times under the protection of the non-Turkish "Powers".
Therefore the Latin-rite Catholic Church has today no community
foundations, which is a major problem. Land-titles do exist for many
Latin-rite Catholic properties, but it is unclear whether or not
these are recognised by the state. This is because the Turkish state
does not legally recognise either the Latin-rite Catholic Church or
Catholic religious orders. And an owner who does not legally exist
cannot legally own property.
No new community foundations have been permitted to be started since
the state created the legal framework of community foundations.
Because of the origins and ethnic/religious ownership of the community
foundations, this perpetuates the Ottoman-era idea that people of
one ethnicity can only belong to one faith. So, ethnic Turks cannot
be anything other than Sunni Muslims (preferably Sunni rather than
Alevi). Turkish nationalists today strongly promote this idea,
which has dangerous consequences for Turkish citizens who are not
Sunni Muslim Turkish nationalists (see F18News 29 November 2007
=1053).
Turkish government hostility to non-Muslim communities led over the
decades since the foundation of the Republic to tight control over
the Boards which ran the community foundations, a de facto ban on
maintaining their property in good repair and the stripping away of
much of the property under various pretexts. The state would often
remove Board members it did not like.
If all the Board members died the state would often prevent new members
being appointed and seize the property. The state often argued that a
community foundation no longer needed its facilities and confiscated
them. The TESEV report notes that the Greek Orthodox have suffered
the most from such seizures – they say 24 community foundations and
hundreds of properties they owned have been seized.
One Greek Orthodox community foundation had its property on
one of the Princes’ Islands seized and handed to a Muslim
foundation, which the Greek Orthodox are still trying to
challenge through the courts (see F18News 18 January 2007
=901).
The European Court of Human Rights (ECHR) in January 2007
found in favour of a Greek Orthodox community foundation (Fener
Rum Erkek Lisesi Vakfi), whose high school buildings had been
seized. The ECHR imposed a large fine on the Turkish government. In
the similar case of the Armenian Yedikule Surp Pirgic Ermeni
Hastanesi Vakfi, the Turkish government in June 2007 reached a
friendly settlement with the foundation (see F18News 10 July 2007
=990). The Greek Orthodox
foundation has received the fine awarded by the ECHR, which so far
as the foundation is concerned settles the case, and the Armenian
foundation has now received both its costs and the return of its
buildings.
Such arbitrary seizures seem to have stopped in recent years, though
lack of information about every community foundation makes it difficult
to be sure. Muslim foundations have faced no such problems.
The new Law will – at least in theory – allow community foundations
to apply to recover these "seized properties", provided they are
still in the hands of the state. This is a positive step. However,
thousands of community foundation buildings – now worth millions of
Euros – were seized by the state over decades and have now been sold
on to third parties. The new Law makes no provision for their return
or for possible compensation in lieu.
However, one Turkish observer suggested to Forum 18 on 12
March that – as in the cases of the Greek Orthodox Fener Rum
Erkek Lisesi Vakfi and Armenian Yedikule Surp Pirgic Ermeni
Hastanesi Vakfi – the ECHR in Strasbourg is now the best route
to resolving past property seizures. This suggestion matches my
own observations of the situation (see F18News 18 January 2007
=901).
The government’s insistence that only non-Muslim communities recognised
before 1923 can own property leads to the bizarre consequence that a
religious community and its leaders have no legal control over the
worship buildings they use. In hierarchical communities – such as
the Orthodox and Eastern Catholic Churches – this means the bishop
has no control over places of worship.
Normally, such leaders do have jurisdiction over their community’s
property.
The Greek Orthodox Ecumenical Patriarchate in Istanbul’s Fener District
– the seat of the most senior cleric in the Orthodox world – has
no legal status and does not own its own headquarters. A community
foundation owns the land and the older buildings – including the
Patriarchal Church of St George. But the legal status of the imposing
new patriarchal offices – which the Turkish authorities allowed to
be rebuilt only in the late 1980s, nearly fifty years after they were
burnt down – has never been clarified.
The building is not listed on the land register.
The building of the Halki Seminary – the Greek Orthodox Ecumenical
Patriarchate’s world-renowned theological college until, along with
the Armenian Seminary, it was forced to close by the government in
1971 – also remains in the hands of a community foundation. If, as the
Patriarchate sincerely hopes, the government allows it to reopen, again
the Church which uses the building will not be the formal owner of it.
The Greek Orthodox Patriarchate – as the Turkish state refuses to
use the word "Ecumenical" – is described on the land register as
the formal owner only of a handful of properties. Yet the Turkish
authorities refuse to acknowledge even this direct ownership. Indeed,
a case over a directly-owned orphanage at Buyukada is now with the
ECHR in Strasbourg.
Perhaps it is Islam’s lack of a formal hierarchy that leads Turkish
officials to fail to recognise that other religious communities may
be structured differently. In particular, they fail to understand
the needs of hierarchically-organised religious communities.
The particular problem for places of worship owned by community
foundations is that the religious community cannot even repair holes
in the roof, or repaint the interior, let alone restore or extend
them. Under the Treaty of Lausanne, which enshrined ethnic/religious
community rights, such repairs are the responsibility of the state.
The Directorate-General for Foundations had to decide if such repairs
were necessary – and invariably said they were not. State hostility
to non-Muslim communities since 1923 has meant that the state has
undertaken no such repairs. The state was waiting until such properties
fell apart and all the people died or left the country.
Officials have recently pledged to repair community foundations’
property, but it is unknown if they will keep their word.
For decades priests were afraid to go ahead and make even urgent
repairs unilaterally when churches needed them. Such fear was even
more engrained in schools, which are forced to have an ethnic Turk as
deputy director. Since the 1990s, such redecoration or repairs require
municipal approval, which has gradually become easier to obtain. The
police normally turn a blind eye to these breaches of the law.
Yet such petty controls are absurd. Either the state should carry
out repairs, in which case it should make sure properties are
well-maintained, or should leave the community foundations to get on
with them unobstructed.
The new Law should make it easier for community foundations to sell
their properties if they wish to and use the money to maintain other
properties.
The refusal to allow non-Muslim communities legal status as such
leaves them vulnerable over property. Religious communities without
community foundations – such as the Latin-rite Catholics or the
Presbyterian Churches, as well as communities that have existed in
Turkey only recently, such as Baha’is, Jehovah’s Witnesses and many
Protestant denominations – have only a precarious legal hold on their
property that could be challenged in court by malicious officials
or individuals.
Latin-rite Catholics (a special case owing to their pre-1923 status)
own their churches and some other property directly, but as indicated
above with little legal security.
A change to the Associations Law in 2004 allowed religious
communities to gain legal status as associations, a
route recently followed – albeit with difficulty – by some
Protestants and Jehovah’s Witnesses (see F18News 12 October 2005
=670). In theory such
associations have legal personality and can own property in their
own name, though religious communities have problems asserting
these rights.
Protestant churches built by individual pastors in recent years have
often been subjected to protracted and tortuous legal battles to be
allowed to use them officially. Some have been successful, though again
the legal ownership and use is never secure in law. Other Protestant
churches meet in what is officially domestic or office premises –
which technically is illegal.
Turkey missed an opportunity to resolve the lack of legal status
for non-Muslim communities and the impossibility for them to gain
secure property rights. In 2003 an official in the Foreign Ministry
in Ankara asked a respected Istanbul law professor to prepare a draft
Foundations Law that would have resolved these problems. The idea
was to remove the restrictions through an amended law in a quiet
way, so as not to arouse the attention and wrath of Islamists and
nationalists. The authorities later suppressed or – to put it more
mildly – buried this proposed draft. The issue was too hot for them.
It remains to be seen how this new Foundations Law will be
implemented. Some members of the smaller communities have already
complained – as did the TESEV report – of Article 2 (2), which
specified that "reciprocity shall be reserved in the implementation
of this law". They question the inclusion of this Article, given that
the foundations were established and are run by Turkish citizens for
Turkish citizens. They fear the government will use the continuing
(and unjust) restrictions on Greece’s Turkish and Muslim population
to allow it to wriggle out of respecting the rights of its non-Muslim
communities.
The TESEV report reserved perhaps its fiercest criticism for Article
5 (1), which subjects new foundations to the provisions of the Civil
Code. Given the effective ban in its Article 101 (4) on foundations
pursuing religious goals, this bars religious communities from
directly establishing foundations and using them to acquire and
maintain places of worship. The TESEV report insisted this violates
freedom of association and called for the Article to be removed from
the Law. Yet, when the Law was adopted, the Article remained. This
remains a potential problem for the Protestant and other religious
communities who gained legal status as associations in recent years.
So Turkey’s non-Muslim communities will not be able to gain the
right to buy, sell and maintain places of worship and other property
through the new Foundations Law, as this right is reserved exclusively
for the existing community foundations. Their basic position has
remained unchanged. They are still not free to – in accordance with
international human rights standards – act as they like, do what they
want to do, or organise themselves as they choose.
Abolishing Article 101 (4) of the Civil Code would be a start, but many
argue that without the removal from the Turkish Constitution of the
provision enshrining secularism – or even better, reshaping it to fully
incorporate Article 9 of the European Convention on Human Rights – this
too would not be enough. As a revision of the Constitution is already
being discussed, amid many delays, this could in theory be done.
In my view, the best method to introduce true religious freedom in
Turkey would be to introduce into the Constitution commitments to
religious freedom in line with Article 9 of the European Convention
on Human Rights – which came into force for Turkey in 1954 – and
for these commitments to be made a concrete reality for all Turkish
citizens. The history of Turkey’s advances towards true religious
freedom clearly demonstrates this (see F18News 13 December 2005
=704).
Article 90 of the Turkish Constitution already states that:
"In the case of a conflict between international agreements in
the area of fundamental rights and freedoms duly put into effect
and the domestic laws due to differences in provisions on the
same matter, the provisions of international agreements shall
prevail." However, what seems to be lacking in Turkey is the will
to translate "international agreements in the area of fundamental
rights and freedoms" into concrete reality. The challenges of
intolerance and violence that Turkish society faces makes this
an increasingly urgent question (see F18News 29 November 2007
=1053).
If the European Convention’s human rights commitments were made a
living reality in Turkey, this would at least resolve the non-Muslim
communities’ legal problems and also be a very significant step
in addressing the serious Turkish social issues of intolerance and
violence. (END)
– Dr Otmar Oehring, head of the human rights office of Missio
en/themen/menschenrechte,
a Catholic charity based in Germany, contributed this comment to
Forum 18 News Service. Commentaries are personal views and do not
necessarily represent the views of F18News or Forum 18.