Journal Chrétien, France
Jan 20 2007
TURKEY : Religious freedom via Strasbourg, not Ankara or Brussels ?
By Dr. Otmar Oehring, head of the human rights office of Missio
There are now two major questions in the struggle for full religious
freedom in Turkey, Otmar Oehring of the German Catholic charity
Mission
en-kulturen/themen/menschenrechte
notes. Firstly, will the controversial Foundations Law be adopted,
and if so in what form ? Secondly, will the Turkish authorities move
towards full religious freedom after a recent momentous ruling by the
European Court of Human Rights (ECHR) in Strasbourg ? The ECHR did
not accept the Turkish state’s argumentation over the seizure of
non-Muslim minorities’ property, and even the Turkish judge at the
Court had no objections to the ruling. In this personal commentary
for Forum 18 News Service , Dr Oehring suggests
that, as Turkish accession negotiations with the European Union have
gone quiet, the ECHR may now be the best route for Turkey’s religious
minorities to assert their rights.
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 Istanbul’s Fener area
(Fener Rum Erkek Lisesi Vakfi) that acquired a building in Istanbul’s
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
Büyükada, 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 (see F18News 22 November 2006
?article_id=875).
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 (see F18News 22 November 2006
?article_id=875).
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
?article_id=875).
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 (see F18News 22 November 2006
?article_id=875), 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.
From: Emil Lazarian | Ararat NewsPress
