FORUM 18 NEWS SERVICE, Oslo, Norway
The right to believe, to worship and witness
The right to change one’s belief or religion
The right to join together and express one’s belief
========================================== ======
Thursday 13 March 2008
TURKEY: WHAT DIFFERENCE DOES THE LATEST FOUNDATIONS LAW MAKE?
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
< lturen/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: WHAT DIFFERENCE DOES THE LATEST FOUNDATIONS LAW MAKE?
By Otmar Oehring, Head of the Human Rights Office of Missio
<;
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
< e_id=1053>).
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
< e_id=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
< e_id=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
< e_id=704>). 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
< e_id=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
< e_id=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
< e_id=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
< e_id=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
< lturen/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.
PDF and printer-friendly views of this article can be accessed from
< e_id=1100>. It may freely be
reproduced, redistributed or quoted from, with due acknowledgement to Forum
18 <;.
More analyses and commentaries on freedom of thought, conscience and
belief in Turkey can be found at
< mp;religion=all&country=68>.
A printer-friendly map of Turkey is available at
< s/atlas/index.html?Parent=mideast&Rootmap=turk ey>.
(END)
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