Minority Foundations in Turkey
Turkey: Minority Religious Congregation Property to Be Returned Under Historic Measure
http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205402795_text
(Sep. 06, 2011) An omnibus decree published in Turkey's official gazette, RESMÎ GAZETE, on August 27, 2011, contains an historic article mandating the return of properties, which had been forcibly taken over by the state, to their minority, non-Muslim religious foundation owners. The new provision (article 17 of the decree) is to be included as temporary article 11 in the 2008 Law on Foundations. (Turkish Columnist Sees Decree on Minority Property Return As 'Revolution,' SABAH ONLINE (Istanbul) (Aug. 28, 2011), WORLD NEWS CONNECTION online subscription database, Doc. No. 201108281477.1_454f00a46d49d63c [the article includes the text of article 11]; Decree Having the Force of Law Regarding the Organization and Responsibilities of the Ministry of Food, Agriculture, and Stockraising, and Decree Having theForce of Law Regarding Changes to Certain Laws and Decrees Having the Force of Law [in Turkish], KHK/651, art. 17, 28038 RESMÎ GAZETE (Aug. 27, 2011).)
Background
Under the 1935 Law on Foundations, both Muslim and non-Muslim religious foundations lost the autonomy they had originally been granted by imperial decree, and they came under the governance of the General Directorate of Foundations, even though the Council of State (DaniÅÂÂÂÂÂtay), the highest administrative court, ruled that this kind of restraint would contravene the Lausanne Peace Treaty of July 24, 1923. The former Law also required the foundation trustees to declare their sources of income and how the monies would be spent. All the minority religious foundations reportedly made such declarations in 1936, and the Law came to be known as the 1936 Declaration. (Orhan Kemal Cengiz, Minority Foundations in Turkey: An Evaluation of Their Legal Problems, Human Rights Agenda Association website (Apr. 4, 2003); Zibak, supra; Vakiflar Genel Müdürlügü [General Directorate of Foundations] website (last visited Sept. 2, 2011); Vakiflar Kanunu [Law on Foundations], No. 2762 of June 5, 1935, published in 3027 RESMÎ GAZETE on June 13, 1935 (as amended to 2003); Foundations Law (as amended to 2003), LEGISLATIONLINE (last visited Sept. 2, 2011).)
The Lausanne Treaty, signed between Turkey and other states after World War I, provided in the section "Protection of Minorities" that there should be no discrimination or different citizenship and political rights based on religion (arts. 38 & 39). It also accorded non-Muslim minorities "an equal right to establish, manage and control at their own expense, any charitable, religious and social institutions," among other establishments (art. 40). (Lausanne Peace Treaty, Republic of Turkey Ministry of Foreign Affairs website (last visited Sept. 1, 2011).) The Treaty further stated that Turkey is to recognize such stipulations, among others, "as fundamental laws, and that no law, no regulation, nor official action shall conflict or interfere with" or "prevail over" them. (Id. art. 37.)
In the late 1960s, the Turkish government began to adopt a new stance towards the minority religious foundations' acquisition of new real estate. At first the obstacles were simply bureaucratic, e.g., governors would refuse to issue the necessary documents for registering property, but on May 8, 1974, a decisive blow was delivered when the Court of Appeal (Yargitay) held that the 1936 Declarations were actually charters. Unless a declaration clearly indicated that the given foundation could acquire new property, it contended, "acquisitions made after the declaration had no legal validity" and the "'illegally possessed' properties would have to be returned to their former owners." (Cengiz, supra.)
The 1974 decision stated: "[i]t appears that the acquisition of real estate by corporate bodies composed of non Turkish people was forbidden. This is because corporate bodies are stronger than individuals and it is clear that the State may face various dangers in case there is no restriction on them to obtain real estate." (Cengiz, supra, citing to Yargitay Hukuk Genel Kurulu, Esas: 1971/2-820, Karar: 505, available at DIAPORT (last visited Sept. 2, 2011).) The General Directorate of Foundations filed court cases based on this; when minority religious foundations objected to the Directorate's being a party on grounds that it had no "legal interest" in such suits, the Court of Appeal rejected their objections. It held "that 'legal interest' was not important because these cases involved 'public order.'" (Id.) As a result of the Court's decision, the foundations were deprived of "thousands and thousands of real estate," taken away "one by one" through cases filed by the General Directorate of Foundations and the Treasury. (Id.) In addition, the Law on Associations, No. 2908, adopted on October 6, 1983 (and published in RESMÎ GAZETE on Oct. 7, 1983), prohibited the founding of associations with a religious purpose, and the ban remained in place even though the Law was amended four times in furtherance of Turkish-European Union harmonization laws. (Otmar Oehring, TURKEY: Is There Religious Freedom in Turkey? FORUM 18 (Oct. 12, 2005); Turkey: Judicial Harassment Against Human Rights Defenders, The Observatory for the Protection of Human Rights Defenders website (Dec. 2001).)
The Turkish Parliament finally adopted a new Law on Associations on November 4, 2004, as Law No. 5253, which, unlike the previous Law, does not list the purposes for which associations cannot be founded. (TURKEY: Is There Religious Freedom in Turkey?, supra; Turkey: Update, 2:3 INTERNATIONAL JOURNAL OF CIVIL SOCIETY LAW 100 (July 2004); Associations Law [English translation pre-2002], LEGISLATIONLINE (last visited Sept. 2, 2011); Dernekler Kanunu [Law on Associations] (Nov. 4, 2011) (published in 25649 RESMÎ GAZETE of Nov. 23, 2004), Turkish Government Department of Associations website.)
However, according to Otmar Oehring, head of the Human Rights Office of the German Catholic charity Missio, writing in 2005: Turkish courts can still stop associations for religious purposes being founded, basing their decision on the principle of secularism enshrined in the Turkish Constitution, as both lawyers and human rights activists in Turkey have noted. No religious group that has applied to be recognized as a religious association – as a number of Protestant Churches have - has been recognized as such. But some Sufi orders and new Islamic movements have registered as businesses, even with religious names. (TURKEY: Is There Religious Freedom in Turkey?, supra.)
The non-Muslim communities that have congregation foundations are those such as the Armenian Catholic, Armenian Apostolic, Armenian Protestant, Bulgarian Orthodox, Chaldean Catholic, Georgian Catholic, Greek Catholic, Greek Melkite Orthodox, Jewish, Syriac Catholic, Syriac Orthodox, and Syriac Protestant communities. (Otmar Oehring, TURKEY: Religious Communities Need Fundamental Reform of Constitution, FORUM 18 (Dec. 13, 2005).) As of late 2005, there were reportedly 160 non-Muslim congregation foundations recognized by the state (versus 208 in 1948). (Id.)
Some non-Muslim groups – the Roman Catholic Church, Protestant Churches, Jehovah's Witnesses, Baha'is, and others – reportedly have no such foundations. Moreover, while the Syriac Catholic Church has no congregation foundation in Istanbul, it does have a foundation there that was established in accordance with the Civil Code, reportedly a first in Turkey because at the time it was established a foundation with a religious purpose could not be set up. As a result, Syriac Catholics in Turkey had one foundation in Istanbul set up under the Civil Code plus several congregation foundations in southeastern Turkey. In December 2000, moreover, the Altintepe Protestant Church in Istanbul won foundation status and that status was confirmed by Turkey's Supreme Court. (Id.)
New Article 11 of the Foundations Law
The new article 11 applies to three types of foundations, which had been registered under a 1936 Declaration that mandated control by the General Directorate of Foundations and a declaration by foundation trustees on their sources of income and how the monies would be spent. The three types are: 1) those for which the "owner" space had been left blank; 2) those assigned to the Treasury, the General Directorate of Foundations, municipalities, or special provincial administrations for reasons other than nationalization, sale, or exchange; and 3) those assigned to public institutions. The immovable property and cemeteries and fountains of these foundations, along with the rights and obligations contained in the deed records, will be (re)assigned to them by the deed registry directorates after a positive decision in their favor by the Assembly [Foundation Council], if they submit an application within 12 months of the date of entry into effect of article 11. (Turkish Columnist Sees Decree on Minority Property Return As 'Revolution,' supra; Turkey: Decree Issued on Return of Confiscated Property to Minorities, SABAH ONLINE (Istanbul) (Aug. 28, 2011), WORLD NEWS CONNECTION online subscription database, Doc. No. 01108281477.1_6e7801903fdec5f2.)
Article 11 further prescribes that the market value of properties that had been purchased by religious foundations or bequeathed or donated to them but which, because of the ban on the foundations' acquiring properties, had been assigned to the Treasury, the General Directorate of Foundations, or Provincial Special Administrations, will be assessed and payment will be made for them to the respective foundations by the Treasury or the General Directorate. This also applies to properties that were transferred to third parties. Finally, the article states that regulations will prescribe the procedures and principles for the article's implementation. (Id. [both citations].)
Kezban Hatemi, an attorney for the religious foundations, characterized the measure as "one of the biggest steps taken" since the end of military rule in Turkey and one that eliminates "a situation that has been a shameful stain on the history of the Republic." (Turkey: Decree Issued on Return of Confiscated Property to Minorities, supra.) He emphasized that "with the provision, the congregations' churches, real estate, and even the cemeteries seized in violation of the Municipalities Law will be returned." Hatemi added, "[i]t says that the state is restoring rights, that is, it is going to pay compensation to its citizens from whom it itself had seized the property. This is a great revolution. It is the elimination of a violation of rights, and is a transition to an implementation of equal citizenship." (Id.; Municipal Law [in English translation], No. 5393 of July 3, 2005, as amended, 25874 RESMÎ GAZETE (July 13, 2005), Istanbul Metropolitan Municipality website.)
Laki Vingas, the first elected representative of the religious foundations in Turkish history, went a step further and voiced his hope that there will be provisions in Turkey's new Constitution that embrace the minority religions and ensure their members' equal rights as citizens. (Turkey: Decree Issued on Return of Confiscated Property to Minorities, supra; see also TURKEY: Religious Communities Need Fundamental Reform of Constitution, supra.)
Author: Wendy Zeldin
Minority Foundations in Turkey: An Evaluation of Their Legal Problems
04 04 2003
ORHAN KEMAL CENGİZ
Oral presentation for the working-level meeting of foreign Embassies, organized by the Dutch Embassy in Ankara on 04.04.2003
Today I will try to explain briefly the problems and obstacles that minority foundations in Turkey have been and are still facing.
When we talk about the problems of minority foundations, in fact we are talking about a small portion of the problems of religious minorities in Turkey. The problem starts with the definition itself. According to Turkey’s official description there are no minorities in Turkey, with the exception of those who were mentioned in the Lausanne Treaty: Greek and Armenian Orthodox, and Jews. However, if one looks at the text of the Lausanne Treaty there is no specific mention of any national origin as Turkey suggests. In the Treaty there is a reference only to non-Muslims. Turkey’s definition of the concept of minority is therefore extremely arbitrary and has no legal basis whatsoever. As a result of this narrow definition Suryanis and Turkish Protestants[1] have been excluded from the legal arena.
Although religious minorities have long been suffering from a lot of problems[2] we hear most about the problems of minority foundations. Not hearing other things does not mean that problems of minorities are limited to their foundations and property issues. A few examples: the Greek Patriarch is not even allowed to use the title he would prefer. The Orthodox Church would like the Patriarchate to have the title of “Ecumenical Patriarchate of Constantinople”, Turkish authorities do not except this title however.
Neither Greek Orthodox nor Armenians are allowed to train new clergy in Turkey, because their religious training institutes have been closed by the Turkish authorities.
Neither the Greek Patriarchate nor the Armenians have legal status as an institution. No religious establishment in Turkey can obtain legal status.
In spite of all this, we mainly hear about the minorities’ problems in relation to property issues because this is the most painful issue for them, threatening their very existence. Minority foundations have lost innumerable amounts of real estate after 1974, as a result of the jurisprudence of the Appeal Court (Yargıtay). But before coming to today’s problems and the evaluation of recent legislative amendments, I would like to give you some background information.
History of Minority Foundations
Minority Foundations were originally set up by imperial decrees of the Ottoman Sultan called “fermans”.
In 1936, Turkey adopted a new law on foundations. As a result of this law, a great many Islamic foundations lost their autonomy and after that they were governed by the General Directorate of Foundations. This law aimed at controlling Muslim foundations that were regarded as a threat to the secular regime. Minority foundations were also targeted. However, The Council of State gave the opinion that such practice would contravene the Lausanne Treaty.
This law also demanded that the trustees of the foundations declare the sources of their income and how they would spend it. All minority foundations made these declarations in 1936. These were the so-called “1936 Declarations” which would have a huge impact on foundations.
In 1938 the law of foundations was amended and the provision on the administration of foundations was changed. The clause reading that “the foundations shall be governed by their elected bodies” was omitted from the law. From then on, foundations were directed by government officials instead of by councils they had selected themselves.
During the Second World War minorities experienced a big shock in the form of the controversial Wealth Tax[3] (Varlık Vergisi). Faced with a severe economic crisis, the Turkish government imposed huge taxes on it’s non-Muslim citizens during World War II.
In 1949 Law of Foundations was changed again. Foundations regained their former status in relation to their administration, and foundations could be governed by their elected councils again.
Turning Point: 1974
As mentioned earlier, in 1936 all foundations were required to declare their sources of income. Minority foundations that received most of their income from rents, declared the real estate they possessed at the time.
Starting from the late 1960s, the Turkish State developed a new approach towards the matter of minority foundations’ acquisition of new properties. At first some bureaucratic obstacles were created. For example, Governors started to decline to issue necessary documents that the minority foundations needed in order to register new real estate in the Land Registry.
However, the biggest blow came from the Appeal Court in 1974 when it decided that the declarations made by the minority foundations in 1936 were in fact Charters. Therefore, unless it was clearly indicated in such a declaration that the foundation could acquire new possessions, acquisitions made after the declaration had no legal validity. Therefore thus ‘illegally possessed’ properties would have to be returned to their former owners.
Court cases to this extent were filed by the General Directorate of Foundations. Objections by the minority foundations about the capacity of this Directorate to become a party to these cases, with the argument that it had no “legal interest” in bringing such cases before a court, were rejected by the Appeal Court. The Yargıtay stated that “legal interest” was not important because these cases involved “public order”.
If we scrutinize the reasoning of the decision of the Appeal Court, there are more controversial remarks and arguments. The decision of the Appeal Court dated 8.5.1974[4] reads as follows:
“It appears that the acquisition of real estate by corporate bodies composed of non Turkish people was forbidden. This is because corporate bodies are stronger than individuals and it is clear that the State may face various dangers in case there is no restriction on them to obtain real estate.”
These are the remarks of the Appeal Court in the case of the Balıklı Rum Hastanesi Foundation whose members were Turkish citizens of Greek origin.
This is the infamous decision of the Appeal Court which created the so called “1936 Declaration problem”. Two things derive from this judgement: one is that the best interests of the State are above everything including the supremacy of law. Secondly, our highest court regarded Turkish citizens as foreigners and as a danger to the Turkish State.
I believe these are the crucial elements to the understanding of this problem. In Turkey, the “Lausanne Minorities”, although they are Turkish citizens, have always been regarded foreigners and traitors.
Seeing them as foreigners is not unique to the Appeal Court. I should like to give you a funny example: In 1988 the Committee of Ministers issued a regulation called “Protection Against Sabotage”. Under article 5 of this Regulation, groups who could attempt sabotage were enumerated. According to paragraph f one of these groups were the “indigenous foreigners” (yerli yabancılar). These indigenous foreigners were Turkish citizens of Greek and Armenian origin.
As a result of this controversial decision of the Appeal Court, minority foundations lost thousands and thousands of pieces of real estate after 1974. They were taken one by one through cases filed by the Directorate General of Foundations and the Treasury.
Law 4771
In 2002, in the context of the harmonization process of Turkish Law with EU law, some amendments were made in the Law of Foundations and minority foundation were allowed to acquire real estate with the permission of the Committee of Ministers.
On 10 October 2002 a bylaw was issued to guide the implementation of this law. Through this bylaw the scope of the law was restricted:
According to article 6 of the bylaw a commission would be set up to evaluate the application of minority foundations’ demands to acquire new properties. The bylaw stipulated that this commission would decide whether the foundation concerned is in need to posses the real estate it wants to acquire. If the commission finds the demand appropriate, the file is sent to the Directorate of Foundations. Then if the Directorate of Foundations finds the demand appropriate the file is sent to the Committee of Ministers. In this way various filters were set up and made it impossible to obtain new property.
Furthermore, in article 9 of this bylaw there is a strange statement saying that Turkey shall reserve the rights derived from article 45[5] of the Lausanne Treaty. Basically, this article is about the principal of reciprocity. It is trying to say that if Greece does something bad to its Muslim citizens, I will do the same to my non-Muslim citizens. As you all know, the concept of reciprocity is a concept of international policy. As far as citizens are concerned, one cannot apply such concepts to justify taking back certain rights. But again, if one sees one’s own citizens as foreigners or as indigenous foreigners, of course the principal of reciprocity might be a good excuse.
On 11 October 2002 the Directorate of Foundations issued a circular which created more difficulties. According to article 4 of this circular, requests that are found to be eligible shall be submitted to the Council of Ministers through the Directorate General of Foundations. So there is a new criterion here, which does not exist in the law or bylaw.
We see a new criterion again in article 10 of this circular, which does not exist in the bylaw. Article 10 says: when assessing the need [of the foundation for the property concerned], the population of the congregation residing in the municipality where the real estate is to be acquired shall be taken into consideration in the evaluation process.
Yet another arbitrary criterion. So if the members of the congregation concerned do not reside in the area or municipality where the real estate is located, or if the population of that specific congregation consists of an insignificant number, then it might be concluded that there is no need to acquire this real estate.
If we consider that real estate is necessary for the foundations because of the income it generates, but not necessarily in all cases because the congregation wants to use the real estate for itself, it is very difficult to understand how a relationship could be established between the properties and the place of residence of the individual members of the congregation.
Law 4778
This law (Law 4771), the bylaw and the circular were criticized by academicians and lawyers. The new government made amendments in the law of foundations again, in January 2003, in the context of the harmonization laws (Law 4778).
According to this amendment, minority foundations can acquire new properties with the permission of the Directorate of Foundations. Thus the bureaucracy has been reduced; as I mentioned earlier, the previous law required the permission of the Council of Ministers.
Bylaw
In January 2003, again a new bylaw was issued to clarify the implementation of Law 4778. If we compare it with the previous one, we can see that this new bylaw introduces more flexible provisions and a less bureaucratic approach. There is no “commission” in this bylaw. Permission will be given directly by the Directorate General of Foundations. There is no indication of reciprocity in this bylaw either.
However, article 6 of this bylaw has some suspicious and ambiguous wording. It says “The applications are forwarded to the Directorate General of Foundations...” it goes on saying “If necessary, the matter is submitted to the Council of Foundations, along with the views of the competent Directorate, after consultations with the relevant Ministries and public institutions.”
Which Ministries it is talking about, what are these public institutions? Is this an indication that the members of the Minority Foundations are still construed as “indigenous foreigners” who pose threat to the wellbeing of Turkey? We do not know the answers yet. Answers will come during the application process.
Secondly there is a list of minority foundations annexed to this bylaw, in which 160 minority foundations are listed. I do not know whether this is a complete list or not. But listing foundations by name means that new minority foundations cannot be established. This is of course a clear violation of the international instruments to which Turkey is a party.
European Court of Human Rights
There is no doubt that the policies of successive Turkish governments in relation to minority foundations constituted clear violations of the European Convention on Human Rights to which Turkey is a party. One may think that the foundations must have brought a lot of cases against Turkey before the European Court of Human Rights. However, there are only two completed cases[6] both of which were found inadmissible by the European Court of Human Rights because of procedural mistakes during their submission. That is a pity. Getting the opinion of the European Court of Human Rights on this question would be very illuminating and may contribute to the improvement of the rights of the Minority Foundations in Turkey.
Recommendations
Turkey needs to change its policies towards the religious minorities: First of all, the arbitrary definition of the concept of minority must be changed. Minority policies must be governed by clear and concise laws, not by regulations, bylaws and circulars which can be changed overnight. Turkey must consider to adopt new laws which will enable minority foundations to regain their properties which were taken by them as a result of the judgment of the Appeal Court in 1974.
To create tolerance and peace, Turkey has to admit or at least has to acknowledge past atrocities towards the non-Muslims in Turkey.
Religious establishment must be given legal status, which will protect them from arbitrary interference by State agents.
Thank you for your patience.
[1] Orhan Kemal Cengiz “Rights Violations Experienced by Protestants in Turkey Evaluated in Light of Human Rights Law” published by Alliance of Protestant Churches of Turkey.
[2] See: “Elimination of All Forms of Religious Intolerance- Situation in Turkey, Fifty-fifth session of the UNGA item 116 (b) of the provisional agenda”
[3] In 1942 Wealth Tax was imposed on Armenian, Greeks and Jews in Turkey. Commissions, which dealt with this matter, were formed entirely of Muslims Turkish businessman, bureaucrats and politicians. These commissions were authoritised to determine who would pay what amount of tax. There was absolutely no right to challenge the commission’s decisions and once the tax was determined the “tax payer” had 15 days to pay it. As a result members of the minority were forced to sell their business premises, homes and sometimes everything that belonged to them. There was a significant number of these people who could not afford to pay these taxes and they were sent to “working camps”. During this period 30.000 Jews left Turkey. Of course this was serving the policy of Turkifying the nation, a process which began in the 1930’s.
[4] Yargıtay Hukuk Genel Kurulu, Esas: 1971/2-820,Karar: 505
[5] Article 45: “The rights conferred by the provisions of the present Section on the non-Moslem minorities of Turkey will be similarly conferred by Greece on the Moslem minority in her territory”.
[6] See. The case of Y.S.P.E.H.V against Turkey, application no 25755/94; and the case of S.Ö.,A.K agains Turkey,application no: 31138/96
Minorities Retrieve Their Property
Hurriyet Oct 31 2011 Turkey
Representatives of Turkey's minority communities have begun filing lawsuits to retrieve confiscated property, following the recent enactment of a new foundation law.
"We have had numerous gains due to the government of the Justice and Development Party (AKP). We are going to solve our problems regarding [our] appropriated lands through dialogue," Bedros Å~^irinoglu, president of Yedikule Surp Pırgic Hospital Foundation, told the Hurriyet Daily News.
Certain Armenian and Anatolian Greek foundations, however, had already started recovering some of their property before the new law went into effect.
Turkey's Armenian community took the lion's share in retrieved property, including the Selamet Han building in Istanbul's Eminönu district, which was granted to the Yedikule Surp Pırgic Hospital Foundation by Kalust Gulbenkyan, the founder of the Gulbenkyan Museum in Lisbon.
"There is nothing to be done about it, even if only a miniscule payment was made during nationalization. We are only going to request compensation for [property that was confiscated] without following due legal processes," Å~^irinoglu said.
The Anatolian Greek community also retrieved a historical school building in Istanbul's Galata district, while Anatolian Greek schools that remained shut due to lack of attendance were also allowed to obtain revenue before the law went into effect.
"Many more appeals have to be issued for all the minority foundations to retrieve their rights," Laki Vingas, the spokesman for Anatolian Greek foundations and a member of the Foundations General Council, told the Hurriyet Daily News.
The process for retrieving confiscated property is taking shape normally, as it should be, Vingas said.
Members of the Syriac Christian and Bulgarian foundations also followed suit and took legal action, even though the new law is relevant only for Turkey's Armenian, Jewish and Anatolian Greek communities, which constitute the three officially recognized minorities as defined by the Lausanne Treaty of 1923.
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