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Main Page Articles Minority Rights Minority Foundations in Turkey: An Evaluation of Their Legal Problems

Minority Foundations in Turkey: An Evaluation of Their Legal Problems

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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

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