MINORITY
FOUNDATIONS
IN
TURKEY:
AN
EVALUATION OF THEIR LEGAL PROBLEMS1
Orhan Kemal Cengiz
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 2 have
been excluded from the legal arena.
Although religious minorities have long been suffering from a lot of problems3 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.
1
Oral presentation for the working-level meeting of foreign Embassies, organized by the Dutch Embassy in Ankara
on 04.04.2003
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.
3
See: “Elimination of All Forms of Religious Intolerance- Situation in Turkey, Fifty-fifth session of the UNGA item
116 (b) of the provisional agenda”
2
1
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 Tax4 (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 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
2
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 8.5.19745 reads as follows:
5
Yargıtay Hukuk Genel Kurulu, Esas: 1971/2-820,Karar: 505
3
“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.
4
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 456 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.
6
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”.
5
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.”
6
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 cases7 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.
7
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.
Orhan Kemal Cengiz
7
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
8