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RELIGIOUS FREEDOM VIA STRASBOURG , NOT ANKARA OR BRUSSELS ?
(F18 News)
By Otmar Oehring, head of the human rights office of Missio
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 Istanbuls Fener area (Fener Rum Erkek
Lisesi Vakfı) that acquired a building in Istanbuls 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.
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.
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.
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, 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. (END)
– Dr Otmar Oehring, head of the human rights office of Missio
, a
Catholic charity based in Germany