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Turkey: Religious Freedom Via Strasbourg

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  • Turkey: Religious Freedom Via Strasbourg

    TURKEY: RELIGIOUS FREEDOM VIA STRASBOURG
    By Otmar Oehring

    Greek News, New York
    April 9 2007

    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 Vakfý) 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 Buyukada,
    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.

    *** Dr Otmar Oehring, head of the human rights office of Missio, a
    Catholic charity based in Germany. Although we disagree his opinion
    about "unfair treatment of Greek Muslim minority", we republished
    the article because it offers an analytical overview about Turkish
    policies towards the Ecumenical Patriarchate.

    --Boundary_(ID_pQzFA0oNDu/QHV3Ltl8z YQ)--
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