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(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 (DaniÅÂÂÂÂ?tay), 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 More by this author
Topic: Property More on this topic
Jurisdiction: Turkey More about this jurisdiction

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Last updated: 09/06/2011