Baskin Oran: On the non-Muslim foundations in Turkey

[Joseph]

Last Call for passengers to Strasbourg!

Radikal 2 March 2008


by: Baskın Oran

Last week I wrote about how the “secular” CHP and DSP representatives looked like in NTV, how they defended the extortion of immovable properties of non-Muslims in the name of “reciprocity” and how they declared these citizens “dangerous” displaying a Paranoia of Sevres. Now it is time to elaborate on AKP’s law which is “new” and which “returns the confiscated properties of the non-Muslim foundations”:
1) It is not new at all. These provisions were repeated three times in the EU Harmonisation Packages: August 2002, January 2003 and June 2003. Those who discriminate on the basis of religion did not allow their implementation. 2) It does not return the properties at all. Let me explain how:

Grave articles
Article 2- “The international principle of reciprocity shall be reserved in the implementation of the law hereof.”
The reaction vis-à-vis this article expressed by Minister Hayati Yazıcı in NTV whereby he said; “Reciprocity shall not be applicable to citizens.” is in vain. Let us know if these people are citizens or hostages.
Article 5- “New Foundations shall be established and shall operate in accordance with the provisions of Turkish Civil Code.”
This is the most critical part of the matter! Because it harbours a hidden reference to article 101/4 of Civil Code which reads; “foundations can not be established in order to support members of [religious] communities.” The foreigners have the rights to establish new foundations whereas non-Muslims citizens don’t. These foundations which lack charters due to the fact that they were established upon a Sultan’s firman, will still be deprived of charters due to the prohibition to establish new foundations. In other words they will have no “purpose” and will not be able to get permission for anything. Just like someone who is arrested by the police at every occasion because he does not have an “identity card.”
First of all, the Civil Code of 1926 is the first and the most important of revolutionary laws. It was adopted in a hurry in order to fulfil the promise which was made in Lausanne to have capitulations lifted and the promise was; “We will be a secular state, we will adopt a Civil Code and we will adopt the exact version from Europe” (Dr. Rıza Nur, Hayatım ve Hatıratım/My Life and Memoirs, s.1046-47). The reference here is to the Muslim communities which constitute a peril against the Republican regime. If the non-Muslims had been referred to, it would have been very difficult to violate Lausanne right after [signing the Lausanne Treaty] and while the problems with Britain still persisted. Some people think M. Kemal was stupid like they are.
Can you imagine: Non-Muslims are free to establish a “Foundation for the Conservation of Butterflies” but they are prohibited to establish a “Foundation for the Protection of Syriac Orphans”! Have you no conscience at all?

Secondly, it violates 3 articles of Lausanne Treaty; Article. 40: introduces the “...right to establish, manage and control …any charitable, religious and social institutions”. Article 42/3: “…will not refuse, for the formation of new religious and charitable institutions, any of the necessary facilities which are guaranteed to other private institutions of that nature.” Article 37 of the Lausanne Treaty prohibits any amendments to these provisions.
Thirdly, by prohibiting the establishment of new foundations it also violates the right to freedom of association which is stipulated by article 11 of ECoHR and article 33 of the Turkish Constitution. Moreover it also violates the Article 90/5 of the Turkish Constitution which declares that Lausanne takes precedence over national laws. Which one of them shall I mention here? Is Turkey a violation machine my friends?

Article 7- “…No further management shall be appointed to or elected for ….. Fused Foundations”
General Directorate of Foundations have old tactics: 1) It declares a foundation as “mazbut” saying “the number of your community members has decreased” or “You can not carry out any charity work anymore”, in other words it seizes the management of that foundation. 2) It de facto prevents selection of managers and then it declares the foundations as fused on grounds that it did not hold the election.(the root of the [Turkish] word mazbut/fused is zapt/confiscate or seize). Moreover it does it not through a court ruling but it simply decides itself.
The “new” law reinforces these tactics. The immovable properties of the fused foundations are not at all returned. There is an explicit violation of Lausanne articles 37, 40, 42/3 and the Constitutional Article 90/5 here as well.

[Joseph]

2

Misleading articles

Article 25- “Foundations may …carry out international operations and cooperation; …provided that it is contained in their charter”.
Only the “new foundations” have charters; I’ve already mentioned that. This people first prohibit the establishment of new foundations and then they act as if they allow international operations. This is a misleading article. There is no such permission for the non-muslims!
Article 26- This is misleading article too. It says; “A foundation may establish and incorporate economic enterprises or firms so as to promote its goals …”. Because it doesn’t say, like the previous article, that this one is better. However since the non-Muslim foundations do not have charters they can not have any “purpose” either. Thus they can not establish any economic enterprises! Now do you understand why they are not allowed to establish any “new” foundations? I wouldn’t have noticed it if Kezban Hatemi who knows well the implementation, had not drown my attention to it. This is how it works. In our [country] the laws are written to ensure that the circumstances can not be understood when read.
Provisional Article 7- This article stipulates that these foundations can register two types of immovable property in their names provided that they receive approval of the Council and apply within eighteen months [as from the enforcement of the law];
“a) immovable property registered in the 1936 Declarations, which are registered in the Property Registry Office under figurative or fictitious [Christian saints’} names and are still under the disposal of the foundation,”
OK but how can the properties extorted by the state since late 60s be “still under the disposal of the foundation”? Moreover this continues at least for 7 years however not a single one of those properties could be registered to the Property Registry Office so far because none of the directors of property registry office approve a change of “owner” in the absence of a court ruling. A sheer deception.

“b) immovable property currently registered in the Property Registry in the name of the Treasury or the Directorate General of Foundations [DGF], the bequeathing party or the endowers on grounds of not being able to acquire property, despite the fact that they had been purchased by community foundations, or bequeathed or endowed to the community foundations after the 1936 Declaration.”

The properties of these foundations were extorted based on at least 6 more grounds and procedures other than “not being able to acquire property” (TESEV December 2007 report drafted by Dilek Kurban). What will happen to them? Furthermore the DGF filed cases against these properties in a hurry when it noticed that the reform was on the way and had “registry corrections” in the name of endower etc. In other words it has done it like “to be saved first in case of fire”, and of course the subject was the property of the citizens of other religions.

Furthermore did you know that the ratio of all the properties these foundations were able to register with the registry office since 2002 is only 21.8 %! (my book Türkiye’de Azınlıklar / Minorities in Turkey, İletişim Publications., 2008, p.138). The rest: rejected!

Since there is no solution from the “homeland” …
It is not that the law is negative altogether. For instance, one non-Muslim [member] out of 15 in total is admitted to the Foundations Council. But the law was introduced as a result of the constant slaps from Strasbourg (ECHR) however these slaps will continue;
1) The State does not return the properties it has confiscated since late 60’s! The sole remedy in this regard is resorting to Strasbourg and getting compensation. This is possible; because, there is “continuing violation” since those days (Since I have skipped this in my articles in Radikal daily, published between 7-9 February, I had said “The time for resorting to Strasbourg has expired”; I wish to thank my jurist friend, who called and warned me in this regard).
2) The State does not return the properties it had confiscated and hastily sold to third persons! Furthermore, no compensation has been foreseen to that end! This is again an issue to be taken up in Strasbourg. Why are we paying taxes? So that Strasbourg Court rules for compensation to cover up the shame of the Republic of Turkey!
3) Forget about the return of those [items/properties] that fall under Provisional Article 7. They are also to be taken up by Strasbourg.
But of course, maybe the gravest part has not yet begun: This law will be followed by a regulation. We have seen many examples of regulations adopted for the implementation of the EU harmonization packages. They were bringing about such curbs before the foundations that were not introduced by the Law. Now we will see what DG for Foundations is going to invent to save the [mother] land. We will keep an eye on the developments.
If we say that we are “secular”, what is our business?
2 notes not related to this article: 1) From now on, I like Bülent Ersoy very much. 2) I am scared: We have started a journey, chanting the same old song: “Martyrs are immortal, mother land indivisible” which will eventually head towards the doomsday!