|
Strasbourg, 4 December 2009
Opinion
No. 535/2009
|
CDL(2009)183*
Engl. only
|
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
DRAFT
REPORT
on the
visit
of a Venice Commission delegation to Turkey
to gather
information
on the
legal status of religious communities
(Istanbul / Ankara, 9-11 November 2009)
1.
By letter dated
7 April 2009, the Chairperson of the Monitoring Committee of the Parliamentary
Assembly. Mr Holovaty, asked the Venice Commission to assess the compatibility
with European standards of the lack of recognition of legal personality for the
religious communities in Turkey and examine, in this context, in particular the
question of the right of the Greek Orthodox Patriarchate of Istanbul to use the
adjective “Ecumenical”.
2.
Messrs
Grabenwarter, Sejersted and van Dijk were appointed as rapporteurs. The
rapporteurs agreed to undertake a fact-finding visit before preparing their
comments. Since Mr Van Dijk was unable to participate, the visit was carried
out by Messrs Grabenwarter and Sejersted together with the Deputy Secretary of
the Commission, Mr Markert.
3.
The delegation
met representatives of non-Muslim religious communities as well as
representatives of the authorities. These meetings were substantive and highly informative
and the following report only covers the main points raised. The programme of
the visit is appended.
Meeting with the leadership of
Jehovah’s Witnesses in Turkey and Mr James Andrik, General Counsel of Jehovah’s
Witnesses
4. The representatives of
Jehovah’s Witnesses informed the delegation that they had ca. 3000 members in
32 congregations in Turkey. They had opted for registration of an association
since associations enjoyed broader rights than foundations. Following a change
in the law, there was in principle no longer any obstacle to the creation of
associations of a religious character. However, their application of 11 July
2005 for registration as an association had been rejected by the authorities as
being contrary to the last paragraph of Article 24 of the Constitution. Following their appeal,
the Supreme Court allowed on 17 May 2007 the registration of the association,
based inter alia on the fact that there was an earlier court decision that the
activities of Jehovah’s witnesses were not in violation of Art. 24 of the
Constitution.
5. The Statute of the
Association for the Support of Jehovah’s Witnesses provides inter alia “The
purposes of the Association are religious, informational, and charitable,
including to be at the service of and to act as one of the legal entities for
the body of Christian persons in Turkey known as Jehovah’s Witnesses;…” The
delegation was informed that following the registration of the association
property previously registered on behalf of foundations had been transferred to
the association. The fact that it had been possible only to register an
association for the support of Jehovah’s Witnesses and not to register their
church as such was no big problem since Jehovah’s Witnesses were used to this
situation from other countries. Harmony between their church and the
association was ensured by limiting membership in the association to appointed
elders in one of the congregations.
6. The main problem of
Jehovah’s Witnesses according to their own assessment was rather the
application of zoning laws to prevent the establishment of places of worship.
An amendment to the law adopted in 2003 in the framework of the EU accession
process had removed a provision giving a privileged status to mosques and
provided that specific areas could be set aside for places of worship in zoning
plans. The consequence was, however, that local authorities tended not to
provide adequately for places of worship.
7. The delegation was
impressed by the professionalism with which Jehovah’s Witnesses handle their
affairs, using the support of American lawyers. For well-organised religious
groups it is obviously easier to use the possibilities provided by Turkish law
to establish legal persons.
Meeting with His All Holiness
Bartholomew, Ecumenical Patriarch of Constantinople the New Rome
8. The Ecumenical Patriarch
welcomed recent changes to Turkish law, in particular to the law on
foundations, which make it easier to receive donations from Turkey and abroad.
There was definitely a more positive attitude of the government towards
religious minorities. Problems persisted, however.
9. As regards the title of
Ecumenical Patriarch, he stated that this title was universally recognised,
apart from the Turkish government. It was used by all other churches, including
the World Council of Churches, of which the Ecumenical Patriarchate was a
founding member, by international organisations and governments. The laws of
several countries such as Austria, Belgium, Finland and Greece made explicit reference to this title. It was generally recognised within the Orthodox Church
since the 6th century and used by all other patriarchs. As an example, the
Ecumenical Patriarch showed to the delegation a letter from the Moscow
Patriarchate addressed to the Ecumenical Patriarchate. The issue of the title
was not regulated by the Treaty of Lausanne. This would have been inappropriate
in an intergovernmental treaty since the title was religious and spiritual and
did not have a political character.
10. To Him the approach of the
authorities seemed somewhat contradictory. On the one hand, the Prime Minister
had declared that this was an internal matter for the church. On the other
hand, there was a circular letter from the Foreign Ministry asking Turkish
ambassadors invited to meetings with the presence of the Ecumenical Patriarch
to clarify in advance that Turkey did not recognise the title. It was also
impossible for Him to co-sign letters with the Director of the Presidency of
Religious Affairs (Diyanet) using His title. Despite a decision by the Court of
Cassation, the Turkish authorities did not actively prevent
Him from using His title.
11. Practical difficulties
were due more to other rules, in particular a decision by the Governor of
Istanbul of 1923 requiring that the Patriarch and the Electors had to be
Turkish citizens. Due to the small number of remaining Orthodox believers in Turkey (ca. 3000) and the closure of the Halki seminar for priests, this made it difficult
to find candidates. His proposal was that it should be possible to elect a
non-citizen as Patriarch who would obtain citizenship following His election.
This method had been used already in 1948 and was used also in Egypt for the Patriarch of Alexandria. At the moment there were negotiations with the
Turkish government to make it possible for metropolitan bishops residing abroad
to obtain Turkish citizenship in addition to their present citizenship.
12. The absence of legal
personality was a problem for the Patriarchate. This concerned first of all property
ownership. While there were still title deeds in favour of the Patriarchate, in
principle all property had to be held by foundations or by private individuals.
It was also a problem for access to courts. Under the new Law on Foundations,
the Greek Orthodox church asked for the return of more than 700 properties. As
regards the Halki seminar, the Ecumenical Patriarch expressed the hope that it
could be opened again soon. He accepted control by the Ministry of Education.
13. In the view of the Ecumenical
Patriarch, the appropriate status for the Ecumenical Patriarchate could not be
an association but it should be recognised as a legal person under
international law.
14. Archbishop Atesyan, who
acts as the representative of the Patriarchate due to the illness of the
Patriarch, informed the delegation that the Armenian Patriarchate was
established in 1461 and that the Armenian Community, together with the Greek
Orthodox and the Jewish communities, is one of the three communities recognised
as religious minorities in Turkey on the basis of the Treaty of Lausanne.
Bishop Atesyan informed the delegation that there were about 70.000 Armenians
left in Turkey, mainly in Istanbul. The community had 38 churches in Istanbul and 7 outside Istanbul (a church had just reopened in Kayseri with the support of
the authorities). There were 16 schools, 1 hospital, 2 dailies and one weekly
newspaper. These properties were mainly owned by foundations.
15. He confirmed that the
current Turkish government had a more positive approach to minorities than its
predecessors. Under the new law on foundations, the church could now ask for
the restitution of properties which had been expropriated after 1936.
16. The legal situation in his
view remained, however, unsatisfactory. In the Ottoman period the Armenian
Patriarch had exercised control over the foundations. Now, there was no longer
any legal link between Patriarch and Church on the one hand and the foundations
on the other nor were there legal links between the foundations. It would,
therefore be important that the State officially recognise the Patriarchate and
that the Patriarchate should be able to own property.
17. In the opinion of
Archbishop Atesyan, neither the status of foundation nor the status of
association was appropriate for the Patriarchate. It should receive a sui
generis status.
Meeting with Ms Dilek Kurban,
Programme Officer at the Turkish Economic and Social Studies Foundation (TESEV)
18. The delegation was
received by Ms Kurban, who is one of the authors of a study on real estate
ownership problems of non-Muslim communities. The study shows in
great detail the problems encountered by these communities. For Muslims the
situation is different due to the existence of the Diyanet. However, it has to
be taken into account that many Alevis and some Sunnis are also not satisfied
with the role played by this body.
Meeting with Ms Mine Yildirim from
the Association of Protestant Churches
19. Ms Yidirim underlined that
Protestants were a new and small minority in Turkey. There were about 3500
Protestants in ca. 70 congregations. Under the new law of associations it had
become possible to establish 7 associations to support specific church
buildings. This year the umbrella association of Protestants had been formed by
using the (artificial) means of including two members of each Protestant
church. It was impossible to establish new religious foundations due to the
case-law of the Constitutional Court. The Protestant did not have foundations
established before 1936 which had privileged status. The Özbek decision of the
ECtHR showed the problems Protestants had when trying to establish foundations.
20. In her view, the fact that
it was impossible for Protestant churches to establish themselves as
associations (as opposed to the establishment of associations to support a
church) hampered these churches and their members in the exercise of their
religious freedom. Generally, the Law on Associations placed too many
bureaucratic burdens on small communities. If at present the Government was
relatively well disposed, these communities did not feel secure in their
status. It could again become more difficult in the future to establish and
run such associations.
21. Turkish schoolbooks tended
to portray Protestants in a negative light. There was also a problem to obtain
places of worship, due to zoning regulations.
Meeting with the leadership of the
Jewish Community
22. The members of the
leadership of the Jewish Community of Turkey regretted that Turkish Law did not
recognise a secular Jewish Community as was the case in other countries. On the
basis of the Treaty of Lausanne only the Chief Rabbi was recognised. He was elected in the
community and then appointed by the government. While it would also be useful
for the Chief Rabbinate to get legal personality, this was a lesser concern. It
should not be the Chief Rabbi going to Court on behalf of the Community but a
representative association. There were about 20 Jewish foundations owning
property
23. There were about
20.000-22.000 Jews in Turkey. They were free to exercise their religion and
enjoyed government protection. Stronger protection against hate speech would,
however, in their view be desirable.
Meeting in the Foreign Ministry
24. The representatives of the
Foreign Ministry underlined that Turkey was a secular state based on the
equality of all citizens. Minority rights were granted in full compliance with
the Treaty of Lausanne. The travaux préparatoires of this Treaty made it
clear that, based on a proposal of then Greek Prime Minister Venizelos, the
Orthodox Patriarch could no longer use the title “Ecumenical”. He was, however,
not prevented by the authorities from using this title.
25. In their view Art. 101.4
of the Civil Code should not be an obstacle to the establishment of
new foundations of a religious character. The new Law on Associations permits
the establishment of religious associations. Religious communities should
actively use the possibilities provided by the legislation. If it should become
clear that the new rules are still not sufficient, additional reforms could be
envisaged.
Meeting with Monsignore Padovesi,
Chairman of the Conference of Catholic Bishops of Turkey
26. Monsignore Padovesi
informed the delegation that there were about 35.000 Catholics in Turkey, belonging to different churches (Assyrian, Chaldaean, Armenian-Catholic, Melkhite,
Latin). Due to the lack of a seminar, no priests could be formed. It would make
things easier if the legal personality of the church were recognised. Some
property was registered for foundations, other property for private persons,
some churches seemed to belong to nobody.
Meeting at the European Commission
delegation
27. The Commission
representatives confirmed the more positive approach of the current government
to religious communities. The government had also a more open attitude with
respect to the Ecumenical Patriarch. The status of religious minorities differed
from the status of the Muslim majority where a public body, the Presidency of
Religious Affairs (Diyanet), had wide administrative powers.
Meeting at the Ministry of the
Interior
28. The representatives of the
Ministry confirmed Turkey’s attachment to the reform process and continued
democratisation, as well as the importance of equality of all citizens. In
addition to the reforms of the laws on foundations and associations, practical
.steps had been undertaken. As an example, responsibility for accepting
charters of religious foundations had been moved from the security (police)
directorates to the general directorate of foundations. As regards
associations, the authorities had to review compliance with Art. 30 of the Law
on Associations. When assessing the Turkish system, it had to be
taken into account that the concept of a congregation of a mosque having legal
personality was alien to Islam.
Meeting at the Ministry of Justice
29. The representatives of the
Ministry referred to recent legal reforms and to the recent granting of legal
personality to religious foundations and associations (Jehovah’s witnesses,
Midyat Syrian Cultural Association, Protestant association in Diyarbakir).
Associations could, however, not practice discrimination. It was difficult to
grant legal personality to religious communities as such. Diyanet also did not
have independent legal personality. But the French approach of “association
cultuelle” could be interesting. They underlined that the practice of religion
is free in Turkey.
Meeting with Professor Zafer Üskül,
Chairperson of the Human Rights Inquiry Committee of the
Grand National Assembly of Turkey
30. Professor Üskül underlined
that religion should not be regulated by the state and referred to the
important reforms already carried out. Mentalities might not change always as
quickly as legislation. Specific characteristics of religious communities might
prevent the granting of legal personality. If it became apparent during their
implementation that the reforms already carried out were not sufficient, more
could be done. In any case, Turkey would always respect and implement the
decisions of the ECtHR.
Meeting with Mr Mevlüt
Čavušoğlu, Chairperson of the delegation of the Grand National
Assembly of Turkey to the Parliamentary Assembly of the Council of Europe
31. Mr Čavušoğlu
underlined the positive approach of the current government and the reforms already
undertaken. It was important for Turkey to have the Orthodox Patriarch on her
soil. The issue of the seminar in Halki seemed of more practical importance
than the title and the government would put emphasis on achieving progress in
this respect. The issue of the citizenship of the Patriarch also seemed
solvable. The government was also determined to improve the situation of
Alevis. Many laws had been adopted, there was political will but mentalities
did not always evolve that quickly. Many problems were also linked to the
Constitution. He agreed with the Venice Commission opinion that the
Constitution should be amended or replaced by a new Constitution.
A P P E N D I X
address: Kuyulubag Sokak
No. 96, Kurtulus – Sisli, Istanbul
address:
Turkiye Ermenileri Patrikligi, Sevgi Sok. No.20, Kumkapi
Meeting with Ms Dilek Kurban,
Programme Officer at the Turkish Economic and Social Studies Foundation (TESEV)
address:
Bankalar Cad. Minerva Han No.2, Kat. 4 Karakoy, 34420 Istanbul
4 pm
Meeting with Ambassador
Binnur FERTEKLİGİL, Director General for Multilateral Political
Affairs of the Ministry of Foreign Affairs
Ministry of Foreign Affairs
6 pm
Meeting with Mr Diego Mellado,
Political Councellor & Ms Sema Kılıçer, Political Officer, Human
Rights Delegation of the European Commission to Turkey
address: Uğur Mumcu Street, No. 88, floor 4, Gaziosmanpaşa
(MNG
building)
9 am
Meeting with Mr
Bahrettin DEMİRER, Deputy Undersecretary of the Ministry of Interior
address: Ministry of Interior, Recep Yazıcıoğlu
meeting room, East Entrance 1st floor
10 am
Meeting with Mr Bilal
ÇALIŞKAN, Deputy Director General for International Law and Foreign
Relations of the Ministry of Justice
Ministry of Justice
11 am
Meeting
with Professor Zafer ÜSKÜL, Chairperson of
the Human Rights Inquiry
Committee
of the Grand National Assembly of Turkey, Grand National Assembly of Turkey
12 pm
Meeting with Mr Mevlüt
Çavuşoğlu, Chairperson of the PACE National Delegation of the Grand
National Assembly of Turkey
4.05 pm
