Πέμπτη, 15 Μαρτίου 2012

Cait Çetinoğlu


Foundations of non-Muslim Communities: The Last Object of Confiscation

Sait Çetinoğlu

Non-Muslim Foundations in Turkey have been facing a huge amount of problems. These problems are a systematic part of the disturbance, supression and expulsion of non-Muslims.With the ruling of the general legal committee of the Supreme Court of Appeals in 1974, non-Muslim citizens of Turkey have been considered as non-Turks, as the foundations of non-Muslim communities have been considered as foreign foundations, reciprocity condition began to be seeked. In recent times, the president who had a background in jurispudence, strengthened this perception by using the same arguements in the corallary of cancellation of the Law of Foundations. When the legal perception is in this level, confiscation of the properties of the foundations of non-muslim communities naturally becomes legitimized.


On the other hand, considering the difficulties introduced in terms of non-Muslim foundations’ obtaining of property, their subjection to the obligation of property declaration with the 1936 Declaration, the introduction of the procedure which requires them to take permits from the the Ministry of Interior, the Ministry of Foreign Affairs and the Foundations General Directorate, there is enough ground to claim that non-Muslim citizens and the foundations established by their communities are considered in a criminal level besides being perceived as foreign.

In Turkey, confiscation of immovable properties which belong to non-Muslim foundations is not an exceptional case. It can be understood as an important part, and even the last chain of the systemic dispossession of non-Muslims. A brief look into this process can make how the system has been working without disruption clear. Another important point is that Ismet Bey who experienced a long journey of success from the position of the chief of the operation unit of the General Staff Leadership to presidency  had put his signature on all these measures.

During the process of 1915 Armenian Genocide, the immovable properties belonging to Armenians who left or entrusted them to their neighbours were looted and/or sold by those who turned war conditions as a ground of opportunity. These properties naturally were seized by powerful locals. With a decree, the number of which is 1457-246/7, enacted in 25 January 1925, those who had seized these properties became entitled to get deed titles in a short period of time. [1] The main character of the measures introduced after expulsions during the 1923 Population Exchange is that they were systematic measures aimed at disturbing, expulsing and deporting non-Muslims and that they systematically followed each other.

Confiscations are a foundational part of capital accumulation process in Turkey. In Turkey, this process works as the transfer of capital from non-Muslims to Muslims through various ways. The establishment and the development of the Turkish-Muslim capital in Turkey has been based on the confiscated properties of Armenian and Greek citizens. Turkish-Muslim capital accumulation is a consequence of the Genocide.

In the 1920s, it was very difficult for Armenians who owned properties outside Istanbul to protect these properties and tp prevent them from being appropriated, as they were required to get a travel permit, which was very difficult to obtain, before leaving Istanbul.

Many Armenian citizens, including former Mail-Telgraph Minister Oksan Efendi, former Minister of Public Works Hallacyan Efendi and former Minister of Foreign Affairs Noradukyan, were expatriated and their properties were confiscated with the rationale that they had not participated in the national struggle. [2] These properties were given to the successors of the cadres who realized the Armenian Genocide with the law no 882 in 31 May 1926. The confiscated apartment belonging to Aram Findikliyan was given to Talat’s wife Hayriye Hanim. [3]

In September 1923 the return of Armenians who had left from Cilicia and Eastern Anatolia during the war was banned. Thus they were given no chance to re-claim their properties. The return conditions which were put into use by the former Istanbul government were also very hard. In August 1926, it was declared that the state had the right to confiscate all properties which were bought by non-Muslims before August 1924. Apart from that, documents claiming that the leaders of non-Muslim communities disclaimed the 42. Article of the Lausanne Agreement were sent to the prime ministry. Non-muslims were forced to give up their rights specified in the Lausanne Agreement.

In 1922, non-Muslims who would go abroad were not alloed to devolve their properties until the parliament issued a decision. The proxies of those who were abroad were not considered acceptable.  Those people who were expulsed from their historical lands were not allowed to take or to devolve their accumulations.

Non-muslims were expulsed from business life through several laws and regulations: starting with 1923 non-Muslims were fired from their jobs and Muslims were appointed to the positions left by them. This policy was legalized in 18 March 1926 with the State Officials Law numbered 788 which realized that “… the opportunities of wotking in the public field are reserved for ‘Muslims, who are Turks or who can be Turkified’ and non-Muslims were expelled from the working life. Public offices were closed for “minorities” for a long time with this law. With the enaction of Lawyership Law numbered 442 records of lawyers who came from “minority” backgrounds were erased from the Bar and they became unable to practice their profession.

Non-muslims were supressed and forced to leave the country, thus forced tol ive in voluntary exile, with cases of insulting Turkishness. Aside these, many Armenians in Anatolia had to immigrate to Syria due to the threat and terror against them which started in 1928. In the years of 1928-1929 Armenians in Diyarbakir and Kharpert were advised to leave Turkey by local officials. The number of Armenians who had to immigrate to Syria in a 18 months period between 1929-30 was 6.373. Agressions against Armenians were not prosecuted, [4] and this encourages new assaults. Apart from that, Armenians who left the country in those years were given passports which could be used only for one time, thus their return was prohibited. It was also necessary for Armenians entering or leaving the country to sign a text which says “I do not claim any rights from Turkey”.

In 14 June 1934, Armenians began to be exiled in accrodance with the Settlement Law which divided the population of the country as people who are a part of Turkish culture and speak Turkish (true Turks), people who are a part of Turkish culture but do not speak Turkish (Kurds) and people who are neither a part of Turkish culture nor speak Turkish (non-Muslims and others): many people were deported with the claims that they participated in the Sheikh Said Rebellion or served Armenian purposes. 89 nomadic families in Artvin, Hemsin, were deported to interior regions. [5] As in the case of Kayseri Efkere, a village inhabited by a handful of Armenians who achieved to turn back after 1915 was declared military zone and the Armenian inhabitants of the village were deported to another location away from the places used by the military.[6] Confiscation of the properties belonging to foundations was made easier as Armenians were expelled from Anatolia. These confiscated properties were allocated to public institutions and real persons. Religious buildings began to be used as stables, haylofts or prisons.

 “Citizen, use Turkish product” campaigns which have been continually promoted as a part of Turkification is aimed for troubling non-Muslim businesspeople. The names of these campaigns would later change as “Citizen, use local products”. In the first half of 1950s, as a result of the Cyprus problem, “do not shop from non-Turks” campaigns were initiated.

In the misty environment of the Second World War, anti-minority policies were accelarated. In 1941, the measure of establishing labour batallions was put into practice for non-Muslims and stayed so for 18 months. This policy aimed at supressing non-Muslims by taking them away from their occupations. With this practice, roads were closed in Istanbul and people were sent to work camps after their identity cards were inspected. Besides these camps, these people were assigned to contractors who were building tunnels or roads and mines as temporary workers. They were forced to dig holes and were told that these were their own graves. With the play in stage, victims were made to believe this. During the 18 months spent in fear of death, non Muslims were forced to work with the order that “forget Istanbul”. The number of those who died in very difficult and insanitary working conditions is not known. These people were kept away from their jobs for 18 months and most of them were excluded from business life. After this practice, it was easy to make these people accept Wealth Tax. Wealth Tax was enforced in 1942 as a mechanism of economic and cultural genocide.



In these practices, former Committee of Union and Progress members were on the front stage. Armenians were expected to pay a tax amounting to 232 per cent of the value of their belongings. The rate for Muslims was 4,92%. Those who could not pay these astronomic amount were sent to Erzurum to work in road building and snow cleaning in the winter and to the work camps in the hottest region of Anatolia in summer. It is not known how many of these wealth tax victims whose ages were over 50 died. Wealth Tax is a measure of economic and cultural genocide which extorted all belongings of minorities including their subsistence tools. [7] The last bloody pogrom would take place in 6-7 September 1955. In 6-7 September, a huge looting attack against Greek citizens was organized in Istanbul to enforce Turkey’s hand in the tripartite conference in London for Cyprus Issue. The results of the events soon came out. According to Turkish media, 11 people were killed, but only the names of 3 people were declared. The number of those who were injured was 50 according to official numbers, according to non-official accounts it was 300. Just in Balikli Hospital, 60 women were treated for rape. It is estimated that more than 200 women were raped. During the events, many buildings were attacked; 5.300 according to official numbers, around 7.000 according to non-official accounts. The minimum estimate of financial loss was 150 million liras, the maximum was 1 billion liras in value of that time.



Those people who had to leave their historical lands during these events left everything behing and headed to uncertainty.

36 Declaration was a document prepared for eliminating the threat of sharia and for keeping Islamic foundations which were economic basis of these in order. During this practice, non-Muslim foundations too were asked to present a list of their assets. This beyanname was remembered to pressure non-Muslims due to the Cyprus Issue and was transformed into a confiscation measure. An official document was sent to non-Muslim foundations: bring your foundation contract! These foundations do not have contracts since they were established directly by firmans issued by sultans. Foundations General Directorate claims that no foundation can be established without a contract and takes 1936 Declaration as foundation establishment contract. Thus, the properties that they obtained after 1936, including those were donated to them, were confiscated.

Non-Muslim Foundations’ cry was not heard for many years. These properties stayed in the hands of those who extorted them. It was only after the enactions of EU adjustment laws that there emerged an opportunity for the return of these confiscated properties. Several laws and decrees were enacted, but these regulations have not stopped confiscation or provided a legal ground for their return. Although they include some improvements in paper, they do not make any change in real terms beyond pretending that improvements are carried out for  the EU.

Regulations which came into force as a result of external pressure and this decree law which was enforced in this context, as a consequence of legal changes which were issued in the framwork of adjustment to the EU and the cases that were taken to the European Court of Human Rights, is far away from providing a legal basis fort he return of confiscated/appropriated properties of non-Muslim foundations because of its context. Amendments which were made with the pressure of the EU adjustment framework and this last decree law about non-Muslim foundations are regulations regarding non-Muslim foundations, but they do not bring a solution regarding the real nature of these problems and do not provide a ground fort he return of confiscated properties which were illegally seized.

Non-muslim community foundations can not claim their properties or register them. The immovable properties which were registered in 1936 Declaration and which are at the disposal of these foundations, but not registered on their names in the Land Registry are a problem fort hem. These immovable properties are used by non-Muslim foundations but are registered as properties of third parties in the Land Registry. This immovable properties are registered as belonging to 1. people with nicknames, 2. people with fictitious names, 3. people who had donated these properties or left them to a foundation in their wills, but still seem as the owners.

1913 yılına kadar taşınmazlar hukuken vakıf adına tescil edilemiyordu, çünkü bunların tüzel kişiliği yoktur. Bu imkân 1912 tarihinde kabul edilen geçici kanunla getirilerek vakıflara tüzel kişilik tanınmıştır Bu nedenle, bu tarihe kadar gayrimüslim vakıfları bu taşınmazları mecburen ya cemaatin ileri gelen kişilerinin veya rahiplerinin adına tescil ettirmişler (nam-ı müstear), yahut da kimi azizlerin adına mesela “Meryem binti Ovakim” (Ovakim kızı Meryem) veya “Kapriyel veled-i Asadur” (Tanrı’nın oğlu Cebrail) adına yazdırmışlardır (nam-ı mevhum). Hazine dava açınca ve Kapriyel veled-i Asadur mübaşirin bütün bağırmalarına rağmen duruşmaya gelmeyince taşınmaz mal Hazine’ye geçmiştir. Zaten Hazine, özellikle bu durumdaki taşınmazlar için dava açmaya özen göstermiştir. AB  Uyum yasaları çerçevesinde yapılan değişikliklerden sonra yapılan başvurularda,  malikleri nam-ı müstear ve nam-ı mevhum olarak gözükenlerin tescil talebi Vakıflar Genel Müdürlüğü tarafından reddedilmiştir.

Until 1913 these immovable properties cound not be registered in the names of foundations in legal terms, because they were not corporate legal institutions. This opportunity was given with a temporary law which recognized them as legal corporate bodies in 1912. Because of this, non-Muslim foundations had registered these properties as belonging to the leading members of the community or the priests, or given the names of some saints like Meryem binti Ovakim (Ovakim’s daughter Miriam) or Kapriyel veled-i Asadur (God’s son Gabriel).  When the Treaury take the case to the court, and when the angel (Kapriyel veled-i Asadur) did not come to the court hearings no matter how loud their names were cried in court halls, the property was transferred to the Treasury. The Treasury especially targeted properties like this to start the judicial process. In applications carried out after the changes in the framework of adjustment ot the EU, registration requests of those properties whose owners are nicknames was denied by the Foundations General Directorate.

There also happen wierd events: some foundations find real persons (like Ovakim’s daughter Miriam) named as saints to ensure that the property will continue to be at the disposal of the foundation though it can still not be registered in its name and apply to the court for registering the properties in their name. Miriam who registers in her own name sometimes do not care about her part of the deal and seizes the property herself.

Foundations General Directorate turns appropriating the administration of non-muslim foundations into a consistent measure without court ruling by deciding that they “no longer make charity service”. This practice is a clear breaching of the article 40 of Lausanne Treaty and the article 90/5 of the constitution. Moreover, this systemic appropriation is realized by the prevention of elections and then by confiscation of properties which the claim that the foundations fail to organize elections properly.

What is more there is not an institution for appeal against these systemic extortions. There is neither a regulation, nor an effort for a draft bill in terms of returning all these properties which were appropriated through illegal means or their restitution.

Most of the cases related to the properties that are registered in the 1936 Declaration but still in a problematic situation in terms of ownership are taken to the ECHR in Strasbourg. Turkey accepted ECHR as a judicial authority in 1987 and stated that the problems that took place before this date can not be taken to this court. On the other hand, as the confiscation of foundation properties began in the late 1960s and constitutes a “continious breach” due to the fact that these properties were not returned to their owners, these cases can be taken to the ECHR and the court accepts applications in this basis: the title deed taken by the Fener Greek High School Foundation in 1952 and 1958 were cancelled by a court decision in 1996 and the immovable property was appropriated by the Treasury. Facing dead ends in the national legal system, the foundation took the case to the ECHR in 1997 and as a result of this legal process it was entitled to take 910.000 Euro restitution from the state. As usual, citizens of Turkey pursue their rights abroad as Turkey denies these in the domestic field. As it is not possible to ensure the rights of citizens of Turkey from various religious communities whose rights are continiously violated in Turkey, international courts are expected to solve this kind of problems.

According to the temporary article number 11 of the bill law, the foundation properties which were registered in the 1936 Declaration but the owners of which were not stated in official documents and those properties which were registered in the 1936 Declaration but which were appropriated for confiscation, sale and barter were excluded. The properties which were appropriated through confiscations that were carried out as extortions were then given to public institutions and private bodies. Pangalti Armenian Cemetery (Surp Hagop Cemetery) is an example of this extortion. Today there are many buildings belonging to private or public bodies, Turkish Radio and Television, Military Museum, Hilton Otel and Divan Hotel, in the land of this cemetery which was appropriated through confiscation. This property which is located in the most precious center of Turkey can not be re-claimed or returned, as it was confiscated in 1934. The temporary regulation does not iclude these kind of cases which happened before the enaction of 1936 Declaration. This bill law does not present a solution for the confiscated properties which were not registered in the 1936 Declaration.

The exclusion of sale and barter is another measure that legitimizes extortion. It is very well known that the state appropriated the community properties, then sell them or returned them to their former owners for re-sale. The return of these properties is also out of regulation in this bill law.

It is also not possible to claim those properties which were confiscated and registered for a foundation despite being included in the 1936 Declaration. Among those are the Beyazit Veli and Ayazpasa foundation which were added to the Surp Hagop Cemetery.

It is also not possible to claim those properties which were confiscated by Foundations General Directorate for various reasons despite being included in the 1936 Declaration:

The bill law also does not mention any arrangement regarding the return of cemeteries and fountains which were registered in 1936 Declaration but registered as belonging to public institutions.  First of all, these cemeteries were devolved to local governments in order to be used as food markets, bazaars for the sale of wood, coal and animals in the 1920s, despite the fact that they were protected by the Lausanne Agreement. [8] With some decrees cemeteries were given to local governments, but the stones and marbles of graves were excempted. [9] Marbles and stones were used in doceration. Despite the fact that the government of Turkey guaranteed to “protect cemeteries of non-Muslims in full terms” in Lausanne article 42/3, many public buildings and Sabanci Mosque were constructed upon Adana Armenian Cemetery. Secondly, as cemeteries were not considered as properties, they were not registered.

Besides these, for taking a property, which carries all these conditions, back, a foundation needs to get a positive opinion statement from Foundations General Assembly, as this additional condition is “indexed to the conjoncture”, the return is very difficult in practice.

The fact that non-Muslim foundations were not allowed to acquire properties which were not listed in the 1936 Declaration for a long while, there are many problems regarding returns. These are properties, like Tuzla Armenian Camp, which were confiscated by the state and returned to their former owners or their legal heirs, who had donated or sold them to the foundations. Secondly, the return of those properties which were decided to be returned to their former owners but were transferred to the Treasury as their former owners could not be found for 10 years is out of question. Thridly, there are those properties the deeds of which were cancelled by courts and thus taken away from foundations. Fourth, the current regulations do not mention the return of properties which were confiscated with the claim that the foundations were not corporate bodies. The term of ‘with the condition of not being allowed to acquire property` is very problematic, because it is possible to claim restitution if the property went directly to the state, but if another owner was involved in the process through claims as “recovery of former registration” it is not possible to claim these properties.

Temporary article 11 is far away from improving the regulation prepared in 2008: First of all, by stating that “new foundations shall be established in accordance with the Civil Code”, it prevents the establishment of new non-Muslim foundations, because the article 101/4 of the Civil Code states that: “a faoundation to support members of a particular race or community can not be established.” Secondly, it abolishes the election of director cadres in recorded foundations. In practice till today, Foundations General Directorate foundation elections and then appropriated these foundations with the justification that they have not carried elections properly. Thirdly, in order to establish international relations, this is required to be written in the foundation contract. Non-Muslim foundations do not have contracts, they were established with firmans and non-Muslim communities can not establish new foundations according to the article 101/4 of the Civil Code. Last but not the least, the term of “properties at their disposal” in the temporary article 7 is very problematic, because those properties which were registered in 1936 Declaration but were taken away from them is not at their disposal. A slight change of conjoncture carries the risk of the exclusion of confiscated properties which are not at the disposal of these foundations.

Kararname uzun gasp yılları içindeki kira vs gelirlerinin ne olacağına ilişkin bir düzenlemeden yoksun olup,  bu gelirleri haksız yere toplanmasına karşı ne yapılacağına dair bir hüküm içermemektedir. Kısaca müsaderenin yasallaştığını ve vakıf mallarının kapanın elinde kalmasına göz yumulmaya devam ettiğini kolaylıkla söylemek mümkündür.

The Decree does not bring any regulation about the rent revenues of long extortion years, and does not include any articles regarding what will be done against unlawfull collections of these revenues. In sum, it is possible to say that confiscation becomes legalized and the toleration against those who take their share from the cake of the properties of foundations continues.



[1] Başbakanlık Cumhuriyet Arşivi (BCA) 30.18.1.1/12.72.7
[2] BCA 30.18.1.2/13.57.14, 30.18.1.1/30.50.16, 30.18.1.1/ 20.47.6
[3] BCA 30.18.1.1/26.67.13
[4] BCA 30.18.1.1/3.35.15
[5] BCA 30.18.1.2/40.78.2
[6] BCA 30.12.1.2/84.79.8
[7] Sait Çetinoğlu, Varlık Vergisi 1942-1944, Ekonomik ve Kültürel Jenocid, BelgeY. 2009
[8] BCA 30.18.1.1/19.43.19, 30.18.1.1/21.65.11
[9] BCA 30.18.1.2/24.72.12