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