Identifier
Created
Classification
Origin
05ANKARA3887
2005-07-06 15:49:00
CONFIDENTIAL
Embassy Ankara
Cable title:  

REHN WARNS FM GUL THAT FOUNDATIONS LAW "FALLS

Tags:  PGOV PREL PHUM TU OSCE EU 
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This record is a partial extract of the original cable. The full text of the original cable is not available.
C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 003887 

SIPDIS

DEPARTMENT FOR EUR/SE

E.O. 12958: DECL: 07/06/2015
TAGS: PGOV PREL PHUM TU OSCE EU
SUBJECT: REHN WARNS FM GUL THAT FOUNDATIONS LAW "FALLS
SHORT"

REF: ANKARA 2750

Classified by Polcouns John Kunstadter; reasons 1.4 b and d.

C O N F I D E N T I A L SECTION 01 OF 03 ANKARA 003887

SIPDIS

DEPARTMENT FOR EUR/SE

E.O. 12958: DECL: 07/06/2015
TAGS: PGOV PREL PHUM TU OSCE EU
SUBJECT: REHN WARNS FM GUL THAT FOUNDATIONS LAW "FALLS
SHORT"

REF: ANKARA 2750

Classified by Polcouns John Kunstadter; reasons 1.4 b and d.


1. (C) Summary: EU Enlargement Commissioner Rehn sent a
letter to FM Gul warning that the GOT's draft Law on
Foundations "falls short of European standards" despite some
positive elements. Rehn states that the draft in its current
form would lead to numerous cases against Turkey in the
European Court of Human Rights (ECHR). The GOT official who
prepared the legislation insists that the draft is the best
the GOT can offer. The draft law would preserve a legal
framework that allows the State to expropriate property from
religious minority communities. End Summary.

--------------
Rehn: Draft Would Lead to ECHR Suits
--------------


2. (U) The Turkish Parliament was reviewing a draft Law on
Foundations (reftel) before going into recess July 4 without
adopting the legislation. MPs are scheduled to reconvene in
October. The bill is designed to address the longstanding
issue of the foundations and properties expropriated by the
Turkish State over the years from religious minority
communities.


3. (C) In his letter, dated June 13, Rehn tells Gul that the
draft "is an improvement on its predecessor" and includes
some positive amendments, but "still falls short of European
standards." Rehn warns that if the GOT adopts the draft in
its current form, it will pave the way for numerous cases
against Turkey in the ECHR. The law, according to Rehn,
appears to violate the European Convention on Human Rights
and would also "pose a major problem" regarding the revised
Article 90 of the Turkish Constitution, which establishes the
supremacy of international treaties over national law.


4. (C) Rehn further states that a "well-drafted" Law on
Foundations could play a crucial role in "ensuring the
functioning of non-Muslim communities in Turkey." He offers
the assistance of the Commission and the Council of Europe in
efforts to revise the draft to meet European standards.

--------------
GOT: Full Resolution Not Possible

--------------


5. (U) Yusuf Beyazit, General Director of the General
Directorate for Foundations (Vakiflar) and the draft's
principal author, insisted to us that the draft reflects the
best the GOT can offer under Turkish law. He said the GOT
cannot possibly allow religious minorities to reclaim the
foundations they have lost to the State, because the Muslim
majority would then demand the same rights. The Turkish
State has expropriated 41,550 Muslim foundations over the
years, and, he asserted, 59 non-Muslim foundations (Note:
When the State expropriates a foundation it also takes
control of its affiliated properties; the 59 non-Muslim
foundations possessed hundreds of properties. End Note).
Approximately three quarters of Turkish territory once
belonged to foundations; if the GOT were to give it all back
there wouldn't be much left, he said.


6. (C) Rehn attached to his letter a Commission analysis of
the draft, which outlines the shortcomings of the law. In
the analysis, the Commission notes that the European
Convention on Human Rights requires states to provide
compensation for expropriated property that cannot be
returned. Beyazit said the issue of compensation is beyond
the scope of the Foundations Law, and would have to be
addressed by the judiciary. Nevertheless, he averred that it
would be "impossible" to provide compensation for the many
thousands of expropriated properties.


7. (U) Beyazit is clearly frustrated by the bill's critics,
who he believes are overlooking the positive aspects of the
draft. He said the bill would loosen a number of
restrictions on foundations, enabling them to recover a
significant number of properties, and to buy and sell
properties tax free.


8. (U) He pledged that once the bill is passed he will adopt
a regulation allowing the non-Muslim communities to use the
expropriated churches and synagogues for an indefinite
period. He acknowledged, however, that the Vakiflar will
continue to control the rent-generating properties, such as
apartment and office buildings, that have been expropriated.

--------------
EC: Draft Undermines Religious Pluralism
--------------


9. (C) In its analysis, the Commission repeats the
criticisms, reported reftel, that have been raised by
representatives of the Christian and Jewish communities. The
Commission further states that the draft in general gives
foundations more control over their affairs and property,
simplifies the procedures for establishing foundations, and
reduces State interference in the everyday running of
foundations. However, according to the Commission, the draft
maintains a legal framework that has "led to the undermining
of religious pluralism within Turkey" and fails to protect
the rights of religious communities.


10. (C) Ata Sakmar, attorney for the Greek Orthodox
community, told us he shares the concerns about the draft
legislation, but believes the real problem lies deeper. Even
under the current legislation, GOT authorities could resolve
the problem if they had the will to do so. But as long as
the State views religious minorities as a threat, no
legislation, no matter how flawless, will enable the
communities to reclaim their lost properties and foundations,
he said.


11. (C) Sakmar said the new law will likely enable the Greek
Orthodox and others to reclaim some properties currently out
of their reach. But he said there can be no real solution as
long as the State remains unwilling to return seized
foundations and agree not to expropriate more in the future.

--------------
ECHR - A Solution?
--------------


12. (C) Emre Oktan, a Galatasaray University law professor
and expert on religious minorities, told us the draft law is
"not a disaster, but not good either." Oktan believes the
ultimate solution lies with the ECHR. He said the property
expropriations clearly violate the European Convention on
Human Rights. In the past, the ECHR was viewed as a vehicle
for Kurdish "separatists." Religious minorities were wary of
appealing to the court, for fear of being labeled traitors.
Today, Oktan believes, the ECHR's authority is more accepted
in Turkey. Though the process will take several years, the
non-Muslim communities are sure to win at the court, thereby
forcing the State to more seriously address the property
issue, he claimed.


13. (C) Sakmar is not so sure. He noted that the GOT has a
history of failing to comply with ECHR rulings, and he doubts
that the court's authority would be sufficient to force a
change in the State's approach.

--------------
Comment
--------------


14. (C) Beyazit points to a fatal flaw in the GOT's approach
to this issue -- resolution of this deep-rooted problem is
beyond the Vakiflar's authority. He has been struggling with
this draft for nearly a year, during which EU diplomats have
repeatedly panned various versions of the draft. He lacks
both the influence and the imagination to propose a solution
that would meet European (or Western) standards of religious
freedom. If the GOT were serious about the issue, he
wouldn't have to. Instead of providing the leadership needed
to enact the kind of landmark reforms that a solution would
require, top GOT officials have left Beyazit to work the
issue alone. In our meetings with FM Gul, State Minister
Aydin, and others, they have professed to be only vaguely
familiar with the property issue.


15. (C) Unlike many of our GOT contacts who deal with
religious minorities, including at the MFA Greece Desk and
the Vakiflar branch in Istanbul, Beyazit does not display
open animosity toward these groups. Nevertheless, he heads
one of the State institutions most despised by reform
advocates, and he has a very narrow concept of religious
freedom. Since the early days of the Republic of Turkey, the
Vakiflar has played a leading role in making religious
minorities feel unwelcome. The agency has made every effort
to undermine recent EU reforms relating to the rights of
religious minorities, implementing the new laws in such a
narrow way as to render them nearly useless. Neither Beyazit
nor any other Vakiflar director can be expected to draft a
law that would reduce the agency's broad powers.
MCELDOWNEY