by the Hon. B. Theodore Bozonelis | ελληνικά | ру́сский

Despite the world-wide recognition of the status of His All-Holiness Ecumenical Patriarch Bartholomew as the spiritual leader of all Orthodox Christians, the government of Turkey will give no legal standing and status to the Ecumenical Patriarchate, the historical Holy Center of Orthodox Christianity at the Phanar, in Istanbul. The lack of legal standing and status in essence nullifies property and other fundamental civil rights in Turkey for the Ecumenical Patriarchate which precludes its full exercise of religious freedom. The Ecumenical Patriarchate cannot own in its name the churches to serve the faithful or the cemeteries to provide for their repose. Since it lacks a legal standing, the Ecumenical Patriarchate is powerless to pursue legal remedies to assert property rights or even seek to repair deteriorating property without government approval.

Instead and in lieu of legal standing, Turkey has established a system of minority (community) foundations for Orthodox Christians and other non-Muslim religious minorities to hold properties supervised and controlled by the Turkish government’s General Directorate of Foundations. The Directorate regulates all the activities of religious community foundations which include approximately 75 Greek Orthodox, 42 Armenian and 19 Jewish foundations. The 1935 Law on Religious Foundations, and a subsequent 1936 Decree, required all foundations, Muslim or non-Muslim, to declare their properties by registering the same with the General Directorate of Foundations.

Through its controls, the government of Turkey has nationalized and/or declared certain Greek Orthodox and other religious minority foundations as non-functioning with no right of appeal. This resulted in the systematic seizure of thousands of properties of Christian and other non-Muslim religious minorities in the years that followed, including thousands of income producing and valuable properties of the Ecumenical Patriarchate. In 1936 the Ecumenical Patriarchate, its churches and institutions, owned approximately 8,000 properties. In 1998, 2,000 remained and today fewer than 500 properties are owned by minority foundations loyal to the Ecumenical Patriarchate, most of which are churches, cemeteries, or other properties which produce no income.

With Turkey seeking accession to the European Union, it sought to improve the property restrictions on non-Muslim religious minority foundations. In this regard, the 1935 Law on Religious Foundations was amended during the years of 2002 to 2008 to allow religious minority foundations, with restrictions, to acquire properties and apply for the return of confiscated properties. Within this historical context, Turkey’s then Prime Minister, Recep Tayyip Erdogan (now President), also announced by Decree, not parliamentary law, on August 27, 2011, that 162 recognized minority foundations may apply to regain religious properties declared and registered in 1936 and confiscated from them by the state or they could seek compensation. The Decree provided that applications to regain properties generally had to be made within 12 months—by August 27, 2012— and regulations for implementation were adopted October 1, 2011.

Of the 162 recognized minority foundations, more than 70 Greek Orthodox foundations claimed and timely submitted applications for more than 1200 properties in issue. Of these applications, more than 300 were accepted, and some 900 were rejected. Of the applications that were accepted, few resulted in the actual transfer of title and few were income producing properties. Although disputed by Turkey, religious minorities reported that administration by the General Directorate of Foundations was slow and arbitrary as even accepted applications were not always processed. The August 27, 2012 submission deadline also did not allow sufficient time to submit the required volume of paper work for most of the property applications. This was further complicated by the fact that local Turkish Government offices did not timely respond to requests for title documents which prevented processing within the deadline.

In addition, the Decree is limited. Properties not declared by religious minority foundations under the 1936 law are not covered. Also, certain religious institutions, including Catholic churches, do not have foundations or a legal status and are not covered. Most important, it does not address the properties of seized religious minority foundations that the government took over because of its claim of lack of foundation management or charitable purposes. Further, under the Decree, the determination of compensation, when in issue, is not made by an independent body but rather by the government.

Accordingly, despite Turkey’s claims that the value of properties returned to all non-Muslim religious minorities exceeds one billion dollars, the application procedures in reality proved to be more form over substance. In the end, it was not just the number of properties returned to foundations loyal to the Ecumenical Patriarchate or other religious minority foundations that mattered, but the quality of properties returned. If properties are not income producing, they cannot be properly maintained. In this regard and of most importance, the Turkish government continued to delay or allow the election of religious minority foundation board members to manage the properties. Without functioning religious minority foundations, the return of property is meaningless because the properties, under existing Turkish law, cannot be managed effectively. Turkish law also restricts the eligibility of Orthodox Christians who wish to serve as religious minority foundation board members to manage the foundations. Clergy are not allowed to serve. With the significant decline in population of Orthodox Christians eligible to be elected board members, the religious minority foundations will not be able to sustain returned properties. With the lack of legal standing and status, the government then has the ability to declare the property abandoned and seize the same without compensation.

While Turkey points to the fact that its Sunni Muslim majority religion also lacks a legal personality, the Sunni Muslims are treated in a more favorable manner. For all practical purposes Sunni Muslims have a “legal status” exercised through The Diyanet or Directorate ( Presidency ) of Religious Affairs of the government which is all Sunni Muslim, and in effect controls the exercise of religious freedom in Turkey. The Diyanet administers mosques which must be all Sunni and oversees all its religious training schools. It obtains billions of dollars from the government to function. Imans and other religious employees are paid by the government. Without any such financial support combined with the lack of a legal status, non-Muslim religious minorities, including the Ecumenical Patriarchate and Turkey’s Alevi Muslim minority, have difficulty in exercising religious freedom without sufficient foundation properties to produce income. The General Directorate of Foundations in its administration has limited the financial viability of religious minority community foundations.

The European Court of Human Rights (ECHR) has been an alternative avenue to pursue Christian and other non-Muslim religious minority property rights in Turkey. For example, after extensive litigation, the Ecumenical Patriarchate obtained a ECHR Judgment in 2008 for the return of the Prinkipos (Buyukada) Orphanage Building. The Judgment produced in November 2010 a deed title for the property in the name of Rum Patrikhanesi, Patriarchate of the Roman Greeks, the official name for the Ecumenical Patriarchate used by the government of Turkey. The deed title as issued and accepted by the Turkish courts in the name of Rum Patrikhanesi in effect created a de facto legal status. It established a legal argument to further the cause of obtaining official recognition of a legal personality for the Ecumenical Patriarchate and all religious minorities.

Also, in March 2011, Turkey implemented a ECHR Judgment of March 2009 which returned property rights to the Greek Orthodox minority foundation, Kimisis Theodokou Greek Orthodox Church, on the island of Tenedos (Bozcaada).

Further, a significant ECHR case was settled in 2013 whereby the General Directorate of Foundations returned the historic former Ayia Foka Greek Elementary School building in Istanbul to the foundation despite the fact that it was utilized as the offices of the government’s European Union Ministry.

However, the government of Turkey has refused to recognize these developments as confirming legal status and has failed to register additional properties in the name of the Ecumenical Patriarchate. The lack of legal status persists. This is in stark contrast to Turkey’s international and national human rights obligations.

Turkey is a member of the United Nations, Council of Europe, NATO, Organization for Security and Cooperation in Europe (OSCE) and in 2005 began formal accession negotiations to join the European Union. Moreover, by virtue of its membership in all these organizations, Turkey has taken on binding obligations to protect the rights of religious minorities.

As a participating state in OSCE, Turkey has obligations under Article VII of the Helsinki Accords to guarantee and protect the rights of national minorities. The Concluding Document of the 1989 Vienna Meeting of the organization requires participating states to protect the rights of religious communities. As a member of the Council of Europe, Turkey has ratified the European Convention on Human Rights and Fundamental Freedoms. Article 9 of the Convention requires Turkey as a member state to protect freedom of religion, including the right to manifest religion in worship, teaching, practice, and observance, subject only to limitations as necessary in a democratic society in the interests of public safety, for the protection of the public order, health or morals, or for the protection of the rights and freedoms of others.

In the Treaty of Lausanne of 1923, Turkey guaranteed freedom of religion to its non-Muslim religious minorities. Articles 40 and 42 granted non-Muslim religious minorities autonomy and legal status.

“All facilities and authorisation will be granted to the pious foundations, and to the religious and charitable institutions of the said minorities at present existing in Turkey, and the Turkish Government will not refuse, for the formation of new religious and charitable institutions, any necessary facilities which are guaranteed to other private institutions of that nature.” (Article 42, para. 3).

With the lack of legal standing on property rights for the Ecumenical Patriarchate and other non-Muslim religious minorities, these rights have not been respected by Turkey. History has also shown that the Ecumenical Patriarchate itself has been further deprived of other significant properties by virtue of its religious identity.

During the time of the Treaty of Lausanne negotiations, the Turkish delegation demanded that the Ecumenical Patriarchate be removed from Turkey as it symbolized the last remnants of an international Christian and Greek religious presence in Turkey. Further, at that time, a bill was introduced in the government of Turkey to establish a so-called Turkish National Orthodox Church to counter the Ecumenical Patriarchate. This attempt to create a Turkish National Orthodox Church with government support was led by a since excommunicated village priest known as “Papa Eftim,” who in 1922 proclaimed a “Turkish Orthodox Patriarchate” with no authority, recognition or congregation.

The status of the Ecumenical Patriarchate to be recognized and remain in Turkey was finally settled by the Treaty of Lausanne in 1923 and reaffirmed by a League of Nations Settlement in 1930. However, this unrecognized priest, with Turkish government support, had seized in the interim Ecumenical Patriarchate churches and properties in the Galata region of Istanbul that his family descendants continue to hold to date. The Ecumenical Patriarchate has repeatedly called upon the government of Turkey to return the churches and properties unlawfully seized but to no avail.

Further complicating religious freedom, property and fundamental rights for Christian and other non-Muslim religious minorities is the recent political unrest in Turkey. In July 2016, an attempted coup against the government of Turkey took place by an alleged faction of the military which Turkey blamed on Fethullah Gulen, a Muslim cleric and his followers. The government called on Turkish citizens to flood the streets and thwarted the coup. Thereafter, Turkey called for the extradition of Fethullah Gulen who now resides and is based in the State of Pennsylvania. A massive government crackdown occurred, that resulted in an estimated 9000 police fired, 6000 military arrested, 3000 judges suspended, 21,000 teachers suspended, and 1500 university deans ordered to resign. Turkey ordered a 3-month state of emergency followed by the government shutdown of 45 newspapers, 16 television channels, and 15 magazines.

As the above significant events unfolded in Turkey, false and derogatory articles were reported in Turkey and Greece seeking to tie His All-Holiness Ecumenical Patriarch Bartholomew to Fethullah Gulen and the failed coup. The intent was to disparage the Ecumenical Patriarchate and further inflame an anti-Christian climate in Turkey. Although the Ecumenical Patriarchate is committed to the resolution of all issues of religious freedom and property rights peacefully and within the existing government in Turkey, the false reporting threatens the progress to seek additional property rights and religious freedom for Orthodox Christians and other religious minorities.

In April 2017, Turkey’s Constitutional Referendum vote approved calls for 2019 elections that will replace Turkey’s parliamentary system with an all-powerful presidency and abolish the office of prime minister. The result will likely be to cement the absolute control of President Erdogan and his political ruling party. With absolute control coupled with Sunni Muslim dominance, Alevi Muslims, Christian, and other religious minorities fear further restrictions on religious freedom.

Turkey should embrace the historical roots of Christian heritage and other faiths in its lands. It should look upon His All Holiness Ecumenical Patriarch Bartholomew, and all religious minority leaders, and their institutions, for their accomplishments and their desire to live in peace with equal property and fundamental rights. Turkey seeks to join the European Union and has binding obligations to ensure religious freedom for the Ecumenical Patriarchate and other religious minorities that must be enforced. However, the recent political movement in Turkey toward Sunni Muslim uniformity in the government, education, and institutions throughout the country is cause for concern. The need continues for world-wide diplomatic efforts from other countries to exert political pressure on Turkey to require the government to comply with its binding human rights and religious freedom obligations. Legal standing and status for the Ecumenical Patriarchate and other religious minorities that will provide meaningful property rights is the first step.

The Hon. B. Theodore Bozonelis is a retired State Chief Judge and Secretary of the Order of Saint Andrew the Apostle, Archons of the Ecumenical Patriarchate. He is Chairman of the Order’s Patriarchal Properties and Minority Concerns Committee.

Public Orthodoxy seeks to promote conversation by providing a forum for diverse perspectives on contemporary issues related to Orthodox Christianity. The positions expressed in this essay are solely the author’s and do not necessarily represent the views of the editors or the Orthodox Christian Studies Center.