US embassy cable - 05ANKARA3887

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 Accession 
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. 
 
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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. 
 
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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. 
 
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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. 
 
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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. 
 
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Comment 
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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