Is there such a thing as a church in Turkey?
by
ORHAN KEMAL CENGİZ

The following definition by Wikipedia is quite clear and inclusive: “Legal personality [also artificial personality, juridical personality and juristic personality] is the characteristic of a non-human entity regarded by law to have the status of a person. A legal person has rights, protections, privileges, responsibilities and liabilities under law, just as natural persons [humans] do.”

Under the Turkish legal system (if we set aside political parties established to come to power and unions founded by workers), three forms of legal personalities exist: companies, associations and foundations. It is quite clear that a church cannot be organized in the form of a for-profit business. This leaves us with two types of legal personalities: associations and foundations. The efforts of Christian communities to establish organizations under these two forms of legal personality have formerly met with serious obstructions in Turkey.

Due to amendments made within the framework of EU harmonization laws (2004-2008 amendments), restrictive provisions in the Law on Associations and the Law on Foundations were eliminated and non-Muslim groups achieved the means of obtaining legal personality, even if not in an entirely satisfactory form. Whereas there were previously verdicts indicating that foundations and associations could not be established on behalf of a congregation, today some foundations and a number of associations in various provinces established by non-Muslims are in operation. While this unquestionably represents a step forward, it cannot be said that these associations and foundations fully meet the needs of the congregations in question. Turkey’s laws and legal practices are in conflict with the main model in Europe, which is that religious communities and institutions are recognized as such and “allowed to register and obtain legal personality, without having to go [indirectly] by way of other institutional arrangements.”

It is evident that Turkey’s restrictive understanding of legal personality is also in conflict with the European Court of Human Rights’ (ECtHR) general approach to this issue. In the case of Hassan and Tchaouch v. Bulgaria, the ECtHR made the following assessment regarding the importance which freedom to organize holds for religious congregations and of the scope of this right:

“The court recalls that religious communities traditionally and universally exist in the form of organized structures. They abide by rules which are often seen by followers as being of a divine origin… Where the organization of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the Convention which safeguards associative life against unjustified state interference and is thus an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organization of the community as such but also the effective enjoyment of the right to freedom of religion by all its active members. Were the organizational life of the community not protected by Article 9 of the Convention, all other aspects of the individual’s freedom of religion would become vulnerable.”

As happened to many things, Turkey’s indirect way of recognition of the churches is quite tricky. Turkey does not recognize the church or the congregation itself. Instead, through these associations and foundations, only their “legitimate” aim of establishing the church is recognized. I tried to explain how tricky Turkish laws are when it comes to establishing a place of worship in my previous articles. Here, we have a similar complexity (and actually the simplicity of non-recognition) for the legal personality of churches.

Allowing non-Muslims to establish associations and foundations is a positive step forward. However, it is still clear that, in their present form, associations and foundations that can be established do not meet the needs of these congregations. An “association” refers to a group of people who have come together around a particular objective, while a “foundation” refers to the allocation of particular property for a particular objective. It is quite evident that a religious institution remains outside of both of these purposes.

Furthermore, the special structural and organizational needs of religious institutions necessitate the existence of civil law pertaining to religious institutions. All the needs of religious institutions -- hiring clergy, collecting donations, holding religious services, providing training and the like -- exhibit the need to develop a new understanding of legal personality that preserves the unique structure of these institutions.