1. Introduction
1. On 17 March 2006 the Parliamentary Assembly decided
to refer to the Committee on Legal Affairs and Human Rights for
report the motions for resolutions on freedom of religion and other
human rights of non-Muslim minorities in Turkey (
Doc. 10714, Reference
3203) and the difficult situation of the Turkish Muslim minority
in Western Thrace, Greece” (
Doc.
10724, Reference 3203). The committee appointed me rapporteur on
13 April 2006.
2. The question of the freedom of religion and other human rights
of non-Muslim minorities in Turkey and the Muslim minority in Thrace
was presented to the Committee on Legal Affairs and Human Rights
from the legal angle derived from the Treaty of Lausanne. The committee
was able, at its meeting of 23 June 2008, to hear Ms Asli Bilge,
a lecturer at the University of Yeditepe (Istanbul) and research
assistant at the CNRS Centre for Politics, Religion, Institutions,
Society and Transformation in Europe (PRISME), Mr Konstantinos Tsitselikis, Assistant
Professor of Human Rights in the Department of Balkan, Slavic and
Oriental Studies, University of Macedonia (Greece), and Mr Alain
Chablais, Executive Secretary
ad interim,
Framework Convention for the Protection of National Minorities (Council
of Europe).
3. I would first of all like to mention the valuable assistance
provided by my colleagues in the Greek and Turkish delegations during
my visits to the area in question, and would express my sincere
gratitude to them.
4. As my hosts will have realised during our talks there, I would
like this memorandum to help build a better future for the members
of the minority communities in both countries. This will necessitate
greater understanding, better mutual knowledge, increased mutual
respect and also reinforced economic development in some of the
regions covered by this report.
5. I realise just how sensitive these matters are to both Greece
and Turkey. Because of the legacy of history, the minorities issue
carries an enormous emotional charge which must be taken into account.
There is no question, either, of coming down in favour of one side
or the other; this is not what I am seeking to do:
5.1. The ambition of the Council
of Europe has always been to strive for respect for democratic ideals and
human rights. The question of religions and minorities is a key
issue for the beginning of the 21st century.
5.2. The role of the Council of Europe is to promote knowledge
and understanding of religions in order to contribute to a peaceful
coexistence of the three monotheistic religions in particular.
5.3. Armed conflicts and terrorist attacks have distorted the
very essence of Islam, triggering an upsurge in Islamophobic acts.
5.4. Combating anti-Semitism is more topical than ever.
5.5. Christians in certain regions of Council of Europe member
states are in danger.
6. It is in this context that the rapporteur wishes this report
to contribute to better understanding of the situation of religious
minorities in these two important countries, Greece and Turkey.
7. It is in this spirit, and inspired by this objective, that
the Parliamentary Assembly’s Committee on Legal Affairs and Human
Rights decided to turn its attention to the situation of religious
minorities in two of the Council of Europe’s important member states,
Greece and Turkey.
8. In these countries with long religious and cultural traditions,
cradles of civilisation on the shores of the Mediterranean, where
churches and mosques stand in close proximity, three monotheistic
religions coexist in a spirit of tolerance and mutual understanding
which, in these early years of the 21st century, is sometimes called
into question, to the sadness of the minorities.
9. This report is intended to reaffirm the primacy of secularism,
while taking into account the reality of religions, membership or
practice of which must not be subject to any impediment.
10. I would urge the parties involved to look to the future in
a constructive spirit, so that together we can write a new chapter
in the history of mutual understanding among nations and religions.
11. To that end I would like to quote one person who said something
very touching during my visit to Thrace: a young member of the minority
there told me, “I don’t want to be labelled. I want us to be able
to know others for what they are, not for what religion they belong
to”.
2. Historical
and legal context
12. The aim of this report is not to judge past history
but to analyse the current situation of the minorities in question,
although it is impossible to address this issue without some reference
to the historical background. The tenor of relations between Greece
and Turkey during the 20th century was the main determining factor
in the treatment of their respective minorities. The following eminently
non-exhaustive outline is geared to improving our understanding
of the present situation.
13. Two main conventions have determined the treatment of the
minorities covered by this report.
14. The first was the convention on the compulsory exchange of
populations
signed
by Greece and Turkey in Lausanne in January 1923, which exempted
Muslim Greek citizens living in Western Thrace and Greek Orthodox
Turkish citizens living in Istanbul (and Gökçeada and Bozcaada)
from the compulsory exchange. The present
existence of these two minority groups originated from this exemption.
15. The second was the Treaty of Lausanne (signed on 24 July 1923),
which granted the non-Muslim minorities in Turkey certain rights
(Articles 37 to 44). Greece granted the same rights to its Muslim
minority (Article 45). In neither case does the Treaty of Lausanne
give a definition of the minorities concerned or situate them geographically.
16. It is important to note that in 1923, when the Treaty of Lausanne
was concluded, both minority populations exempted from the population
exchange were comparable in size in both countries (that is, 120 000
Muslims in Greece and 120 000 Greek Orthodox in Turkey).
17. Today, the Muslim minority in Thrace
has an
estimated membership of between 80 000 and 120 000, whereas there
are now only between 2 000 and 4 000 Greek Orthodox in Turkey, mainly
concentrated in Istanbul.
The majority of the Greek
Orthodox community in Istanbul were forced to leave Turkey, particularly after
violence prompted or tolerated by the authorities in 1955.
18. The Treaty of Lausanne guarantees equal treatment of members
of minorities and the majority (Articles 38 and 39). It also confers
special rights on Turkish citizens belonging to non-Muslim minorities
(mutatis mutandis vis-à-vis
the Muslim minority living in Greece) (Articles 41 to 43).
19. The convention on compulsory population exchange thus “created”
the minorities which are the subject of this report by exempting
them from the exchange, while the Treaty of Lausanne “institutionalised”
the protection of their rights.
2.1. Background to and
identity(ies) of the minorities
20. Turkey has a population of 72 600 000, very largely
made up of Muslims, the majority of whom are Sunni
(99% of the population
is Muslim according to the Turkish Government, somewhat less according
to the Mazlum-Der NGO and the representatives of minority religious
communities).
21. There are no accurate data on non-Muslim religious minorities,
but Armenian Gregorian Christians are estimated at 65 000, Jews
at 23 000 and Greek Orthodox Christians at between 2 000 and 4 000.
Moreover, 10 000
Baha’is,
15 000
Syrian (Syriac) Orthodox Christians,
5 000
Yezidis, 3 300 Jehovah’s Witnesses, 3 000 Protestants and a small
indeterminate number of Bulgarians, Chaldeans, Nestorians, Georgians, Catholics
(Roman Catholic Church) and Maronite Christians reportedly also
live on Turkish territory. Christian organisations estimate that
there are some 1 100 Christian missionaries in the country.
22. A distinction must be drawn between the minorities officially
recognised by the Turkish state, which have special legal minority
community status and consequently a whole series of rights, and
those lacking such status. The officially recognised minorities
are the Greek and Armenian Orthodox Christians and the Jews.
23. The Muslim minority is the only minority officially recognised
in Greece (by virtue of the provisions of the Treaty of Lausanne).
The Muslim minority in Thrace is estimated to number between 80 000
and 120 000 individuals in a region with a total population of 362 000,
that is, they account for 29% of the local population and 0.92%
of the total population of Greece (10 620 000). The minority is
made up of three different ethno-linguistic population groups: Turkish-speaking
Muslims of Turkish origin (40% to 50%), Pomaks (an indigenous population
who speak a Slav dialect and who converted to Islam under the Ottoman
Empire) (35% to 40%) and Roma/Gypsy Muslims (15% to 20%).
The
status of the Muslim minority derives mainly from the 1923 Treaty of
Lausanne.
2.2. The Treaty of Lausanne:
divergent interpretations
24. Although the two countries regularly refer to the
Treaty of Lausanne in connection with the issue of religious minorities,
their interpretations diverge on specific points.
• Turkey’s interpretation of
specific provisions of the Treaty of Lausanne
25. Whereas the Treaty of Lausanne uses the expression
“non-Muslim minorities” without specifying any particular minority,
the Turkish state grants minority status to only three communities
(Greek and Armenian Orthodox Christians and Jews).
26. Moreover, the Treaty of Lausanne does not mention the Greek
Orthodox Ecumenical Patriarchate of Istanbul or the Patriarch himself.
While senior officials of the Turkish Government often publicly
state that the use of the word “Ecumenical” in connection with the
Patriarch violates the Treaty of Lausanne, it would appear that
in private some acknowledge that the Treaty of Lausanne contains
no reference to this matter.
In a judgment of 26 June 2007,
the High Court of Appeal (Court of Cassation) recalled the government’s
public position on this question, namely the non-acceptance of the
use of the adjective “Ecumenical” by the Patriarch.
• The Greek interpretation of
specific provisions of the Treaty of Lausanne
27. The Treaty of Lausanne recognises a Muslim religious
minority in Thrace rather than a Turkish national minority.
The
Greek authorities use this fact to reject the use of the word “Turkish”
in the names of the relevant associations. The European Court of
Human Rights has found against Greece in several applications against
this rejection (paragraphs 142
et seq.).
2.3. The “reciprocity”
clause
Article 45 of the Treaty of Lausanne
“The rights conferred by the provisions of the present
Section on the non-Moslem minorities of Turkey will be similarly
conferred by Greece on the Moslem minority in her territory.”
28. Article 45 of the Treaty of Lausanne conferring on
the Muslim minority in Greek territory the same rights as on the
non-Muslim minorities of Turkey is the pivotal provision for relations
between Greece and Turkey in the field of protection of minorities
(or the deliberate failure to provide such protection, indeed aggression against
the minorities in question). Referring to “reciprocity”, each country
has in turn called into question some of those rights granted to
its citizens members of those minorities.
29. As stressed in the specialist literature, whereas the Treaty
of Lausanne establishes the reciprocity concept in positive terms,
it has been applied negatively in both countries.
30. The Turkish Constitutional Court has interpreted Section III
of the Treaty of Lausanne in accordance with the reciprocity principle:
Turkey will respect the rights of minorities conferred by this treaty
as long as Greece respects them. Such an interpretation would appear
incompatible with Article 45 of the treaty (which provides for parallel
rather than interdependent responsibilities vis-à-vis each state)
and Article 60, paragraph 5, of the Vienna Convention on the Law
of Treaties, which prohibits the reciprocity principle in the human
rights field.
31. The rapporteur would stress that the members of the minorities
in question are, in both cases, nationals of the countries in which
they reside. They therefore find it difficult to understand – for
reasons other than historical ones unconnected with the rights of
the individuals concerned – the relevance of the reciprocity principle.
Whereas Greece and Turkey, as kin states, may feel a certain responsibility
towards the members of the minorities in the neighbouring country,
it is in fact the countries in which the minorities live that are
primarily responsible for their own citizens, including the members
of the respective minorities, not the reverse.
32. It must be stressed that the European Court of Human Rights
has affirmed that the Convention transcends the framework of mere
reciprocity between the contracting states; in concluding the Convention
the contracting states wished not to confer mutual rights and obligations
on each other conducive to the pursuit of their respective national
interests, but to achieve the objectives and ideals of the Council
of Europe in order to protect their shared heritage of political
traditions, ideals, freedom and the rule of law.
33. The rapporteur consider that the recurrent use by both the
states concerned of the reciprocity principle to refuse to implement
the rights secured for their respective minorities under the Treaty
of Lausanne is: 1. unacceptable in the light of international human
rights law, 2. anachronistic, and 3. detrimental to national cohesion,
given that each state is in fact punishing its own citizens.
34. It would therefore be desirable for Greece and Turkey to treat,
at all administrative and judicial levels, all their citizens without
discrimination, regardless of the manner in which the neighbouring
state might treat its own citizens. The rapporteur would also call
on them to implement fully the general principles in the field of minority
rights as developed in the case law of the European Court of Human
Rights (see Section 3 below).
2.4. Outside perceptions
of the minorities on both sides
35. In connection with both the Muslim minority in Thrace
and the Greek Orthodox minority in Turkey, the two countries have
adopted specific outside perceptions of these minorities since signing
the Treaty of Lausanne. This fact struck the rapporteur immediately:
Turkey “supervises” the Muslim minority in Thrace via an influential
consulate general in Komotini, while Greece monitors the Greek minority
in Turkey through a political affairs bureau in the ministry of
foreign affairs located at Xhanti. In Turkey, the non-Muslim religious minorities
covered by the Treaty of Lausanne also come under the jurisdiction
of the ministry of foreign affairs.
36. It must be made very clear that the members of the minorities
in question in both countries are not foreign nationals, but citizens
of their respective countries of residence.
37. Several members of the minorities in both countries complained
to the rapporteur of continuing to be regarded as “foreigners” in
their own countries.
3. Relevant international
standards
38. Having outlined the historical and legal features
of the question, the rapporteur would now like to move on to the
matter of legal standards on minority rights which all member states
of the Council of Europe must abide by, regardless of whether they
have ratified specific instruments on these matters.
39. The rapporteur would encourage Turkey and Greece to ratify
the specific Council of Europe instruments on the protection of
the rights of minorities, namely the Framework Convention for the
Protection of National Minorities (ETS No. 157, opened for signature
in 1995)
and
the European Charter for Regional or Minority Languages (ETS No.
148, opened for signature in 1992).
Nevertheless,
he notes that these instruments do have their relevance to these
countries, as both actively participate in the supervisory mechanisms
of these treaties in the Committee of Ministers.
40. The general standards of the Council of Europe, primarily
the European Convention on Human Rights (hereafter “the Convention”),
which is binding on all member states, place obligations on all
states where protection of minorities is concerned.
41. Although it confers no specific rights on minorities, the
Convention permits individuals belonging to minorities to uphold
their rights even where the state in question does not acknowledge
the minority’s existence. The Convention guarantees a spirit of
pluralism and freedom of expression, thought, conscience and religion,
all of which rights are particularly relevant to members of minorities.
The development of case law on the prohibition of discrimination
(Article 14) is also very important for minorities. Furthermore,
Protocol No. 12 to the Convention lays down a general prohibition
on discrimination. This protocol, which is wider in scope than Article
14 of the Convention, stipulates that no one must be discriminated
against by any public authority on any ground whatsoever. The rapporteur
would encourage the many member states which have not yet signed
or ratified this additional protocol to do so without delay.
42. Nevertheless, the Framework Convention will always have an
extra added value, particularly in terms of such reinforced rights
as that to effective participation of members of minorities, and
the rapporteur believes that the ratification by Greece and Turkey
of this instrument and of the European Charter for Regional or Minority
Languages would be timely.
4. The current situation
of the minorities
43. During his visits to both countries the rapporteur
spoke to representatives of the minorities in question. The difficulties
they face, which clearly emerged from his talks with them, are described
below. He has opted to present them in alphabetical order, starting
with the situation in Greece in each section and then going on to Turkey.
44. As a general rule, the rapporteur noted that members of religious
minorities in both countries are free to exercise their respective
religions. He should add a priori that he sensed greater serenity
in the Muslim minority in Thrace; the non-Muslim religious minorities
in Turkey have raised legitimate reservations.
The
rapporteur was able to gauge the presence in peaceful close proximity
of mosques and churches in Thrace, evidence of coexistence, respect
and mutual understanding.
4.1. Religious representation/clergy
Greece: the muftis
45. Thrace has three elected
muftis (in
Rhodope, Xanthi and Komotini) and two appointed
muftis, 270 imams and some 300 mosques.
For several years now
the procedure for appointing/electing
muftis has
been questionable. In practice, two parallel systems are in operation.
46. Law No. 2345/1920 – which was never published – laid down
that the muftis were directly
elected by Muslims entitled to vote under the criteria set out in
the law. In 1990, however, the system for appointing muftis was amended following a legislative
reform. The Presidential Decree of 24 December 1990 repealing Law No. 2345/1990
provides that the muftis must
be appointed by presidential decree on nominations from the ministry
of education and religious affairs, which must in turn consult a
committee comprising the local prefect and a number of Muslim dignitaries
selected by the state.
47. Following these legislative changes, the Muslim community
has elected its own
muftis,
even where
muftis have been
appointed by the President of the Republic in accordance with the
1990 legislation. The elected
muftis have
not been recognised by the public authorities, and some of them
have even been prosecuted for the illegal use of religious symbols.
The
muftis in question brought
the case before the European Court of Human Rights on the grounds
of violation of their rights under the Convention. In its judgment
in the case of
Serif v. Greece and
its
Agga v. Greece judgments,
the Court, which found a violation of Article
9 of the ECHR by Greece, held that “punishing a person for merely
acting as the religious leader of a group that willingly followed
him can hardly be considered compatible with the demands of religious
pluralism in a democratic society”.
48. The contested interpretation of Articles 175 and 176 of the
Penal Code (punishing the illegal exercise of the functions of a
religious minister and unduly wearing the official religious dress
of such a minister in public) was quickly amended, the national
courts directly implementing the
Serif
v. Greece judgment.
The other three sentences
handed down on Mr Agga in 1997 and 1998 on the basis of the relevant
articles of the Penal Code were quashed by Lamia Criminal Court
on 28 March 2001.
However, at its 982nd
Human Rights meeting, in December 2006, the Committee of Ministers
noted “with regret that the general measures taken in response to
the previous, similar judgments of the Court (Serif; Agga No. 2
– Final Resolution ResDH(2005)88) had proved insufficient to prevent
new, similar violations in the present cases”. Subsequently, the
Greek authorities have translated the relevant judgments of the
Court and forwarded them to all the judges in the country. The Ministers’
Deputies will resume their consideration of these items at their
meeting from 2 to 4 June 2009, with a view to examining the general
measures adopted and their effects in practice.
49. Having spoken to elected and appointed
muftis,
the rapporteur can confirm that the two types of
mufti still coexist. He had the
impression that the Greek authorities put up with this situation.
It is true that “the Court does not consider that, in democratic
societies, the state needs to take measures to ensure that religious communities
remain or are brought under a unified leadership”.
50. Moreover, if the Court has acknowledged that this situation
of coexistence is liable to cause tension, it has also affirmed
that “the role of the authorities in such circumstances is not to
remove the cause of tension by eliminating pluralism, but to ensure
that the competing groups tolerate each other”.
51. On the other hand, however, the state should not interfere
in religious affairs in such a way as to create an artificial divide
within the religious community. The question of how muftis are designated should be
a purely religious one, it being left to the minority to choose
its muftis (according to a
practice well established in all Council of Europe member states).
52. It is important to emphasise that the post of mufti has an important economic
dimension. In practice, it is muftis who
hold the keys to foundations, and therefore to their finances. It
is therefore the appointed muftis who
hold the greater part of the minority’s property (handed to them
directly by the central authorities, as they are appointed by them).
This is something which is taken badly by the members of the minority,
who feel dispossessed.
53. It should also be noted that by virtue of Law No. 2345/1920,
the competences of muftis are
not confined to religious functions, but also extend to the holding
of judicial powers to decide on disputes between Muslims in family
and inheritance matters, to the extent that such disputes are governed
by Islamic law.
54. However, this is a matter which remains unresolved, not having
been addressed by the Court in its judgment. The Court did not consider
the case from the angle of the
muftis’
judicial powers, but simply noted that “despite a vague assertion
that the applicant had officiated at wedding ceremonies and engaged
in administrative activities, the domestic courts that convicted
him did not mention in their decisions any specific acts by the
applicant with a view to producing legal effects”.
This
would suggest that the de facto utilisation of judicial competences
by the elected
muftis could
prove problematical. If the elected
muftis (who
are not recognised by the authorities) conclude marriages, order
divorces or settle inheritance disputes, such decisions are liable
to be null and void.
55. The implementation of Sharia Law
can
also raise problems,
and the
rapporteur is particularly concerned about information from one
of the Committee’s experts to the effect that 99% of the
muftis’ decisions are ratified by
the Greek courts, even where they infringe women’s and children’s
rights as laid down in the constitution or the ECHR.
56. In 2005, the Committee on Human Rights of the International
Covenant on Civil and Political Rights expressed its concern about
the problems that Muslim women could face because general Greek
law in the field of marriage and inheritance did not apply to the
Muslim minority in Thrace; it strongly urged Greece to ensure that
Muslim women realised the rights and remedies at their disposal
under Greek civil law.
While, in practice, elected and appointed
muftis alike have already virtually
lost their judicial powers, the rapporteur believes that these prerogatives
should be abolished.
57. Once these prerogatives have been abolished, muftis (having become mere religious
leaders) could then be freely chosen by the minority, thus putting
an end to the prevailing confusion. This would also have the positive
effect of returning to the minority the property and resources belonging
to the religious foundations.
58. On this subject the Council of Europe Commissioner for Human
Rights has said that he is “favourably positioned towards the withdrawal
of the judicial competence from
muftis,
given the serious, aforementioned issues of compatibility of this
practice with international and European human rights standards,
and towards the subsequent, direct election of the
muftis (solely as Sharia Law experts)
by the members of the Muslim minority”. In the meantime, he urged
the Greek authorities “to take promptly all necessary measures for strengthening
the substantive review and control by domestic courts of the
muftis’ judicial decisions so that
they are effectively and fully in line with the standards of international
and European human rights law”.
59. Furthermore, the members of the Muslim minority expressed
their anxiety about Law No. 3536/2007, which provides for the Greek
state to appoint 240 teachers of Islamic law (some of whom will
be able to officiate as Imams). While knowledge of Islamic law will
be evaluated by the muftis appointed
(whose legitimacy is disputed by the members of the minority), it
is a board comprising university teachers and representatives of the
Greek state which will consider whether the candidates do meet the
set requirements.
Turkey
– Ecumenical Patriarchate/title
60. The Greek Orthodox Patriarchate of Istanbul (which
styles itself “of Constantinople”)
takes
precedence over the other three Greek Orthodox Patriarchates in
Antioch, Jerusalem and Alexandria, and over the Autocephalous Orthodox
Churches. Its jurisdiction now extends to Turkey and the Greek Orthodox
diaspora in Europe and America. Greek Orthodox persons of Turkish
nationality constitute a small minority.
61. The Turkish authorities have often accused the Patriarchate
of using the title “Ecumenical Patriarch” to lay claim to supranational
status.
62. Even though it acquitted the Patriarchate of the charge in
a judgment of 26 June 2007, the Turkish Court of Cassation recalls
that there is no legal basis in Turkish law for using the title
“ecumenical” and that the patriarchate has no legal personality.
In a resolution of October 2007 the European Parliament expressed
its concern about this decision.
63. The Turkish authorities’ failure to recognise the “ecumenical”
nature of the Patriarchate has a long history, and is perceived
by members of the minority and by international observers as an
attempt to diminish the importance of the Patriarchate. Nevertheless,
the Patriarchate clearly informed the rapporteur that the use of
this title, which has been in force since the 6th century, has no
political connotations at all. According to the Patriarchate, the
Turkish authorities argue that the Treaty of Lausanne abolished
the term “Ecumenical”, whereas in fact the treaty makes no mention
at all of this matter. The Patriarchate also pointed out that officials used
the term “First Priest” in their mail to the Patriarch in order
to avoid the word “ecumenical”.
64. As one of the guest experts at a hearing before the committee
pointed out, from the historical angle, the word “ecumenical” refers
to the hierarchy of Greek Orthodox Patriarchates across the world,
and it has internal ecclesiastical connotations and importance linked
to the freedom of religious expression and the protection of the
autonomy of the minority; the Turkish Government seems recently
to have minimised the political importance of this matter.
The
Patriarchate also expressed hopes to this effect during the rapporteur’s
visit. The Patriarchate said that it was gratified that for the
first time, during the historic visit to Turkey by the Greek Prime
Minister in January 2008, the Turkish Prime Minister had stated
that the issue of the Patriarch’s title was a matter solely for
Greek Orthodox believers.
65. The aforementioned lack of legal personality applies to all
the communities (the Ecumenical Patriarchate of Constantinople,
the Armenian Patriarchate of Istanbul, the Armenian Catholic Archbishopric
of Istanbul, the Bulgarian Orthodox Exarchate and the Chief Rabbinate)
and has direct consequences in terms of ownership rights and property
management. According to the people the rapporteur spoke to, the
Greek and Armenian Patriarchs and the Chief Rabbi have all three
tried to contact the government on the matter of the lack of legal personality,
so far unsuccessfully. This situation is disturbing (as the Commissioner
for Human Rights pointed out as long ago as 2003).
A reading of the judgment
Fener Rum Patrikligi (Ecumenical Patriarchate)
v. Turkey, in which the Court acknowledges that the Ecumenical
Patriarchate possesses specific properties, should induce the Turkish
authorities to revise their position on this subject.
– Training of the clergy
66. In Turkey, minorities come up against serious difficulties
in training new members of the clergy.
67. In the wake of legislation placing religious education under
state control, the Heybeliada Greek Orthodox theological college
(the Halki seminary) was closed in 1971.
The
authorities considered that the seminary had too few students to
continue to operate (a thesis contested by the Patriarchate). Ever
since, the Patriarchate has been demanding the reopening of the
faculty with the status which it held before 1971, and wishes all
Orthodox Christians, of whatever nationality, to be able to take
courses at the Halki seminary.
68. In 2006, a reform bill tabled under pressure from the European
Union and the United States
geared
to reopening the Halki seminary was rejected by the Turkish Parliament.
69. One solution to the difficulties of training new members of
the clergy is to bring in members of religious orders from abroad,
but they then encounter the problem of obtaining a work permit.
The Halki seminary should be reopened. While the Turkish delegation
states that “foreign clergy members can obtain residence permits which
concurrently enable them to carry out their functions in Turkey”,
the Greek delegation points out that “the relevant legislative framework
remains unclear, thereby allowing administrative obstacles against
those interested in obtaining these permits. For instance, the Ecumenical
Patriarchate’s relevant requests, submitted in February 2007, have
only recently (December 2008) been met”.
70. The authorities impose conditions regarding Turkish citizenship
and employment in Turkey for elections with a view to appointing
metropolitans. Whereas the government had given no formal reply
in 2004 when the Ecumenical Patriarch Bartholomew appointed six
metropolitans who were not Turkish citizens to the Holy Synod (a
first in this area in 80 years of history in the country),
in
its decision of 26 June 2007 the Turkish Court of Cassation recalled
the official position to the effect that the Patriarchate is an
institution devoid of legal personality and that only persons who
hold Turkish nationality and who work in Turkey at the time of the elections
can participate in and stand for religious elections organised within
the Patriarchate (which includes the appointment of metropolitans).
The Greek Patriarchate currently includes eight American and Greek nationals,
which means that they are working illegally (the Turkish authorities
apparently “deliberately” turn a blind eye to this unlawful situation
in order to help the minority). In view of the current size of the
Greek Orthodox community, the Patriarchate considers that it can
no longer operate normally with this strict nationality condition.
71. In the comments which it supplied to the rapporteur, the Turkish
delegation to the Assembly asked him to specify that “Turkey allowed
the Patriarchate to continue to reside in Istanbul, on the condition
that it provides service for only the religious and spiritual needs
of the Greek Orthodox Minority in Istanbul and that the Patriarch
himself is a Turkish citizen”. The Greek delegation’s reply stated
that, “In 1923 and 1970, the Turkish Authorities issued decrees
imposing restrictions on the election of the Ecumenical Patriarch,
and the Metropolitans who elect him. These decrees stipulate that
the Patriarch and the Prelates participating in the election of
the Ecumenical Patriarch must be Turkish citizens, who exercise
their religious duties in Turkey. On the 26th of June 2007 the Supreme
Court of Turkey (Yargitay) upheld the validity of those restrictions.
In keeping with the Canons of the Orthodox Church, the Patriarch
is to be elected from the entire prelacy of the Ecumenical Patriarchate.
Currently, out of the total number of prelates under the jurisdiction
of the Ecumenical Patriarchate worldwide, less than 20 are Turkish
citizens and exercise their duties in Turkey and, therefore, only
they are allowed to elect and to be elected Patriarch. Furthermore,
today, there are only a few Priests and Deacons, among the young
generation of the clergy, with Turkish citizenship. The almost certain
result of the above-mentioned restrictions is that, in the near
future, the Ecumenical Patriarchate may not be able to elect a Patriarch
acceptable to the Turkish authorities”.
72. The Patriarchate regretted that the Turkish authorities have
refused dialogue on this matter. It had sent 84 letters on the subject
to the Turkish Government, none of which had been answered. Moreover,
the Patriarchate had suggested to the authorities setting up a joint
discussion committee (made up of two representatives of the government
and two representatives of the Patriarchate). This proposal also
remained unanswered: the Council of Europe and the rapporteur could
foster dialogue between the parties.
73. In September 2007, the Patriarchate met the Turkish President,
as well as the minister for foreign affairs, the minister of the
interior and the minister for education, and gave them a clear description
of all the problems concerning the Patriarchate. It also maintains
regular contact with the responsible Turkish administrative authorities.
The contacts and dialogue engaged in with non-Muslim communities
and institutions should be stepped up and give rise to tangible
results.
74. The Armenian Orthodox seminary (the Skudari seminary) and
the Rabbinical College have also been closed (owing to insufficient
numbers of students).
75. The representatives of the Jewish community told the rapporteur
unambiguously that training for the clergy was no problem to them,
any
more than the obligation for members of the clergy to hold Turkish nationality.
On the contrary, they said that they did not want foreigners in
their clergy in Turkey because of the major cultural differences.
76. The representatives of the Armenian Orthodox community regretted
being unable to afford to send their members abroad for training,
and would like to have a department for the study of the Armenian
Orthodox religion in a Turkish university. The Turkish nationality
condition also posed no problems for this minority.
77. During the rapporteur’s visit to Turkey the authorities mentioned
a proposal to reopen the seminary as a department of the Faculty
of Theology of Istanbul University. The Vice-Chancellor of Galatasaray
University informed the rapporteur that he had met the Greek and
Armenian Patriarchs and the Chief Rabbi to discuss the possibility
of opening theological departments for their religions in the public
university. This initiative shows a willingness to appease and for
dialogue.
78. According to the vice-chancellor, the Armenian Patriarch and
the Chief Rabbi agree to this proposal, whereas the Greek Patriarch
had some reservations. He said that the Greek Patriarch was against
the proposal because the universities depend on the Higher Council
of Education (YÖK), to which the vice-chancellor had reported on
these positions.
79. In this connection, the Greek Orthodox Patriarchate informed
the rapporteur that this proposal from the vice-chancellor dated
back to 1994, and that it was a mere oral proposal which had never
been issued in written form. It would be desirable for the parties
to make an official examination of this solution.
4.2. The foundations
– Vakfs
80. As one of the experts explained to the committee,
foundations of minorities, or
vakfs,
are a Greek and Turkish heritage of Ottoman law; they are religious
institutions whose income is attributable to the community. Their
immovable property originates from donations, which may be accumulated.
The foundations are special legal bodies exempted from the general
legal framework governing foundations under Greek and Turkish civil law.
Greece
81. The rapporteur has noted the adoption in February
2008 of Law No. 3647, which should settle a good many of the problems
that have plagued the legal status of the vakfs for
decades. To date, despite successive legislative acts, a number
of problems subsist vis-à-vis the operation of the vakfs (particularly with regard
to registration of property and the election of members of the management
boards). The new law recognises vakfs as
private legal entities. On the other hand, the question of the status
of Islamic law (to which the new law refers) has not been clarified.
If this law is to provide the improvements expected of it, it will
have to be actually applied, unlike the previous legislation. The
Turkish delegation informed the rapporteur in its comments that
the law had not been prepared in consultation with the minority,
and that the amendments requested by the minority had not been taken
into account.
82. The rapporteur was pleased to hear one of the experts say
that for the first time no reference was made to the reciprocity
clause. This points to a willingness at last to treat the situation
of the minority in one country separately from that of the minority
in the other, and to put a definitive end to the retaliatory mindset.
This is a highly encouraging development.
83. In connection with the right to build and use temples and
places of worship, Article 27 of Law No. 3467/2006 abolished one
of the conditions for building temples and places of worship, namely
a prior opinion from the ecclesiastical authority (the local metropolitan).
This
condition had long been considered unacceptable.
In
its comments, however, the Turkish delegation reports that the minority
has difficulties when mosques are built, particularly in respect
of the height of minarets.
84. Furthermore, the Greek delegation pointed out in its comments
that Law No. 3554/2007 exempted Muslim vakfs from
submitting tax declarations relating to their previous years’ income,
property assets and major land properties, and all of their registered
debts, fines and existing mortgages had been cancelled. With effect
from 2008, vakfs would also
be exempted from major land property tax. The Turkish delegation complained
in its comments that Law No. 3554/2007 had not yet come into force.
Were this to be the case, the rapporteur believes that it would
be desirable for this law to come into force as soon as possible.
Turkey
85. In his 2003 report, the Commissioner for Human Rights
described the difficulties encountered in terms of ownership of
religious institutions: “These institutions, most of which acquired
legal personality in 1936, have encountered problems in managing
and freely disposing of their property and in acquiring new real
estate. Furthermore, a large number of properties belonging to parishes,
which do not have legal personality, have been recorded in the land
registry without indicating the owner, while others formerly belonged
to minority religious associations which have been dissolved for
lack of sufficient numbers. These properties have been regarded
as abandoned and have passed to the state. With respect to the Greek
Orthodox minority in particular, whose numbers have fallen from
more than 100 000 in the early 20th century to fewer than 4 000 today,
the fact that the Patriarchate of Istanbul does not have legal personality
and that members of the clergy may not be members of minority associations
or their boards has resulted in the community being dispossessed
of a large number of properties in Istanbul and elsewhere.”
86. In 1935, Law No. 2762 recognised the legal personality of
foundations set up under the Ottoman Empire, and in 1936 the foundations
were required to register all immovable property items in the land
register.
87. According to a 1974 line of authority of the Court of Cassation,
these declarations are considered as deeds setting up foundations
which preclude, unless otherwise expressly provided, such foundations
from subsequently purchasing immovable property items in addition
to those mentioned in the said declaration.
According
to the details provided by the Greek and Turkish delegations, Law
No. 5737 nevertheless allows registration of the property given
to foundations/purchased subsequent to 1936 and which belonged to
the Treasury or the Directorate General of Foundations, but has
not remedied the situation in respect of properties which, subsequently,
were sold to third parties.
88. After 1974, drawing on this case law, religious foundations
were the subject of mass expropriations, and the Directorate General
of
Vafks was assigned responsibility
for managing very many of them (considered to be no longer in existence,
or
mazbut). As Mr Gross pointed
out in his report on the islands of Gökçeada and Bozcaada, the
mazbut procedure “applies not only
to church buildings, but to all property belonging to a parish (including
churches, school buildings, houses, and fields)”.
The number of property
items actually belonging to religious minorities has been considerably
reduced, with effect for the foreseeable future.
89. Turkish legislation on
vafks has
prompted many applications to the European Court of Human Rights, which
has found against Turkey on several occasions. In January 2007,
in the case
Fener Rum Erkek Lisesi Vafki
v. Turkey, the Court noted that no provision of Law No.
2762 prohibited foundations governed by the said legislation from
purchasing property items other than those set out in the 1936 declaration.
In this case the Court found a
violation of Article 1 of Protocol No. 1 on the grounds that the
interference was not provided for by law, considering that the 1974
case law did not meet the requirements of “predictability”.
Various foundations acquired property deeds
between 1936 and 1974 in the firm conviction that the transactions
were lawful. These deeds were withdrawn from them on the basis of
the 1974 case law, and by analogy it is clear that all the cancellations
of ownership deeds of this type based solely on this case law are
incompatible with the Convention.
90. The legislation on foundations has been amended on numerous
occasions, including in the context of the European harmonisation
legislative package (2002-2003).
91. Further to these legislative reforms, some foundations were
able to purchase and register property, and foundation governing
boards were elected. However, as the Commissioner for Human Rights
has pointed out, “this mechanism is not retroactive and does not
cover property which belonged to religious establishments or parishes
and passed into state ownership before 2002 as abandoned property”.
92. Law No. 5737, which was adopted at the beginning of 2008,
is designed to provide new responses to the problems of religious
foundations, and the rapporteur was pleased to note that this new
law provides for the representation of minorities in the General
Assembly of the Directorate of Foundations and has lifted all restrictions
on the purchase and sale of property by the vakfs.
93. The Turkish delegation stated in its comments that the new
law,
inter alia, gives the
foundations of the non-Muslim community the right to:
- have full enjoyment of their
property;
- be represented at the General Assembly (the main organ
of the Directorate General of Foundations);
- amend their purposes;
- participate in international activities and co-operation,
provided that this possibility is mentioned in their founding acts;
- give and receive donations;
- create businesses to make it easier to fulfil the foundation’s
objectives;
- register in the foundation’s name properties previously
registered under fictitious names;
- register in the foundation’s name properties given to
or purchased by the foundation after 1936, but returned to their
donors, to the Treasury, to the ministry of finance or to the Directorate
General of Foundations, following a 1974 judgment of the High Court
of Appeal.
94. Nevertheless, the rapporteur regrets that the opportunity
was not taken, as in the case of the new Greek legislation, to remove
all references to the “reciprocity” principle. Quite the contrary
is the case: Article 2 (2) of the law stipulates that the implementation
of the law is contingent on the reciprocity principle. Such a provision is
quite out of place in this law.
95. The new law in no way settles the question of the return of
property lost since 1974 to the Directorate General of Foundations,
or provides for compensation where property cannot be returned.
The Turkish delegation retorts in its comments that the new law
on foundations (No. 5737) provides for the return of all properties
registered in the name of the Treasury or the Directorate General
of Foundations.
96. Lastly, the rapporteur is concerned about the provision to
the effect that new foundations must be set up in accordance with
the Turkish Civil Code. Article 101 (4) of this code prohibits the
setting up of foundations with a view to supporting a group of a
specific origin or a community. In practice, this is liable to prevent
the setting up of new foundations by minority groups.
97. A great deal will also depend on how the new provisions are
applied in administrative and judicial practice. Mr Gross’ aforementioned
report refers to averred instances of discrimination against the
Greek Orthodox minority at this level. If these problems are to
be overcome we need a change not only of legislation but also of
mentalities.
98. One aspect in particular was brought up by the people the
rapporteur spoke to, namely the geographical restriction on foundations
for the election of their governing boards. Potential candidates
for election to these governing boards must reside in the district
where the foundation has its headquarters. For some foundations a
reasonable solution has been found to the problem: certain foundations,
such as the Armenian hospital, have been recognised as covering
the whole of Istanbul, making it possible to elect governing boards
made up of members of the community living anywhere in that city.
According to the information provided by the Turkish delegation,
the legislative amendment of September 2004 allows the non-Muslim
community’s foundations to organise freely their elections and to
enlarge their electoral constituency. The Greek delegation, however, reports
that this possibility is subject to prior authorisation by the Istanbul
Prefecture. Several foundations are said to have come up against
serious obstacles when requesting such authorisation. The Turkish
delegation disputes this point.
99. In the context of property rights, the Jewish community mentioned
a specific problem to the rapporteur, complaining of the building
of housing on Jewish cemeteries. In theory, Jewish cemeteries belong
to the municipalities, but the Jewish community has usufruct, without
limits on burial plots. The Jewish community has closed off the
cemeteries but has encountered difficulties especially in ancient
cemeteries, particularly in Anatolia (a region where it has lost
control of cemeteries because the local community has disappeared).
But Law No. 3998 stipulates that cemeteries belonging to communities
may not be handed over to municipalities. According to the members
of the Jewish community, this law is not applied.
100. In addition, it was reported that two Protestant churches
and an assembly of Jehovah’s Witnesses had been unable to register
their places of worship.
4.3. Education
101. The Treaty of Lausanne forms the legal basis of the
system for educating minorities in both countries. Articles 40 and
41 of the treaty stipulate that the minority is entitled to establish
public and private schools. The 1951 cultural protocol between Greece
and Turkey provides for an annual exchange of 25 teachers (a number subsequently
increased to 35) and the 1968 cultural protocol provides for the
exchange of textbooks between Greece and Turkey. However, it would
appear that exchanges of textbooks have been effective only since 2001.
Apparently, Greece has unilaterally reduced the number of teachers
participating in the exchange to 16. Although Turkey continues to
submit a list of 35 teachers, Greece now accepts only 16, and, for
its part, has seconded only 14 teachers to Istanbul for the school
year 2008-2009.
102. The schooling of minorities is a major challenge for both
countries. While it is true that the right to education is a recognised
fundamental right, the same does not apply for teaching in a minority
language. The relevant binding instruments of the Council of Europe
have not been ratified by either Greece or Turkey.
Greece
103. There are major disparities in terms of level between
the minority schools and majority schools (Greek schools) in Thrace.
Indeed, some members of the minority prefer to send their children
to majority schools in order to guarantee a good-quality education
for them. Another reason for this decision is the fact that there
are only two minority upper secondary schools in the region (which
are clearly not enough for all the children from minorities) and
two religious schools (medrese),
in Komotini and Echinos (where the teaching is reported to be completely
anachronistic). The members of the minority are calling for new
minority schools to be opened.
104. Access to a good-quality education is particularly difficult
in mountain villages, inhabited essentially by Pomaks. The members
of the Roma minority also have to contend with a high level of absenteeism
of children.
105. Whereas a section of the minority (mainly young people) is
aware of shortcomings in minority members’ ability to speak Greek,
and pools its efforts to remedy this, another section (distinctly
older on average) seems above all concerned with the ability to
speak Turkish.
106. The rapporteur could see for himself that a significant number
of those he spoke to could not speak Greek. According to members
of the minority, only about 20% of their children more or less spoke
Greek upon leaving primary school, which is an extremely low figure.
This is partly due to the fact that many members of the minority
use only Turkish, watch only Turkish television channels and are
consequently none too well integrated in their own country, namely
Greece. Furthermore, it is striking that mixed marriages between members
of the majority and members of the minority are virtually non-existent.
107. To remedy this situation, numerous schemes have been undertaken
in Thrace with a view to improving the education of children of
the minority.
108. Positive discrimination measures have been among those introduced.
Muslim candidates sitting university entrance examinations are not
subject to the requirement of obtaining at least the average mark
in those examinations. In addition, a university admission quota
of 0.5% of Muslim students was introduced in 1996. Law No. 3404/2005
also provided for the introduction of a separate quota of 0.5% of
places in university technology institutes. Where financial support
is concerned, the student grants body (IKY) has set up a specific grants
programme for Muslim students from Thrace.
109. Furthermore, a pilot programme for teaching Turkish as a foreign
language option (two levels: beginner and advanced) has been launched
in five public secondary schools in Thrace. The Turkish delegation
pointed out in its comments that optional Turkish classes in state
schools cannot replace the right to a minority education system.
110. For the first time, private Turkish language classes have
been on offer to teachers of the Greek language programme in minority
schools.
111. The rapporteur wishes to draw attention to a specific programme,
Education of Muslim Children,
which impressed him favourably with
both its activities and the remarkable commitment of those involved:
combating early school leaving, stepping up learning of the Greek
language, widest possible awareness of the positive results of the
insertion of young minority members in the education system. Centres
supporting the Muslim children’s education programme (nine in total,
two of them roving units in the Rhodope mountain region) provide
information to parents and teachers. Muslim parents also have an
opportunity to learn Greek.
In addition,
the project includes activities (very successful ones) aimed at
children from both the minority and the majority, representing a
unique and remarkable example of co-education. The rapporteur is
surprised to learn that the budget for the project was not renewed
in July 2008. He was told that the project would enter a new bid
for European funding, but the interruption of budget funding has
already resulted in the closure of eight centres for at least a
year. This is particularly regrettable. The rapporteur urges the
ministry of education to envisage funding the budget for this project
to give it the stability it needs to carry out its task. The Greek delegation
told the rapporteur that the Education of Muslim Children programme
had been incorporated in a broader programme, Education for Children
of Repatriated Greeks, Muslims and Foreigners, which was due to
start in March 2009.
112. Another remarkable project is the very first book in the minority
language preparedby the members
of the minority of both countries for pupils of minority secondary
schools, which has just been published (Türkçe kitabimiz).
113. Within the framework of a project funded since 1997 by the
European Union, via the national education ministry, all the textbooks
for minority schools have been updated. Unfortunately, some of them
have been awaiting approval by the national education ministry for
over five years and have yet to be issued.
114. There is also a Education and Advice for Gypsy, Muslim and
Immigrant Families programme.
115. All these measures point to a welcome realisation by the Greek
authorities of what is at stake in the education of minority members.
Many of the students from the minority tend to pursue their studies
in Turkey because they speak the language better and access to university
studies is facilitated for them. If these Greek citizens are to
enjoy full access to education in their own country, it is indispensable
that the children of the minority have access to high-quality education
and that they also learn the Greek language. The rapporteur welcomes
the positive discrimination measures introduced in the area of access
to university education.
116. Nevertheless, it remains a cause for concern that the teachers
graduating from the Special Teacher Training Academy of Thessaloniki
(EPATH), which trains teachers for the Muslim minority primary schools
in Thrace, are reported to have poor skills in both the Greek and
Turkish languages (in which they are supposed to teach). Some members
of the minority would like to see this academy replaced by a faculty
of a higher level.
117. In addition, the number of years of compulsory education has
been increased from nine to ten years in Greece. At a time when
nursery school has become compulsory, the members of the minority
are complaining of a lack of minority (namely, bilingual) nursery
schools.
118. In its comments, the Turkish delegation drew the rapporteur’s
attention to the question of the election of members of the boards
of minority schools. Since 2001, all members of minority schools’
boards have been elected, their election being subject to the approval
of the Secretary General of Thrace. Furthermore, a very large majority
of deputy heads of minority schools do not come from the minority.
However, according to the Greek delegation, several Muslim teachers
have been appointed to that role in the past five years.
Turkey
119. The members of the minorities face two difficulties
in minority schools.
120. Firstly, there is a dual headship system for schools. The
head teacher is from the minority whereas the deputy head is a Muslim
appointed by the state. It is said that, in practice, only the deputy
head has any real decision-making power, as they are required to
approve any decisions of the head teacher. The fact that there are
two types of teachers – teachers speaking the Turkish language (paid
by the state) and teachers speaking the minority language (paid
by the minority community) – changes nothing. The head teacher has
no power, even over the teachers paid by the minority community.
121. The new law on private schools came into force on 14 February
2007. Previously, in schools where the language of teaching was
not Turkish (particularly in the minority schools) and in the schools
opened by foreigners, the deputy head had to be of Turkish nationality
and had to teach Turkish language or culture, while having a command
of the language of teaching. In cases where it was impossible to
recruit a teacher who had these qualifications, the deputy head
was appointed from among the teachers of Turkish nationality and
“of Turkish origin”. In the new law, the phrase “of Turkish origin”
no longer appears. In accordance with this amendment, if a Turkish
citizen who teaches Turkish language or culture and who has a command
of the language of teaching is not available, any teacher of Turkish
nationality may be appointed, irrespective of his/her origins.
122. The children of members of non-Muslim minorities not holding
Turkish nationality are not allowed to attend minority schools.
The children of Armenian businessmen or diplomats, for example,
cannot go to an Armenian school because this is prohibited by law.
The rapporteur finds it difficult to understand the point of this
prohibition, which seems downright discriminatory, especially when
one considers that minority schools suffer from a chronic lack of
pupils. He was told of the case of an American rabbi’s child granted
“guest” status so that he could go to the minority school. This
is a praiseworthy ad hoc solution but the problem is still there. There
is currently an exception at the schools of the Greek Orthodox minority,
where the children of Greek civil servants may be admitted in pursuance
of the principle of reciprocity. The rapporteur thinks that it would
be desirable to abolish the requirement of Turkish nationality in
order to attend minority schools.
123. Article 24, paragraph 4, of the constitution and Article 12
of Fundamental Law No. 1739 on the national education system stipulate
that religious culture and moral education shall be among the compulsory
subjects taught in primary schools and upper secondary schools and
other schools of the same level.
124. As a result of Decision No. 1 of 9 July 1990 of the High Council
of Education a possibility of exemption now exists: “Following the
proposal of the Ministry of Education, pupils of Turkish nationality
and of Christian or Jewish faith, who attend primary and secondary
schools, except schools affiliated to minorities, are not obliged
to attend religious culture and moral awareness lessons on condition
of providing an attestation to their faith. However, if these pupils
wish to attend the lesson, they must present a written request from
their legal representative.” According to the minister for education,
this possibility of exemption is also open to members of non-Muslim
minorities not recognised by the Treaty of Lausanne.
4.4. Violence/pressure
Greece
125. There were no reports of any violence inflicted against
members of the minorities by the Greek authorities or by members
of the majority in Greece. However, some violence is reported against
buildings belonging to the minority.
126. The rapporteur would like to make a preliminary observation.
He noted that the Muslim minority in Thrace was not ethnically homogenous.
The ethnic Turkish Muslim minority accounts for the largest proportion
of the minority, and, according to statements gathered by the rapporteur,
members of the Muslim minority who consider themselves as Pomaks
or Roma have been on the receiving end of attempts at forced integration
into the Turkish branch of the minority. Some even claimed to have
received threats. It is a supreme irony that the majority within
the minority can be regarded by some as a threat to the minority
within the minority, but that is the reality. Some people spoken
to by the rapporteur, members of the Turkish branch of the minority,
seemed to think it laughable that Pomaks and Roma could claim that
they were not ethnic Turks. Yet, while they speak Turkish on the
whole (partly because they have gone to bilingual minority schools
with teaching in Turkish), Pomaks and a proportion of the Roma (approximately
25%) also speak their own languages.
127. The rapporteur reiterates here the fundamental principle laid
down in Article 3 of the Framework Convention, which stipulates
in its first paragraph that “every person belonging to a national
minority shall have the right freely to choose to be treated or
not to be treated as such and no disadvantage shall result from
this choice or from the exercise of the rights which are connected
to that choice”. Any attempt to impose an identity on an individual
or group of individuals is inadmissible.
Turkey
128. Although the Turkish authorities respect the integrity
of the religious minorities, one cannot ignore the fact that violence
against persons belonging to religious minorities, clerics and places
of worship and property has been perpetrated in Turkey. Hrant Dink,
a journalist of Armenian origin, was murdered in 2007; three Protestant
Christians were murdered in April 2007 in Malatya,
in 2006 an Italian Catholic priest was murdered in
his diocese in Turkey; property belonging to the Greek Orthodox
community has been attacked; there have been three attacks on synagogues
(1986, 1992 and 2003); a dentist was murdered because of his Jewish
faith, etc.
129. The rapporteur perceived a form of apprehension among some
of the members of non-Muslim minorities he spoke to. He noted that
members of the Protestant community were in a particularly vulnerable
position.
130. However, the rapporteur noted that the authorities do not
seek to deny these facts; on the contrary, they were most concerned
over this violence.
131. A number of measures have been taken to curb it.
132. On 19 June 2007, the minister of the interior issued a circular
on the freedom of religion of non-Muslim Turkish citizens, which
acknowledged that there had been an increase in crimes against non-Muslim
citizens and their places of worship. It also asked all provincial
governors to take the necessary steps to avoid recurrences of such
incidents and promote tolerance between people with differing faiths
and beliefs. Notwithstanding the example of a kidnapped priest being
found only twenty-four hours later cited by the minister of the
interior as proof of the effectiveness of this reinforced system,
implementation of the circular has failed to achieve the desired
results.
133. A unit set up within the ministry of the interior in 2004
– the council for evaluating the problems of minorities – is supervising
these measures.
134. It was also mentioned that police operations had been carried
out against gangs at the origin of certain attacks. According to
the authorities, these gangs are driven by nationalistic motives
rather than religious ones. In this connection, the authorities
mentioned that the members of the Ergenekon network had been arrested. Yet
the charge sheet ultimately drawn up against the network mentions
no cases of violence against minorities.
The rapporteur therefore urges the authorities
to continue their investigations with a view to prosecuting those
responsible for acts of violence against minorities.
135. The Turkish Parliament’s committee of inquiry for human rights
set up a sub-committee tasked with investigating the assassination
of Hrant Dink. In its final report in July 2008, the sub-committee
noted errors and negligence on the part of the security forces and
the national police, without which this murder could have been prevented.
The
rapporteur invites the Turkish Parliament to follow up these conclusions
without delay.
136. In this context, the rapporteur notes with concern that Baskin
Oran, a renowned professor whose work has contributed substantially
to the cause of minority rights in Turkey, has received serious
threats on several occasions since 2005. The first wave of threats
in 2005 and 2006 focused on the “Report on minorities” which he
drafted within the Advisory Committee on Human Rights.
The
professor received more threats at the beginning of 2007, following
the funeral of Hrant Dink. After that assassination the Turkish
authorities provided him with close protection, which the rapporteur
welcomes. However, it would appear that Professor Oran’s approaches
to the judicial authorities (prosecutor of the republic) regarding
telephone and e-mail threats from
Türk
Intikam Tugaylari (Turkish Vengeance Squads) have yielded
no results since the beginning of April 2008 (like his complaints
from 2005 onwards). At the end of 2008, Professor Oran received
further threats by e-mail.
137. The rapporteur notes that the Turkish authorities take these
threats very seriously and have expressed the will to deal with
those responsible firmly and swiftly.
138. Turkey’s Jewish community welcomed the will shown by the authorities
and estimated that, thanks to efforts to harmonise legislation in
the context of dialogue with the European Union, 80% of the difficulties
it had been encountering had been overcome. It was very worried,
however, by the general climate in the country. Economic problems,
the low level of education, the Israeli-Palestinian problem and
solidarity with Palestinian co-religionists were all factors forming
fertile ground for rejection of minorities, religious or otherwise,
and the Jewish minority in particular.
139. The rapporteur is convinced that only a substantial policy
of swiftly and effectively prosecuting those responsible for violence
would send a positive sign to the population as a whole. The NGOs
informed the rapporteur that “the members of non-Muslim minorities
are an integral part of Turkish society and a factor of enrichment”.
Calls for violence or threats against non-Muslim minorities must
be prosecuted, and all the more so when they are passed on by certain
media. But to date, all too few court decisions have been handed
down in such cases and many suspects have not been prosecuted.
On
the other hand, prosecuting certain members of minorities for insulting
the Turkish nation (Article 301 of the Criminal Code) further fuels
the climate of mistrust of minorities.
4.5. Freedom of association
Turkey
140. Concerning questions linked to the right of property
of associations: see the section on foundations (paragraphs 85 et seq. above).
141. The law on associations also imposes the obligation to give
the authorities prior notification before receiving financial backing
from abroad and to supply detailed documentation on that backing.
This provision remained unchanged following the amendments passed
in February 2008. On the other hand, it would appear that the new
law on the foundations of the Muslim minority in Greece does not
allow the foundations to receive donations from abroad or to send
donations abroad.
Greece
142. The Human Rights Committee of the International Covenant
on Civil and Political Rights expressed concern at the government’s
reluctance to allow private groups or associations to use the adjective
“Turkish” in the name of their respective associations,
with the argument
that in Greece there existed no other ethnic, religious or linguistic
minorities than the “Muslim” minority of Thrace. Consequently, the
state party was asked to review its practice in the light of Article
27 of the ICCPR.
143. The title (and thereby the perception) of the Muslim minority
of Thrace has not always been the same. In 1955, the Greek authorities
themselves described the minority as “Turkish”. But when Greek-Turkish relations
deteriorated, the Greek authorities refused, and continue to refuse,
to allow the minority to use this adjective.
On
several occasions, the Court of Cassation of Greece has ordered
the disbanding or banned the registration of associations with the
word “Turkish” in their name.
These decisions are far from
innocuous since the question of the very definition of the minority
is closely linked to the Greek authorities’ refusal to accept the
word “Turkish” in the name of associations.
144. The system introduced by the Treaty of Lausanne is clearly
based on the religious criterion, and not a national one.
But
the use of the adjective “Turkish” for the minority is more in keeping
with the nation state system that has developed since then. It is
true that recognising the “Turkish” nature of the minority may symbolically
attach greater importance to the “parent” state, namely Turkey.
However, the Greek authorities’ refusal to allow members of the
minority (or some of them – see paragraphs 18 and 113 above on the
identity of Pomaks and Muslim Roma) to freely choose their title
is no more than a vain attempt to deny reality. Indeed, this attitude
on the part of the Greek authorities has resulted in several rulings
against Greece by the European Court of Human Rights.
145. In the case of
Bekir-Ousta and
Others v. Greece, the Court settled this question
by finding a violation of Article 11 of the ECHR by Greece. The
Greek courts had refused registration of a non-profit association called
the “Association of the Youth of the Minority of the Evros Department”
on grounds that this title caused confusion and gave the impression
that nationals of a foreign country, in particular from Turkey,
were permanently established on Greek territory. The Court, concluding
that the measure complained of was disproportionate to the aims
pursued, observed that “even if the aim of the association were
to promote the idea that an ethnic minority existed in Greece, that
alone could not constitute a threat to democratic society”
.
146. In a judgment dated 27 March 2008 concerning the disbanding
of an association with the word “Turkish” in its name, the Court
does not believe that “merely the title and use of the term ‘Turkish’
in the [association’s] statutes would provide sufficient grounds,
in the present case, to conclude that the association is a danger
to public order”.
The Court followed up
this idea in a judgment on the same day, stating that “even if the
aim of the association were to promote the idea that an ethnic minority
existed in Greece, that alone could not constitute a threat to democratic
society”
. The authorities requested
that the two cases be referred to the Grand Chamber of the Court.
This request was refused in respect of both the Tourkiki Enosi Xhantis
and the Emin case, and the judgments have become final.
147. The associations involved should now be able to register under
the name of their choice. The association concerned in the Bekir-Ousta
case has again applied for registration. The rapporteur notes with
concern that, on 9 December 2008, the court of first instance of
Alexandropoulis again refused to register the association, a decision
clearly contrary to the European Court of Human Rights’ ruling.
The rapporteur points to the obligation incumbent on all member
states to implement the decisions of the Strasbourg Court, and calls
on Greece to comply with this obligation.
148. It has been claimed that associations of Pomaks or Roma have
no difficulty in using these adjectives in their names (the rapporteur
also met the chair of the Drossero-Xanthi Roma women’s association).
There is clearly unjustified discrimination here.
For more information about this section, also see the report
of the Commissioner for Human Rights on his visit to Greece from
8 to 10 December 2008 (CommDH(2009)9).
4.6. Granting/withdrawing
nationality
149. A number of members of the Muslim minority in Thrace
have had their nationality withdrawn under a provision of the Nationality
Code (Article 19, which permitted the withdrawal of Greek nationality
from persons of an ethnic origin other than Greek having left the
country without the intention of coming back).
That provision
was repealed in 1998 but the repeal had no retrospective effect.
As a result, some people are still classified as non-citizens, which
hampers enjoyment of their rights in a number of spheres (social
protection, health, pensions, identity papers, etc.).
150. The ministry of the interior stated that 41 people had had
their situation regularised in 2006 (granted Greek nationality)
and 18 other cases were being dealt with.
On
the other hand, the statelessness of members of the minority living
abroad is a situation which remains unresolved.
151. This issue was not raised by the members of the minority whom
the rapporteur met in Thrace (for obvious reasons, since the stateless
persons are obliged to live outside Greece), but he feels that it
is important enough to call on the Greek authorities to settle the
pending cases as quickly as possible. This regularisation should entail
neither substantial costs nor unwieldy administrative processes
for those having had their nationality withdrawn in this context.
The Council of Europe Commissioner for Human Rights has also just
recommended that the Greek authorities immediately restore Greek
nationality to the persons (living in Greece) who lost it in pursuance
of former Article 19 of the Nationality Code, and to consider the
possibility of giving satisfaction to the persons (or to their descendants)
who lost Greek nationality in pursuance of this article and remained abroad.
The rapporteur can but support
this recommendation.
5. Need for a more
modern approach to the protection of minorities
5.1. A “new” approach
152. In the last two years a number of highly symbolic
events have focused on minority issues between Greece and Turkey.
The historic visit by the Greek Prime Minister to Turkey in January
2008, and his meeting with his Turkish counterpart, was undeniably
one such event.
153. Several people spoken to by the rapporteur in Thrace said
that there had been a change in the Greek authorities’ approach
towards the minority since the 1990s. The logic of reciprocity was
no longer seen by political forces as the right way to treat part
of the population.
154. In particular, there was the unprecedented visit by the Greek
Minister for Foreign Affairs to Thrace in February 2007. The minister
devoted all her time to the Muslim minority during her visit, and
pointed out the necessity of opening up and developing the region.
The minister announced a number of measures benefiting the minority:
the cancellation of the debts and mortgages of the vakfs, the extension of the 5:1 000
quota for Muslims already practised in universities to the civil
service, the possibility for those having been deprived of their
Greek nationality of reacquiring it upon request.
155. The quota pledged for admission to the civil service was introduced
in 2008. This measure should be implemented without delay.
156. While the rapporteur has doubts as to whether the Muslim minority
in Thrace (Greek citizens) should fall within the remit of the ministry
of foreign affairs, this initiative and the measures announced are
laudable.
157. The rapporteur also perceived a certain drive among a “new”
generation of young members of the Muslim minority of Thrace. These
young people see themselves unequivocally as part of the Greek state
and the European Union. They are taking interesting initiatives
with the stated aim of integrating the minority in Greek society
while nevertheless retaining knowledge of their mother tongue. There
is an older fringe of members who are somewhat recalcitrant and
take an entirely different view. But the rapporteur hopes that this change
of mentality from one generation to another will bring significant
improvements for the minority and encourages these young people
to continue their efforts to build understanding and accord.
158. It goes without saying that discrimination must cease, on
both sides. In Turkey, the members of minorities reported that they
were not admitted to high-level posts in the administration, the
army or the judiciary. They have no difficulty in exercising independent
professions but are clearly discriminated against where admission
to the civil service is concerned. The rapporteur suggests that
Turkey follow the example of Greece by introducing a quota for members
of national minorities for admission to the civil service.
5.2. Role of the media
159. The media have a fundamental role to play in the
majority’s perception of minorities and must wield a positive influence.
160. The rapporteur was delighted to hear the Turkish Minister
of the Interior say that he “could not imagine Turkey, and especially
Istanbul, without minorities”. The minister stated that he himself,
the Prime Minister, the Government and the President of Turkey believe
that religious minorities form the richness of their country and greatly
contribute to its future. Unfortunately, this message finds little
echo in the Turkish press, where stances that are extremist, nationalistic
and overtly hostile to minorities, whether religious or not, feature
strongly.
161. Moreover, the representatives of the Jewish community expressed
concern about rising anti-Semitism, emphasising the hate speech
passed on by extremist media, which engineer confusion between Israel
and Judaism.
162. The old Criminal Code contained a provision criminalising
incitement to hatred. To qualify as a crime in the new code, incitement
to hatred must have a “real and immediate effect”. The representatives
of the Jewish community complained that anti-Semitism is not prosecuted
because the danger is not regarded as real and immediate.
163. The rapporteur believes that an article making anti-Semitism
a crime could be added to the Criminal Code. In fact the Assembly
has already expressed this view in its
Resolution 1563 (2007), calling
on the governments of Council of Europe member states to “vigorously
and systematically enforce legislation criminalising anti-Semitic
and other hate speech, in particular any incitement to violence”.
Whereas the Jewish community hitherto
enjoyed a “relatively peaceful existence”, the European Commission
against Racism and Intolerance (ECRI) noted that “the climate has
suddenly changed” since 2003 and made repeated calls for “action
to prevent and punish any incitement to hatred directed against
members of the Jewish community”.
164. In general, ECRI deplored the fact that “no action is taken
to sanction intolerant remarks about minority groups whereas the
legislation prohibiting statements that threaten the indivisibility
of the state is apparently being abused”
. Sadly,
the rapporteur was not made aware of any improvement in this area.
165. As already recommended by ECRI, a code of ethics should be
devised and public awareness-raising activities, such as a national
campaign against racism and intolerance, should be organised.
5.3. Economic integration
166. The rapporteur observed that Thrace is not an economically
prosperous region and that, unlike the Greek Orthodox, Armenian
and Jewish minorities in Turkey, the Muslim minority in Thrace is
not a wealthy one. Much of the minority lives from tobacco-growing.
The halting of European Union subsidies for this crop has plunged
them into a highly precarious situation. Those living in mountain
villages are the worst off.
167. Considering what is at stake as regards integration, economic
development of Thrace should be promoted. The emphasis should be
on developing the region’s infrastructure, exploiting its obvious
tourism resources and also on technical development (for example,
by ensuring that the inhabitants of villages can receive Greek television).
168. The rapporteur suggested that the Greek authorities explore
the possibility of making use of European Union programmes by setting
up rural development zones or free-trade zones in Thrace.
169. More economic development would necessarily mean better integration
in Greek society in the longer term.
6. Conclusions
and recommendations
170. The rapporteur notes with satisfaction that both
Greece and Turkey have recently shown greater understanding of the
specific characteristics of their respective minorities, who are
the focal point of this report.
171. Efforts have been deployed on either side of the border to
improve the situation of these minorities (for example by the introduction
of quotas in Greece, the reform of the law on foundations in Greece
and in Turkey, the circular from the Turkish Ministry of the Interior
on the freedom of religion of non-Muslim Turkish citizens, etc.).
He also notes that many positive reforms have been carried out in
Turkey in the context of dialogue with the European Union.
172. The rapporteur has also observed real awareness on the part
of the authorities of the two countries concerned, which provided
him with strong evidence of their commitment to finding appropriate
responses to the difficulties faced by members of the minorities
in question.
173. However, some issues are still pending and the two states
must pursue their efforts – efforts which cannot yield results without
constructive dialogue with the members of the minorities.
174. In conclusion, the rapporteur is convinced that the authorities
of both countries are committed to their respective minorities and
to doing their utmost to change people’s perceptions of those minorities.
The rapporteur wonders whether it is appropriate to continue to
entrust competence for minorities to their foreign affairs ministries,
since these people, it must be remembered, are nationals. It is
vitally important that both the members of the majority and the
members of the minorities understand and feel that the latter are
full citizens of their country of residence and are not to be considered
as foreigners.
175. For the reasons already mentioned in this report, the rapporteur
would like Greece and Turkey, at all administrative and judicial
levels, to cease applying the principle of reciprocity to their
respective minorities and to treat all their citizens without discrimination,
regardless of how the neighbouring state might treat its own citizens.
He also calls on them to fully apply the general principles of minority
rights developed in the case law of the European Court of Human
Rights.
176. The rapporteur further encourages the two countries to sign
and/or ratify the relevant international instruments, particularly
the Framework Convention for the Protection of National Minorities,
ETS No. 157 (opened for signature in 1995),
and
the European Charter for Regional or Minority Languages, ETS No.
148 (opened for signature in 1992).
177. Greece and Turkey must also fully appreciate what is at stake
in minority education. It is vital that the governments ensure that
the level of teaching in minority schools is of high quality and
paves the way for the full and total integration of children of
minorities within the national community, the integration of minorities being
a factor for peace and development.
178. Generally speaking, the rapporteur has gauged the states’
willingness to take more account of the specific characteristics
of minorities in their cultural and religious dimension, with a
view to mutual respect and to enrichment of their national community.
179. In this regard, the rapporteur was able to appreciate the
shared willingness of Greece and Turkey to work towards achieving
this aim.
180. The rapporteur encourages the authorities of both countries
to forge open and constructive dialogue with the representatives
of minority communities. He has made recommendations on the basis
of his conclusions (see draft resolution).
Reporting committee:
Committee on Legal Affairs and Human Rights
Reference to committee:
Docs 10714 and 10724, Reference 3203 of 17 March 2006
Draft resolution adopted
by the committee on 24 March 2009 with one vote against and two
abstentions
Members of the committee:
Mrs Herta Däubler-Gmelin (Chairperson),
Mr Christos Pourgourides,
Mr Pietro Marcenaro, Mr Rafael Huseynov (Vice-Chairpersons), Mr
José Luis Arnaut, Mrs Meritxell Batet Lamaña (alternate: Mr Arcadio Díaz Tejera), Mrs Marie-Louise
Bemelmans-Videc, Mrs Anna Benaki,
Mr Erol Aslan Cebeci, Mrs Ingrida Circene,
Mrs Ann Clwyd (alternate: Mr Christopher Chope),
Mrs Alma Čolo (alternate: Mrs Milica Marković),
Mr Joe Costello, Mrs Lydie Err, Mr Renato Farina,
Mr Valeriy Fedorov, MrJoseph Fenech Adami (alternate:
Mrs Marie-Louise Coleiro Preca),
Mrs Mirjana Ferić-Vac, Mr György Frunda,
Mr Jean-Charles Gardetto,
Mr József Gedei, Mrs Svetlana Goryacheva (alternate: Mr Alexey Aleksandrov), Mrs Carina Hägg,
Mr Holger Haibach, Mrs Gultakin
Hajibayli, Mr Serhiy Holovaty,
Mr Johannes Hübner, Mr Michel Hunault, Mrs Fatme Ilyaz, Mr Kastriot
Islami, Mr Željko Ivanji,
Mrs Iglica Ivanova, Mrs Kateřina Jacques,
Mr András Kelemen, Mrs Kateřina Konečná,
Mr Franz Eduard Kühnel, Mr
Eduard Kukan (alternate: Mr József Berényi),
Mrs Darja Lavtižar-Bebler, Mrs Sabine Leutheusser-Schnarrenberger,
Mr Aleksei Lotman, Mr Humfrey Malins,
Mr Andrija Mandić, Mr Alberto Martins,
Mr Dick Marty, Mrs Ermira Mehmeti, Mr Morten Messerschmidt,
Mr Akaki Minashvili, Mr Philippe
Monfils, Mr Alejandro Muñoz Alonso,
Mr Felix Müri, Mr Philippe
Nachbar, Mr Valery Parfenov, Mrs Maria Postoico, Mrs Marietta de
Pourbaix-Lundin, Mr Valeriy Pysarenko,
Mr Janusz Rachoń, Mrs Marie-Line Reynaud (alternate: Mr René Rouquet), Mr François Rochebloine,
Mr Paul Rowen, Mr Armen Rustamyan, Mr Kimmo Sasi, Mr Ellert Schram, Mr Dimitrios
Stamatis (alternate: Mr Emmanouil Kefaloyiannis),
Mr Fiorenzo Stolfi, Mr Christoph Strässer,
Lord John Tomlinson, Mr Mihai
Tudose, Mr Tuğrul Türkeş,
Mrs Özlem Türköne, Mr Viktor Tykhonov, Mr Øyvind Vaksdal, Mr Giuseppe Valentino
(alternate: Mr Gianni Farina),
Mr Hugo Vandenberghe, Mr Egidijus Vareikis,
Mr Luigi Vitali, Mr Klaas de Vries,Mrs Nataša Vučković,Mr Dimitry Vyatkin,
Mrs Renate Wohlwend, Mr Jordi Xuclà
i Costa
NB: the names of the members who took part in the meeting
are printed in bold
Secretariat of the committee:
Mr Drzemczewski, Mr Schirmer, Mrs Maffucci-Hugel, Ms Heurtin