Foundations/trusts and religion in Turkey: Altınkaynak

The vexed issue of the registration of religious groups has come up again, this time in Turkey

In Altınkaynak and Others v Turkey [2019] ECHR (no. 12541/06) [French only], the six applicants set up a foundation [vakf[ in September 2004 – Türkiye Yedincigün Adventistleri Vakfı (the Foundation of Turkish Seventh-day Adventists) – for the purpose of meeting the religious needs of Turkish and foreign Seventh-day Adventists living permanently or temporarily in Turkey – and the Turkish courts refused to register it on the grounds that domestic law does not allow foundations to serve the sole interests of members of a specific community.

In their application to register in  October 2004, they relied, in particular, on the relevant provisions of UN statutes, the rights and freedoms guaranteed by the Convention, the Constitution and national legislation and on the principle of secularism. The court dismissed that request on the grounds that the foundation’s aim was to meet the religious needs of persons accepting the beliefs of Seventh-day Adventists, which was incompatible with the provisions of Article 101 §4 of the Civil Code prohibiting the setting up of foundations designed to support the members of a specific community. The Court of Cassation upheld that judgment.

Before the ECtHR, the applicants complained that the Turkish courts’ refusal register their foundation was contrary to their Convention rights under Article 9 (thought, conscience and religion), Article 11 (assembly and association), Article 14 (discrimination), Article 17 (prohibition of abuse of rights) and Article 18 (limitation on use of restrictions on rights),

The Court held that there had been a violation of Article 11. It was contradictory to consider, on the one hand, that the followers of a religious belief had the freedom to organize the collective practice of their belief, if necessary by creating foundations and, on the other, that a foundation could not aim to meet the religious needs of its followers [35]. Secondly, the national courts had equated the terms “religious needs” of persons adhering to Adventist beliefs with the “interests of a particular community”: assimilating the two led to a confusion between meeting the needs related to the collective practice of the followers of a specific belief and discriminating by helping or not helping needy people according to the communities to which they belong. they belong [36].  A foundation intended to finance the religious activities of a specific church could not, by definition, serve the religious needs of believers of other religions or beliefs:

“To interpret the provisions of the domestic law, as seems to have been the case here, to arrive at a contrary result, would be to ban outright the foundations intended to finance the collective practice of a specific belief” [37].

There was no problem with Article 101 §4 of the Civil Code in principle with respect to Articles 11 and 14: it was quite legitimate that in a Contracting State public services or social or humanitarian aid could not be refused to persons in need because they did not belong to a determined community; however, it could not reasonably be inferred from that principle that those in need could not benefit from these services or aids because they were considered to belong to a particular community. Because the domestic authorities’ conclusions had been based on such a deduction, they were neither relevant reasons nor sufficient grounds for refusing to grant the foundation legal personality [38].

The Court also noted that the Court of Cassation had not given the applicants time to amend the statutes of the foundation in order to bring them into conformity with its interpretation of the relevant part of the Civil Code. But that said, even if the applicants had expressly made such a request it would have been rejected:

“In any event, it is sufficient for the Court to find that the foundation which the applicants were trying to create in order to contribute to the financing of their collective religious practice was not allowed to acquire legal personality” [39].

In conclusion, the measure complained of did not meet any pressing social need, it was disproportionate to the legitimate aims pursued and, as a result, it was not necessary in a democratic society. Accordingly, there had been a violation of Article 11 [40].

Cite this article as: Frank Cranmer, "Foundations/trusts and religion in Turkey: Altınkaynak" in Law & Religion UK, 15 January 2019, https://lawandreligionuk.com/2019/01/15/foundations-trusts-and-religion-in-turkey-altinkaynakof-all/

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