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Freedom of association in Turkey |
Summary Report
| Political, democratic and Human Rights Specific contexts |
| Civil society landscape |
| Legislation |
Political, democratic and Human Rights Specific contexts
At the Helsinki European Council of December 1999, Turkey was officially recognised as a candidate country to the European Union (EU). This marked the beginning of a reform process in Turkey in the context of human rights and democracy. But despite the process of democratisation initiated for purposes of harmonisation with the EU’s Copenhagen political criteria, problems in Turkey as regards human rights and democratisation remain unresolved during the last seven years.
Since 1999, a total of 8 harmonisation packages were introduced. These packages include amendments in Turkish Penal Code, Law on Fight Against Terrorism, Criminal Procedures Law, Administrative Procedures Law, Law on the Establishment & Procedures before State Security Courts, Press Law, Association Law, Political Parties Law, Law on Education and Teaching of Foreign Languages, Law on Directorate-General for Foundations and the Foundations Law.
Among amendments, expanding the freedom of association, teaching in private courses and broadcasting on languages spoken in Turkey other than Turkish, the abolition of the sentence “legally banned languages” that existed in some laws, and enabling foundations to own property and providing the opportunity for renewal of the trial after the decision of the European Court of Human Rights, can be counted as significant amendments.
Another important fact, which is missed in evaluations, is that armed clashes in Kurdish areas had nearly come to an end in the period between 1999 and 2004. This fact facilitated the process of normalisation and boosted hopes of peace.
Constitutional and legislative amendments had positive effects on democracy and human rights. However, these felt short of bringing about structural changes in the State.
In the framework of the reform process, Turkey has signed a number of international instruments However, regarding Turkey’s fulfilling of its obligations under the instruments problems are being experienced in both legislative and implementation aspects.
As a matter of fact almost no step was taken and no serious change was introduced in such critical areas as the rule of law, the independence of the judiciary, the minority and cultural rights, the autonomy and democratisation of universities, the reduction of inter-regional disparities, reflecting the pluralistic nature of the society to legislative and executive power and seeking political solutions to the Kurdish problem.
Towards the end of 2004, positive conditions which had facilitated normalisation and laid a ground conducive to democratisation and improvements in human rights started to turn into negative in some respects. The re-emergence of armed clashes contributed to the re-strengthening of discourse on “fight against terrorism” and heightening the voice of nationalistic circles while facilitating the presentation of demands on cultural rights and peace as “support to separatism”.
Between 2005 and 2007, no significant progress was made in democratisation and improvement in human rights situation. This period is rather marked as deterioration from the reform process. Developments during this period can be summarised below.
The amendments to the anti-terror law were adopted in June 2006 as a response to the persistence of the armed clash in the southeastern part of Turkey. Under the new law, the list of what constitutes a terrorist offence was extended and a wide definition of terrorism maintained. This has had an impact on associations dealing with the sensitive issue of the rights of the Kurds.
In this regards there are severe restrictions on freedom of expression. Several articles in the Turkish penal Code, in the new Anti-Terror Law and in the Law protecting Atatürk prevent the exercise of freedom of expression and prohibit it as ‘Public denigration of Turkishness’ (Article 301). Another restriction is found in the Article 220 of the Turkish Penal Code punishing persons who knowingly and willingly help an organization to commit a crime.
Since the enforcement of the new Turkish Penal Code in 2005, more than 100 individuals have been under trials. Although article 301 includes a provision that expression of thought intended to criticise should not constitute a crime, it has repeatedly been used to prosecute journalists, writers, publishers, academics and human rights activists for expressing non violent opinions.
As a result, the influence of the Armed Forces on the social and political life has increased between 2005 and 2007. Moreover, senior members of the Armed Forces have expressed their opinion on issues related to domestic and foreign policy including Cyprus, secularism and the Kurdish issue.
According to data provided by the Department of Associations at the Ministry of Interior, there are 77110 associations and foundations acting in Turkey. 43% of these associations are located in five main cities of Turkey (İstanbul with 20,68%, Ankara with 10,9%, İzmir with 5,19%, Bursa with 3,77% and Kocaeli with 2,87%).
The number of associations and foundations dealing directly with human rights issues in general are rather limited in Turkey: Human Rights Association (İHD); Organisation of Human Rights and Solidarity for Oppressed People (MAZLUMDER); Human Rights Foundation of Turkey; Helsinki Citizens Assembly-Turkey; Amnesty International – Turkey; Human Rights Agenda Association.
The legal aid to victims of human rights violations are provided mainly by the Bar Associations. It is regulated by the Code for Lawyers. The latter mentions that the Board of Directors of the Bar Association is responsible for establishing and managing the legal aid offices. There is a total of 78 Bar associations acting in Turkey.
Combatting torture has been one of the main activities of human rights organizations. As such, the Human Rights Foundation of Turkey (TIHV) and the Human Rights Association (IHD) are very active. However, none of them is only specialized in torture issues.
There is a wide number of organisations dealing with women’s righs issues. As an example, there are 36 Shelter Houses for women in Turkey. 20 of them are run by the State authotirites (Social Services and Children Protection Institution) and 16 of them by municipalities and women organizations. In 2003 a study showed that there were a total of 300 women associations in Turkey. According to some sources, the number is now up to 500 throughout the country. The geographical distribution of women organisations is uneven and the majority is located in İstanbul and Ankara.
There are more than 100 organisations in Turkey dealing with children issues. In addition to these NGOs, there is also a network of 20 Bar Associations dealing with children rights. In Ankara, 9 NGOs dealing with children rights have established a Platform for Child Rights including International Children Centre.
The organisations dealing with disabled people are numerous over the country. As an example, Association for Handicaps consists of 61 branches throughout the country. There are four federations working on mental and physical disabilities, deafness and blindness. Acting as services providers, the right based approach is not commonly used by these organizations.
The number of organisations dealing with prisoners is limited. These organisations are established by family members of political prisoners, such as TAYAD and TUHADFED. No other NGOs devote its work solely to prisoners. However, most of human rights organisations and some children organisations carry out activities aiming at improving the conditions in prison.
There are also a number of associations and foundations defending the rights of minorities. Romas have recently started to get organized. Recognised minorities i.e. Armenians (48), Greeks (60), Jews (12), Keldanis (1), Bulgarians (1), Asyrians (1), Georgians (1) have their religious foundations under the tight scrutiny of the Directorate General for Foundations.
It is important to underline that certain human rights associations are subjected to judicial harassment by the authorities. Trials and investigations are regularly opened against some associations, which encounter serious problems regarding the procedures. The IHD case (Ýnsan Haklarý Dernedi) is a characteristic example of this form of state harassment. Prosecutions are often based on arbitrary motivation and result in heavy financial penalties1[1].
The Turkish Constitution was amended in 2004 and this amendment gives supremacy to the International Treaties over domestic laws.
A. — International instruments on Freedom of association ratified by Turkey
The most important International Instruments towards Freedom of Association are :
ð the Universal Declaration of Human Rights (accepted by Turkey in 1949),
ð the European Convention on Human Rights (ratified in 1954). But on May 10, 1990, Turkey formulated several reservations one of them being on freedom of expression and association. In 1991, 1992 and 1993, Turkey reduced progressively its reservations. In 2002, the emergency law was abrogated and on January 29, 2002, the last reservation was abolished. This is the most efficient convention signed by Turkey,
ð the International Covenant on Civil and Political Rights (signed on August 15, 2000 and ratified on September 23, 2003), but Turkey formulated a reservation on article 27,
ð Convention on the Rights of the Child (ratified in 1992). Turkey formulated 3 reservations on articles 17, 29, and 30.
B. — Constitutional provisions
After decades of repression, and under the pressure of the European Community, the Constitution was amended in 2001. The article 33 of the Constitution of 1982, concerning the right to form an association, was amended by the Law n° 4121 of July 23, 1995, and then, by the Law n° 4709 of October 3, 2001. It grants the right to form an association without prior authorization.
A new law on Associations was put into force in July 2004, which was “generally in line with international standards” according to the European Commission (Regular Report, 2006, p. 15).
- The legal framework regulating the freedom of association consists in the following laws:
· Law No 5253 on Associations (23/11/2004 )
· Regulation of Associations Law (2005)
· Law on Foundations No 2762 (1935)
- Foundations Regulations (1970) (for foundations established according to the Civil Code-last revision was made on 1991)
· The current draft law on foundations (pending approval in the Parliament)
- Provisions of the Civil Code pertaining to associations and foundations (Nos 56-117 of the Code 4722 concerning Civil Code)
- The General Statement on Corporation Tax (#83), which gives details about the criteria and conditions to obtain the status of public benefit for foundations.
1. Does the system allow for non-declared or unincorporated associations?
The legal framework does not recognise non-declared or unincorporated associations.
2. Is the registration system based on Licensing or simple information/notification?
The registration system is based on notification. In case the Statute of the association is approved then the association is entered into a Register.
3. What are the bases upon which registration can be rejected (e.g. race, security, religion, and politics)?
Registration can be rejected only if its object is contrary to the laws and ethics (Art. 56 § 2 Turkish Civil Code).
But, if the public authority finds irregularities in the documents submitted, it notifies the association to rectify these documents within 30 days. In case the association fails in rectifying the document, the public authority can inform the Public Prosecutor who can refer the case to the Court in order to proceed in the dissolution of the association.
4. How easy or difficult is the registration: (e.g. time, cost, number of incorporators)?
The Turkish Law on Associations requires a minimum of “seven persons or legal entities” to establish an association. This requirement “arguably poses a practical obstacle to the formation of associations, particularly for those dealing with unpopular issues”2[2].
5. Are there effective remedies in the cases where registration is denied, delayed (e.g. judicial, administrative)?
In case the registration is denied by the public authorities, the associations can appeal to courts and at last to the European Court of Human Rights.
6. Does registration automatically entail obtaining separate legal personality?
Yes. In case the association is violating the existing laws, the dissolution has to be prounounced by the Court. Therefore, the legal personality exists since the notification, even if the administration refuses to register the association.
7. Are there other viable alternatives if the right to freely form and incorporate an association is denied (e.g. incorporate as a company, a trust a “Wakf”)?
Establishing a company was common in some fields and regions before the amendment of the Associations Law in 2004. However, after the legal reform, some women organisations decided to establish cooperatives in order to reduce the formalities.
The Constitution defines in Article 33 § 4, regulating the Freedom of Association, the basis for dissolving or suspending associations and foundations.
1. What are the causes/grounds of dissolution/suspension?
The only grounds for dissolution or suspention are legal grounds: “Associations may be dissolved or suspended from activity […] in cases prescribed by law” (art. 33, § 4, Constitution). The Law on Associations (2004) indicates the causes of dissolution:
- The use of certain names and signs in violation of the law (art. 29 Assoc. Law)
- Prohibited activities
- Associations cannot carry out activities other than those indicated in the Statute as the objective of the association. (art. 30-a)
- Associations cannot have, as its aims, goals or activities expressly restricted by the Constitution or the laws, and cannot execute acts which may constitute an offense according to the laws (art. 30-b Assoc. Law). For instance, the gouvernor of Bursa referred a request to dissolve the association Rainbow Travesties, Transsexuals, Gays and Lesbiens Protection, Solidarity and Cultural Association to the Public Prosecutor on the grounds that its goals and activities were conflicting with the Constitution (art. 33 and 41) and the Civil Code (art. 56). The gouvernor of Istanbul has recently referred a request to dissolve the association Lambda Istanbul, which defends LGBT rights.
- The associations cannot have military or paramilitary activities;
- Violation or breach of certain requirements in the notification form and attached documents (art. 60)
- The language used should be Turkish. On April 20, 2006, the Court of first instance No 2 of Diyabakir dissolved the association Diyarbakir Kürt-Der (Kurdish Association Diyarbakir). One of the reasons refered to was the use of the kurdidh language as a working language.
- By-laws, declarations and status, should be conform to what is requested by the Association Law and contain accurate information. Failing to recover of the contraries to the law is a ground for suspension or annulation.
2. What authorities pronounce these decisions (role of the Judiciary, Executive …)?
Only the Judiciary pronounces dissolution or suspension decisions, according to Article 33-4 of the Constitution that stipulates: “Association may be dissolved ot suspended from activity by decision of judge in case prescribed by law”.
But, the same article states that “In cases where delay endangers national security or public order and in cases where it is necessary to prevent the perpetration or the continuation of a crime or to effect apprehension, an authority designated by law may have power to suspend the association from activity”.
However, the public authority that suspended the association is obliged by the same constitutional article to submit its decision “for approval to the judge in charge of the case within 24 hours”. İf the judge doesn’t pronounce a judgment within 48 hours, the “administrative decision shall be cancelled automatically”.
In case the administration finds violations in the declarations, regulation or statutes of an association, it has to inform the Public Prosecutor. The latter has the competence to sue the association before the Court for dissolution or suspension of activities.
3. Are there effective remedies and appeals?
The ordinary trial procedure is applicable in the actions to be proceeded before the civil courts pursuant to this Law (art. 18).
The Associations can apply to Administrative Court with a demand to, for example “suspend the decision of the Adminsitration”. If the Court decides to the disadvantage of the association, then the latter can appeal to the Council of State.
The prosecution and investigation are carried out according to the provisions of the Law 3005 related to Trial Procedures in Flagrant Crimes, and do not depend on the location and time of the offense.
1. What is the extent of the freedom of members to draft and amend their own statutes and by-laws and to determine their own object? (Are such documents imposed? to what extent?)
Although associations are free to draft and amend their own statutes and by-laws and to determine their own objectives, there are legal and practical limitations. The Department of Associations at the Ministry of Interior has produced a template for the statutes of the associations published on its website. This template provides the associations with the general framework for their statutes. This template does not allow associations to establish structures of their choice. As a consequence, it interferes into the internal structure of the associations.
2. How strict is the level of freedom of members to adhere to or leave associations?
Freedom to adhere to and leave an association is laid down in the Association Law.
- A written notification is required (art. 66).
- Membership can also be automatically terminated if the member “loses the qualifications required by the law or by the by-laws of the association” (art. 65).
- Discharge from the association is also possible (art. 67) if motivated in accordance with the by-laws. In that case, objections are not admitted. But, “if the reasons of discharge are not clearly indicated in the by-laws; a member may only be discharge on justified grounds”. In this situation, “an objection may be made to this discharge by arguing that it is not based on justified grounds”. However, the law does not indicate the meaning of “justified grounds”.
3. Are there any interference in the corporate bodies: e.g. attendance of meetings (Board, General Assemblies) by “supervisors”?
There is no interference in relation to participation in meetings or elections.
4. Are there any restrictions (legal or de-facto) promoting, limiting or banning participation of women in associational offices (e.g. Board)?
The Association Law (art. 68) contains an article on equality which grants equal rights to the members and bans the discrimination based on language, race, colour, sex, religion, sect, lineage, society and class. However, de facto, participation of women in associational life is rather limited, except within women associations.
5. Are there any interference in the freedom of associations to decide on projects and activities? If yes, how and why?
There has not been any interference on projects and activities since the enforcement of the new Association Law of 2004.
6. Is the association’s right to freely assemble or organize private and public meetings, move freely (including international travel) restricted in any way?
There is no restriction on organising private and public meetings. However, in practice, the Law on demonstrations and public meetings can apply for large demonstrations or public meetings. Furthermore, the Association Law does not hamper the freedom of movement of members of the association, either internationally or domestically.
7. Are associations subject to specific limitation on their right to freely communicate (e.g. access to media, publish and develop internet sites)?
In general, there are no limitations to access to the media, publish and develop websites. However, the LGBT organisations encounter some difficulties in developing websites.
8. Is the freedom of associations to cooperate and network with others limited (both domestic and international)?
There are some limitations in the Association Law on cooperation and networking.
9. Is the participation of associations sought for opinion or participation in deciding on public interest issues? What is the nature and level of such consultations?
Attitudes and practices of officials, politicians, and the media against human rights defenders, representatives of the civil society and NGOs, bring about a lack of public confidence in human rights organizations and NGOs in general. Therefore, there is no real mediation that could support dialogue between the autorities and the civil society. There are no satisfactory mechanisms within the public administration that takes into account the opinion and recommendations of the civil society. The institutional structures through which the civil society could effectively oversee the legislative and executive activities are not functional.
10. Are there effective remedies and appeals?
The members of an association have the right to appeal to the Civil Court in case a decision from the Board would be unfair.
There is no limitation on acquisition of real estate as long as it is done on the grounds of a decision taken by the Board, “based on the authorization given by the general assembly” (art. 22). However, the associations are liable to make a notification of the real estate purchased to the local administrative authorities within one month as of the entry date in the registry (art. 22). The aid collection by associations and foundations has strict rules. It requires a prior permission from the authorities. The authorities have recently frozen the funds of Amnesty International Turkey. AI had published its bank details on its website for potential donations. This procedure has been considered inconsistent to the law.
2. Are there any limitation on the rights of associations to use the funds, other than by the conditions of their granting?
The practice cannot be regarded as a limitation strictly speaking; however, all foreign funds beneficiaries should provide a copy of their projects to the Department of Associations within each province. Although there is no legal ground, officials occassionally audits all expenditures made in this context. This is an indication of the lack of confidence of authorities towards civil society organisations.
3. Are there specific limitations on receiving foreign funds?
The legal framework remains unduly restrictive in several aspects regarding international cooperation. While the Law on Associations specifically permits associations to engage in international activities and establish cooperation abroad (a significant improvement over the prior legal framework), the Association Regulations impose burdensome notification requirements on both associations and foundations, which could be confused with a prior governmental approval.
4. Do associations benefit from tax benefits? Under what conditions?
In general, associations are not excempted from taxes. Associations are paying tax of rent, income tax and other relevant taxes applied in good and services. The Council of Ministers decides, case by case, if the associations and foundations with granted public benefit status may be excempted from tax.
5. Are public funds made available to associations? How? Are these processes prone to discrimination?
Public funds are available restrictively. Besides, these funds are only available for associations and foundations with granted public benefit status which is discriminatory practice.
1. What are the supervisory authorities that oversee associations (e.g. courts, ministries, independent bodies, security apparatus)? How consistent are the activities of these authorities with the principles of freedom (check principle 16 of the Declaration)?
“The associations are obliged to submit the year-end results of their activities, income and expenditure transactions to the local administrative authority each year, before the month of April”. (art. 19)
When he thinks it is necessary, the Ministry of Interior or the local administrative authorities may start inspection to determine whether the association is operating in the direction of the object declared in the statute and whether the statutory records are kept in compliance with the laws. However, “such inspections must be notified to the associations at least 24 hours in advance”. Association members are obliged to provide all information, documents and records requested by the officers assigned with inspection duty, and to enable their access to the management building, premises and equipment.
In case of determination of illegal activity during the inspection, the Chief Prosecutor’s Office is notified immediately by the local administrative authorities.
2. Are accounts and other information transparently available to the public?
Associations declare their accounts and other relevant information during their General Assemblies. Stricly speaking, it is not easy to affirm that all associations and foundations have transparancy rules and principles.
3. What penalties (e.g. criminal, fines, etc) and harassment measures are applied in cases of violations?
In cases of violations, article 32 of the Association Law applies administrative fine, and even imprisonment sentences.
[1] Cf Amnesty International, “Judicial harassment of human rights defenders Turkey - ‘repeal one law, use another’”, AI Index: EUR 44/036/2004, November 2004, available at http://web.amnesty.org/library/Index/ENGEUR440362004?open&of=ENG-TUR.Back to text
[2] TÜSEV, Comparative Report on Turkish Association Law Provisions, September 2004. Back to text
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