Latin America

Progress on Civil Society Legislation in Turkey

The International Journal
of Not-for-Profit Law

Volume 7, Issue 2, February 2005

By Filiz Bikmen*

With the adoption in recent months of a new Law on Associations and the publication of a new draft law on foundations, Turkey is undergoing significant changes in the area of civil society legislation.

New Law on Associations

The Turkish Parliament has adopted the most progressive Law on Associations in over 20 years. This marks an important milestone for the strengthening of the legal framework for NGOs and the general advancement of civil society in Turkey. The new law significantly reduces government control over association activities while raising internal auditing standards. It also enables government funding for up to 50 percent of joint projects with associations.

The Third Sector Foundation of Turkey (TUSEV) partnered with the International Center for Not-for-Profit Law (ICNL) to provide inputs for the preparation process of this law. The cornerstone of this assistance was a “Comparative Report on Associations Law” (see appendix), which provided inputs on the intellectual framework for reform.

Almost all the provisions in the comparative report were accepted and integrated into the final draft, which was approved by review commissions and Parliament. The law was adopted in its final form by Parliament in late October 2004, and will be followed by the publication of the regulation, which is critically important for ensuring effective and even-handed implementation of the new law.

Some of the major revisions include the following:

  • Associations are no longer required to obtain prior authorization for foreign funding, partnerships, or activities (although a provision in the Civil Code still requires foreign organizations to obtain prior authorization of their activities in Turkey and with Turkish partners).
  • Associations are no longer required to inform local government officials of the day/time/location of general assembly meetings and no longer required to invite a government official to conduct or to supervise general assembly meetings.
  • Officials conducting audits must provide 24-hour advance notice and just cause in the case of random audits.
  • NGOs are permitted to open representative offices for federations and confederations internationally.
  • Security forces are no longer allowed on the premises of an association without a court order.
  •  Specific provisions and restrictions for student associations have been entirely removed; and children from the age of 15 can form associations.
  • Internal audit standards (i.e., within associations) have been increased to ensure accountability of members and management.
  • Associations will be able to form temporary platforms/initiatives to pursue common objectives.
  • Government agencies and departments will be able to fund up to 50 percent of joint projects with associations.
  •  Associations will be allowed to buy and sell necessary immovable assets without prior authorization.

 

Although these revisions indicate significant progress, concerns remain about sanctions, which include steep penalties and fines. It is also important to note that there are several other relevant pieces of legislation affecting civil society, such as press, assembly, and demonstration laws, which retain their restrictive nature. Thus, while the progress with the associations law is important, it is necessary to take into consideration the wide spectrum of laws and practices that require continued reform in order to fully enable civil society in Turkey.

The Department of Associations, formed in 2003 as a special unit of the Ministry of Interior, played a key role in promoting reforms and advocating for more enabling legislation. This Department provides the official registration and oversight function, with a central office in the capital Ankara and local offices in 81 provinces across the country.

Draft Law on Foundations

The draft law on foundations was published on October 28, 2004, by the General Directorate of Foundations (GDF), which is the regulatory/administrative unit responsible for oversight of foundations in Turkey. The justification for a new law on foundations is based primarily on the following mandates:

  • Need for harmonization of laws: Current legislation governing “old” (Ottoman) and “new” (post-Republic) foundations is spread out over 40 different laws, regulations, decrees, and circulars, creating a complicated system of regulation. This law is intended to capture all of these changes and promote one harmonized law.
  • Treatment of “minority” foundations:Non-Muslim foundations established during the Ottoman era are facing issues with legal personality and properties. This was related to other issues regarding cultural and minority rights in Turkey and was thus raised as an issue that requires resolution as part of Turkey’s EU reform process.
  • Restrictive and cumbersome regulations: Current legal frameworks include significant limitations on foundations with regard to their governance, activities, and assets. The draft law is intended to rectify this and promote a more enabling framework for foundations to operate.

In its current form, the new draft law does address a portion of the mandates outlined above, although there is some concern regarding the harmonization of laws, given the distinctly different operational realities and needs of old and new foundations. The draft includes many positive developments for new foundations, in line with TUSEV’s comments and the “Comparative Report on Foundations Law” developed with ICNL and the Law Faculty of Bilgi University. However, one of the key concerns is the increase of decision-making powers allocated to the GDF, which may be better left to the courts and justice system. The exercise of powers of the GDF has been a major issue for “old” and “new” Turkish foundations and has also been commented on by the EU in its progress reports on Turkey in 2003: “[Foundations are] subject to the interference of the Directorate General of Foundations, which considerably limits their autonomy. This includes the possibility of dismissing their trustees, and of intervening in the management of their assets and accountancy.”

The draft law is currently being reviewed by several old and minority foundation specialists, as well as new foundations including TUSEV and its team of local and international (ICNL) experts. TUSEV’s report is the result of extensive analysis, including comparative survey of supervisory functions of governing agencies in other European countries as well as benchmarking the Model Framework for Public Benefit Foundations developed by the EFC.

Although no official announcement has been made, It is expected that the draft will be discussed in Parliament before December 17, 2004, when the EU is expected to make a decision on a date to start accession negotiations with Turkey.

Appendix — Reform and Implementation: Two Sides of One Coin

The much-anticipated report assessing Turkey’s progress on achieving the Copenhagen Criteria for EU membership was published as planned on October 6, 2004. This report is the basis upon which the Council will make a decision on starting accession negotiations with Turkey on December 17, 2004.

The publication of this report marks the culmination of an intense year of significant reforms affecting the rule of law, the justice system, corruption, military intervention in state issues, civic and political rights (including human, cultural, and minority rights), local government, and foreign policy issues. Overall, the 2004 report concludes with the recommendation that Turkey has met a sufficient number of the political criteria required to open accession negotiations, while hinting that ongoing negotiations would likely include specific conditions to ensure strict adherence to effective implementation of reforms – especially with regard to democratization and basic rights and freedoms of Turkish citizens. As such, it is clear that these issues represent a core area by which the EU will continue to measure Turkey’s progress.

Upon comparison of the respective sections on “civic reforms”[1] in the 2003 and 2004 progress reports, there are clear indications of improvement and shifting focus from reform to implementation. Whereas the 2003 progress report had highlighted specific problem areas in which reforms were still needed, the 2004 progress report referred to specific instances in which laws had achieved reform but were not showing signs of impact in implementation. Thus it can be said that the report authors have accurately observed that Turkey has achieved measurable progress in actual reform of certain laws but less so in terms of implementation.

Concerns about implementation regarding civic reforms, however well-founded, should be carefully balanced with an understanding of the challenges in transforming a legacy of restriction and over-regulation that characterized Turkey’s pre-EU reform era. This is not intended to imply that the lack of implementation should be overlooked; it only suggests that the assessment of what constitutes progress should be monitored and measured against a clear and objective set of targets, developed jointly with all stakeholders.

As such, the 2004 progress report provides an indication of the challenges in the next “phase” of the civic reform process in Turkey. Implementation will require focused strategies and should be based on the fundamental principle of cooperation between citizens and government officials in order to maximize Turkish ownership and systemic internalization of reforms.

Notes

* Filiz Bikmen, filiz@tusev.org.tr, is Programme Director at the Third Sector Foundation of Turkey (TUSEV) in Istanbul. TUSEV is a Member of the European Foundation Centre. This article originally appeared in the Winter 2004-2005 issue of the Social Economy and Law (SEAL) Journal, published by the European Foundation Centre. We are grateful to SEAL for permission to reprint it.

[1] “Civic reform” is a term coined by the author intended to capture a wide range of reforms relating to basic rights and freedoms of citizens, including human rights, cultural rights, minority rights, and respective laws such as association and foundation law.