MİHR (MEDENİYET, İRFAN, HAYIR, REF) VAKFI v. TURKEY

SECOND SECTION

Application no. 10814/07
MİHR (MEDENİYET, İRFAN, HAYIR, REF) VAKFI
against Turkey
lodged on 26 February 2007

STATEMENT OF FACTS

The applicant, MİHR Foundation (Foundation for civilization, knowledge, charity and development), is a foundation which is based in Ankara. It is represented before the Court by Mr G. Çulhaoğlu, a lawyer practising in Ankara.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The creation of the foundation

On 26 June 1989 the Ankara Civil Court of First Instance registered the applicant as “MİHR Foundation” pursuant to the Turkish Civil Code. Article 5 of the foundation bill which was submitted to the civil court indicated the aims of the foundation as conducting research, holding conferences and seminars and issuing publications, rendering consultancy services, organising courses, founding universities and joining the existing universities in the fields of Islam, modern technologies, nuclear physics, chemistry, energy, economy, finance, labour studies (rationalisation, productivity and profitability) and other Islamic technical and social fields which were listed in the foundation bill. In addition to the above-mentioned aims the bill of foundation further indicated some other aims as helping people in an effort to realise social and financial solidarity, establishing and running agricultural, industrial and commercial entities in order to contribute to the financial development of the country and making donations for basic needs and providing financial back-up for the marriage and higher education expenditure of children.

2. The dissolution of the foundation

On 1 May 2002 the General Directorate of Foundations lodged an action with the Ankara Civil Court against the applicant foundation, requesting its dissolution and transmission of its assets to another foundation having similar goals. The General Directorate based its request on the report of an inspection which had been conducted regarding the foundation. That report stated that the activities of the foundation had been remarkably reduced and that it did not have sufficient financial resources to pursue such activities. The report suggested that even if the foundation had two real estates in its possession, the financial capacity of the applicant was no longer capable of realising the goals indicated in its foundation bill.

On 26 February 2002 and on 12 September 2002 the foundation contested the grounds of the request for dissolution. It claimed that it had already two real estates in its possession and therefore the allegation of the General Directorate of Foundations was groundless. Even if it was true that the foundation was in financial difficulty, it was always allowed by law to change the aims indicated in the foundation bill and to reformulate them in the light of the current financial situation. The foundation further claimed that the case brought against it was a result of a process started on 28 February 1997 with the National Security Board meeting (the so-called post-modern coup de Etat), after which its activities had been obstructed through official means. The foundation further noted that a number of persons who had been in charge of running the foundation had been arrested and faced the criminal charge of membership of a terrorist organisation as they were related to the foundation. The foundation alleged that the period when its activities had allegedly reduced coincided with the years of economic crisis in Turkey, which had started in 2001, when almost all companies and foundations of its kind had been in the same situation.

The Ankara Civil Court requested an expert examination of the financial situation of the foundation. According to the first expert report issued on 28 March 2003, the revenues of the foundation were sufficient to cover its expenditures. According to the documents demonstrating budgetary details the foundation had even made donations to people in need.

On 18 July 2003 another report was issued with the same conclusion.

Upon the objection of the General Directorate of Foundations against the reports, an additional report was issued by the same group of experts, concluding that the foundation was no longer capable of accomplishing its social aims and pursuant to Article 116(1) of the Turkish Civil Code it had to be dissolved.

On an unspecified date another report was issued concluding that there were insufficient legal grounds to dissolve the foundation. On 15 February 2005 a further expert report reached the same conclusion. In this report, it was concluded that the aim of Article 116(1) of the Civil Code was to dissolve a foundation which is incapable of performing its activities due to purely financial shortcomings. According to the report, the aim of this provision was not punishing a foundation for its allegedly illegal activities. Had the foundation been suspected of harbouring illegal activities, the inspection should have been conducted with a view to revealing this situation and the case should have been brought pursuant to the second paragraph of Article 116 of the Civil Code.

On 25 October 2005 the Ankara Civil Court ordered the dissolution of the foundation and the transmission of its financial assets to another foundation having similar purposes in accordance with Article 116(1) of the Civil Code. In its decision, the civil court found that the expert reports issued in favour of the foundation did not reflect the actual financial situation of the foundation. The Civil Court held that even though the foundation had two real estates in its possession these estates could not be considered as real assets unless they were liquidated. The court concluded that the applicant foundation would soon be in a position where it would not be able to pursue activities in line with the aims set out in its foundation bill. In its decision, the Ankara Civil Court dismissed the foundation’s claims that it could not carry out activities such as radio broadcasting and publishing, activities which had brought income to the foundation, as a result of the decisions taken at National Security Council meeting held on 28 February 1997. The court emphasised that activities of foundations should always be legal and that organising illegal activities such as organising meetings and broadcasting could not be considered within the aims of foundations.

On 18 July 2006 the Court of Cassation upheld the judgment of the first instance court.

On 1 December 2006 the Court of Cassation dismissed the request for rectification of the decision. This final decision was served on the applicant on 10 January 2007.

3. The criminal proceedings against the persons in charge of the MİHR Foundation

On 22 December 2000 criminal investigations were launched against persons who took part in the activities of the foundation on account of being members of an alleged terrorist organisation, namely the MİHR Foundation. These persons were accused of being involved in the foundation’s activities, admitting to be the loyal subjects of İskender Evrenosoğlu, the leader of the organisation, acting under his command and paying regular amounts to the foundation. According to the indictments, these persons had tried to extend the activities and the influence of the organisation to other cities of the country. In the indictment, the MİHR Foundation was defined as an organisation violating public order, exploiting religious beliefs and aiming to demolish the existing structure of the State by way of domination and intimidation over beliefs, thoughts and worship in society.

On 13 March 2001 the Malatya State Security Court suspended the charges against eight of the defendants pursuant to Law no. 4616.

On 2 April 2001 the same court acquitted eight other members of the foundation of the charge of being members of a terrorist organisation, the MİHR Foundation.

On 5 August 2005 the İzmir State Security Court acquitted three other persons of the same charge.

The common core point of the aforementioned judgments was the examination as to whether the MİHR Foundation was a terrorist organisation as alleged in the indictments. Based on the intelligence reports of the police, the courts found that the MİHR Foundation had been established pursuant to the domestic legislation governing foundations and that it had aimed to realise the activities indicated in the foundation bill. The courts observed that no armed or violent activities had been carried out and that therefore there was no reason to define MİHR as a terrorist organisation within the meaning of Article 1 of Law no. 3713.

B. Relevant domestic law

Article 116 of the Civil Code - Dissolution of a foundation

1. If the aim of a foundation becomes impossible to be realised and if it is not possible to amend the aim, the foundation is dissolved ipso facto and it is deleted from the register by a court judgment.

2. If it is understood that a foundation has prohibited aims or that it carries out prohibited activities or if it is not possible to amend an aim which is prohibited after the establishment of a foundation, it is dissolved upon the request of the supervising authority or the prosecutor, following a hearing.

Law No. 4616

According to Article 4 of Law no. 4616, ongoing trials for crimes committed before 23 April 1999 which entail imprisonment of less than 10 years shall be cancelled without rendering a final judgement unless the accused applies for continuance of his trial.

COMPLAINTS

The applicant foundation complains under Article 6 of the Convention that the judicial proceedings for its dissolution were not fair. In this connection, the applicant alleges that the civil court did not take into account the submissions indicating the pressures on the foundation at the time. It further alleges that despite the conclusions in all expert reports that its financial situation did not require its dissolution, the first-instance court ordered dissolution.

The applicant further contends under Articles 9 and 10 of the Convention that it was prevented from carrying out its publishing activities.

The applicant complains that there was a breach of its right enshrined in Article 11 of the Convention on account of its dissolution. In this connection, referring to Articles 14 and 17 of the Convention, the applicant further alleges that the case was a process of legalisation of the unlawful pressure on its activities which had started with the decisions of the National Security Council meeting held on 28 February 1997.

QUESTIONS TO THE PARTIES

Was the interference with the applicant’s freedom of association justified in terms of Article 11 § 2 of the Convention? In particular,

(a) was it prescribed by law? Was the applicant’s dissolution based on Article 116 (1) of the Civil Code? What is the relevant judicial practice in the application of Article 116 (1) and (2) of the Civil Code?

(The Government are invited to submit copies of domestic court judgments in comparable cases. )

(b) did it pursue a legitimate aim?

(c) was it necessary in a democratic society and proportionate to the aim pursued?

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