Dr. Mine Yildirim is Head of the Norwegian Helsinki Committee’s Freedom of Belief Initiative in Turkey
The hugely symbolic Hagia Sophia has regained its status as a mosque after nearly ninety years. In July 2020, the Turkish Council of State Tenth Chamber (the highest administrative court, and hereafter, the Council of State) annulled the 1934 Cabinet Decree making it a museum. The Hagia Sophia’s reinstatement as a mosque has aroused much attention to its political meaning and the nationalist religious sentiments around it—but what is the legal basis of the Council of State judgment? And what does it mean for religious freedom and the rule of law in Turkey?
The Council of State ruled unanimously to nullify the 1934 Cabinet Decree as contrary to the law. Almost immediately after the ruling, President Erdoğan signed a presidential decree on 10 July 2020 turning the site back into a mosque. The decree transferred the administration of the Hagia Sophia (Ayasofya-i Kebir) Mosque to the Presidency of Religious Affairs (Diyanet İşleri Başkanlığı in Turkish), a public body under the Presidency responsible for the administration of all mosques in Turkey. The Fatih Sultan Mehmed Foundation, which originally endowed the building as a mosque, is under the administration of the General Directorate of Foundations. It has the status of a mazbut vakif (added foundation), meaning that it is “represented by and is under the care and administration of the General Directorate of Foundations.”[i]
Hagia Sophia is the fourth in a line of Byzantine churches to be turned into a mosque during the Ottoman era, then changed to a museum in the Republic era, and finally restored as a mosque under the rule of the Justice and Development Party (AK Parti). Ayasofya Kebir Mosque is by far the most significant, and the Ayasofya in İznik (2011), Ayasofya in Trabzon (2012), and the Chora (2019) have also been changed.
The case leading up to the Hagia Sophia’s change in status was brought in 2015 by the Association for Lasting Foundations, Historical Monuments, and the Environment[ii] against the State and challenged the legality of the 1934 Cabinet Decree. The State argued that the case should be rejected for two main reasons.
First, time to object to an administrative decision—in this case, the 1934 Cabinet Decree—had passed and therefore a challenge to the legality of the Decree was barred. Not only was a previous application made by the same applicant and was rejected, but also in its previous rulings concerning the Hagia Sophia, the Council of State said that the normal 60-day limit to object to an administrative decision had passed given that the Cabinet Decree was adopted in 1934.
Second, it was within the scope of executive discretion to change the designation and use of Hagia Sophia. The Cabinet could always make a decision depending on the national and international circumstances within the framework of national legislation. Therefore, the Cabinet Decree of 1934 was not unlawful, and the Cabinet had the authority to change Hagia Sophia’s status again.
What is remarkable here, however, is that in oral arguments the lawyer for the Presidency stated that they leave the matter to the discretion of the Council of State. This stance has been interpreted in several ways. Some have assumed that the President did not want to open Hagia Sophia as a mosque but simultaneously wanted the Council of State to make the decision not to annul the 1934 Decree so that the President could avoid personal responsibility. Others have interpreted the State’s argument as an indication that the State already knew that the Council of State would rule in its favor and therefore just waited for the Council of State to rule.
The Council of State Ruling and Its Reasoning
In this case, the Tenth Chamber of the Council of State has drastically changed its established jurisprudence on Hagia Sophia. Previously, the Council held that instating museum status was an act within the discretion of the state administration. After the Hagia Sophia decision, it is difficult to foresee where this new jurisprudence will lead in terms of its implications for foundations (vakıf) established during Ottoman times, including foundations with religious intent and their real property. This would potentially have implications for Christian, Jewish, Alevi, and other religious properties belonging to numerous religious groups that have been stripped of their purpose and status.
The basis of the Council of State’s new position is the primacy of “the will of the endower”—in this case, the Fatih Sultan Mehmed Foundation, which dedicated the building as a mosque in the fifteenth century. The ruling stipulates that a “Foundation statute has the effect, value, and power of law, the specification and purpose of use of a property as it is defined in the foundation statute cannot be changed, this binding for all real and legal persons as well as the administration.” In previous cases, however, the Council of State’s position was that the Cabinet had the authority to determine the status of Hagia Sophia.
In its elaborate reasoning, the Council of State examines the Cabinet Decree in light of relevant laws, including international law (Convention Concerning the Protection of the World Cultural and Natural Heritage, specifically Article 6), national law and the jurisprudence of Turkish high courts, and the European Court of Human Rights.
Regarding national law, charitable real properties belonging to foundations, such as places of worship, hospitals, or soup kitchens, are subject to the Law on Foundations No. 2762 of 1935 (no longer valid) and the current Law on Foundations No. 5737 (2008) and are left “to the benefit of the public.” Under Article 15 of the current Law on Foundations, a statute of limitations cannot be applied to such charitable real property.
The Council of State relied primarily on the Law of Foundations No. 864 (1926), which was established before the Turkish Civil Law was adopted on 4 October 1926. Article 1 of Law No. 864 prescribes that the legislation that was in force at the time of the establishment of the foundation must be applied. The Fatih Sultan Mehmed Han Foundation, which dedicated Hagia Sophia as a mosque for charitable public use in 1470, maintained the right for this property be used following the will of the endower. Therefore, according to the Council of State, the Cabinet Decree of 1934 is contrary to Article 1 of Law No. 864 of 1926.
The Hagia Sophia ruling also refers to the 2019 ruling of the Council of State’s Council of Administrative Court Chambers. Following a similar line of reasoning, the ruling on the status of the Chora Museum annulled the 1945 Cabinet Decree that changed the status of the Chora Mosque to a museum and held that the Chora mosque’s foundation status must be taken into account.
One major issue is the statute of limitations and how it has been addressed by the Council of State. This could have enormous implications for administrative measures taken throughout the Republic.
The Council of State alludes to the ECtHR judgments Sidiropoulos and Others v. Greece(1998), Mihr Foundation v. Turkey(2018), and Young James and Webster v. United Kingdom (1981) concerning the right to establish a foundation. Moreover, the Council of State uses the 2008 judgment in Samatya Surp Kevork Ermeni Kilisesi Mektebi ve Mezarlığı Vakfı Yönetim Kurulu v. Turkey, in context of protecting property belonging to a foundation established during the Ottoman regime, to demonstrate that its decision is compatible with ECtHR jurisprudence.
Impact of the Ruling
What explains this drastic change in the jurisprudence of the Council of State?Throughout the Republic Turkish high courts have played an important role in providing legitimacy to political decisions. Past examples include the rulings upholding the prohibition on headscarves for university students,[iii] and the controversial rule that non-Muslim community foundations cannot acquire property. [iv]
The Hagia Sophia judgment is yet another changed jurisprudence that gives legitimacy to the changed political will. This of course is very worrying considering that the rule of law necessitates foreseeability and consistency of laws and their applications. As a result of the way it applied the law, the Council of State has paved the way for many more court cases claiming that the “endower’s will” of religious foundations has not been respected by the authorities. It remains to be seen how and to what extent religious or belief groups will challenge past decisions of state administration that stripped them of the right to own and maintain places of worship.
[i] For more information of the religious foundations established during the Ottoman era and then given new status under the Republic, see Yildirim, Mine, The Collective Dimension of Freedom of Religion – the Case of Turkey, 2017, Routledge.
[ii] The association’s name in Turkish is Sürekli Vakıflar ve Tarihi Eserlere ve Çevreye Hizmet Derneği. In 2015 the same association claimed to the Turkish Constitutional Court that the refusal of their application for Hagia Sophia to be opened for Islamic prayers once a year constituted a violation of their right to freedom of religion or belief. In 2018, without engaging in a substantive examination, the Constitutional Court ruled that the application was inadmissible ratione personae since the administrative decision to revoke the mosque status of the Hagia Sophia and turn it into a museum did not per se constitute an interference in the association’s right to freedom of religion or belief.
[iii] Turkish Constitutional Court judgment No E/1989/l, K/1989/12, 7 March 1989.
[iv] Court of Appeals General Council of Civil Chambers E/1971/2-820, K/1974/505, 8 May 1974.