Report On
The Imminent Problems Facing The Syriac Monastery Of St. Gabriel In
Midyat, Turkey
Timotheos Samuel Aktas Metropolitan Of Turabdin, Turkey
November 2008
TABLE OF CONTENTS
1 INTRODUCTION
2 MOR GABRIEL MONASTERY COMMUNITY FOUNDATION
3 BRIEF HISTORY OF SYRIAC MONASTERY OF MOR GABRIEL
4 THE CURRENT CRISIS OF UNJUST AND ILLEGAL ACQUISITION OF
MOR GABRIEL MONASTERY'S REAL ESTATE
4.1 PROCEEDING BY SURROUNDING VILLAGES AGAINST CADASTRAL [PROPERTY]
SURVEY OF MOR GABRIEL MONASTERY
4.2 MOR GABRIEL MONASTERY REAL ESTATE BEING ACQUIRED AS "FOREST
LAND"
4.3 FALSE CRIMINAL COMPLAINTS
4.4 THE RIGHT OF COMMUNITY FOUNDATIONS TO ACQUIRE REAL ESTATE VIA
ADVERSE POSSESSION
ANNEXURES
ANNEXURE 1 – District Private Administration Records ANNEXURE 2 – Cadastre
Maps ANNEXURE 3 – Boundary Diagram, signed and sealed by surrounding village
mayors ANNEXURE 4 – Tax Records ANNEXURE 5 – Court Decision 2008/42 ANNEXURE
6 – Complains dated 20.08.2008 ANNEXURE 7 – Complaints dated 27.08.2008
1. INTRODUCTION
The purpose of this report is to inform the reader of the alarming
concerns the Syriac Monastery of Mor [Saint] Gabriel in Midyat, Turkey ('Mor
Gabriel Monastery'), is currently facing. The great injustice that may occur
within the following weeks demands an immediate attention and satisfactory
response by Turkish authorities to ensure that real estate rightfully owned
by Mor Gabriel Monastery is not illegally occupied and acquired by locals
surrounding the monastery.
As a result of the new initiative taken by the current government of
Turkey since 2004, in 2005 the cadastral [property] land registry work begun
at Mor Gabriel Monastery. In 2005 attempts were made by surrounding villages
to occupy some of the lands of the Mor Gabriel Monastery: the incident was
brought to the attention of the Turkish Government and to the European
Union. Following the intense pressure that came from Europe and with the
support of the Turkish government the occupation attempt was stopped, but
the cadastral land registry works were not finished.
In July 2008 the cadastral land registry works restarted in the lands of
Mor Gabriel Monastery and its surrounding villages. Whilst the cadastral
works to determine the boundaries between Mor Gabriel Monastery and its
surrounding villages were continuing, the surrounding villagers again
occupied the centuries old lands of Mor Gabriel Monastery. These acts are
being supported especially by the local tribe leaders (Aghas), where even
the judge of the Cadastral Court who came to the area for investigation to
determine the disputed boundaries was threatened. Also, in order to succeed
with their attempt of occupation, the occupiers are instigating the local
Moslem population against Christianity and are groundlessly accusing the
Archbishop of Mor Gabriel Monastery with being against Islam. This attempt
of occupying the historical lands of Mor Gabriel Monastery is a joint and
organized effort by the surrounding villages together with the local Aghas.
However, their real ambition is to occupy all the lands and properties of
the historical Monastery of Mor Gabriel, so that they could abolish an
important Christianity centre in the region, which is also of historical
significance to Turkey.
2. MOR GABRIEL MONASTERY COMMUNITY FOUNDATION
It is well known in Turkey that non-moslem Community Foundations1 were
founded during the Ottoman period; and have been servicing their communities
in religious, educational and charitable fields.
The latest list for Community Foundations operating in Turkey is found in
the official gazette, "Regulation regarding the Acquisition, Disposition of
Immovable Properties [Real Estate] and Registration of the Immovable
Properties which are disposed by Such Foundations in the name of Community
Foundations"; issued by the State Ministry and Vice Prime Ministry dated
24/01/2003; Official Gazette; Publication No. 25003 ("Official Gazette"). In
line 151 of the Official Gazette, the Community Foundations noted as still
active is the "Foundation of Syriac Monastery of Deyrulumur (Mor Gabriel) in
Midyat", i.e. Mor Gabriel Monastery.
Mor Gabriel's Community Foundation pre-dates the Ottoman empires' rule in
Byzantium many hundred years and was actually founded in 397 A.D. (the
history of Mor Gabriel Monastery is dealt with further below in Chapter 3).
It is a monastery which acts, and has been doing so since its inception, as
a theological seminary for training Syriac clergy; and, in recent years,
also taking part in being a very important tourism centre for Turkey.
3. BRIEF HISTORY OF THE SYRIAC MONASTERY OF MOR GABRIEL
Mor Gabriel Monastery was founded by Mor Shmuel in 397 A.D. It is arguably
one of the oldest Christian monasteries in service to date, where scholars
and historians say, its existence is nothing short, but of a miracle. In
comparison to other famous monasteries, Mor Gabriel Monastery is at least
400 years older than any monastery located in Mount Athos; the mountain
which is well reputed with its monasteries and churches. Additionally, it
was founded approximately 80 years before Saint Saba Monastery in Palestine;
and one and a half century before the Saint Katherine Monastery in Sinai.
Hence, the monks and nuns leading monastic life with their hymns and prayers
have sustained a tradition which has continued for over 1600 years (except
for periods when it was abandoned after plunders). On this essential fact
alone, Mor Gabriel Monastery deserves to be held in high esteem by the
entire Christian
world. Since its inception, Mor Gabriel Monastery has been a focus point
of the liturgical language and tradition of the Syriac Church, and is of
significant importance for Syriac Orthodox Church. Throughout the centuries,
the names of many significant Christian personalities have been identified
with Mor Gabriel Monastery. These include, but definitely not limited to,
the following: Mor Akhsenoyo (St. Philoxenos of Mabbug); Mor Shemun d'Zeyte
of Hapsus (St. Simon of Olives, named after planting olive trees for the
monastery); and Mor Gabriel of Beth Kutsan (the monastery owing its current
name to him).
As stated above, Mor Gabriel Monastery has been of significant importance
for the Syriac Church throughout history: a torch continuously flaming both
for Syriacs in Turabdin and for those in Syriac Diaspora for the last 40
years. In recent years Mor Gabriel Monastery has been taking an active role
in attending to the social problems of the Syriacs in Turkey. With the ever
dwindling population of Syriacs in Turkey, and increasing problems, this has
only heightened the importance of Mor Gabriel Monastery as a focus point.
4. THE CURRENT CRISIS OF UNJUST AND ILLEGAL ACQUISITION OF MOR
GABRIEL MONASTERY'S REAL ESTATE
4.1 PROCEEDING BY SURROUNDING VILLAGES AGAINST CADASTRAL [PROPERTY]
SURVEY OF MOR GABRIEL MONASTERY
In accordance with Article 4/7 of the Cadastre [Property] Law, the
boundaries of the property survey area must be determined for the
residential area when any cadastral activity is started within any
residential areas. Mor Gabriel Monastery is located within the
administrative boundaries of Güngören village in Midyat District, Mardin
Province (being the far south east of Turkey next to the borders of Syria).
The monastery is situated in the west of Güngören where its boundaries
extend to the villages of Yayvantepe (Qartmin), Eğlence (Zinol), Çandarlı
and Tulgalı. The location of Mor Gabriel Monastery is best put into
perspective by referring to the Cadastre Map attached and marked as Annexure
2. The boundaries of Mor Gabriel Monastery are further defined in the
government records of Provincial Private Administration (attached and marked
Annexure 1) ("Administration Records") as follows:
East -Germik Külki Mico and Keveri Ceyzo;
West -Berihi Bessaani;
North -Miştaka Pire Kefiri Hizni (side facing to village of Eğlence); and
South -Keküla Hamziki.
As stated in the Introduction, previous attempts were made by the
surrounding villages to illegally occupy and acquire Mor Gabriel Monastery's
real estate; however, this was fortunately repelled through international
pressure and Turkish authority intervention. Of alarming concern, in the
current crisis, the same villages are using intimidation and fear tactics
through use of the legal system to legitimize their attempts to unjustly
acquire the real estate of Mor Gabriel Monastery. The villages attempting to
carry out this illegal act, and the basis of their woefully inadequate
grounds for doing so, are as follows:
Eğlence village -The boundaries of the Eğlence village and Mor Gabriel
Monastery cross in the northern point of Mor Gabriel Monastery. The northern
boundary of Mor Gabriel Monastery located in the administrative boundaries
of Güngören village extends to, and includes, "MIŞTAĞA PIRE". Upon analyzing
the sketch of the area between the villages of Güngören and Eğlence issued
for the cases "Objection Against the Cadastral [Property] Survey Area"
before Midyat Cadastral Court, it is clearly evident where the point of the
location read as Mıştağa Pire extends. At that time when the maps were drawn
according to such sketches, the reaching points of the locations of high
importance for the villages were added into the maps drawn according to the
photographs taken from the air. When the boundaries of property survey area
were determined, the legal entity of the village of Güngören also indicated
"Miştağa Pire" as the farthest reaching point of its administrative
boundaries.
The frivolous and vexatious nature of the claims by the Eglence village is
further evidenced by the boundary diagram of Mor Gabriel Monastery's
boundaries, formerly approved and registered as true and correct by the very
surrounding villages (refer to Boundary Diagram, signed and sealed by
surrounding village mayors attached and marked as Annexure 3). The diagram,
developed according to the Administration Records submitted as per Annexure
1, clearly delineates the boundaries of Mor Gabriel Monastery. This plan has
then been registered into official records after being accepted and approved
by the Mayors and councils of the Güngören (Keferbe) Village, EĞLENCE
(Z�NOL) Village, Tulgalı (Hırbe Halit) Village and Çandarlı (Devrik) Village
(refer to Annexure 3 which confirms the signature and seal of the
surrounding villages). It is unequivocal that the plan was also approved by
Eğlence village; however, with great concern this village is now contesting
the veracity of very plan it approved.
In addition to the above, there is further objective evidence confirming
Mor Gabriel Monastery as the legal owners of MIŞTAĞA PIRE and ÇALA DREJ2.
Tax records, show that Mor Gabriel Monastery have paid taxes regarding
several portions of real estate since 1937 (refer to the Tax Records
attached and marked as Annexure 4): the period when attempts were made to
formally determine the administrative boundaries of the village. It is clear
beyond all doubt that tax payments have been made by Mor Gabriel Monastery
for the real estate located in ÇALA DREJ and M�ŞTAĞAP�RE, which, with great
confusion, are now subject to dispute by the surrounding Moslem villages.
Accordingly, one may safely conclude that the real estate, in the locations
named above, is undisputedly within the legal boundaries of Mor Gabriel
Monastery.
However, the submissions of Güngören Village and therefore of the
Monastery of Mor Gabriel are rejected by the decision, as it can be seen
from the copy attached to Annex-5, rendered by the Midyat Cadastral Court
under the file number 2008/42 and thus the cadastral survey area boundaries
determined ex officio by Midyat Cadastre Directorate is considered as
convenient. Thus, many of the immovable properties in different attributions
are included in the cadastral survey area boundaries of Eğlence Village.
Yayvantepe village -In addition to the unfounded claims raised by Eğlence
village, Yayvantepe (previously known as Qartmin) is also causing concern
with its boundary dispute against Mor Gabriel Monastery. In the diagram
(attached and marked as Annexure 3), the boundary between the village of
Yayvantepe and Mor Gabriel Monastery is accepted as Hete Raza. During the
property survey boundary determination proceedings between Yayvantepe
village and Mor Gabriel Monastery, the boundary determined ex officio by the
Midyat Cadastre Directorate is now accepted as the property survey area
boundary between two villages.
With great alarm, much real estate which was in fact within the boundaries
of Mor Gabriel Monastery has now incorrectly been included within the
boundaries of Yayvantepe's property survey area. The decision made by Midyat
Cadastre Directorate does not contain any sound reasoning; and appears to be
based on hollow suppositions, disregarding the colossal evidence produced by
Mor Gabriel Monastery confirming legal ownership of its real estate.
As a result of the grossly erroneous decision made by Midyat Cadastre
Directorate, the legal real estate of Mor Gabriel Monastery shall now
unjustifiably and unfairly be registered under Eğlence and Yayvantepe
village names thereafter. Consequently, the villagers of the Eğlence and
Yayvantepe shall enjoy the right to dispose of Mor Gabriel Monastery's real
estate, which Mor Gabriel Monastery had legally and rightfully held for in
excess of 1600 years. This illegal act blatantly violates the right to
property of Mor Gabriel Monastery's Community Foundation secured under both
national law and European Convention on Human Rights and its protocols (this
shall be discussed further below).
4.2 MOR GABRIEL MONASTERY'S REAL ESTATE BEING ACQUIRED AS "FOREST LAND"
-Inside, and outside, the outer wall of the Monastery, there is much real
estate owned by the Mor Gabriel Monastery since its foundation.
Forest land restrictions are made according to the Article 4 et seq before
commencement of restrictions on the immovable properties subject to private
property. When the forest land restrictions were implemented, much of the
real estate owned by Mor Gabriel Monastery that was outside the outer wall
of the monastery was not registered in the name of the monastery's Community
Foundation. Thus, real estate was held to be within the boundaries of the
area depicted as forest land in the Forest Management and Homeland map drawn
in the 1950's. This is a heavy blow to Mor Gabriel Monastery given that the
relevant area that extends to the outer wall equals approximately 250
decares (i.e. 250,000 square metres). Thus hundreds of decares utilized and
in possession of Mor Gabriel Monastery's Community Foundations for years
have now been classified to qualify as forestry and registered in the name
of the Treasury; as a result of the forest cadastrate of the Güngören
Village that was announced on 24 September 2008. The relevant real estate
parts are included in section 101, parcel 1 and section 101, parcel 7.
In practice, the Forest Management and Homeland map mentioned above are
strictly applied for the determination of forest cadastres, i.e. land that
actually is forest land and not owned by any person or entity. However, in
the current situation the so called "forestry" real estate is ipso facto
under the private property of Mor Gabriel Monastery. There is nothing at
odds, with a monastery, or any entity for that matter, possessing real
estate not being cultivated for agricultural purposes for whatever time
period, due to a change in its circumstances (for example, the number of
people able to work the land has decreased). If Mor Gabriel
Monastery chooses not to cultivate its real estate, then this is perfectly
within its legal right as the owner.
National legislation aside, recent international treaties and court
decisions have afforded protection in respect of real estate under the
possession of long-established entities. Article 42/3 of the Treaty of
Lausanne, states that, "The Turkish Government undertakes to grant full
protection to the churches, synagogues, cemeteries, and other religious
establishments of the above-mentioned minorities. All facilities and
authorization will be granted to the pious foundations, and to the religious
and charitable institutions of the said minorities at present existing in
Turkey, and the Turkish Government will not refuse, for the formation of new
religious and charitable institutions, any of the necessary facilities which
are guaranteed to other private institutions of that nature".
There are also European Court of Human Rights decisions held against
Turkey regarding the rights to property of Community Foundations being
deteriorated or eliminated from the strict national rules. Likewise, under
the Article 90/final of the Constitution of 1982 it is stated that the
provisions of international agreements shall prevail in the case of a
conflict between international agreements in the area of fundamental rights
and freedoms and the domestic laws due to differences in provisions on the
same matter. Accordingly, the decision on what constitutes forestry land
should not be based on Turkish Forestry Law provisions alone, but should
also consider international treaties and decisions determined by
international Courts in connection with Turkey.
4.3 FALSE CRIMINAL COMPLAINTS
Upon reviewing the petition submitted on 20.08.2008 to Midyat Public
Prosecution Office by the Mayors (Muhtars) of Yayvantepe, Eğlence and
Çandarlı villages (attached and marked as Annexure 6, it has been falsely
claimed that Mor Gabriel Monastery have cut oak trees by occupying the
forest land. Further to this, submitted to the Midyat Public Prosecution
Office by Mahmut DÜZ, Fethullah ACAR and Abdullah �NAN on 27.08.2008 (refer
to attached document marked Annexure 7 are a series of unfounded and wild
allegations that Mor Gabriel Monastery Community Foundation has: occupied
the forest land; settled on such land as an occupant without having any
permits; conducted missionary activities through children between ages
10-12; that no identity declaration was made regarding such children; the
Mor Gabriel Monastery building owned by the Community Foundation is a
historical
museum and therefore required to have permission for prayer; children
undergo religious education in the Monastery and anti-Turkish activities are
carried out; the Community Foundation acts in contrary to Unity of Education
Law; monks and metropolitans of the monastery are trying to destroy national
unity and incite people to insurgency; the Community Foundation receives
funds with from doubtful origins; and, that the bank accounts of the
Community Foundation should be confiscated. Upon examining each allegation
it is immediately noticeable that most have nothing to do with the land
boundary claims. All the allegations are frivolous and vexatious; devoid of
any logic or evidence, solely aimed with the malicious intent of rousing
anti-Christian sentiments by the surrounding Moslem villages.
It is pertinent to briefly examine each false allegation to expose the
sinister intent of the complainants and groundless nature of the
allegations. This is dealt with below as follows:
(a) Allegation that Mor Gabriel Monastery Community Foundation occupied
real estate attributed as forest land of the villages, Yayvantepe, Eğlence
and Çandarlı -No harm was ever caused to the lands attributed as forest and
neither village has provided any evidence to support this false claim. If
anything, the evidence establishes the opposite that the villages in
question are attempting to unjustly acquire the forest and agricultural land
of Mor Gabriel Monastery.
(b) Allegation that outer wall of Mor Gabriel Monastery Community
Foundation has lead to the destruction of forest land -None of the trees
within the boundaries of wall have been destroyed; on the contrary, the
trees have been under protection. Mor Gabriel Monastery Community Foundation
places the highest of importance to nature, history and culture within its
boundaries. Mor Gabriel Monastery is visited by numerous local and foreign
people including senior bureaucrats of the Turkish state, Europe and United
States of America and wins unanimous approval as a result of its acute
attention to culture, history and nature. On the other hand, unfortunately,
trees and forest land outside of the boundaries of Mor Gabriel Monastery
Community Foundation are open to abuse and hazard by the surrounding
villages. Unlike the surrounding villages, Mor Gabriel Monastery Community
Foundation has been actively involved in planting more trees within its
boundary walls for the greater good the environment.
(c) Allegation that animals were unable to pasture on forest land because
of the
boundary wall -Firstly, Article 19/1 of Forestry Law regulates the pasture
of animals in forest land and deem this as a criminal offence, hence the
complainants openly admit to violating the law. Secondly, the complaint
flies in the face of all real estate rights, namely, being permitted to
protect your property from all intrusions, so long as this is not in breach
of any state or international law. Farm animals from surrounding villages
are definitely an intrusion which Mor Gabriel Monastery, like any other
person or entity, is entitled to prevent entering its property.
(d) Allegation that Mor Gabriel Community Foundation settles anywhere as
an occupant without having the requisite permits -Clearly this allegation is
based on pure ignorance of the fact that Mor Gabriel Monastery was founded
in 397 A.D, being many hundreds of years before Yayvantepe, Eğlence and
Çandarlı villages ever existed. If anything, Mor Gabriel Monastery should be
making a claim against all three villages, as all the villages till the
1800's were mostly inhabited by Syriacs or were previously owned by the
foundation of Mor Gabriel Monastery.
Mor Gabriel Monastery is of paramount importance, not only for the history
of Turkey, but also the world history, as it is a significant centre for
Christianity. As previously stated, the status of community foundation had
been ascribed to Mor Gabriel Monastery in the Ottoman period where it was
granted the right to acquire real estate. Thereafter, the Law of Foundations
dated 05.06.1935 and numbered 2762, made it a legal entity like any other
community foundations (as stated above, this status is confirmed in the
Official Gazette).
The wall of Mor Gabriel Monastery is very old and no one, until now, has
raised any objection against the location of the wall despite having ample
opportunity to do so. The Community Foundation has not occupied any foreign
land and has built the boundary wall enclosing area in its possession that
it rightfully owns. This is further confirmed with the payment of real
estate taxes by the Community Foundation (refer to previous comments above).
(e) Allegation that children/students, whose identity is not being
declared, between the ages 10-12 with of unknown origins have conducted
missionary activities -Missionary can briefly be defined as any activity
aiming to spread a religion. Regular declarations are made to Gendarmerie
Station of Yayvantepe village regarding all people in the Community
Foundation and Mor Gabriel Monastery. The relevant people are members of the
old Syriac community and children/students of Syriac families in the
villages of Midyat and �dil
districts. The children/students residing at Mor Gabriel Monastery are
given education opportunities their families cannot afford: and all reside
in the Monastery only by consent of their families and/or custodians. .
Given that Mor Gabriel Monastery Community Foundation is a charitable
organization; necessary opportunities are provided for children of the
Syriac community who have graduated elementary school in their villages in
order to complete years 6 to 8 of elementary school and high school
educations, since 8 years of education is not provided for in almost any of
the villages within the region. Furthermore no schooling is available at
high school level. Thus the statement, "children of unknown origin", is
completely incorrect and is in fact the children of the families, who are
willing, but unable to provide access to an education for them due to the
remote location of their village.
The claims that our Community Foundation conducts missionary activities
are outright absurd and groundless. The false complaints put forward by the
complainant party have only one objective; to incite hostility of the
surrounding villages, and the Turkish public in general, against Mor Gabriel
Monastery. In doing so, it is feared that an incident similar to the murders
of SANTORO, the priest of the Santa Maria Church in Trabzon, Hrant Dink, and
Tilmann Geske, victims of the slaughter in Zirve publishing house in
Malatya, Uğur Yüksel and Necati Aydın, may be repeated against individual of
the Community Foundation. If such an incident were repeated, this will
definitely raise questions on whether Turkey is still the liberal and
secular state it claims to be, or whether, it is slowing heading toward
fundamentalism. If the latter is happening then this will compromise its
image in the international arena; hampering its effort to enter the European
Union. Of great concern in these examples is that the victims were first
accused of carrying out missionary activities by locals; then they were
falsely accused as missionaries via press; and finally allowed to be victims
of violent attacks. It would appear that the same proponents against the
Turkish state are following the same sinister strategy.
(f) Allegation of violations of the Unity of Education Law -. Articles 1
and 2 of the Unity of Education Law state that the Ministry of National
Education is delegated with the authority in providing education and
training services within the boundaries of Turkey. Additionally, schools
administered by the Directorate of Religious Affairs and Foundations and by
private foundations also fall within the authority of Ministry of National
Education. The allegation of breaching Unity of Education Laws is
superfluous and totally groundless. Students of education age are sent to
school in Midyat every day, with all the requirements facilitating for their
secular education and training being provided by Mor Gabriel Monastery. The
Community Foundation places great importance on the secular education
provided by the Turkish State hence endeavouring to continually provide for
the students needs. The students residing in Mor Gabriel Monastery only
engage in further developing the Syriac language and culture. This is not
forbidden by means of the Unity of Education Law, or any law for that
matter. One need only examine the relevant regulations and treaties which
confirm the same, and reads as follows:
(a) Article 40 of the Treaty of Lausanne; "Turkish nationals belonging to
NON-MUSLIM minorities shall enjoy the same treatment and security
[guarantee] in law and in fact as other Turkish nationals. In particular,
they shall have an equal right to establish, manage and control at their own
expense, any charitable, religious and social institutions, any schools and
other establishments for instruction and education, with the right TO USE
THEIR OWN LANGUAGE AND TO EXERCISE THEIR OWN RELIGION FREELY therein"
(b) Again, Article 42/3 of the Treaty of Lausanne; "The Turkish Government
undertakes to grant full protection to the churches, synagogues, cemeteries,
and other religious establishments of the above-mentioned minorities. All
facilities and authorizations will be granted to the pious foundations, and
to the religious and charitable institutions of the said minorities at
present existing in Turkey, and the Turkish Government will not refuse, for
the formation of new religious and charitable institutions, any of the
necessary facilities which are guaranteed to other private institutions of
that nature".
(c) Finally, Article 37 of the Treaty of Lausanne; "Turkey undertakes that
the stipulations contained in Articles 38 to 44 shall be recognized as
fundamental laws, and that no law, no regulation, nor official action shall
conflict or interfere with these stipulations, nor shall any law,
regulation, nor official action prevail over them". Likewise, according to
Article 90/final of the 1982 Constitution; "International agreements duly
put into effect bear the force of law. No appeal to the Constitutional Court
shall be made with regard to these agreements, on the grounds that they are
unconstitutional. (annexed clause: 07.05.2004 – Law No. 5170/Art.7) In the
case of a conflict between international agreements in the area of
fundamental rights and freedoms duly put into effect and the domestic laws
due to differences in provisions on the same matter, the provisions of
international agreements shall prevail". Clearly there is no violation of
the Unity of Education Law. The claims put forward are entirely slanderous
and in contrary to the applicable laws and international treaties which
Turkey is a party thereto.
(d) Allegation that Mor Gabriel Monastery is engaging in anti-secular
activities against the Turkish Republic -Mor Gabriel Monastery Community
Foundation fully supports the secular ideology adopted by the Turkish
Republic and its fundamental principles thereof. Mor Gabriel Monastery
Community Foundation and other non-Muslim citizens have been allowed to
practice religious freedom because of the Turkish Republic's protection and
opposition to anti-secular activities. Thus to allege that Mor Gabriel
Monastery is engaging in activity against the very protection the Turkish
Republic is providing, is completely illogical. In any event, this issue has
no relationship with the boundary dispute, and evidently, aimed at vilifying
Mor Gabriel Monastery.
(e) Allegation that Mor Gabriel Monastery is a historical museum and does
not have permission for prayers -Mor Gabriel Monastery, as stated above, has
been in service for prayer over a millennium. It has continued to enjoy the
vested rights granted even since creation of the Ottoman State. Whilst
principally, it is a religious site, it is also a centre of tourism for
Turkey and of great cultural and historical significance. Since its
inception from the year 397 A.D, Mor Gabriel Monastery has never been
considered, or classified, as a museum. It has been continuously a place of
Syriac clergy and other ecclesiastics, as well as serving Syriacs to perform
their religious commitments.
(f) Allegation that Syriac clergy and other unidentified people are
engaged to incite people to insurgency and to destroy the spirit of national
Turkish unity -As stated above, since early years of Christianity, Syriac
clergy have resided in Mor Gabriel Monastery performing their religious
commitments. The situation is the same in nearly all monasteries around the
world where monks and metropolitans maintain a vow of celibacy and are
purely devoted to their religious duties inside the monastery. All the
monks, together with our Reverend Metropolitan, in Mor Gabriel Monastery are
from the villages within the boundaries of Mardin and have been performing
their duties for decades without any objections or complaints.
(g) Allegation that Mor Gabriel Monastery Foundation receives funds from
questionable origins -The assets of Mor Gabriel Community Foundation are
regularly audited by Directorates of Foundations according to the Law of
Foundations and other relevant regulations. If there was any breach of the
regulations, this would have been detected during the audits. Mor Gabriel
Monastery Community Foundation is sustained by the donations from the
general community and philanthropists. This does not entail breaching any
criminal or fiscal regulations. Yet again, this is another malicious
allegation that has no relationship
whatsoever with the boundary dispute.
4.4 THE RIGHT OF COMMUNITY FOUNDATIONS TO ACQUIRE REAL ESTATE VIA ADVERSE
POSSESSION
Although the Article 12/1 of the Law of the Foundations numbered 5737 with
the publication date of 27.02.2008 states that "The Foundations may acquire
property, may dispose on their properties in any manner", in practice, there
arise undecided situation for community foundations regarding the
acquisition of immovable property via possession such as a real person.
As mentioned above, the property survey is still in progress in Güngören
Village, within the administrative boundaries of which Mor Gabriel Monastery
is located. It is presumed that the relevant survey will be completed soon.
The Law No. 5737 which is implemented in the frame of European Union
adjustment laws, as stated above, grants the right for the community
foundations to acquire real estate without having the permission of the
General Directorate of Foundations. However, we consider that the extent of
the acquisition of the real estate is required to be subject to broader
interpretation by taking into account the scope of the Law and the decisions
held by the European Court of Human Rights (in particular, the decision held
for Fener Greek High School for Boys case3) regarding the community
foundations in Turkey. But, unfortunately, there is a practice against the
acquisition of real estate by the Community Foundations during the cadastral
survey proceedings. In this case, uncertainty is experienced regarding the
acquisition of property by our Community Foundation. If the applications
proceed as such, a territory in size of hundreds of decares under the
property and possession of our Community
3 According to Article 1, "Protection of Right to Property" of Protocol
No. 1 annexed to the European Convention on Human Rights; every natural or
legal person is entitled to the peaceful enjoyment of his possessions. No
one shall be deprived of his possessions except in the public interest and
subject to the conditions provided for by law and by the general principles
of international law. In this particular case the Community Foundation of
Fener Greek High School for Boys, claimed violation of its right to property
regulated under Article 1 of Protocol No. 1 annexed to the European
Convention of Human Rights. The Grand Chamber of Supreme Court, in its
decision dated 1974, concluded that difficulties are encountered by legal
entities incorporated by non-Turkish persons regarding acquisition of real
estate by them and that Article 1 of Protocol No. 1 regarding the right to
property is in breach of Article 14 of the European Convention on Human
Rights regarding the non-discrimination rule by considering the claims that
the Community Foundations of Greek Orthodox Minority, which are Turkish
Foundations in law, are assumed "foreign legal entity" in practice. The
Court continued to conclude that any foundation incorporated by Turkish and
Muslim citizens enjoys the right to acquire real estate by means of
donation, purchasing and de jure registration etc. and any failure to grant
such rights to the minority foundations including Fener Greek High School
Foundation results with a violation of the Article 14 of the European
Convention Human Rights which regulates the non-discrimination. The European
Court of Human Rights, in its decision regarding the application, has
concluded there was a violation of the right of the applicant's community
foundation to the property which is secured under Article 1 of the Protocol
No. 1.
Foundation may not be determined or registered in the name of our
Community Foundation.
Another problem arises from the provision under the Article 14/1 of the
Law of Cadastre [Property] which states; "One or more immovable property up
to sizes of 40 decares for irrigated lands and 100 decares for dry lands (40
and 100 decares are included) which have not been registered to land
registry, on condition being located in the same survey area, may be
determined in the name of the possessor if the same, titling to the property
as the owner, proves this situation with documents, experts or witness
statements that the peaceable possession has continuously lasted at least
for twenty years". As can be seen in this regulation, it is possible for the
possessor to acquire the immovable property in dry land up to 100 decares
(100.000 m2). As you can see, an area of 100 decares is a very restricted
area for an organization which has more than 1600 years of history. However,
our Community Foundation hosts many people such as the religious men,
children continue their education with our foundation, civil visitors who
temporarily reside in our Monastery. On the other hand, it is one of the
tourism centres, a great place of worship in which religious men are trained
as well as being a significant centre of Christianity. Therefore, we say
that the restriction of 100 decares for charity organizations such as our
foundation may even be too little.
Here, the difficulties encountered from current practices are unfolded.
However, a tendency, as non-recognition of the RIGHT TO PROPERTY VIA
POSSESSION that is regulated under Article 14 of Law of Cadastre, arises due
to reason that our Community Foundation is a legal entity. On the other
hand, while we are not provided with the opportunity under the Article 14 of
the Law of Cadastre, the restriction of 100 decares regulated under Article
14 is being invoked. When we approach the case with the sense of law and
human rights philosophy, we are in opinion that the restriction above may
not be applied for our Community Foundation.
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