Third Sector Foundation of Turkey (TUSEV) was established in 1993 by Turkey’s leading CSOs and has now grown to support a network of over 100 associations and foundations that share a vision of strengthening the legal, fiscal and operational infrastructure of the third (non-profit) sector in Turkey. Over the past fifteen years Turkey’s third sector and grown and expanded and civil society has taken a new and central role in the country. The number of CSOs continues to grow and with growth comes much needed support, funding and most importantly, a more enabling environment. As such TUSEV’s programmes are designed to promote a legally and fiscally enabling environment for non-profit organisations, encourage strategic and effective giving, facilitate partnerships across the public, private and third sectors and support and engage the international community in learning about and collaborating with the third sector in Turkey.
TUSEV is member of AGNA. Affinity groups are groupings of CIVICUS members that exist to take forward CIVICUS’ mission and values. The Affinity Group of National Associations (AGNA) brings together national associations from around the world. National associations are those organisations, which provide and give a collective voice to civil society in their countries, serve as interlocutors between civil society and other sectors and struggle for the creation of an enabling environment for civil society at the national level.
State/civil society relations:
How does the state view and relate to civil society in your country?
CSOs as such are either registered as associations or foundations in Turkey, having separate public agencies as interlocutors: the Department of Associations within the Ministry of Interior and the Directorate General of Foundations under the Prime Ministry respectively. Taking into account that there is not a holistic definition which determines the scope and meaning of what a “civil society organisation” is in Turkish legislation, CSOs are governed by separate set of legislations, which are not designed and implemented in a coherent way.
According to January 2013 data obtained from the Department of Associations there are 93,760 associations in Turkey. The most up to date data regarding the number of foundations is obtained from the May 2012 statistics of the General Directorate of Foundations, and states that there are 4,634 active foundations in Turkey.
Apart from how the state views and relates to civil society in Turkey structurally, on the level of implementation it must be stated that Turkish CSOs are not recognised as legitimate stakeholders by public institutions. As stated by the EU Progress Report on Turkey 2012 “Consultation of civil society remains the exception rather than the rule.” In most cases CSOs are not incorporated into processes of key policy changes or decision-making.
In 2012, the government started working on the new Constitution by setting up a Constitution Conciliation Committee and organised public consultations with a broad range of stakeholders including CSOs. Therefore, the committee’s effort to engage CSOs to the process of making the new constitution was welcomed as a positive step. However, there were major problems regarding the transparency of the process due to the fact that CSO submissions and proposals to the committee were not made public. CSOs were also deprived of any feedback regarding their contributions. EU Progress Report on Turkey 2012 addresses this issue by stating “submissions to the committee by civil society and others were removed from or not published on the internet”.
The implementation of the laws regulating freedom of association is another problem area, which must be addressed as an important factor determining the relationship between CSOs and the state. TUSEV’s Civil Society Monitoring Report 2011 states that “Problems related to freedom of association are usually rooted in the implementation rather than the laws themselves. Penalties and auditing come about as the most problematic areas.” The auditing procedures of associations and foundations are determined by their separate legislations, which both provide auditors with extensive authorities. This results in unstandardised personal executions of auditing of CSOs to the extent that malpractice occurs. While some CSOs do not undergo any problems with auditing, others (such as LGBT organisations) do due to the fact that the boundaries of the authorities of auditors are not clearly defined by law. Increasingly, auditing can and do become an instrument of intimidation. Furthermore, penalty cuts and the effective use of warning mechanisms before penalising CSOs are not used, having a tremendous negative impact on the financial sustainability of CSOs, which already suffer to a great extent from financial constraints.
Have there been any significant changes in relations between civil society and the government in your country in the last year?
“From a legal perspective, there have not been major changes in Turkey which affects or regulates the relations between CSOs and the government in Turkey. Turkey still lacks concrete policies legal framework or institutional structures to foster dialogue, collaboration and cooperation with civil society organisations. CSOs’ participation in public policy-making or decisions-making is not encouraged or at many times is not allowed. CSOs are still not seen as a major stakeholder in policy and decision-making.
There are two major legislations governing or referring to civil society participation and civil society public sector relations. One of these is the “Law of the Relations of Associations and Foundations with Public Institutions (Law No. 5072)”. This law did not produce any concrete results in developing healthy dialogue between government institutions and CSOs, on the contrary it was interpreted as limiting and therefore started to deviate from its original purpose. This law should either be abolished or re-interpreted by officials in order to create a more enabling environment for CSOs-public sector relations.
The second piece of legislation is the “Regulation on the Methods and Principles of Legislation Preparation”. The Regulation foresees in Article 6 that before legislation is presented to the Office of the Prime Minister, CSOs might be consulted regarding the content of the legislation if the relevant Ministries find it necessary. However, the same law mandates consultations with other ministries and public institutions. Furthermore, Article 7(2) of the same regulation states that if the consulted CSOs do not provide feedback on the legislation within a time frame of 30 days, the relevant Ministries will regard it as a positive feedback. This Regulation needs to go through serious revision in order to allow CSOs to become active stakeholders in legislative processes.
There have been some attempts from the public sector to initiate dialogue with CSOs such as: The “Dialogue with Civil Society Meetings” organised periodically by the Ministry of EU Affairs, the consultation processes managed by the Constitution Reconciliation Commission, and the Women-Men Equal Opportunities Commission in the Turkish National Assembly, the drafting process of the new Domestic Violence Act and related regulations managed by the Ministry of Family and Social Policy, Development Plans facilitated and drafted by the Ministry of Development. During the summer of 2012, the Department of Associations published a “Draft of Proposed Amendments to the Regulation on Associations” on the department’s website which included some improvements in administrative issues, and required feedback from associations. This was an important positive step to open up space for civil society participation. However, other than a few exceptional cases, these attempts lack strategic approach and do not pass beyond mere hearings and consultations. The majority of them fail to initiate effective, constructive dialogue and cooperation between CSOs and the public sector.
In the year 2012, the government certainly adopted a discouraging attitude regarding how it views and relates to CSOs. Human Rights Watch World Report 2012 states that Turkey’s overbroad definition of terrorism restricts freedom of expression and assembly, allowing prosecutors to frequently prosecute any individual engaging in non-violent speeches, protests and writings. The report states that “Turkey’s overbroad definition of terrorism still allows for arbitrary imposition of the harshest terrorism charges against individuals about whom there is little evidence of logistical or material support for terrorism or of involvement in plotting violent activities… Politicians sue their critics for criminal defamation.” Political activists and members of CSOs who are critics of the current government are overwhelmingly affected by this political attitude.
Carnegie Europe’s Press Freedom Analysis on Turkey states that “According to independent estimates, Turkey currently has the highest number of imprisoned journalists in the world, but the government and civil society organisations strongly disagree about the exact number. This creates an antagonistic atmosphere that hinders constructive reform.” In order to foster CSOs public sector dialogue this antagonistic atmosphere must be resolved immediately.
Another major problem area in CSOs-government relations is the disparities in having access to information. CSOs in Turkey operate in an environment where access to valuable and critical information is restricted not only through legal means but also through problems in implementation. The amount and quality of information disseminated or made public by government institutions differ to great extent.
Although there is a Right to Access to Information Law, Turkey needs to ensure that the data and information systems of all public institutions are standardised and that they provide comprehensive and up to date information. This is also necessary to build trust between CSOs and public institutions. Government institutions lack an agenda for sustaining effective communication skills. Necessary resources to strengthen their communication infrastructure are also not allocated. Right to Access to Information Law requests are not standardised. Hence, CSOs do not have user friendly and easy access to them through websites of relevant ministries. To illustrate, within the scope of a research TUSEV has been conducting, access to information applications were made to 20 Ministries regarding their cooperation with civil society organisations. 5 Ministries did not respond at all, although bound to respond within 15 days by law. Three other Ministries did not provide information stating that they do not have that information and that they need to conduct additional research. This is very common and the legislation allows state institutions not to provide information based on this ground. Three of the Ministries stated that they have no relations with civil society organisations. The majority of other Ministries responses were quite general and insufficient.
- Since June 2012, TUSEV, STGM (Civil Society Development Center) and YADA (YADA Foundation) are implementing the “Strengthening Civil Society Development and Civil Society-Public Sector Dialogue in Turkey”. The project is co-financed by the Turkish Republic and the European Union and aims to improve the environment and organisational capacity of CSOs in Turkey through improving the legal framework, increasing active participation of CSOs to all levels of policy processes and sustaining the development of grassroots CSOs. Within the framework of project activities, TUSEV is working on developing a Code of Conduct, which will regulate civil society and public sector dialogue to outline the mutually agreed responsibilities of both parties (CSOs and public sector) to each other as well as the principles of establishing dialogue, cooperation and collaboration.
What conditions do you feel need to be in place to allow for a good relationship between the state and civil society at a national level?
In order to establish a thriving relationship between state and the civil society, on a national level two issues must be addressed. First and foremost, the current Constitution, which reflects the post-military coup mentality of the 1980s must be changed immediately. Although, over the years significant reform was undertaken to make the 1982 Constitution more in line with EU standards and personal freedoms, the current constitution is no longer capable of responding to the diverse needs and demands of the broader public.
Secondly, a transparent, accountable and objective mechanism, which regulates CSO- public sector dialogue and cooperation must be installed, to ensure that CSOs from different political backgrounds are incorporated into decision-making processes. It is very difficult and problematic for CSOs to find correspondent officials in public offices since at many public institutions there is no civil society interlocutor. This is very much linked with the absence of a single office or another type of mechanism facilitating the civil society-public sector dialogue and cooperation. Many CSOs state that because such offices or individual officials with whom they can continuously relate are not in place, their personal relations shape the extent of their dialogue instead of a structured state mechanism.
Furthermore, a major complaint of CSOs is that if and even they were consulted during law-drafting, their views, demands and proposals are very rarely incorporated in the drafted legislation. CSOs which are actively involved in delivering their opinions or advocating their demands to on-going legislative processes are generally deprived of essential feedback during the whole process, which would allow them to monitor and continue their input. Also, numerous CSOs complain about the unequal and discriminatory treatment resulting from the lack of a set of criteria outlying the code of conduct, consultation and cooperation. Without transparent and clear codes of conduct and guidelines governing the civil society public sector cooperation, the process becomes prone for subjective perceptions, interpretations as well as political favouritism. Therefore, in order to establish an enabling environment for CSOs further legal reform as well as a change in the perception of public institutions regarding the functions of CSOs is necessary. CSOs in Turkey should not only be perceived as charity or service providing organizations, but their legitimacy as rights based organizations which engage in awareness raising and advocacy activities should also be recognized. This change in perception regarding CSOs is necessary to engage CSOs in all levels of policy and decision making processes.
Are there any particular challenges with the legal and regulatory environment for civil society? (e.g. are the laws outdated / inappropriate / inadequate / over-complex / partial / not properly applied / adequate)?
Turkey enacted the new Associations Law in 2004 and the new Foundations Law in 2008, eliminating notable barriers restricting the autonomy of Turkish CSOs. Since then, the only major improvement was in August 2011 when the Law on Foundations was amended to ensure the return of properties entered in the 1936 declarations of the non-Muslim community foundations that are established before the Republic. The Law on Collection of Aid and the Law on Associations still need to go through serious revision to sustain a more independent environment for CSOs.
Overall, it can be claimed that the Turkish legal framework continues to pose a barrier in creating a more enabling environment for CSOs, mainly due to problems with the implementation of the existing legal framework. Major problems in this respect can be summarised as:
- The existing legislation concerning freedom of assembly and freedom of expression are interpreted and implemented in a restrictive rather than a liberal manner. Although the constitution grants freedom of assembly and the right to free speech, severe restrictions exist brought through secondary legislation i.e. regulations and memorandums. In addition, despite being adopted during the EU reform process, the Law on the Relations of Association and Foundations with Public Institutions (Law No. 5072), the Press Law, Turkish Penal Code and the Law on Misdemeanours are interpreted in a way, which creates a difficult environment for the domestic operations and activities of CSOs.
- Despite the recent legal changes, CSOs still need to undergo a cumbersome bureaucratic process during registration and their operations. The mandatory registration of CSOs and burdensome internal auditing and record keeping requirements are examples to the heavy bureaucracy required by the existing legal framework.
- In the Law on Associations, the right to found an association is granted only to citizens of Turkey or foreign country citizens having residents permit. Furthermore, the applications of foreign CSOs to found/establish branches in Turkey are subject to the opinion of the Ministry of Foreign Affairs and several applications as such were rejected, or have been kept waiting to hear a decision for a very long period of time.
- Many of the problems regarding freedom of association result from implementation rather than the law itself. Such problems especially arise in the areas of penalties and auditing. Turkish CSOs continue to be penalised due to inconsistencies between the Turkish Penal Code and the penal clauses in the Associations and Foundations Laws. Penalty cuts and proper use of warning mechanisms are absent. CSOs are burdened by penalties, which at some cases severely damage their financial sustainability. A CSO can receive a fine of 500 TL (almost 220 EUR) just because they failed to file an e-mail communication in their official Incoming-Outgoing Document Record Book. Furthermore, the information regarding the total fines charged to CSOs or the number of audits performed to CSOs by relevant public offices does not exist. In year 2012, within the scope of a research conducted by TÜSEV, such information was required from the Directorate of Associations (DoA) and the Directorate General of Foundations (DGoF) by using the Access to Information right. While DoA stated that they do not have this information ready and it necessitates additional research DGoF did not provide any answers at all.
- The Prevention of Terrorism Act continues to be a disproportionate and significant obstacle in sustaining freedom of association and freedom of expressions. Since 2009, various human rights activists faced prosecution and charges based on this law. The existence of the law is a major threat to the operation of rights based CSOs, especially for CSOs working on minority and human rights.
- The Turkish legislation lacks an explicit definition of a “civil society organisation”. Due to the absence of a coherent legal understanding of this term, confusions and misunderstandings in the practice often occur. Turkey is in urgent need of adopting an up to date, universal legal definition of civil society to create a better functioning environment for CSOs. Adoption of a comprehensive civil society definition will also foster healthier relations between the government and the civil society.
- The Turkish legal structure does not separate “state funded foundations” from civil society organisations. This causes confusion among public regarding the operations of civil society organisations.
The 2011-2012 period did not witness groundbreaking legislative changes in the legal framework, which directly concerns CSO operations. The legislative changes merely provided some flexibility in the bureaucratic obligations of CSOs. Within this time period, the following changes in laws and regulations took place: In July 2011, the Regulation on the Methods and Principles of Collecting Aid transferred some of the duties regarding the management of receipts and ticket to the DoA, which previously lay in the hands of security institutions. On October 2011, a few amendments were made to certain clauses of the Regulation on Associations that aimed to ease some administrative operations of CSOs
What recent trends do you feel have enabled or restricted the efficiency of civil society?
Turkey witnessed arrests of Kurdish political activists, women rights activists, environmentalist activists and other members of various opposition groups in 2012. The hostile attitude of the government towards the exercise of freedom of expression and assembly, negatively affected the efficiency of civil society organisations. Amnesty International Annual Report 2012 on Turkey states that “Thousands of prosecutions were brought during the year under overly broad and vague anti-terrorism laws, the vast majority for membership of a terrorist organisation, provisions which have led to additional abuses. Many of those prosecuted were political activists, among them students, journalists, writers, lawyers and academics.” Therefore, the current government’s attitude towards political opposition can be regarded as a recent yet on-going trend which has negatively affected the well-functioning of civil society organizations.
The earthquake which struck Van in Southeast Turkey in October 2012, resulted in the death of more than 600 people, and left thousands without shelters or adequate access to resources. According to a case study TUSEV conducted on how the Van earthquake affected Turkish civil society in 2012, it is observed that CSOs in Turkey played the following roles:
- Questioning the allocation and transparency of the aid collected after the earthquake, and disaster funds compiled over the years.
- Providing assistance and services where public authorities fell short.
- Engaging in advocacy and creating awareness regarding human rights abuses taking place in relation to disaster management, housing rights, access to healthcare facilities and education, women’s rights etc.
- Facilitating dialogue at the national and local level regarding government’s responsibilities and duties for the victims of the earthquake.
- Establishing partnerships between local and national NGOs to better address the needs and problems of Van after the earthquake.
Funding environment for CSOs:
What is the reality of funding in your country? (Access to funding/ patterns of donor support/ restrictions on funding etc.)
There is no structured state funding mechanism to CSOs according to Turkish law. There are small public funds allocated to CSOs through ministries but the funds provided remain relatively insignificant. A small number of CSOs receive public funds usually through project partnership mechanisms, rather than grant allocations or service contracts. The public funds are not allocated transparently.
With respect to international funds, EU funds constitute the primary financial resource of the Turkish CSOs even to the extent that for some CSOs EU funds are the only resource for the execution of their projects. Apart from the EU, international organisations such as the United Nations (UN) and the World Bank, diplomatic representatives of some countries and international grant giving institutions provide funding to Turkish CSOs. Although being very significant for the financial sustainability of CSOs in Turkey, the amount of their contributions is much smaller compared to funding provided by the EU.
The current legal framework, The Law on the Collection of Aid, regarding the fundraising activities of CSOs is discouraging in terms of allowing CSOs to diversify their resources and ease their fundraising activities. The legal and fiscal legislation is restrictive in terms of flourishing philanthropy and encouraging international and private sector funds in order to develop the infrastructure for local and international giving to CSOs.
The grant programme for associations is established under the Ministry of Interior and is coordinated by the Directorate of Associations. A total of 227 associations received grants under this programme. The number of projects which were financially supported by the MoI is as follows: On 2010 44, on 2011 52, and as of May 2012 131 projects received financial support from the MoI. Although the allocation of grants by the DoA was welcomed as a positive step towards promoting civil society activities, there is a serious lack of trust among CSOs regarding the selection and dispersion of such grants. The relevant legal directive requires “appropriate opinion” of the governorship in order to qualify for the mentioned grants but the criteria of appropriateness is not concretely or objectively defined. The total grants received by CSOs are also not declared, raising concerns regarding the transparency and fairness of the whole grant allocation process.
Tax exemption and the public benefit statuses are granted to a very limited number of CSOs through the Council of Ministers decision. Therefore, this decision which must be unbiased and objective in nature becomes extremely political, and the privileges it provides are very limited. The Turkish government has not yet re-evaluated its approach regarding these statuses to promote the development of philanthropy and the financial sustainability of the CSOs.
The current Collection of Aid Law doesn’t allow an enabling environment to liberalize and ease the fundraising activities of CSOs.
Tax exemption mechanisms available in Turkey should also be revised in a holistic and coherent manner. To bring Turkish tax exemption practices in line with EU standards:
- A mechanism should be introduced for paid workers to deduct their donation from their tax.
- The amount/percentage of tax deduction for donations of real persons and legal entities should be increased.
- Economic entities of the foundations and associations should be exempt from Corporate Tax.
- Foundations and associations should be exempt from Value Added Tax (VAT), Property Tax, Motor Vehicles Tax, Stamp Tax and notary fees.
Where is money going and for what purposes?
It is not possible to track where money is going and for what purposes due to the fact that most of the time this information is not announced publicly. When public funds are made available for CSOs the eligibility and selection criteria is often not made available. When public funds are allocated to CSOs by ministries, very few of them declare the total budget of the funds. Even in cases where the total budget of the funds is shared with the public, the specifics of the allocations (i.e. how much funding is provided for which NGO, for how long, for what kind of projects) are not made public. Therefore, there is not an overall criterion which allows us to transparently observe where money is spent.
Turkey must ensure a transparent mechanism which eliminates the disparities in sharing information regarding allocated public funds. While some ministries declare on their website the essential information regarding public funds, others do not; due to the lack of a standardized transparent mechanism which regulates applying for and receiving public funds. Most ministries also do not provide the essential information through the applications made under the Access to Information Law, although they are bound to do so by law.
TUSEV, Civil Society Monitoring Report 2012 (will be published)
ECAS, Regional Civil Society Conference: for Europe of the Western Balkans and Turkey (TUSEV Conference Paper)