As a reminder, the accounts of the Nesin Foundation were blocked last year on the grounds that it collects aid without authorization and violates Article 7 of Law No. 2860 on the collection of aid. The reason cited for the punishment was the Nesin Foundation's Facebook sharing and the disclosure of bank account information on social media. Ali Nesin, on the other hand, shared the events on social media as follows:
“In the summer of 2017, an 8-hectare plot of land next to the Nesin Foundation was put up for sale. It cost 2 million liras including the villa inside and was considered a bargain. We had to buy it in about a week or ten days because the owner needed money urgently. My father also tried to buy this land a few times, but he could not get it because he could not afford it. Of course, we did not have that much money either. The director of the foundation, Süleyman Cihangiroğlu, insisted that we announce it on Facebook, we thought we could get some support and raise the remaining amount with loans. This was accepted as unauthorized fundraising and the foundation was severely punished."
The problem of the Nesin Foundation, which was created from nothing and is preparing to celebrate its 50th anniversary this year, stems from the uncertainties in the law on fundraising that various actors in the civil sector have been talking about for a long time, and what happened is closely related to freedom of association.
The need to create an environment in which civil society organizations that rely on resources to continue to exist and operate can do so free of obstacles and uncertainty is an issue that civil sector actors have long advocated for.
So where does the problem come from?
Dr. Ulaş Karan, a lecturer at Istanbul Bilgi College Law Faculty, recalls that the basic legislation on the subject came into force in 1983 and is a product of the coup period, and says that the Aid Collection Law No. 2860, which is still in effect, was built on the restriction of aid collection activities in general.
Urgent Amendment of the Aid Collection Law is Necessary
Karan explains that the content of the law has been discussed for many years: "What has happened recently with the Nesin Foundation shows how important it is to reform the aid collection legislation as soon as possible."
The problem the Nesin Foundation has faced is that the terms "donation" and "aid" in the legislation are ambiguous and subject to different interpretations. Karan says that with the Nov. 10, 2021, amendment to the Regulation on Aid Collection Policies and Procedures, the definition of the two terms has been clarified to a certain extent, but the problem persists.
According to the legislation, "donation" collection of NGOs is not subject to permission, while "aid" collections are subject to permission.
With the November 10, 2021 amendment to the Regulation on Aid Collection Policies and Procedures, "donation" is in-kind or monetary support provided to an NGO without a request; aid was defined as in-kind or monetary support provided either free of charge or on loan when requested directly or indirectly to meet a need.
Karan stressed the urgent need to change the legislation. To this end, he says, it is necessary to remove non-governmental organizations from the scope of the law on the collection of aid or to introduce a notification procedure instead of a permit for non-governmental organizations.
There is an artificial distinction between aid and donation
Rana Kotan, Secretary General of TUSEV, says that the amendment made in 2021 is not enough to solve the current problems and that the legislation prefers two concepts as donations and aid instead of adopting a single concept. Saying that there is an artificial distinction between the two concepts, Kotan states that the donation-aid dichotomy should be eliminated, regardless of demand.
"The distinction between donation and aid has not led to any result other than the restriction of fundraising activities that do not require approval and the fact that almost all fundraising activities of NGOs require approval and are overly controlled by the public administration. However, almost all financial and in-kind contributions are accepted as donations everywhere in the world and a uniform term is used."
According to the legislation, associations do not have to obtain permission to receive membership fees. If they want to do a text message campaign, for example, they have to get permission to do that. Kotan says there is no distinction between the two.
"From our perspective, membership dues and SMS revenue are no different. With both, the donor is donating by showing their intent, no matter what method you use. As stated in the draft law published by the Directorate General for Civil Society Relations in August 2022, we support the use of the reporting requirement instead of the permit requirement, or the exclusion of associations and foundations from the scope of the law with regard to freedom of association."
Fundraising activities of NGOs cannot be separated from freedom of association
Karan reminds that NGOs need financial resources to continue their work, and that one of the most basic ways to provide these resources is through in-kind or monetary donations. He also emphasizes that fundraising activities of non-governmental organizations are an inseparable part of freedom of association.
He also reminded that it is possible for donations to be obtained from public authorities, foreign states, intergovernmental organizations or private law real and legal persons. He states that the regulations regarding permission to collect aid are incompatible with the libertarian approach, and that the requirement to obtain permission from the state is an illegitimate interference with the freedom of association.
Kotan also emphasizes that legislation in Turkey does not address fundraising activities of NGOs through fundraising in the context of improving freedom of association and ensuring the financial sustainability of CSOs.
So what is civil society's practical experience with aid collection?
Some of the NGOs prefer not to apply for permission to collect aid at all. Kotan says that some of the NGOs prefer not to apply for a permit at all, because fundraising activities require permits and the fundraising process imposes a significant bureaucratic burden on institutions.
"We know that a significant number of nongovernmental organizations have had their fundraising permit applications repeatedly rejected, or that some rights-based nongovernmental organizations in particular are not taking action because they assume their applications will not be accepted anyway."
Information on how many NGOs in Turkey have applied for a permit to collect aid and how many have received a permit is not reported by public institutions.
Kotan also mentions that the cases received and the applications rejected by the arbitrary comments and decisions of the administration, and that they have observed that the penalties regulated in the legislation also act as a deterrent.
"Requirements such as the need to obtain a signature from the person to whom the aid is given, the list of people to whom the aid is distributed before the aid is collected, requirements such as opening a separate bank account to collect the aid and returning the money if the goal is not met, and regulations on collecting aid through the Internet are a challenge for NGOs. Our research reveals that rights-based NGOs have more problems with the issue of permission to collect aid.”