First of all, we can say that the opening of the draft amendments by the Directorate General for Civil Society Relations of the Ministry of the Interior for comments is an important development for greater participation in decision-making processes. Furthermore, we believe that it is of great importance that civil society organisations are more involved in the process during the discussion of the draft amendments in the Turkish Grand National Assembly.
We have also conveyed our views and suggestions on these amendments to the Directorate General of Civil Society Relations. We have included the following points in the submitted text of the opinion.
The entire Law on Associations should be released for comment
The entire Law on Associations No. 5253 should be opened for comments, with an approach that is also compatible with international standards, by consulting society, by creating space for civil society organisations and by adopting an approach that allows the public and civil society to empower themselves together. This process should also be carried out with an approach that covers the entire civic space, by carrying out meaningful and inclusive decision-making processes that are non-discriminatory, by taking accountability and the rule of law for all, by ensuring transparency and access to information, by empowering rights and duty bearers and by supporting their capacities.
The Civil Code, the Law on Associations and the Law on Foundations should be revised
DIn addition to the Law on Associations, Articles 47, 56, 62, 63, 84, 86, 87, 89, 90, 93, 94, 95, 96, 97, 99, 101, 116 of the Civil Code No. 4721, Articles 5, 6, 9, 25, 27, 31, 32 of the Law on Foundations and the legal opinions of the Legal Counsel of the Ministry of Interior regarding the collection of grants, accounting and address notifications under the Law on Associations and Communiqué No. 2007/2 regarding the documents that associations must keep should be reviewed.
The most important problem is overregulation
The most fundamental problem regarding freedom of association in Turkey is the breadth of the regulatory scope, the fact that this vast area is bound by detailed regulations, and the extent of the discretion granted to the administration, which sometimes makes uniform application difficult. Considering that the beneficiaries of freedom of association are volunteers who have come together with a civic awareness of a particular problem, it is clear that the conditions that organisations must meet are quite demanding. This difficulty increases when one considers the low level of professionalisation of organisations in Turkey.
The approach of punishment should be replaced by the approach of counselling
It is considered that the transition from the approach of defining the examination procedures in detail and including detailed punishment articles in the Law on Associations to the approach of guidance and counselling is crucial for strengthening freedom of association in our country. First of all, in accordance with the principle of proportionality, it will be beneficial to carry out regular counselling and guidance measures for associations whose income is below a certain level, except for acts that constitute a criminal offence, to warn the associations in writing and to introduce criminal provisions if errors and deficiencies are not corrected within a certain period of time.
It will be advantageous to transform the audits carried out by the governors into advisory measures, to place the associations under supervision if criminal offences are detected during these advisory measures and to limit the regular audits to associations whose budget volume is determined taking into account the size of the associations.
In the current version of the law and the proposed amendments, the fact that officials whose task is not to carry out inspections who may not have sufficient experience and legal knowledge of an issue such as the Associations Act which is protected under the freedom of association by technical and international and national regulations and a field of fundamental human rights, stands out as a problematic area. In this case, it is very difficult to ensure uniform implementation in the controls. Furthermore, paying additional wages to the public personnel in charge of these inspections encourages them to carry out inspections and impose fines and makes inspection no longer a profession that requires expertise. We believe that there is no public benefit in paying public staff extra for inspections they carry out during working hours.
Associations and foundations should be removed from the scope of the law on fundraising
The right to freely seek resources, which is one of the fundamental components of freedom of association, is one of the most difficult issues in Turkey. The unclear distinction between donations and relief activities and the fact that fundraising for CSOs is subject to authorisation are the biggest obstacles in the search for resources. The law on fundraising should be amended with an approach that strengthens freedom of association and does not hinder the fundraising of CSOs, taking into account international standards and examples of best practise.
Although the law needs to be reconsidered, associations and foundations should be excluded from the scope of the fundraising law, as they are subject to detailed reporting and auditing procedures.
The vague distinction between donating and collecting aid should be removed
In order for freedom of association to be used effectively, it is very important for civil society organisations to raise funds. Aid and donations are the most important instruments for fundraising. The vague distinction between donations and fundraising in the current regulations should be removed and it should be predictably defined which activities fall within the scope of the law on fundraising. It is known that associations and foundations carry out their activities under the supervision of the competent institutions, make regular reports and are controlled. For these reasons, the exclusion of associations and foundations from the scope of the law does not pose a risk if the necessary equalisation and control mechanisms are put in place.
Furthermore, the fact that the status of collecting aid without authorisation is not regulated objectively and fairly leads to discrimination and the creation of privileged status among CSOs. The extension of this status to all CSOs will be a very important step for the development of the civil society in our country.
You can also read our proposals on the changes in question in detail in the documents listed below.
What has happened?
With the decision of the Constitutional Court dated 18.01.2024 with the number E: 2021/28, K: 2024/11, published in the Official Gazette dated 03.04.2024 with the number 32509, some articles of the Law on Associations No. 5253 and the Law on Fundraising No. 2860 were declared null and void. The Directorate General for Relations with Civil Society had published two separate drafts prepared for the purpose of regulating the annulled articles on its website and asked for comments from civil society organisations.
The Constitutional Court decided to annul the provisions of Law No. 7262 on the Prevention of Financing Weapons of Mass Destruction, which restrict the scope of activities of civil society organisations based on the foreign resources they use, and in particular the provisions that impose severe sanctions such as the suspension of the activities of civil society organisations, the appointment of trustees or the freezing of their financial resources. Under the law, personal data of CSO members, such as their identity information, contact information and financial information, was allowed to be collected. However, the Constitutional Court overturned this decision as it found that the guarantees provided for in the Personal Data Protection Act were not in place when collecting, using and storing this data and that there was no regulation on who this information should be shared with, which constituted an arbitrary practise.
