By a Presidential Decree published in the Official Gazette No. 31181(Reprint) of the Official Gazette, which entered into force on the same day, it was announced that Hagia Sophia Mosque had been removed from its status as a museum, transferred to the Presidency of Religious Affairs, and opened for Islamic worship. Setting aside political, ideological, and partisan perspectives, this decision is significant not only for the rich legal perspectives it presents but also for the numerous legal debates it has sparked.
Conquered on May 29, 1453, Istanbul—and Hagia Sophia, the symbol of that conquest—was converted into a mosque by Sultan Mehmed the Conqueror, and a waqf was established for its maintenance. This endowment was described in the land registry entry dated November 19, 1936, as “the Grand Mosque of Hagia Sophia, comprising the mausoleum, Akaret, Muvakkithane, and madrasa.”
As a result of the siege that began on April 6, 1453, and concluded on May 29, 1453, Istanbul was conquered under the command of Fatih Sultan Mehmet; Hagia Sophia, a symbol of the conquest of Istanbul, was converted into a mosque by Sultan Mehmed the Conqueror, and the Ebulfetih Sultan Mehmed Foundation (Fatih Sultan Mehmed Foundation) was established for the restoration of Hagia Sophia. According to official records of the General Directorate of Foundations, Hagia Sophia belongs to the Ebulfetih Sultan Mehmet Foundation. Following the commencement of cadastral surveys in the Cankurtaran neighborhood in the 1930s, a record was also created in the name of Hagia Sophia, and in a record dated November 19,1936, Hagia Sophia was described as “the Grand Mosque of Hagia Sophia, comprising a mausoleum, residential quarters, a clock tower, and a madrasa.” The archives of the General Directorate of Land Registry and Cadastre state that it was endowed as a mosque. In fact, technically speaking, this is not a land title but a cadastral record. This is because mosques built before October 4, 1926, could not be registered in the name of an individual.[1] As a rule, they are registered in the name of the General Directorate of Foundations. It is registered as a mosque in the General Directorate of Foundations’ registry.
By a Council of Ministers decision dated November 24, 1934, and numbered 2/1589, Hagia Sophia was transferred to the Ministry of National Education, and it was decided to convert it into a museum. Its status as a mosque has been preserved in official records in the same manner.
From the Perspective of Domestic Law
Endowment properties are used as specified in the endowment deed and in accordance with that purpose. Use in accordance with the purpose is regulated both by Article 10 of the repealed Endowments Law No. 2762, which was in force at the time the Council of Ministers decision dated November 25, 1934, was issued, and by Articles15 and 16 of the Endowments Law No. 5737, which is currently in force. When evaluated in light of the literal wording of the law and the decisions of the high court, it follows that Hagia Sophia must be used as a mosque.
On the other hand, an examination of the decisions rendered by the Council of State in cases concerning Hagia Sophia to date suggests that the July 10, 2020, decision was “exceptional,” particularly from the perspective of procedural law.
The first lawsuit filed to have Hagia Sophia used as a mosque was heard by the 10th Chamber of the Council of State. In 2008, the Council of State issued a significant ruling, dismissing the case by stating that the 1934 Council of Ministers’ decision designating Hagia Sophia as a museum did not violate national or international law.[2] After the plaintiff association appealed the dismissal, the case was referred to the Council of Administrative Courts of the Council of State, which, on December 10, 2012, upheld the 10th Chamber’s dismissal on different grounds.[3] The request for correction of the decision was rejected by the Council on April 6, 2015.[4] Consequently, the decision to use Hagia Sophia as a museum has become final.
This time, the plaintiff association brought the matter before the Constitutional Court, claiming that “the rejection of the request to open the Hagia Sophia Museum for worship one day a year for prayer violates Article24 of the Constitution, which guarantees freedom of religion and conscience.” On September 13, 2018, the Constitutional Court ruled that the application was inadmissible due to lack of standing, without examining the merits of the case.[5] This is because Article 46(1) of Law No. 6216 stipulates that individual applications may only be filed by persons whose current and personal rights are directly affected by the act, action, or violation in question. However, the Constitutional Court concluded that the petitioner, the Association for the Preservation of Historical Monuments and the Environment, lacked standing to file the petition because its legal personality was not affected within the framework of freedom of religion and conscience.
A second lawsuit filed by the same plaintiff on the same subject and with the same claims—seeking the reopening of Hagia Sophia for use as a mosque—was also heard by the 10th Chamber of the Council of State[6], and of the plaintiff’s various claims, only the one related to the endowment deed was upheld. Consequently, “since it has been established that the use of real property and rights belonging to a waqf—which have been preserved and upheld in the Turkish legal system since time immemorial—by the public, in accordance with the waqf deed, cannot be prevented, and since it was concluded that their use for any purpose other than that of a mosque—to which they were permanently designated in the foundation deed—or their allocation to another purpose is legally impossible…” the Council of Ministers’ Decision No. 2/1589 dated November 24, 1934, was annulled.
At this point, there is an issue that needs to be discussed: Can a new lawsuit be filed on the same matter after the first lawsuit has been dismissed and the decision has become final? Can the matter be the subject of an infinite number of other lawsuits until the desired outcome is achieved? The answer to this question is, of course, found in the law. However, the Administrative Litigation Procedure Law No. 2577 does not directly address this question. Since the concept of “pending litigation or final judgment” is not regulated in the IYUK, Article 31 of the same law comes into effect. For cases not regulated by the IYUK, the Code of Civil Procedure No. 6100 applies. However, since Article 31 lists these cases one by one, one school of thought in legal doctrine argues that the Code of Civil Procedure can only be applied to the specifically listed cases and, consequently, that lawsuits with the same claims can be filed repeatedly in the Hagia Sophia case. According to another view, since administrative actions may face the threat of litigation each time, Article 31 of the IYUK should be interpreted broadly; this view also notes that, given the existence of a prior dismissal decision in the Hagia Sophia case, there is no legal interest in filing a new lawsuit.
In my opinion, the cases listed in Article 31 should be interpreted broadly, and the circumstances where “pending litigation” or “final judgment” are absent—as specified in subparagraphs (ı) and (i) of Article 114/1(ı) and (i) of the HMK—namely, the absence of “pending litigation” or a “final judgment”—should also be taken into account in cases heard by administrative courts. This is because there is no legal benefit in making a case that has already been heard and concluded with a final judgment the subject of another lawsuit, unless there has been a change in the specific facts or proceedings. Otherwise, it would be impossible to prevent an infinite number of lawsuits from being filed until the desired outcome is achieved.
At this very point, it is also worth examining the situation regarding Kariye. What distinguishes Hagia Sophia from Kariye is that the decision regarding Kariye was the first lawsuit ever filed on this matter.[7] In the case of Hagia Sophia, however, as explained above, there was a previous lawsuit filed on the same matter that was dismissed and has become final.
In short, according to the decision dated July 2, 2020, an appeal may be filed with the Council of Administrative Courts of the Council of State within thirty days following the date of service of the decision. However, the defendant, the Prime Ministry (Presidency), has already declared—via a Presidential Decree published on July 10, 2020—that it waives its right to appeal.[8]
How could “Hagia Sophia” or “Kariye” be used as a museum again? This would only be possible through a new Presidential Decree, issued in accordance with due process, designating the site as a museum, or on the grounds that the entire structure or a part of it is being destroyed—and that the cultural heritage is at risk of being lost—due to the fact that Hagia Sophia/Kariye is no longer being used as a museum, and the entire structure or a part of it is being damaged, putting the cultural heritage at risk of destruction.
Regardless of the outcome, the strategy adopted to preserve and sustain the archaeological and cultural heritage should be expected to contribute to the future.[9] All efforts in this regard must share a single, unified goal, free from division: to protect humanity’s cultural memory and pass it on to future generations.
From the prehistoric stone tool industry of the Mousterian culture to Classical Greek architecture; from intangible cultural heritage such as storytelling to the Orkhon Inscriptions—thousands of such examples constitute the shared memory and body of knowledge of all humanity. For this reason, the preservation of cultural heritage must be ensured through objective and scientific methods—and solely with the motive of “preservation and sustainability”—provided, of course, that it is carried out within the framework of national and international legislation.
We are the creators of the culture in which we live; we are the custodians of the cultural heritage of the past that defines who we are.
Mert ERDOĞAN, Esq.
This article was written by Attorney Mert ERDOĞAN. Even if the source is cited, the entire article may not be used without prior permission. However, a portion of the quoted text may be used provided an active link is provided. Publication of this text, in whole or in part, without citing the author and source constitutes a violation of personal and intellectual property rights.