European Court of Human Rights Second Section: Judgment as to the Admissibility of the Application N°39437/98 by Osman Murat Ülke against Turkey

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The European Court of Human Rights (second section), sitting on 1st June 2004 as a Chamber composed of:
Mr J.P. Costa, President,
Mr A.B. Baka,
Mr L. Loucaides,
Mr R. Türmen,
Mr C. Birsan,
Mr K. Jungwiert,
Mrs A. Mularoni, judges,
and Mr T.L. Early, Deputy Section Registrar,

Having regard to the above application introduced before the European Commission on Human Rights on 22 January 1997, Having regard to Article 5§2 of Protocol n°11 to the Convention, which transferred to the Court the jurisdiction to examine the application,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Osman Murat Ülke, is a Turkish national, who was born in 1970 in Rönderoth and who lives in Izmir. He is represented by Mr. Kevin Boyle, a professor at the University of Essex and Me Tony Fisher, a lawyer practicing in Essex.

A.The circumstances of the case:

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant lived and did a part of his studies in Germany until 1985. He subsequently went to Turkey where he continued is studies in school and at the university.

In 1993, the applicant became an active member of the "war opponents association" ("Savas Karsitlari Dernegi") (SKD) founded in 1992. Until the end of the year 1993, he represented the SKD in diverse international conferences in various countries. Following the dissolution of the SKD in November 1993, the "opponents to the Izmir war association" ("Izmir Savas Karsitlari Dernegi") (ISKD) was founded and the applicant was the president of this association from 1994 to 1998.

In august 1995, the applicant was called up for military service.

As a staunch pacifist, he refused to do his military service and publicly burnt the call-up papers during a press conference held in Izmir on 1 September 1995.

On 8 October 1996, the applicant was arrested. In the charge of 18 October 1996, the military prosecutor attached to the general etats-majors tribunal of Ankara charged him with incitement to dissuade conscripts from doing their military service, on the ground of Article 155 of the criminal code and of Article 58 of the military criminal code. In its decision of 28 January 1997, the general etats-majors tribunal of Ankara ("the etats-majors tribunal") sentenced him to 6 months in prison and to a fine based on the charge of 18 October 1996. The etats-majors tribunal also noted the deserter status of the applicant and consequently decided to refer a ruling to the military prosecutor attached to the etats-majors tribunal in order to enlist the applicant. On 3 March 1997, the applicant appealed to the Supreme Court. He invoked, inter alia, Articles 9 and 10 of the Convention as grounds for this appeal and declared that he was a conscientious objector. On 3 July 1997, the martial Supreme Court upheld the first instance decision.

On 22 November 1996, the applicant was transferred to the 9th regiment attached to the gendarmerie headquarter in Bilecik.

He refused to wear the military uniform and to execute the orders from the regiment commandant. He was detained and placed in the detention house of the regiment where he refused to wear the prison uniform. In the charge of 26 November 1996, the military prosecutor attached to the Eskisehr Air Forces headquarter tribunal of the 1st tactics accused the applicant of "persistent disobedience" and called for his condemnation on the ground of Article 87 of the military criminal code. Regarding the applicant's refusal to wear the detention prison uniform, in a charge of 26 November 1996, the headquarter tribunal of the 1st tactics of the Eskisehr Air Forces ("the headquarter tribunal"), condemned the applicant to a disciplinary measure which restricts the applicant's right to receive visitors during 15 days. In a decision of 6 March 1997, the tribunal finally sentenced the applicant to 5 months in prison. On 4 July 1997, the martial Supreme Court upheld the contested decision.

When he was released on 27 December 1996, the applicant did not go to his regiment. In a charge of 7 March 1997, the military prosecutor attached to the headquarter tribunal charged the applicant with desertion and "persistent disobedience ". In a decision of 23 October 1997, the headquarter tribunal sentenced the applicant to 10 months in prison and to a fine.

On 29 May 1997, the applicant was released provided that he would go to his regiment to fulfil his military obligations on the 31st of May. As he did not fulfil this condition, he was arrested on 9 October 1997 and transferred to Eskisehir prison in order to serve the 10-month prison sentence decided by the headquarter tribunal on 6 March 1997. In a charge of 16 October 1997, the military prosecutor attached to the headquarter tribunal called for the applicant to be condemned for his desertion between 31 May 1997 and 9 October 1997. In a decision of 22 January 1998, the headquarter tribunal sentenced the applicant to 10 months in prison. In a decision of 30 September 1998, the martial Supreme Court upheld the first instance decision.

On 26 January 1998, the applicant was escorted to his regiment in Bilecik. He was arrested because he refused to wear (the) military uniform. In a decision of 11 June 1998, the headquarter tribunal sentenced the applicant to 7 months and 15 days in prison. On 7 October 1998, the martial Supreme Court upheld the contested decision.

The applicant was escorted to his regiment on 20 March 1998, and was arrested, on 21 March 1998, because he refused to wear the military uniform. In a decision of 4 May 1998, the headquarter tribunal sentenced the applicant to 7 months and 15 days in prison on the ground of "persistent disobedience ". On 7 October 1998, the martial Supreme Court upheld this decision.

On 4 May 1998, the applicant was send back to his regiment where he refused to wear the military uniform. In a decision of 11 June 1998, the headquarter tribunal sentenced the applicant to 7 months and 15 days in prison. On 7 October 1998, the martial Supreme Court upheld the first instance decision.

On 24 November 1998, the applicant was released and transferred to his regiment where he refused to wear the military uniform once again. After he was searched for, found and arrested, he was sentenced by the headquarter tribunal on 26 November 1998 to 7 months and 15 days in prison. On 22 September 1999, the martial Supreme Court upheld this decision.

B.Relevant domestic law and practice:

Article 72 of the Constitution provides:

"National service is the right and duty of every Turk. The manner in which this service shall be performed, or considered as performed, either in the Armed Forces or in public service shall be regulated by law."

The legal provisions in force solely rule the realisation of the national service within the armed forces. The law does not provide for a civil service as a substitute.

Article 1 of the military service Act n°1111 of 17 July 1927 provides:

"(.) every man with the Turkish nationality is compelled to do military service."

According to article 10§2 of the military service Act n°1111, in cases where the number of conscripts is higher than the army need, after they have attended a basic military training, the conscripts can, the conscripts can do a short military service in exchange for the payment of a tax or they can finish their national service in the public sector.

The military criminal code states that once the conscripts are registered for the military service, they must report to their designated military unit. If not, the conscript shall be considered as illegally absent and may face a criminal sentence on the ground of Article 63 of the military criminal code. Any additional act of disobedience shall be considered as a "persistent disobedience" and as falling within the scope of application of article 87/1 of the military criminal code.

Article 155 of the criminal code provides:

"(.) Dissuasion from the military service "

Anyone v except in the situations listed in the previous articles- who incite (.) in order to dissuade conscripts from doing their military service, shall face from two months to two years in prison and a fine."

COMPLAINTS:

The applicant complains under Article 3 of the Convention that the series of prosecution and sentences he has been subjected to violates in itself this article.

The applicant claims, on the ground of Article 9 of the Convention, that these criminal prosecutions and sentences have violated his freedom of thought and conscience.

The applicant also alleges a violation of Article 5 and 8.

THE LAW:

The applicant complaints because he has been prosecuted and sentenced on the basis of his convictions. In this respect, he invoked Articles 3, 5, 8 and 9 of the Convention.

Thus stated, the Court considers that these complaints fall under the scope of Article 9 of the Convention, which provides as follows:

"(.) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

Applicability of Article 9 of the Convention

The Government contests the applicability of Article 9 in the present case. It pointed out that according to the consistent jurisprudence of the Convention's organs Article 9 does not guarantee in itself a right to conscientious objection.

The applicant stands by his allegation and reaffirms that Article 9 is applicable in the present case.

The Court considers that it is preferable to take the question of the applicability of Article 9 in conjunction with the validity of the complaint related to this provision.

Six-month time-limit

The Government invokes a belated application. According to it, considering that the compulsory nature of the military service results from domestic legislation, the applicant had no effective way to bring an appeal to remedy his complaint. Under such circumstances, the 6-month time-limit should have run from the date when the applicant had received his call-up paper. The Government notices that the date of the call-up is not specified in the application and maintains that the date on which the applicant had burnt the call up sheets during the press conference in Izmir, that is to say on 1 September 1995, should be considered as the starting point of the time-limit. Consequently, according to the government, the application should have been introduced on 1 March 1996 at the latest and that as such, it does not respect the six-month rule provided for in Article 35§1 of the Convention.

The applicant contested these arguments. As he had to face a series of prosecutions and sentences because of his convictions, he claims that he has been the victim of a series of elements that constitute a continuing situation. The applicant invokes that the six-month time-limit only starts when the contentious situation ends.

The Court observes from the outset that the applicant does not 's complaint does not refer to a single act but to a succession of sentences decided by the national tribunals every time that he declared himself as a "conscientious objector" and refused to wear the military uniform. This series of prosecutions and sentences corresponds to a continuing situation against which the applicant could bring no appeal under the domestic law. The Court recalls that when the alleged violation consists, as in the present case, in a continuing situation, the six-month time-limit only starts from the moment where this situation ended (see, inter alia, çinar v. Turkey, n°17864/91, decision of the Commission of 5 September 1994). As the circumstances referred to by the applicant were still ongoing at the time of the introduction of the application (compare with Ersöz, Cetin, Kaya, Ülkem Bastn ve Yayincilik Sanayi Ticaret Ltd v. Turkey, n°23144/93, decision of the Commission of 20 October 1995), the inadmissibility objection raised by the Government on the ground of Article 35§1 of the Convention cannot be upheld.

The merits

First, the Government emphasizes that according to the domestic law, the obligation to do military service applies to every man of Turkish nationality, and that it does not admit any exception for reason of conscience. Second, the Government emphasizes that the applicant was found guilty of military insubordination because he violated provisions of military discipline.

According to the Government, the charges against the applicant were likely to cause a certain concern and even an upheaval among the conscripts and could legitimately justify a criminal sanction. In addition, the Government refers to the cases of Heudens v. Belgium (n° 24630/94, decision of the Commission of 22 May 1995) and Autio V. Finland (n° 17086/90, decision of the Commission of 6 December 1991) and invokes that Article 9 of the Convention has to be interpreted in the light of Article 4 and that the right to conscientious objection is not recognised as such in the Convention.

The applicant contested these arguments. He recalls that every time that he refused to wear the military uniform, he was condemned and imprisoned, and that following his release, he was escorted to his regiment, condemned and imprisoned once again for his refusal to wear the military uniform. According to the applicant, this endless series of prosecutions and sentences is not proportionate to the aims of the national authorities.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously,

Joins to the merits, the issue of the applicability of Article 9 in the present case.

Declares the application admissible, without prejudging the merits.

T.L Early
Deputy Registrar

J.P. Costa
President