Turkey: Another legal victory for conscientious objectors at European Court of Human Rights

Turkish conscientious objectors won another victory at the European Court of Human Rights. On 8 January 2008, the Strasbourg court awarded Sanar Yurdatapan, spokesperson for the Initiative Freedom of Thought, €2,000 in damages and €1,500 in legal fees. Yurdatapan had been sentenced to two months imprisonment for a statement in support of conscientious objector Osman Murat Ülke.

The case goes back to 1999. On 23 July 1999 Sanar Yurdatapan distributed a leaflet entitled “Freedom of Thought - No. 38” in front of the Istanbul State Security Court Building. This leaflet was a reproduction of the leaflet entitled “Freedom of Thought - No. 9”, which contained statements made by conscientious objector Osman Murat Ülke. The same day, Yurdatapan filed a complaint against himself with the Public Prosecutor attached to the Istanbul State Security Court and maintained that he should be prosecuted for re-publishing the leaflet entitled “Freedom of Thought-No. 9”, banned by the General Staff Military Court.

On 5 October 1999 the military public prosecutor initiated criminal proceedings against Yurdatapan in the General Staff Military Court, and charged him with seeking to dissuade persons from serving in the military contrary to Article 155 of the Turkish Criminal Code in conjunction with Article 58 of the Military Criminal Code.

Not surprisingly, the military court found Yurdatapan guilty under Article 155 of the Criminal Code, in conjunction with Article 58 of the Military Criminal Code, for seeking to dissuade persons from serving in the military. It further sentenced him to two months' imprisonment and a fine.

Yurdatapan appealed to the European Court of Human Rights, based on a violation of the right to fair trial (Article 6 para 1 European Convention of Human Rights). He complained that the General Staff Court which tried him could not be regarded as an independent and impartial tribunal, given that it was composed of two military judges and an officer, all of whom were bound by the orders and instructions of the Ministry of Defence and the general staff which appointed them.

In addition, he complained that the sentence for publishing a leaflet constitutes a violation the right to freedom of expression (Article 10).

The Strasbourg court had already dealt with the right to fair trial in Turkey in an earlier case, where a civilian had been tried in front of a military court (Ergin vs Turkey, case 47533/99, judgement from 4 May 2006). "In that judgment, the Court held that it was understandable that the applicant, a civilian standing trial before a court composed exclusively of military officers, charged with offences relating to propaganda against military service, should have been apprehensive about appearing before judges belonging to the army, which could be identified with a party to the proceedings. On that account the applicant could legitimately fear that the General Staff Court might allow itself to be unduly influenced by partial considerations. Consequently, the applicant's doubts about that court's independence and impartiality could be regarded as objectively justified. [...] There has therefore been a violation of Article 6 § 1 of the Convention."

The court came to the conclusion that "the applicant's sentencing, in particular the two months' imprisonment, a harsh penalty" and "consider[ed] that the reasons given by the General Staff Court, although relevant, cannot be considered sufficient to justify the interference with the applicant's right to freedom of expression."

Consequently, "the Court concludes that the applicant's conviction and sentence were disproportionate to the aims pursued and therefore not “necessary in a democratic society”. Accordingly, there has been a violation of Article 10 of the Convention."

While this judgement adds to the number of legal victories of Turkish conscientious objectors, those victories seem to mean little in practice. Up to today - more than two years after the original Ülke judgement - the case of Osman Murat Ülke has not been resolved, and he is still living a life characterised by the court as "civil death".

However, this new judgement will add to the pressure on the Turkish government to finally resolve the problem.

Sources: ECHR Punishes Turkey in Conscientious Objection Case, Bianet, 9 January 2008, ECHR: Yurdatapan vs Turkey, case 70335/0, judgement from 8 January 2008, ECHR: Ergin vs Turkey, case 47533/99, judgement from 4 May 2006)