European Court of Human Rights rules in case of Turkish conscientious objector

On 24 January 2006, the European Court of Human Rights finally released the judgement in the case of Turkish conscientious objector Osman Murat Ülke. In short: Osman Murat Ülke complained that he had been prosecuted and convicted on account of his convictions as a pacifist and conscientious objector. In his application to the European Court of Human Rights, he relied on Articles 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 8 (right to respect for private and family life) and 9 (right to freedom of thought, conscience and religion) of the European Convention on Human Rights.

The court ruled: "The Court noted that, despite the large number of times the applicant had been prosecuted and convicted, the punishment had not exempted him from the obligation to do his military service. He had already been sentenced eight times to terms of imprisonment for refusing to wear uniform. On each occasion, on his release from prison after serving his sentence, he had been escorted back to his regiment, where, upon his refusal to perform military service or put on uniform, he was once again convicted and transferred to prison. Moreover, he had to live the rest of his life with the risk of being sent to prison if he persisted in refusing to perform compulsory military service.

The Court noted in that connection that there was no specific provision in Turkish law governing penalties for those who refused to wear uniform on conscientious or religious grounds. It seemed that the relevant applicable rules were provisions of the military penal code which made any refusal to obey the orders of a superior an offence. That legal framework was evidently not sufficient to provide an appropriate means of dealing with situations arising from the refusal to perform military service on account of one’s beliefs. Because of the unsuitable nature of the general legislation applied to his situation the applicant had run, and still ran, the risk of an interminable series of prosecutions and criminal convictions.

The numerous criminal prosecutions against the applicant, the cumulative effects of the criminal convictions which resulted from them and the constant alternation between prosecutions and terms of imprisonment, together with the possibility that he would be liable to prosecution for the rest of his life, had been disproportionate to the aim of ensuring that he did his military service. They were more calculated to repressing the applicant’s intellectual personality, inspiring in him feelings of fear, anguish and vulnerability capable of humiliating and debasing him and breaking his resistance and will. The clandestine life amounting almost to “civil death” which the applicant had been compelled to adopt was incompatible with the punishment regime of a democratic society.

Consequently, the Court considered that, taken as a whole and regard being had to its gravity and repetitive nature, the treatment inflicted on the applicant had caused him severe pain and suffering which went beyond the normal element of humiliation inherent in any criminal sentence or detention. In the aggregate, the acts concerned constituted degrading treatment within the meaning of Article 3."

While this is somehow "good news", and sparked a debate on the right to conscientious objection in Turkey, the court did not rule on the other articles, especially not on Article 9 (freedom of conscience, thought and religion), which would have been the most important one regarding the right to conscientious objection. The logic here is that the human rights situation in Turkey is still so bad, that more grave human rights violations take precedence over Article 9.

In his own press statement after the Court decision, Osman Murat Ülke declared: "The point we have reached today is the result of a very long process. I made my decision to become a conscientious objector in the year 1992 and I participated in the foundational efforts of the War Resisters Association at the end of that same year. In the years that followed, I was involved in an intense and multifaceted endeavor towards the demilitarization of social and political life in Turkey. In 1996, it was time to publicly declare my conscientious objection and a year and two months after that, a warrant was issued for my arrest. I went to the police station myself and got arrested. Between the years 1997 and 1999 I was released twice and both of those times I went, not to the military unit, but to court, by my own will. This way, I demonstrated that I am not a “deserter,” that I am not avoiding the issue, and that, on the contrary, I am willing to face it.

For me, conscientious objection has always been the sine qua non condition of my loyalty to my identity, character and convictions. According to my observations and opinions that may sound too marginal or illusive to the majority, a person is primarily indebted to the whole of humanity and s/he does not owe obedience to institutions that were formed despite it. In fact, I see the command/obedience relationship itself as an entire issue to be struggled against. But we are not to discuss these right now; I just wanted to add a side note concerning my motivation."

"The European Court of Human Rights, prioritizing the article 3 of ECHR [European Convention on Human Rights], has revealed that there is a problem here in terms of the general principles of law. Accordingly, crime and punishment must be proportional and each act can only have a single sanction. I would like to particularly draw your attention to this point. Before the discussion even gets to conscientious objection, this is the point we are stuck at. Within the framework of current laws, the state lacks the means to try individuals who object compulsive military service on the grounds of conscience. Thus, immediately driving the discussion towards questions such as “is compulsive military service becoming abolished?” or “will the ECHR decision lead Turkey into chaos?” etc., does nothing but confuse people. I suppose authorities and legal practitioners will admit that trying people over and over again for one act that they consider to be a “crime” and putting them in a vicious cycle that may last for a life-time does not exactly chime with universally accepted legal notions.

And this is what the ECHR is saying. Taking this as a point of departure, ECHR is giving guidance to Turkey and pointing out that, first, this issue cannot be solved via military regulations, and secondly, new special arrangements are to be warranted for those who object military service for conscientious reasons. The decision says no more, and no less than this."

"But there is something I would like to tell the state about the juncture we are at: The state must immediately cease treating conscientious objectors as insubordinate soldiers. This is a position that they cannot afford to hold. Heroisms such as “Enemy Europeans”, “coward traitors of the nation,” etc., cannot overshadow the very harm inflicted by Turkey on itself and on the youth living in this country. Immediate measures must be taken for Mehmet Tarhan who is now held under very severe conditions at Sivas Military Prison and whose health is under threat. Delaying the problem and torturing Mehmet Tarhan will obviously cause Turkey to lose as a whole. Mehmet Tarhan has already guaranteed himself a winning lawsuit at the ECHR with what he has had to suffer so far. It is up to the authorities to avoid any more harm."

After the publication of the judgement, the Turkish media began to discuss the issue of conscientious objection, mostly demanding that Turkey introduces a law on conscientious objection, which would also provide for a substitute service for conscientious objectors (something most Turkish objectors would object to too). According to Article 72 of the Turkish Constitution, "Fatherland service is the right and duty of every Turk. How this service in the armed forces or public sector is carried out or is supposed to be carried out is prescribed by law". Thus the Constitution does, at least in theory, allow fatherland service to be a non-military service. However, Turkish legislation does not provide for a substitute service or for an unarmed military service within the armed forces.

Presently, there are about 80 declared conscientious objectors in Turkey, most of them living openly, but under permanent risk of being arrested. Mehmet Tarhan, a gay conscientious objector, is presently serving a four years prison sentence in the military prison in Sivas, although an appeal is pending. And Osman Murat Ülke himself is also still at risk of arrest - still living a life the Strasbourg court called "civil death", officially being "hunted" as deserter, but practically living openly with his family in Izmir. Consequently, the decision of the European Court of Human Rights leads to three main demands:

1. A solution to the situation of Osman Murat Ülke, which would end a situation of "civil death" and would allow him to live safely without fear of arrest;
2. The release of Mehmet Tarhan and an end of punishment of conscientious objectors in Turkey;
3. The recognition of the right to conscientious objection.

Sources: European Court of Human Rights: AFFAIRE ÜLKE c. TURQUIE, Judgement, Requête no 39437/98, 24 January 2006, Press Release