Turkey: Human Rights and the Armed Forces

de
en

Report to the Human Rights Committee, 104th Session

London, December 2011

Summary


War Resisters'
International is concerned about grave violations of human rights of
conscientious objectors and antimilitarists in Turkey. The main
issues are:






  • Turkey maintains conscription,
    and still does not recognise the right to conscientious objection.


  • Conscientious objectors are
    often sentenced repeatedly for refusing military service, on charges
    of desertion, disobedience or insubordination, in violation of
    article 18 and article 14 ICCPR (ne bis in idem).


  • While in prison, conscientious
    objectors often face abuse and maltreatment either from the side of
    the prison authorities, or also from fellow prisoners.


  • Even after their release from
    prison, conscientious objectors often live in a legal limbo, a
    situation the European Court of Human Rights called “civil death”
    - being unable to marry, to legal register a child, to legally work,
    get a passport, or engage in any way with the authorities. The same
    applies to those who declared their conscientious objection, but
    have never been arrested.


  • Conscientious objectors and
    pacifists often face trials on charges of “alienating the people
    from the military” (article 318 Turkish Penal Code) for
    criticising the military, or talking about conscientious objection,
    in violation of article 19 ICCPR.


1. Introduction


War Resisters' International has been working with
conscientious objectors in Turkey ever since the emergence of a
political conscientious objection movement in the 1990s. This close
co-operation with conscientious objectors and their supporters in
Turkey gives War Resisters' International a unique and long-term
perspective on the situation of conscientious objectors in the
country.


Based on this experience, this report focuses on
two of the main human rights problems conscientious objectors and
antimilitarists are faced with in Turkey:



  • the non-recognition of the right to
    conscientious objection, and the persecution of conscientious
    objectors following from this.


  • the persecution of conscientious objectors
    and antimilitarists for publicly speaking about and expressing their
    solidarity with conscientious objection, under article 318 of the
    Turkish penal code.



In both areas, there have been cases of
imprisonment, and even repeated imprisonment.


Although the European Court of Human Rights
already ruled in January 2006 in the case of conscientious objector
Osman Murat Ülke
that the repeated imprisonment he was subjected to amounted to
inhuman and degrading treatment, nothing has changed substantially
since. The Working Group on Arbitrary Detention dealt with cases of
conscientious objectors from Turkey twice, in 1999
1
and in 2008
2.
On 22 November 2011, a Chamber of the European Court of Human Rights
reaffirmed the right to conscientious objection in its judgement in
the case of Erçep v. Turkey (application no. 43965/04)
3.




2. Military recruitment in Turkey


2.1 Conscription


According to art. 72 of the 1982
constitution - which was passed after the 1980 military coup - all
Turkish citizens must perform a so called 'national service':
"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.
"4


This means the Turkish Constitution
leaves it up to the legislator how 'national service' is carried out.
In theory, it can be non-military service.


In Turkish law 'national service' is
prescribed by the Law on Military Service (Law No. 1111)5
and the Law for Reserve Officers and Reserve Military Servants (Law
No. 1076). Art. 1 of the Law on Military Service specifies that all
males who are citizens of the Turkish Republic, must receive armed
military training, irrespective of their age. Law No. 1111 was
enacted in 1927 and states that 'fatherland service' is compulsory
military service, so refusal to perform 'fatherland service' is a
crime punishable by the military penal code.


Law 1111 was changed in 1992 when
Law 3802 came into force on 1 June 1992. Amendments to the law on 19
February 1994 created further changes.


The length of military service is 15
months. University graduates may perform 6 months' military service,
or 12 months if they are trained to become reserve officers. Certain
professional groups (doctors, teachers, civil servants) may be
permitted to perform special service. However, this special services
is a service within the Armed Forces, and with uniform. Usually,
those serving in special service are not sent on combat operations.


All men between the ages of 19 and
40 are liable for military service. Men who have not fulfilled their
military service by the age of 40 and who have not been legally
exempt from service, may still be called up after the age of 406.


Police officers are exempted from
military service. Under certain condition, a person whose brother
died during his military service might be exempted from military
service.


Students may postpone their military
service up to the age of 29, or up to the age of 35 in the case of
postgraduate students.


After completion of military
service, reservist duties apply up to the age of 40.


Different military service
regulations apply for Turkish citizens who are living abroad.
According to new regulations on military service in Turkey, people
who have lived abroad for at least three years will be able to
benefit from a newly introduced "paid exemption from military
service" by paying €10,000. They will then be exempt from
basic military training. This is not dependent on any age limit. The
regulation will come into force once it has been published in the
Official Gazette7.


2.2 Professional soldiers


Although the Turkish Embassy wrote
to WRI as late as December 2007 that “professional soldiers is
not in the military practice of Turkey
8,
two Turkish Armed Forces contributors to a NATO study wrote in
October 2007 that service of professional soldiers in Turkey is
governed by the Turkish Armed Forces Personnel Law No. 9269.


Currently, women can serve as
officers in the Turkish Armed Forces, but not as non-commissioned
officers or enlisted personnel. After graduating from a military
college or having a 4-year degree from a civilian university as a
military student, officers have 15 years of obligatory service.
Similar to officers, once on the job, non-commissioned officers have
a 15-year obligatory service in the Turkish Armed Forces.


The specialists are professional
enlisted leaders. They are employed at certain positions requiring
continuity such as Squad Leader, Tank Driver, Tank Gunner, Repairer,
Artillery Sergeant, etc. These specialists are selected from among
qualified conscripts who have finished their military service. Their
first contract is for 2 years, and later contracts may be between 1
to 5 years depending on the qualification of the person, his
willingness, and the requirements of the service. They can serve
until the age of 45 when they retire with pension pay and benefits10.


DefenseNews reported in May 2008
that the Turkish army has stopped assigning formerly conscripted
reserve officers to special commando units, and that “professional
soldiers, including the Special Forces Command, will become the
backbone of the Turkish military's fight against separatist Kurds
11.
According to the same article, “by the end of next year [2009 -
WRI] no conscript soldiers will be involved in anti-terrorism
operations in units on both sides of Turkey's border with Iraq, where
the military is fighting the outlawed Kurdistan Workers Party (PKK).

Presently, the commando units number about 30,000 soldiers.


According to Eurasia Daily Monitor,
about 100,000 of the 600,000 strong Turkish Armed Forces are
professional soldiers. Even though it remains a predominantly
conscript force, in recent years the Turkish military has increased
the numbers of its full-time private soldiers and non-commissioned
officers (NCOs). It appears to have had little difficulty in
attracting recruits. In 2007, 25,084 Turks applied for positions as
full-time “specialist NCOs” in the Turkish Land Forces, of whom
only 1,540 were eventually accepted. Another 3,018 specialist NCOs
are expected to be enrolled in 2008. Salaries are good by Turkish
standards at around US$1,000 a month net, approximately the same as a
mid-level civil servant, although fringe benefits can take the total
to over US$1,500, which is almost five times the current minimum
wage12.


These new developments are based on
a resolution adopted at the beginning of May 200813,
although it is unclear which authority passed this resolution.



3. Conscientious objection


3.1 Conscientious objection for conscripts


Turkey does not recognise the right
to conscientious objection for conscripts. Article 72 of the Turkish
constitution states: “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”
14.
This in principle would allow for a non-military alternative.
However, Turkish law does not provide for this.


In
the past, the Turkish government never considered introducing
legislation on conscientious objection. A brochure published by the
Armed Forces in 1999 in fact states: “
In our laws there
are no provisions on exemption from military service for reasons of
conscience. This is because of the pressing need for security, caused
by the strategic geographical position of our country and the
circumstances we find ourselves in. As long as the factors
threatening the internal and external security of Turkey do not
change, it is considered to be impossible to introduce the concept of
'conscientious objection' into our legislation
15.


In
fact, article 45 of the Turkish Military Penal Code explicitly
states: “
Individuals may not evade military service, and
penalties may not be revoked, for religious or moral reasons.


Following
the judgement of the
European Court of Human Rights
in the case of Turkish conscientious objector
Osman Murat
Ülke16
in January 2006
17,
the Turkish government declared at the
Council of Europe
that a law solving the problems would be in preparation
18.
However, so far the Turkish government failed to provide any more
details, and it can be doubted that the law will implement the right
to conscientious objection. Also, Osman Murat
Ülke's
legal situation has not changed, and he is still considered a
deserter and has an outstanding arrest warrant. But the Turkish
government did not appeal against the ECHR judgement, and also paid
the compensation of 11,000 Euro to Osman Murat
Ülke.


About
60 other declared conscientious objectors are in a similar situation,
either after spending some time in prison or after a public
declaration of conscientious objection, and ignoring a call-up.


In
May 2008, the United Nations Working Group on Arbitrary Detention
gave an opinion on the case of
Halil Savda19,
who has been imprisoned and sentenced repeatedly. The Working Group
came to the following conclusion: “
The deprivation of
liberty of Mr. Halil Savda during the periods between 16 and 28
December 2004, between 7 December 2006 and 2 February 2007, as well
as between 5 February and 28 July 2007 was arbitrary. His deprivation
of liberty since 27 March 2008 is also arbitrary, being in
contravention of articles 9 and 18 of the Universal Declaration of
Human Rights and of articles 9 and 18 of the International Covenant
on Civil and Political Rights from which the Republic of Turkey is a
State Party, falling under category II of the categories applicable
to the consideration of cases submitted to the Working Group. In
addition, it also falls under category III of the categories applied
by the Working Group, as far as Mr. Savda would have to serve his
prison term following his conviction by judgement No. 2007/742-396
20.


On
22 November 2011, a Chamber of the European Court of Human Rights
reaffirmed the right to conscientious objection in its judgement in
the case of Erçep v. Turkey (application no. 43965/04). The case
concerned a Jehovah's Witness from Turkey, who had been repeatedly
imprisoned for his refusal to perform military service following
approximately 15 call-ups.


Following
up from the Grand Chamber judgement in the case of Bayatyan v
Armenia, in which the European Court of Human Rights reviewed its
previous case law on conscientious objection and "
considered
that opposition to military service, where it was motivated by a
serious and insurmountable conflict between the obligation to serve
in the army and a person’s conscience, constituted a conviction or
belief of sufficient importance to attract the guarantees of Article
9.
"


It
therefore did not come as a surprise that the new chamber judgement
reaffirmed that conscientious objection is indeed protected under
Article 9 of the European Convention on Human Rights (freedom of
thought, conscience and religion). According to the Court's press
release, the "
Court observed that Mr Erçep was a
member of the Jehovah’s Witnesses, a religious group that had
consistently opposed military service. There was no reason to doubt
that his objection was motivated by anything other than
genuinely-held religious beliefs.
"


"In
Turkey, all citizens declared fit for national service were required
to report for duty when called up and to perform military service. No
alternative civilian service existed. Conscientious objectors had no
option but to refuse to enrol in the army if they wished to remain
true to their convictions. In so doing, they laid themselves open to
a sort of “civil death” because of the numerous sets of criminal
proceedings which the authorities invariably brought against them;
they could face prosecution for the rest of their lives. The Court
considered that that situation was not compatible with law
enforcement in a democratic society.
"


"The
Court took the view that the numerous convictions imposed on Mr Erçep
because of his beliefs, in a situation where no form of civilian
service offering a fair alternative existed in Turkey, amounted to a
violation of Article 9.
"


Besides
the judgement on the violation of Article 9, the Court also found for
a violation of Article 6 (right to a fair trial). "
Mr
Erçep complained of the fact that, as a civilian, he had had to
appear before a court made up exclusively of military officers. The
Court observed that, despite being accused of an offence under the
Military Criminal Code, the applicant was, for criminal-law purposes,
not a member of the armed forces but a civilian. Furthermore, it was
clear from a judgment of the Jurisdiction Disputes Court dated 13
October 2008 that, in Turkish criminal law, a person was considered
to be a member of the armed forces only from the time he or she
reported for duty with a regiment.
"


"The
Court considered it understandable that the applicant, a civilian
standing trial before a court composed exclusively of military
officers, charged with offences relating to military service, should
have been apprehensive about appearing before judges belonging to the
army, which could be identified with a party to the proceedings. In
such circumstances, a civilian could legitimately fear that the
military court might allow itself to be unduly influenced by partial
considerations.
"


"Acknowledging
that the applicant’s doubts about the independence and impartiality
of that court could be regarded as objectively justified, the Court
held that there had been a violation of Article 6 § 1 in that
regard.
"


However,
on the same day the European Court of Human Rights published its
judgement in the case of Ercep v Turkey,
Turkish
Prime Minister Recep Tayyip Erdogan announced at a group meeting of
the AK Party parliamentary group that the issue has been shelved from
the government's agenda
21.



3.2 Conscientious objection for professional
soldiers


As Turkey does not even recognise
the right to conscientious objection for conscripts, it also does not
allow its professional soldiers to claim conscientious objector
status.


Details of Law 926 governing the
service of professional soldiers, and how they would be able to leave
the Armed Forces prematurely, are not known.



4. Punishment of conscientious objectors


Conscientious objectors are usually
charged with draft evasion, disobeying orders, or desertion. Draft
evasion and desertion are punishable under the Law on Military
Service and the Turkish Military Penal Code. Turkish law actually
makes a distinction between evasion of military registration, evasion
of medical examination, evasion of enlistment and desertion.


According to Article 63 of the Penal
Code, draft evasion is punishable (in peacetime) by imprisonment of:



  • One month for those who report
    themselves within seven days;


  • Three months for those who are
    arrested within seven days;


  • Between three months and one
    year for those who report themselves within three months;


  • Between four months and 18
    months for those who are arrested within three months;


  • Between four months and two
    years for those who report themselves after three months;


  • Between six months and three
    years for those who are arrested after three months22;


  • Up to ten years' imprisonment
    in the case of aggravating circumstances, such as self-inflicted
    injuries, using false documents (Articles 79-81 of the Penal Code).



Desertion is punishable under
Articles 66-68 of the Penal Code with up to three years'
imprisonment. Deserters who have fled abroad may be sentenced to up
to five years' imprisonment, and up to ten years in case of
aggravating circumstances (Article 67)23.


Monitoring of draft evasion and
desertion is strict24.
The registration of conscripts is, in fact, one of the most effective
government registrations in Turkey. Draft evaders and deserters may
be arrested after routine checks such as traffic control. They are
not able to leave Turkey, as the fact that they are evading military
service would be visible to any customs and immigration officer or
police officer. In addition, police and gendarma authorities
are responsible for finding draft evaders and deserters and may
conduct house searches and arrest them.


There are no detailed figures
available on the scale of prosecution of draft evaders and deserters,
but military courts are believed to deal with approx. 60,000 cases
per year that are connected to draft evasion. About half of these
cases reportedly deal with cases of conscripts going absent for less
than a week, mostly conscripts who do not report themselves back in
time after a period of leave.


Prison sentences of less than one
year's imprisonment for evasion of registration/examination for
enlistment or for desertion are generally commuted into fines, which
must be paid after the end of military service. Sentences for draft
evasion for periods longer than three months, when the draft evader
has not reported himself voluntarily, may not be commuted into a
fine. Suspended sentences may not be imposed for evasion of
registration/examination or enlistment or for desertion.


Those who are convicted for draft
evasion must still complete their term of military service. Repeated
offenders may thus be sentenced again. Prison sentences for repeated
offenders may not be commuted into fines.


Those convicted to less than six
months' imprisonment usually serve their prison sentence in military
prisons; those convicted to over six months' imprisonment are
imprisoned in regular prisons. After serving their prison sentence,
they still need to perform the remaining term of their military
service25.



5. Example
cases of conscientious objectors


Since the 1990s, there are a small
number of COs who publicly state that they refuse to perform military
service for non-religious, pacifist reasons. The Turkish language
actually makes a distinction between conscientious objectors (vicdani
retci) and draft evaders (asker kacagi).


The first known Turkish COs were
Tayfun Gonul and Vedat Zencir, who declared their objections in 1990.
Osman Murat Ülke, a Turkish citizen who grew up in Germany and
returned to Turkey, became the first famous conscientious objector,
and the first to go to prison for his conscientious objection. In
1995 he publicly declared that he was a conscientious objector and
refused to perform military service. Since then, dozens of others
have followed. Between 1995 and 2004 approx. 40 men have openly
declared themselves as conscientious objectors, mostly by making a
public statement or giving media interviews about their reasons for
refusing military service.

Osman Murat Ülke26


The most well known case was Osman
Murat Ülke
, who was arrested in October 1996 and during the
following years spent a total of 30 months in prison on several
charges of disobeying orders.


Although he was finally
acquitted of charges based on Art 155 on 29 August 1995, the court
gave order to transfer him to the recruitment office, where he was
given an order to present himself at his military unit within 3 days.
Instead of doing so he burned his call-up papers in a press
conference in Izmir on 1 September 1995, and publicly declared his
conscientious objection27.
This lead to his arrest one year later, on 7 October 1996, and a
series of trials based on “disobeying orders” - his conscientious
objection. He is sentenced to prison repeatedly, released, sent back
to his unit, arrested, sentenced, etc... He was finally released on 9
March 1999, but officially required to report to his unit, and is
living a semi-legal life ever since. In its Opinion 36/1999, the
Working Group on Arbitrary Detention declared his detentions
following his first detention as arbitrary28.





On 24
January 2006, the European Court of Human Rights in Strasbourg
finally ruled in favour of
Osman Murat Űlke.
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.
"29


Following
the judgement of the European Court of Human Rights, Osman Murat Ülke
was paid the compensation awarded to him by the Court, but his
situation did not change. In fact, in July 2007 he learned that an
arrest warrant was still out for him
30.


Although
the Committee of Ministers of the Council of Europe repeatedly called
on Turkey to end the persecution of Osman Murat Ülke, the situation
did to date not change
31.



Halil Savda32


Halil Savda was born in Sirnak/Cizre
in 1974, and graduated from primary school. In 1993, he was arrested
and held for 1 month in Sirnak/Cizre, during which time he was
tortured repeatedly. The State Security Court then charged him with
"supporting an illegal organisation (the PKK - Kurdish Workers
Party)". He was then sent to prison, and released in 1996.


The background to Halil
Savda's case is appalling:



  1. Halil Savda was
    called up for military service in 1996. At first he followed this
    call-up order, and finished his basic training. However, he then did
    not follow an order to report to a different military unit. He was
    arrested in 1997, and the State Security Court in Adana sentenced
    Halil Savda to 15 years imprisonment for "membership in an
    illegal organisation". The court found him guilty of being a
    member of PKK, which Halil Savda denied. Halil Savda had been
    arrested for the same reason in 1993, but had been released after 1
    month. During this time of imprisonment he was repeatedly tortured.


  2. On 18 November
    2004, Halil Savda was released from prison, and transferred to the
    gendarmerie in Antep, because of desertion from military service in
    1996. He was kept in an isolation cell for six days. On 25 November,
    he was transferred to the military unit in Corlu-Tekirdag, where he
    declared his conscientious objection to military service.


  3. On 16 December
    2004, the Corlu Military Court ordered the detention of Halil Savda
    for "insistence on disobedience".


  4. On 28 December
    2004, Halil Savda was released from prison after a trial session,
    but ordered to report to the military unit in Corlu-Tekirdag. Halil
    Savda did not follow this order, in went home instead.


  5. On 4 January 2005,
    the Corlu Military Court sentenced Halil Savda in absentia to 3
    months and 15 days of imprisonment. Halil Savda appealed against
    this sentence.


  6. On 13 August 2006,
    the Military Appeal Court cancelled the decision of the Corlu
    Military Court from 4 January 2005 because of errors in the conduct
    of the trial.


  7. On 7 December
    2006, Halil Savda reported to the retrial for his conscientious
    objection, after the decision of the Military Appeal Court from 13
    August 2006. The court ordered his detention during the trial, and
    Halil Savda was arrested in court.


  8. On 25 January
    2007, the Corlu Military Court ordered the release of Halil Savda
    from prison, but at the same time gave order to transfer him to the
    8th tank brigade in Tekirdag. There, he was given the order to put
    on a uniform, which he refused. He was again arrested and charged
    with "insistence on disobedience". During his detention,
    he suffered from heavy abuse by four guards, and had to spent three
    days in an isolation cell, dressed only in his underwear and without
    any facilities to sit or sleep.


  9. On 15 March 2007,
    the Corlu Military Court sentenced Halil Savda to 15 ½ month
    imprisonment on charges of desertion and disobedience, based on his
    desertion in 1996 and his refusal to obey orders in 2004.


  10. On 12 April 2007,
    he was sentenced by the Corlu military court to a further six months
    imprisonment, bringing his total prison time up to 21.5 months.







In its Opinion No. 16/2008, the
Working Group on Arbitrary Detention declared the repeated detentions
of Halil Savda arbitrary33.


Since his release from prison, Halil
Savda has also been a victim of persecution under article 318 of the
Turkish Penal Code (see below).



Mehmet Tarhan34


Mehmet
Tarhan declared his conscientious objection in the Ankara branch of
IHD (Human Rights Association) on 27 October 2001.


Mehmet
Tarhan was arrested on 8 April 2005
35.
He was sent to prison, and repeatedly suffered abuse and
maltreatment, to which he responded repeatedly with going on hunger
strike.


On
9 March 2006, Mehmet Tarhan was released from prison, as the court
did not expect he would need to serve a longer prison term that his
time of detention up to that time, should he be sentenced
36.


On
10 October 2006, the Sivas Military Court finally ruled on the case.
Mehmet Tarhan was sentenced to 10 months' imprisonment for "insistent
insubordination in front of his unit" on 10 April 2005, and to 1
year and 6 months for a further act of disobedience on 10 June 2005 -
according to Turkish rules about combining sentences, this gives a
total of 25 months in prison
37.


Since
his release in March 2007, Mehmet Tarhan is in a situation similar to
Osman Murat Űlke – being ordered to report to his unit, and
therefore living a semi-legal life of “civil death”.



Enver Aydemir38


Turkish conscientious objector Enver
Aydemir was detained on 24 December 2009 on his way to a conference
on conscientious objection during a random electronic background
check by police at the ferry port in Kabataş, Istanbul. An arrest
warrant for insubordination and possibly desertion, going back to his
earlier arrest in detention in 2007, was discovered, and Enver
Aydemir was transferred to Doğancılar police station and then to a
military police station. From there he was sent to Maltepe Military
Prison, where former conscientious objector İsmail Saygı had been
severely beaten in 2008.


Enver Aydemir had declared his
conscientious objection on 24 July 2007 after being forcefully taken
to the Bilecik 2. Gendarme Commandership to perform military service.
Refusing to serve in a secularist military because of his religious
convictions, Enver was arrested and transferred to Erzurum 1.
Tactical Air Force Commandership Military Prison on 31 July 2007
where he was physically attacked and forced by 10 soldiers to wear
the military uniform.


Enver Aydemir was imprisoned in
Erzurum for more than two months while awaiting trial on
insubordination charges. There he suffered physical ill treatment on
more than one occasion. He was released at the trial session on 24
October 2007 and ordered to report to the military unit in Bilecik.
Since he was released without the accompaniment of soldiers, Enver
Aydemir never reported to the military unit and went home
instead.
His arrest in December 2009 was based on the same
charges39.


On 1 April 2010, Enver Aydemir has
been sentenced to ten months imprisonment by an Eskişehir court on
Tuesday, on charges of desertion40.
In June 2010, Enver Aydemir was released from prison.



Inan Süver41


İnan
Suver was called up for military service in 2001, and according to
the information available, he deserted after about 13 months of
service, but was arrested and spent seven months in prison. It is not
clear on what conditions he was released - as he was still listed as
deserter, it is likely that he was released with an order to return
to his unit.


According
to information published by Amnesty International, İnan Suver has
been convicted at least three times on charges of "desertion"
and served time in military prison. İnan Suver reported that while
serving his prison sentence for desertion at Şirinyer Military
Prison in İzmir he was repeatedly severely beaten by prison guards.
He has an outstanding sentence of 35 months from three previous
convictions for "desertion".


İnan
Suver declared his conscientious objection in a letter to the
military authorities in 2009.


When
İnan Suver deserted, he had not heard of the concept of
conscientious objection. Once he learned about the concept and the
politics behind it, he declared himself a conscientious objector in
2009. In an interview with Dicle News Agency, he said: "Widespread
knowledge about conscientious objection would be the end of the war.
"


On 26
November 2010 İnan Suver was declared "unfit for military
service" by the military authorities. Lon 9 December 2011, Inan
Süver was released earlier then expected. His lawyer made an
application requesting his release, arguing that the government had
announced to prepare a law to legalise conscientious objection, and
also on health grounds. The military court followed the first part of
this argument.



Muhammed Serdar
Delice42


Muhammed
Serdar Delice was arrested on 27 November 2011. He declared his
conscientious objection on 2 March 2010, after five months of serving
military service in the Turkish Army. He did not return from
vacations and declared his conscientious objection instead. He said
that he did not want to joint a non-Muslim army.


According to information received,
Muhammed Serdar Delice began a hunger strike on 18 December 2011, in
protest against maltreatment and abuse while in detention.



6. Persecution
of conscientious objectors and antimilitarists for expressing their
opinion


Conscientious objectors who attract
media attention or publish articles about their refusal to perform
military service, or supporters of conscientious objectors, may also
be punished to between six months' and two years' imprisonment under
Article 318 of the Turkish Criminal Code for "alienating the
people from the armed forces
". In 2004, a new Criminal Code
was introduced (Law No 5237). Under the previous Criminal Code,
"alienating people from the armed forces" was
punishable under Article 155 with a similar term of imprisonment43.






Article 318:




  1. Persons who
    give incentives or make suggestions or spread propaganda which will
    have the effect of discouraging people from performing military
    service shall be sentenced to imprisonment for a term of six months
    to two years.



  2. If the act is
    committed through the medium of the press and media, the penalty
    shall be increased by half.






Ever
since the beginning of the antimilitarist movement in Turkey, Turkish
antimilitarists did not only have to worry about persecution for
refusing to join the military, but even for speaking out against
militarism. In fact, most if the first prosecutions of Turkish
antimilitarists were under the then Article 155 Turkish Penal Code,
titled “alienating the people from the military”.
Recently, as part of the overhaul of the Turkish Penal Code to comply
with demands from the European Union, the article has been
renumbered: it now is Article 318. However, the content did not
change significantly.





When
Tayfun Gönül
and Vedat Zencir first declared their conscientious objection back in
1989, they were not prosecuted and sentenced for refusing military
service, but under Article 155. Similarly, the first CO activists,
COs themselves, and journalists who interviewed them were prosecuted
and often sentenced under Article 155. An important early case was
the case of Erhan Akyıldız and Ali Tevfik in 1993. Both were tried
because they interviewed Aytek Özel, chair of the SKD and a CO, for
the TV channel HBB on 8 December 1993.





The
producer Erhan Akyıldız and the reporter Ali Tevfik Berber were
arrested on order of the Chief of Staff and tried at a military court
– the first time civilian were tried in a military court. Arrest
warrants were issued for Aytek Özel and the CO. Erhan Akyildiz and
Ali Tevfik Berber received the minimum sentence of two months'
imprisonment, and Aytek Özel, who surrendered to the military court
in Ankara on 8 February 2004, was sentenced to one year, 15 days'
imprisonment. The important element of this case was the fact that
after the state security court had ruled not to be competent,the way
was opened for civilians to be tried at military courts.





Also
in the case of Osman Murat Ülke,
the first Turkish conscientious objector to be imprisoned for his
conscientious objection, the first trials he faced – and the first
sentences passed on him – were in relation to Article 155. The
first trial he faced after his arrest on 7 October 1996 was about
Article 155 – alienating the people from the military through his
public burning of his draft papers and his declaration as
conscientious objector.





More
recently, since the so-called “penal reform”, there have been
several cases of prosecution under now Article 318. Cases include:



  • Doghan
    Özkan, an
    activist of the CO platform of the Istanbul branch of the Human
    Rights Association (IHD) gave a public address to the press on 12
    December 2004, and was subsequently sentenced to 5 months
    imprisonment on 20 September 2006. The sentence was commuted to a
    fine of 3000 YTL. An appeal is still pending.


  • Perihan
    Magden
    was charged with violation of Article 318 for an article
    “conscientious objection is a human right”, published in Yeni
    Aktuel on 27 December 2005. She was acquitted on 27 July 2006,
    because the court upheld the right to freedom of speech and
    expression.


  • Birgul
    Ozbaris
    , a journalist for the newspaper Ozgur Gundem, was
    charged with seven separate accounts of violating Article 318. In
    total, she is facing up to 21 years of imprisonment.


  • Gökhan
    Gencay
    , a journalist with Birgün
    newspaper, was charged with violation of Article 318 for an
    interview with conscientious objector Erkan Bolat, published on 10
    October 2005. His case was dismissed by the High Criminal Court,
    though.


  • Halil Savda
    not only was imprisoned repeatedly for his conscientious objection,
    but was also charged and sentenced repeatedly under Article 318.



Halil
Savda
has been finally sentenced on 3 March 2011 to five months'
imprisonment for a solidarity statement for Israeli conscientious
objectors Itzik Shabbat
and Amir Pastar on 1
August 2006.


Halil
Savda
was initially sentenced on 2 June 2008 by the Sultanahmet
1st Court of First Instance in Istanbul to five months' imprisonment
for the press statement44,
but appealed against the sentence. This sentence was upheld and
finalised by the Court of Appeals.


In
June 2010, Halil Savda was
sentenced in a similar case - a statement in support of then
imprisoned Turkish conscientious objector Enver
Aydemir
- to six months' imprisonment, together with three
co-defendants45.



  • Süleyman Tatar
    appeared in court on Monday on charges of “turning the people
    against military service,” a crime under Article 318 of the
    Turkish Penal Code (TCK). Tatar, a member of the Conscientious
    Objection for Peace platform, is accused of making society hostile
    toward military service with his remarks in an anti-war press
    statement he made during a protest at Boğaziçi University46.







It
is obvious that Article 318 (and previously Article 155) are being
used to silence dissent. Any criticism of the Turkish military can
potentially lead to prosecution and a prison sentence under Article
318. Thus, an open debate about the role of the military in Turkey's
society is almost impossible.


Article
318 stipulates an upper limit of 2 years' imprisonment, and three
years in cases where the “crime” is committed via the press.
However, in June this year, Article 318 was brought within the
compass of the Turkish Anti-Terror-Code, labelling conscientious
objection an “organised crime” and “danger”, and effectively
increasing the potential prison terms up to 4.5 years imprisonment.








Notes



1Working
Group on Arbitrary Detention: OPINION No. 36/1999 (TURKEY), 2
December 1999, http://wri-irg.org/node/1600




2Working
Group on Arbitrary Detention: Opinion No 16/2008 (Turkey),
http://wri-irg.org/node/272




3European
Court of Human Rights: AFFAIRE ERÇEP c. TURQUIE, chamber judgement
(French), 22 November 2011, http://wri-irg.org/node/14258




4The
Constitution of the Republic of Turkey, 1982, last amended on 10 May
2007, http://www.byegm.gov.tr/mevzuat/anayasa/anayasa-ing.htm,
accessed 28 August 2008




5Law
No. 1111, Military Law [Turkey]. 20 March 1927, extracts in English
at http://www.unhcr.org/refworld/docid/3ae6b4d020.html,
accessed 28 August 2008




6The
Turkish way of counting age differs from that in Western Europe, and
this accounts for the fact that the Military Act refers to the 20th
and 41st years, Military Service ("Country Report - October
2005"),
http://www.ecoi.net/190288::turkey/328808.327551.9791...mr.327552/military-service.htm,
accessed 30 September 2008




7Today's
Zaman: Some happy, some still disappointed, 23 November 2011,
http://www.todayszaman.com/columnist-263720-some-happy-some-still-disappointed.html




8Turkish
Embassy London, Reply to War Resisters' International,
1300/17-229-07, 14 December 2007




9NATO,
Research and Technology Organisation: Recruiting and Retention of
Military Personnel, October 2007,
ftp://ftp.rta.nato.int/PubFullText/RTO/TR/RTO-TR-HFM-107/$$TR-HFM-107-ALL.pdf,
accessed 28 August 2008




10NATO,
Research and Technology Organisation: Recruiting and Retention of
Military Personnel, October 2007,
ftp://ftp.rta.nato.int/PubFullText/RTO/TR/RTO-TR-HFM-107/$$TR-HFM-107-ALL.pdf,
accessed 28 August 2008




11DefenseNews:
Turkey Reworks Commando Forces for Counterinsurgency, 19 May 2008,
http://www.defensenews.com/story.php?i=3536801&c=FEA&s=SPE,
accessed 28 August 2008




12Eurasia
Daily Monitor: Turkey takes first step toward a professional army, 5
May 2008,
http://www.jamestown.org/edm/article.php?article_id=2373031,
accessed 28 August 2008




13Hurriyet:
Turk army implements recruitment process for professional soldiers,
May 2008 (exact date unknown),
http://www.hurriyet.com.tr/english/turkey/8853828.asp?gid=231&sz=32847,
accessed 28 August 2008




14The
Constitution of the Republic of Turkey, 1982, last amended on 10 May
2007, http://www.byegm.gov.tr/mevzuat/anayasa/anayasa-ing.htm,
accessed 28 August 2008




15Netherlands
Ministry of Foreign Affairs, 2003




16http://wri-irg.org/node/638,
accessed 3 September 2008




17Chamber
Judgement Ülke
v. Turkey, 24 January 2006,
http://wri-irg.org/node/615,
accessed 3 September 2008




18War
Resisters' International: Turkey defies European Court of Human
Rights, co-update No 31, August 2007, http://wri-irg.org/node/1154,
accessed 3 September 2008




19http://wri-irg.org/node/829,
accessed 3 September 2008




20Working
Group on Arbitrary Detention: Opinion No 16/2008 (Turkey),
http://wri-irg.org/node/272,
accessed 3 September 2008




21Turkish
Weekly: Government Shelves Reform of Policy on Conscientious
Objectors, 1 December 2011,
http://www.turkishweekly.net/news/127359/government-shelves-reform-of-policy-on-conscientious-objectors.html




22Law
on Absentee Conscripts, Draft Evaders, Persons Unregistered [For
Military Service], and Deserters, 1930, unofficial translation,
http://www.unhcr.org/refworld/docid/3ae6b4d01c.html,
accessed 3 September 2008




23Law
on Absentee Conscripts, Draft Evaders, Persons Unregistered [For
Military Service], and Deserters, 1930, unofficial translation,
http://www.unhcr.org/refworld/docid/3ae6b4d01c.html,
accessed 3 September 2008




24Netherlands
Ministry of Foreign Affairs, 2003




25Quaker
Council for European Affairs: The Right to Conscientious Objection
in Europe – Turkey, 2005, http://wri-irg.org/co/rtba/turkey.htm,
accessed 3 September 2008





27See
for example: Osman Murat Ulke burns his call-up papers. In Peace
News
No 2395, October 1996,
http://www.peacenews.info/issues/2395/pn239508.htm




28See
United Nations: Working Group on Arbitrary Detention: OPINION No.
36/1999 (TURKEY), 2 December 1999, http://wri-irg.org/node/1600




29See
CHAMBER JUDGMENT ÜLKE v. TURKEY, Application no. 39437/98, 24
January 2006, http://wri-irg.org/node/615




30See
War Resisters' International: TURKEY: Conscientious objector Osman
Murat Ülke at danger of reimprisonment, 11 July 2007,
http://wri-irg.org/news/alerts/msg00092.html




31See
Execution of the judgment of the European Court of Human Rights,
Ülke against Turkey, Resolution CM/ResDH(2007)109, 17 October 2007,
http://wri-irg.org/node/14259
and Interim Resolution CM/ResDH(2009)45 - Execution of the judgment
of the European Court of Human Rights Ülke against Turkey, 19 March
2009, http://wri-irg.org/node/14264





33United
Nations, Working Group on Arbitrary Detention: Opinion No. 16/2008
(Turkey), 9 May 2008, http://wri-irg.org/node/272





35War
Resisters' International: TURKEY: Conscientious objector Mehmet
Tarhan arrested, 8 April 2005,
http://wri-irg.org/news/alerts/msg00011.html




36War
Resisters' International: TURKEY: Conscientious objector Mehmet
Tarhan released unexpectedly, 10 March 2006,
http://wri-irg.org/news/alerts/msg00058.html




37War
Resisters' International: TURKEY: Conscientious objector Mehmet
Tarhan sentenced to 25 months imprisonment, 17 October 2011,
http://wri-irg.org/news/alerts/msg00068.html





39War
Resisters' International: TURKEY: Conscientious objector Enver
Aydemir arrested and mistreated in prison. Now on hunger strike, 29
December 2009, http://wri-irg.org/node/9483




40War
Resisters' International: TURKEY: Conscientious objector Enver
Aydemir sentenced to ten months' imprisonment, 1 April 2010,
http://wri-irg.org/node/9860






43Hülya
Ücpinar: Was erwartet Kriegsdienstverweiger mit dem neuen
Strafgesetzbuch, in: Connection e.V., Rundbrief KDV im Krieg,
January 2005.




44Bianet:
Halil Savda Is Sentenced Again For Speaking Against Military
Service, 3 June 2008,
http://www.bianet.org/english/freedom-of-expression/107363-halil-savda-is-sentenced-again-for-speaking-against-military-service




45Bianet:
Supporters of Conscientious Objector Convicted, 18 June 2010,
http://bianet.org/english/freedom-of-expression/122808-supporters-of-conscientious-objector-convicted;
War Resisters' International: Turkey: New prison sentence for
violation of article 318, 7 July 2010, http://wri-irg.org/node/10500




46Today's
Zaman: CO appears in court on charges of turning people against army
service, 22 November 2011,
http://www.todayszaman.com/news-263475-co-appears-in-court-on-charges-of-turning-people-against-army-service.html


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