Turkey: UN Human Rights Committee and European Court of Human Rights again judge in favour of conscientious objection

The series of jurisprudence by international bodies in relation to conscientious objection in Turkey continued in the last months. Following the recent judgements of the European Court of Human Rights in cases of conscientious objectors from Turkey - Demirtaş v. Turkey from 17 January 2012 and Erçep v. Turkey from 22 November 2011, the Human Rights Committee published its views on the case of Turkish conscientious objectors Cenk Atasoy and Arda Sarkut in June. On 12 June 2012, the European Court of Human Rights published its sentence in the case of conscientious objector Halil Savda. In both cases, the right to conscientious objection was upheld, and Turkey was again criticised for violating the right to conscientious objection.

The Human Rights Committee's views in the case of Atasay and Sarkut

The case related to two Jehovah's Witnesses who had been repeatedly called-up for military service, and had been repeatedly charged with and sentenced for violation of article 63/1 A of the Military Penal Code, which criminalises not responding to being called up for military service. Mr Arda Sarkut also lost his job as an assistant lecturer at Mersin University because of his conscientious objection.

In reaction to a submission by Turkey that the Human Rights Committee went to far in interpreting the International Covenant on Civil and Political Rights when it explicitly recognised the right to conscientious objection, the Committee reiterated its previous jurisprudence and states: "Although the Covenant does not explicitly refer to a right of conscientious objection, the Committee reaffirms its view that such a right derives from article 18, inasmuch as the obligation to be involved in the use of lethal force may seriously conflict with the freedom of conscience. The Committee reiterates that the right to conscientious objection to military service is inherent to the right to freedom of thought, conscience and religion. It entitles any individual to an exemption from compulsory military service if the latter cannot be reconciled with the individual's religion or beliefs. The right must not be impaired by coercion."
And: "The Committee recalls that repression of the refusal to be drafted for compulsory military service, exercised against persons whose conscience or religion prohibits the use of arms, is incompatible with article 18, paragraph 1, of the Covenant."

The Committee also stressed that "the State party is under an obligation to provide the authors with an effective remedy, including expunging their criminal records and providing them with adequate compensation" and "wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee's Views."

Three individual opinions of members of the Human Rights Committee accompany the views published, all of which are concurring with findings of the Committee, but nevertheless the opinions give some insight into the discussions within the Committee. There seems to be some disagreement within the Human Rights Committee on whether conscientious objection to military service is a manifestation of religion of beliefs, or inherent to the right to freedom of conscience, with the latter being the view of the majority of the Human Rights Committee since its decision on the case of Jeong et al. v. the Republic of Korea from March 2011.

In the present case, this difference of approach did not lead to different conclusions, but it potentially can. If conscientious objection to military service is inherent to the right to freedom of conscience, it cannot be subject to any limitations whatsoever. If it is a manifestation of religion or beliefs, limitations of this freedom are permitted within the restrictions of article 18 paragraph 3. In his individual opinion, Mr. Fabian Omar Salvioli strongly disagrees, and argues: "In fact, what needs to be explained is how it can be reasonable to maintain the previous approach in this, the second decade of the twenty-first century. Under the old approach, a State party could find reasons to force a person to use arms, to be involved in an armed conflict, to run the risk of being killed and, worse still, to kill, without this being a violation of the Covenant. How can this be compatible with the freedom of conscience and religion of someone whose philosophical or religious beliefs lead that person to be a conscientious objector (regardless of their freedom to manifest those beliefs or not)?"

Clearly, the Human Rights Committee (or its majority) is still miles ahead of the European Court of Human Rights on this.

The European Court of Human Rights

On 12 June, the European Court of Human Rights published its judgment in the case of Turkish conscientious objector Halil Savda. This is the Courts first decision recognising the right to conscientious objection which does not concern a Jehovah's Witness.

The case of Halil Savda had already been considered by the Working Group on Arbitrary Detention in its Opinion 16/2008. The Working Group already stated that "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".

The European Court of Human Rights came to similar conclusions. It found on violation of Article 3 (prohibition of degrading treatment), article 6 para 1 (right to fair trial) and article 9 (freedom of thought, conscience, and religion) of the European Convention on Human Rights.

According to the Court's press release, "The Court noted that Mr Savda’s case was characterised by the absence of a procedure to examine his request for recognition of conscientious objector status. His request was never examined by the authorities, who merely made use of criminal-law provisions penalising the refusal to carry out military service. The Court emphasised the State’s obligation to provide a regulatory framework introducing a mechanism to protect the rights of individuals. In the absence of a procedure to examine requests for the purpose of establishing conscientious objector status, the obligation to carry out military service was such as to entail a serious and insurmountable conflict with an individual’s conscience. There was therefore an obligation on the authorities to provide Mr Savda with an effective and accessible procedure that would have enabled him to have established whether he was entitled to conscientious objector status, as he requested."

And: "A system which provided for no alternative service or any effective and accessible procedure by which the person concerned was able to have examined the question of whether he could benefit from the right to conscientious objection failed to strike the proper balance between the general interest of society and that of conscientious objectors. It followed that the relevant authorities had failed to comply with their obligation under Article 9 of the Convention."

In addition, the Court noted "that Mr Savda was sentenced to prison terms on three occasions for refusing to wear a military uniform. On several occasions he was placed in solitary confinement, for periods ranging from 2 to 8 days, always on the same ground. Finally, Mr Savda was subjected to various criminal prosecutions and convictions, which were likely to continue indefinitely had the decision to demobilise him not been taken on 25 April 2008. In those circumstances, the Court considered that the treatment to which Mr Savda had been subjected had caused serious pain and suffering that went beyond the usual element of humiliation inherent in a criminal conviction or detention. The Court therefore concluded that there had been a violation of Article 3."

And finally, "The Court considered it understandable that Mr Savda, having had to face purely military charges before a court made up entirely of servicemen, had been apprehensive about being tried by judges who could be equated with a party to the proceedings. As the applicant could legitimately have feared that the court could be influenced by biased considerations and given that his doubts as to that court’s independence and impartiality were objectively justified, the Court held that there had been a violation of Article 6 § 1."

Arrest warrant against Ülke revoked

In the case of Turkish conscientious objector Osman Murat Ülke, there has been some small welcome progress. On 4 June 2012, the Eskişehir Military Court finally revoked the outstanding arrest warrant against Ülke. However, while this reduces the risk of arrest, it does not fundamentally change Ülke's situation. As he until today has not been discharged from military service, he is still subject to military service obligations, and therefore at risk of prosecution and arrest, and subjected to "civil death".

Government reaction

Although Turkish Prime Minister Recep Tayyip Erdogan announced at a group meeting of the AK Party parliamentary group on 22 November that the issue has been shelved from the government's agenda (see CO-Update No 70, December 2011), Turkey continues to claim that it is working on a solution. However, no draft law has yet been presented by the Turkish government to the public or to Parliament.

According to a recent article in Today's Zaman, "Defence Minister İsmet Yılmaz has said his ministry is continuing to work on options for dealing with conscientious objectors". According to the article, "the minister said their efforts are aimed at protecting the Turkish state from new fines to be imposed by the European Court of Human Rights (ECtHR) due to Turkey's policy of mandatory military service" - it seems they are not aimed at protecting the human rights of conscientious objectors.

The further comments of the Minister are reasons for serious concerns: “We are working on a plan for conscientious objection. Males will either serve in the military or be allowed to skip out on service by agreeing to submit to penalties,” the minister said.

Sources: Human Rights Committee: Communications Nos. 1853/2008 and 1854/2008 - Cenk Atasoy (1853/2008), and Arda Sarkut (1854/2008) vs Turkey, 19 June 2012; European Court of Human Rights: Press release: Refusal to grant conscientious objector status is not necessary in a democratic society, 12 June 2012; European Court of Human Rights: AFFAIRE SAVDA c. TURQUIE, Requête no 42730/05, 12 June 2012; Council of Europe - Committee of Ministers: 1144th meeting, Case no. 24, Case against Turkey, 6 June 2012; Today's Zaman: Turkey says working to address conscientious objection, 27 June 2012