15. Mai: Internationaler Tag der Kriegsdienstverweigerung

15. Mai: Internationaler Tag der Kriegsdienstverweigerung

Turkey: The Current Situation Regarding Conscientious Objectors

Statement to the UN Human Rights Committee

by Lawyer Hülya Üçpınar

(15.10.2012) Conscientious objection (CO) hasn't been accepted as a human right in Turkey. Conscientious objection is neither regulated as a right nor as an offence. This amounts to a legal ambiguity and conscientious objectors (COs) are charged with offences regulated in the Military Criminal Code, which do not correspond with their actions. Furthermore a vicious circle of being arrested, being sent to prison and released is still in force, with CO Inan SUVER as the latest example.

Not only the actions of COs but expressions concerning CO are also prosecuted and charged in accordance with the Turkish Penal Code Article 318. The trial widely known as “everybody is born as a baby”, which attracted charges under art. 318 because it parodies the saying "every Turk is born a soldier" against four peace activists and COs is still pending at Eskisehir 2nd Court of First Instance.

Since there’s no official data collection concerning COs the exact number is not known, however the list of declared conscientious objectors known to WRI contains about 130 individuals.

Legal Developments regarding COs in Turkey

The first COs declared themselves in 1989 however the first critical development regarding the in­ter­na­ti­onal legal system at the European Court of Human Rights was in 2006.1

ECtHR discussed ULKE's situation under prohibition of torture (art. 3) but not under freedom of religion, belief and conscience (art. 9) of the Convention.

The ECtHR focused on repetitive punishments (seven different trials and punishments) and lack of a legal system concerning COs and the cumulative effect upon ULKE that amounts to civil death. Finally the Court concluded a violation of art. 3.

The judgment is still under the supervision of the Committee of Ministers of the Council of Europe (CoM).

ECtHR's approach changed with the Bayatyan v. Armenia judgment in July, 2011.2 It was a principle change that evaluates the actions of COs within the frame of art. 9 for the first time.

Bayatyan judgment is followed by four new decisions against Turkey; Erçep v. Turkey3, Demirtaş v. Turkey4, Savda v. Turkey5 and Tarhan v. Turkey6. All these decisions are based upon art. 9 of the Convention while some of them are additionally based on art. 3.

State’s failure to implement the decisions of the ECtHR

According to the Article 90 of the Turkish Constitution, in­ter­na­ti­onal treaties ratified by Turkish Government constitute an integral part of Turkish Law and so does the ECHR.7

Contrary to the imperative character of the Art. 90 of the Constitution, ULKE decision given by the ECtHR six years ago, it hasn’t been fully implemented.

Within the same six years the CoM has issued several decisions and two interim measures8 urging the Turkish state to take necessary steps in order to fulfill the individual measures that are required to improve ULKE’s situation and reverse his de facto situation of “civil death” (as the ECtHR called it), as well as the general measures to prevent further violations against ULKE or other COs, which is to say that Turkey should enact a law concerning CO.

Four decisions against Turkey, following the BAYATYAN decision, since July 2011 did not induce the Government to fulfill its duty to comply with the provisions set out by the Constitution and the Convention. Unfortunately there's no formal debate on the subject of CO and no legal preparation to solve the problems of the COs.

The approach of the Government is to play down the problem and to solve it only if inevitable within the possibly narrowest path, prioritizing individual and palliative/unstable formulas over legal rights and without taking substantial precautions.

There is a supposedly positive step taken by the Government, which reveals itself as meaningless political maneuver when taking a closer look;

Military Court of Eskisehir lifted the arrest warrant issued for Osman Murat ULKE. However the arrest warrant was issued by the very same Court in 2009 and the lifting does not remedy the ongoing core violation to which ULKE is subjected since 1999, i.e. him continuing to be a conscript, thus still having a deserter status.9

Moreover; the Turkish Government informed the CoM on the 4th June 2012, which is strikingly the day on which the CoM was in session and also the very same day the decision was taken by the Military Court of Eskisehir, making it obvious that the decision was only motivated by the pressure to answer CoM.

Legal restrictions imposed on COs’ civil life and their consequences

In addition to the compulsory character of the military service, COs are subjected to indirect restrictions.

Personal security and freedom and freedom of movement

COs are continuously under danger of being apprehended by security forces because of being draft evaders or deserters.

The circular on draft evaders (issued on 03.07.2008) which regulated that nobody can be apprehended without a duly issued warrant of arrest was revoked in 2009. So unfortunately the practice in this regard has resumed to its former state from before 2008 after only one year.

The Law on Duties and Authorities of the Gendarmerie, art. 133, regulates the apprehension of the evaders without seeking any arrest warrant, therefore invalidating the lifting of the arrest warrant in the ULKE case.

The latest example is the case of Ali Fikri ISIK, 55 years old. He was arrested because of being a deserter in a hotel in Diyarbakir on 9th June 2012. He was sent to Edirne Military Prison and the demands for his release were rejected by the Military Court because of suspicion of absconding.

This case exemplifies the limitation of freedom of travel, as ISIK was apprehended as a result of him showing up in the “general information gathering system”, because he is registered as a “soldier”.

Economical freedom

The danger of being arrested causes the COs to withdraw from social, political and economical life.

The COs do not have the possibility to enjoy their economical freedoms on an equal basis with other citizens.

Art. 93 of the Military Law dictates that “who intentionally employs draft evaders and deserters in the public or private sector is to be punished according to Military Penal Code”.

Art. 48/5 of the Law of Public Servants and many other laws feature parallel regulations, aiming to exclude draft evaders and deserters from work life.

As a result of the regulations in different laws in addition to the abovementioned ones the COs have to work illegally and under degrading conditions.

Another result is the impossibility to join the social security system. The COs have no possibility to resume their registration in the social security system and they are not covered against possible health situations and can’t even imagine to retire one day. Therefore they do not have access to public service on an equal basis with other citizens.

Political freedom

The COs can’t vote in elections as a result of being illegal.

Additionally the article 76 of the Constitution requires the fulfillment of military service as a condition to nominate for the Parliament.

CONCLUSION

Turkey still does not fulfill its obligation deriving from in­ter­na­ti­onal law.

Turkey is the only state party of the Council of Europe that has not accepted CO as a right.

The Governments' statements to the public are contradictory. After the interim measure by the CoM in the ULKE case in 2011, the Minister of Defense and the Prime Minister made some statements. After some back and forth, the preponderant outlook on the matter was that the Government decided to regulate conscientious objection legally, however not as a right, but as a crime, in order to prevent repetitive proceedings and judgments. Even this unbefitting interpretation of the Governments obligation to comply with national and in­ter­na­ti­onal provisions hasn’t resulted in any legal preparation after another full year.

As a result COs are still condemned to “civil death” and tried for their religious and conscientious convictions. The overbearing problem is not just limited with legal trials, a narrow spectrum of job possibilities, but extends to every aspect of life. COs are hindered in their ability to be a political, social and civil “entity”.

Footnotes

1 Ulke v. Turkey, 39437/98, 26 January 2006

2 Bayatyan v. Armenia, 23459/03, 7 July 2011

3 Erçep v. Turkey, 43965/04, 22 November 2011

4 Demirtaş v. Turkey, 5260/07, 17 January 2012

5 Savda v. Turkey, 42730/05, 12 June 2012

6 Tarhan v. Turkey, 9078/06, 17 July 2012

7 Article 90/4 of the Turkish Constitution reads as follows: “In­ter­na­ti­onal treaties duly put into effect carry the force of law. No appeal to the Constitutional Court can be made with regard to these treaties on the ground that they are unconstitutional. In case of a conflict between in­ter­na­ti­onal treaties in the area of fundamental rights and freedoms duly put into effect and the laws due to differences in provisions on the same matter, the provisions of in­ter­na­ti­onal treaties shall prevail.”

8 CM/ResDH(2007)109 and CM/ResDH(2009)45[1]

9 Please see the concerned communication at https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Del/Dec(2011)1150/24&Language=lanEnglish&Ver=original&Site=&BackColorInternet=B9BDEE&BackColorIntranet=FFCD4F&BackColorLogged=FFC679

Hülya Üçpınar, War Resisters’ International: The Current Situation Regarding Conscientious Objectors in Turkey. October 15, 2012.

Keywords:    ⇒ Conscientious Objection   ⇒ Conscription   ⇒ Europe   ⇒ Human Rights   ⇒ International Resolutions   ⇒ Law   ⇒ Prosecution   ⇒ Turkey