Turkey defies European Court of Human Rights

18 months after the ECHR judgement, Osman Murat Ülke is ordered back to prison

On 24 January 2006, the European Court of Human Rights ruled in favour 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.

In its judgement, the court ruled: "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. (see co-update No 17, February 2006)

However, since then nothing much has changed. While Turkey complied with one part of the judgement and paid Osman Murat Ülke compensation, his situation remained unchanged until June this year - he was forced to live a more or less clandestine life without any official papers, any possibility for legal employment, marriage, or even registering the fatherhood of his child. Within the Committee of Ministers of the Council of Europe - the body overseeing the implementation of judgements of the European Court of Human Rights - Turkey played for time.

At the Deputies' meeting of the Committee of Ministers on 4 April 2007, the Deputies

1. "deplored anew that no individual measure has yet been taken by the Turkish authorities to put an end to the violation found by the Court as the applicant is still wanted by the security forces with a view to his arrest and the execution of his sentence;
2. regretted that no information had been provided on general measures taken or envisaged in order to bring the legal framework governing the situation of those who refuse to perform military service on conscientious or religious grounds into conformity with the requirements of the Convention;"

(992nd DH meeting -- 4 April 2007, Section 4.2). This basically was a reiteration of a decision during the meeting on 13/14 February 2007.

In June 2007, the Deputies:

1. "noted that a draft law has been prepared by the competent Turkish authorities aiming to prevent new violations of Article 3 similar to that found in the present case, and that this draft would be transmitted to the Prime Minister's Office for submission to Parliament;
2. noted in particular the Turkish authorities' declaration that this law, once adopted, will prevent repetitive prosecutions and convictions of those who refuse to perform military service for conscientious or religious reasons, on grounds of "persistent disobedience" of military orders;
3. noted the authorities' information that this draft law is intended to remedy all negative consequences of the violation for the applicant;
4. invited the Turkish authorities to submit a copy of the draft law to the Committee of Ministers and encouraged them to take the necessary steps to ensure its rapid adoption by the Parliament;"

Presently, the content of this draft law is unknown.

However, also in June Osman Murat Ülke received a new order from the military prosecutors office of Eskisehir informing him that he is expected to present himself within 10 days of issue of that notice to the prosecutor in order to serve a sentence of 17 months and 15 days in respect of earlier convictions for refusing to undertake military service. Failure to do so would result in a warrant being issued for his arrest. The document in question had been issued on 14 June 2007, so that presently there is an arrest warrant for Osman Murat Ülke, putting him at high risk of arrest and reimprisonment.

Having been made aware of these developments by Osman Murat Ülke's lawyers, the Directorate General of Human Rights and Legal Affairs at the Council of Europe contacted the Deputy Permanent Representative of Turkey at the Council of Europe, and requested that the Turkish authorities look into the matter urgently, given that the situation is in total contradiction with the information submitted by Turkey in relation to the execution of the ECHR judgement.

Osman Murat Ülke himself - via his lawyer - applied to the Military Court of Eskisehir and requested for the arrest warrant to be withdrawn. However, the court turned down this request. The court writes in its decision:

"The convict Osman Murat ÜLKE has been convicted of 'persistent disobedience' for two different criminal acts. Our Court decided for summing up the two conviction verdicts for these crimes, one being 01.01.1999 dated, ref.no.1999/190 -19 and the other being 09.03.1999 dated, ref.no. 1999/229-102. According to the assembly decision of 20.10.1999, ref.no 1999/190-229 and 1999/51 Mut., the Court decided for a TOTAL OF SEVENTEEN MONTHS FIFTEEN DAYS OF IMPRISONMENT and that the execution of the sentence has not commenced yet;"

Regarding the judgement of the European Court of Human Rights, the court argues: "With respect to the European Convention of Human Rights and article 90 of the Turkish Constitution, the judgements of the European Court of Human Rights are regarded as the ground for retrials within the framework of our domestic law. However; the European Court of Human Rights' judgement regarding the convict, does not include a clause that requires him to be re-tried."

It is becoming increasingly clear that the Turkish military is actively trying to sabotage the implementation of the judgement of the European Court of Human Rights. Although the ECHR clearly states in its judgement that the repeated sentencing and imprisonment "constituted degrading treatment within the meaning of Article 3", the Military Court of Eskisehir still thinks that this treatment can continue, and that Osman Murat Ülke should be sent to prison again.

In a different case (2007/1280), the Military Court of Cassation in Ankara ruled on 29 May 2007 that repeated punishment for 'persistent disobedience' is lawful - again in complete ignorance of the judgement of the ECHR in the case of Osman Murat Ülke. The court does not even see a need to argue its case against the ECHR judgement.

In another development, conscientious objector Halil Savda has been released from prison on 28 July 2007. Halil Savda's lawyer Suna Coskun declared:

"Halil Savda had been imprisoned when he participated in his trial session on 7 December 2006. The allegation in his continuing trial was based on 'persistent disobedience'. While this trial continued a new trial was opened based on the allegation of 'desertion'. The trials were merged and Halil Savda was released, only to be accompanied to the barracks. He repeated his objection, was arrested and sent back to the Military Court, leading to a further trial based on 'persistent disobedience'.

"He was sentenced to six months in prison in the second trial, for which he was imprisoned. The first (merged) trial resulted in a prison sentence of 15.5 months. Both sentences were declared in close succession and appealed against at the Military Supreme Court. The Military Supreme Court decided to decide first on the case for which Halil was still imprisoned. The sentence was approved and Halil was released from prison on 28 July 2007, the day he completed the six months sentence. He would have been released earlier, if the prison authorities wouldn't have prevented a conditional release by penalizing him with isolation sentences.

"In the current situation the Military Supreme Court still has to decide on the 15,5 months sentence of the merged trial. Halil is not obliged to serve that sentence, as long as it is not approved. On the other hand, he is now a deserter, putting him de facto (back) into the same 'civil death' situation as Osman Murat Ülke, Mehmet Tarhan and Mehmet Bal."

Sources: Communication from Osman Murat Ülke, Military Court Eskisehir, Decision Number 2007/234 Müt (27/07/2007), Military Court of Cassation Ankara, Judgement 2007/1280 (29/05/2007), Statement by Suna Coskun, 30 July 2007