Turkey: Military courts recognise right to conscientious objection

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 - two Turkish military courts have now for the first time recognised the right to conscientious objection, albeit with serious and highly problematic limitations.

The judgements

On 7 March 2012, the Malatya Military Court ruled on the case of Islamic conscientious objector Muhammed Serdar Delice. Delice 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 (see co-alert, 28 November 2011). In the decision of the trial about conscientious objector Muhammad Serdar Delice, the Malatya Military Court relied on the European Court of Human Rights (ECHR) as the basis for evaluating conscientious objection in the scope of religious freedom and freedom of expression.

According to a report by Mine Yildirim, published by Forum 18 News, the Military Court interpreted the ECtHR's approach to the right to conscientious objection as one based on the theological position of a religious group, and excluded the beliefs of the individual. It ruled out an individual rejecting military service according to his own views. Instead, the Military Court relied on the rejection of military service by an intellectual, religious or political group, as such. It referred to the example of Jehovah's Witnesses, stating: "persons who are members of the Jehovah's Witnesses reject military service, because they are part of this group or institution which fundamentally rejects military service".

Lawyer Hülya Üçpınar from the Turkish Human Rights Foundation (TİHV) said that according to the court decision, a person announcing to be a conscientious objector should be member of a group which is active in the field of conscientious objection.

As Mine Yildirim points out, this means that a young man claiming conscientious objection to military service would have to be a member of a religious group considered by a court to be categorically opposed to military service. In the Malatya Military Court's view, Delice belonged to Islam which the court claimed "is not a belief or ideological movement that rejects the performance of military service".

In addition, the Malatya Military Court introduced as a criteria that a conscientious objector must demonstrate that his objection exists before conscription, and that it is his "one and undivided purpose" - i.e. that he has no other reasons for wanting to leave military service.

On 13 March 2012, the Isparta Military Court recognised the right to conscientious objection when it acquitted Jehovah's Witness Baris Görmez. Görmez had spent a total of four years in prison for his refusal to perform military service since November 2007, and in this case had been charged with "rejecting wearing of the uniform" and "rejecting orders". As did the Malatya Military Court in the case of Delice, the Isparta Military Court refered to the recent jurisprudence of the European Court of Human Rights.

While War Resisters' International welcomes these recent court decisions because they for the first time recognise the right to conscientious objection in Turkey, they also point in a dangerous direction. The Military Courts recognised the right to conscientious objection only for members of religious organisations that - as organisations - practice and preach conscientious objection, which led the courts to sentence Delice (as Muslim), but to acquit Baris Görmez.

At a press conference on 16 March 2012 in Istanbul, Oguz Sönmez, speaking on behalf of the Conscientious Objectors Platform, emphasised that a military court cannot assess a conscientious objection claim properly. He added that an individual's self-declaration must be the determining factor in deciding whether or not he is a conscientious objector.

The criteria that a conscientious objection must be held prior to military service is also contrary to established international standards which state that conscientious objection must be possible at any time - before, during, and after military service.

No progess in Ülke case

While Turkish courts made some progress on the right to conscientious objection, there has been no progress regarding the implementation of the judgement of the European Court of Human Rights in the case of Osman Murat Ülke from 24 January 2006. As reported by Ülke's lawyer Hülya Üçpinar, there is still an arrest warrant for Osman Murat Ülke outstanding. In it's meeting from 6-8 March 2012, the Committee of Ministers of the Council of Europe again dealt with the case. The Deputies noted that, "in response to the question raised by the Committee at the 1128th meeting (December 2011) (DH), the Turkish authorities stated that there was a valid arrest warrant against the applicant for desertion". They also noted "that the Court’s judgment leaves no scope for any new arrest of the applicant related to issues that have been dealt with in the judgment", and "strongly urged the Turkish authorities to withdraw the arrest warrant or in the alternative to find another solution in order to erase the consequences of the violation for the applicant". The Committee of Ministers "noted with concern that no information had been provided with regard to the general measures required to execute this judgment" and "strongly urged the Turkish authorities to provide information to the Committee in writing and in good time before the 1144th meeting (June 2012) (DH) regarding the withdrawal of the applicant’s arrest warrant or an alternative solution allowing the erasure of the consequences of the violation, and a clear time-table for the adoption of the general measures envisaged to execute the judgment."

The story seems to continue even six years after the European Courts judgement.

Halil Savda released

According to reports by Bianet and Amnesty International, conscientious objector Halil Savda was released on probation on 13 April 2012. Savda was serving a five months' prison sentence for "alienating the public from military service" (see co-alert, 29 February 2012). His probation conditions are, according to Amnesty International,

• that he must remain in his home province of Diyarbakır, southern Turkey, for the reminder of his sentence which is due to end on 3 June 2012, although he can make a request to visit his family in Cizre in two weeks' time;
• that he must report to the local police station every day;
• that he must not commit the same offence during the remainder of his sentence and that, if he does, he will be returned to prison and will not benefit from conditional supervised release again for this offence.

Savda commented: "They found my condition as risky because of two reasons. The first reason is, I commited the same crime before. Second, they ask if I find myself guilty or not and I told them I thought I was innocent. According to them I am not rehabilitated and I have the potential to commit a crime."

There are several more cases for "alienating the public from military service" pending against Halil Savda.

Sources: War Resisters' International: Turkey: European Court of Human Rights reaffirms right to conscientious objection, CO-Update No 70, December 2011; War Resisters' International: Turkey: New energy in the struggle for conscientious objection, CO-Update No 71, February-March 2012; Council of Europe, Committee of Ministers: Decision Case No 21 against Turkey - Osman Murat Ülke, 8 March 2012; Bianet: Milestone Decision for Conscientious Objection in Turkey, 12 March 2012; Bianet: Savda: Nationalist and Militaristic Judiciary in Turkey, 17 April 2012; Amnesty International: Turkey: Further information: Human rights defender released in Turkey: Halil Savda, 17 April 2012; Mine Yildirim: TURKEY: Selective progress on conscientious objection, Forum 18 News Service, 1 May 2012