CO UPDATE

Editorial

Welcome to No 35 of co-update, our monthly e-newsletter on conscientious objection and military recruitment.

We start this newsletter with some good news - another legal victory for conscientious objectors in Turkey. However, this good news is also bad news, as it shows the huge gap between how it should be in Turkey - legally - and the practice "on the ground". Even with the backing of international institutions and international courts, the real battle about the right to conscientious objection is about the practice, and how this right is being implemented. This holds true in Turkey, in Azerbaijan (another country defying its commitment to the Council of Europe), and in many other countries world-wide.

War Resisters' International will continue to support conscientious objectors all over the world in their struggle for a real right to conscientious objection, not only on paper, but also in practice. Please help us by donating to War Resisters'. Thank You.

Andreas Speck

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Turkey: Another legal victory for conscientious objectors at European Court of Human Rights

Turkish conscientious objectors won another victory at the European Court of Human Rights. On 8 January 2008, the Strasbourg court awarded Sanar Yurdatapan, spokesperson for the Initiative Freedom of Thought, €2,000 in damages and €1,500 in legal fees. Yurdatapan had been sentenced to two months imprisonment for a statement in support of conscientious objector Osman Murat Ülke.

The case goes back to 1999. On 23 July 1999 Sanar Yurdatapan distributed a leaflet entitled “Freedom of Thought - No. 38” in front of the Istanbul State Security Court Building. This leaflet was a reproduction of the leaflet entitled “Freedom of Thought - No. 9”, which contained statements made by conscientious objector Osman Murat Ülke. The same day, Yurdatapan filed a complaint against himself with the Public Prosecutor attached to the Istanbul State Security Court and maintained that he should be prosecuted for re-publishing the leaflet entitled “Freedom of Thought-No. 9”, banned by the General Staff Military Court.

On 5 October 1999 the military public prosecutor initiated criminal proceedings against Yurdatapan in the General Staff Military Court, and charged him with seeking to dissuade persons from serving in the military contrary to Article 155 of the Turkish Criminal Code in conjunction with Article 58 of the Military Criminal Code.

Not surprisingly, the military court found Yurdatapan guilty under Article 155 of the Criminal Code, in conjunction with Article 58 of the Military Criminal Code, for seeking to dissuade persons from serving in the military. It further sentenced him to two months' imprisonment and a fine.

Yurdatapan appealed to the European Court of Human Rights, based on a violation of the right to fair trial (Article 6 para 1 European Convention of Human Rights). He complained that the General Staff Court which tried him could not be regarded as an independent and impartial tribunal, given that it was composed of two military judges and an officer, all of whom were bound by the orders and instructions of the Ministry of Defence and the general staff which appointed them.

In addition, he complained that the sentence for publishing a leaflet constitutes a violation the right to freedom of expression (Article 10).

The Strasbourg court had already dealt with the right to fair trial in Turkey in an earlier case, where a civilian had been tried in front of a military court (Ergin vs Turkey, case 47533/99, judgement from 4 May 2006). "In that judgment, the Court held that it was understandable that the applicant, a civilian standing trial before a court composed exclusively of military officers, charged with offences relating to propaganda against military service, should have been apprehensive about appearing before judges belonging to the army, which could be identified with a party to the proceedings. On that account the applicant could legitimately fear that the General Staff Court might allow itself to be unduly influenced by partial considerations. Consequently, the applicant's doubts about that court's independence and impartiality could be regarded as objectively justified. [...] There has therefore been a violation of Article 6 § 1 of the Convention."

The court came to the conclusion that "the applicant's sentencing, in particular the two months' imprisonment, a harsh penalty" and "consider[ed] that the reasons given by the General Staff Court, although relevant, cannot be considered sufficient to justify the interference with the applicant's right to freedom of expression."

Consequently, "the Court concludes that the applicant's conviction and sentence were disproportionate to the aims pursued and therefore not “necessary in a democratic society”. Accordingly, there has been a violation of Article 10 of the Convention."

While this judgement adds to the number of legal victories of Turkish conscientious objectors, those victories seem to mean little in practice. Up to today - more than two years after the original Ülke judgement - the case of Osman Murat Ülke has not been resolved, and he is still living a life characterised by the court as "civil death".

However, this new judgement will add to the pressure on the Turkish government to finally resolve the problem.

Sources: ECHR Punishes Turkey in Conscientious Objection Case, Bianet, 9 January 2008, ECHR: Yurdatapan vs Turkey, case 70335/0, judgement from 8 January 2008, ECHR: Ergin vs Turkey, case 47533/99, judgement from 4 May 2006)

India: Army chief starts debate on conscription - to get pay rise for officers

India's chief of the army Kapoor hinted on 14 January 2008 on the possibilty of conscription to solve the shortage of officers in the Indian army. He said: "If things don't improve, the government may have to take a view on it." However, he also said that "we have not come to that stage yet".

According to official figures, the Indian army is facing a shortage of 11,238 officers, against a sanctioned strength of 46,615 officers - a staggering 25% shortfall. And it's not the army alone that is confronted with a dearth of officer corps. The much-smaller Indian Air Force is 1,565 officers short of its sanctioned strength of 12,128, and the navy is short 1,461 officers of its optimal strength of 8,797.

However, minister of state for defence M M Pallam Raju declared on 18 January that the government has "no immediate plans" to go for conscription despite the three Services finding it difficult to attract youngsters to join their ranks.

Rather than wanting conscription, it is more likely that the statement is aimed at a high pay rise. The timing of Kapoor’s comment on conscription is significant. It has come ahead of the submission of the report by the Sixth Pay Commission, which is reviewing salaries and perks of central government employees and defense personnel.

 The armed forces, incidentally, are demanding a hefty 400 to 450% hike in salaries from the amounts fixed by the 5th Pay Commission, which came into force from January 1996.

Sources: Times of India, 15 January 2008, Asia Times, 19 January 2008, Times of India, 19 January 2008

Belarus: opposition activist expelled from university and recruited to the military

Military recruitment is not always used for entirely military purposes. Frequently, authorities use military recruitment as a tool to silence opposition activists, as recently happened in Belarus.

Dzmitry Zhaleznichenka, a member of the Belarusian Popular Front, was expelled from the university on January 22, thus becoming eligible for active military service. He was called up for military service when he still was a student and he was shown the expulsion order by the university's representative only at the military recruitment office.

On 22 January, Mr. Zhaleznichenka was expelled from the university for the second time, again for alleged violations of the university’s internal rules.

A few days earlier, a district court in Homyel overturned the first expulsion order and ruled that Mr. Zhaleznichenka should be reinstated as third-year student at the university’s mathematics department, where he had studied before September 2007.

The rector signed the second order after the board of the students' union voted seven to five in favor of expulsion. At the meeting, Valery Nedastup, head of the university’s legal department, said that the first order had been overturned because of merely technical errors, and recalled that the youth had served a jail sentence on a charge of disorderly conduct following his first expulsion.

The young man won a months-long court battle against his first expulsion on 16 January, but was kicked out again six days later.

At a preliminary hearing on 8 February, Ms. Zhaleznichenka’s lawyer, Pyotr Barysaw, said that the young man was not physically fit for military service and was eligible for six months’ deferment for health reasons. Mr. Barysaw said that the family had already complained about the second expulsion to Homyel’s Tsentralny District Court.

At the hearing Judge Yury Zhoraw announced a court order suspending the activist’s military service that was issued on 1 February. Mr. Barysaw requested the judge to require the command of the military unit where Mr. Zhaleznichenka is serving to obey the court order.

The first hearing in the case is scheduled for February 14.

Mr. Zhaleznichenka refused food for five days in late January to protest his drafting but dropped the hunger strike over health complications.

On 9 February, Dzmitry Zhaleznichenka refused to take the military oath. “I was called up for military service illegally and we will be able to prove this in court as soon as we have an opportunity.”

“I did not take the oath so that they won’t be able to accuse me of losing some gun and prosecute me. I don’t refuse to serve my people, but I will do this legally, when, for instance, I’m drafted upon graduation from the university,” Mr. Zhaleznichenka said.

Sources: BelaPAN, 28 January 2008, BelaPAN, 8 February 2008, BelaPAN, 9 February 2008

Azerbaijan - still defying commitment to allow for conscientious objection

According to a report by Forum-18 News agency, Azerbaijan is still not implementing its commitment to the Council of Europe to legislate for conscientious objection. Samir Huseynov, a 22-years old Jehovah's Witness, is still imprisoned for his conscientious objection to military service.

Huseynov's prosecution and the failure to introduce alternative non-military service violate Azerbaijan's specific commitment to the Council of Europe. When Azerbaijan joined in 2001, it pledged to introduce alternative service by January 2003, but did not do so.

"This commitment has not yet been fulfilled," Denis Bribosia, the Council of Europe representative in Baku, told Forum 18 on 22 January. "We at the Council of Europe think that people should not be jailed solely for their religious or conscientious behaviour."

Bribosia pointed out that in April 2007 the Council of Europe Parliamentary Assembly adopted a resolution again urging the Azerbaijani authorities to adopt a law on alternative service "without further delay in line with their accession commitment". "That's nine months ago," he noted. "The government informed us that it is still considering the adoption of the alternative service law, but no law has yet been adopted."

Meanwhile, friends of Huseynov, the imprisoned Jehovah's Witness, told Forum 18 that his transfer from prison in Gyanja [Gäncä] to a labour camp in Baku is apparently imminent. "At the end of December there were some talks of him being transferred from the prison to a labour colony in the capital Baku," one Jehovah's Witness who preferred not to be identified told Forum 18 on 22 January. "Samir was still in Gyanja definitely as of 21 January."

Despite calls on 21 and 22 January, prison officials refused to tell Forum 18 if and when Huseynov is to be transferred.

The Geranboy District Court in western Azerbaijan sentenced Huseynov on 4 October 2007 to 10 months in prison for evading compulsory military service, Jehovah's Witnesses told Forum 18. He was punished under Article 321.1 of the Criminal Code, which prescribes a penalty of up to two years' imprisonment. "Huseynov was prosecuted despite the constitutional guarantee of alternative service," Jehovah's Witnesses complained to Forum 18.

Huseynov was born in Azerbaijan but had lived in Russia for some years before returning to Azerbaijan with his family. When he was called up in summer 2007 he told the military commissariat he was prepared to do a civilian alternative service. He was not arrested in the run-up to the October court hearing. He was detained immediately following the hearing and sent to the prison in the nearby city of Gyanja to begin his sentence.

Officials refused to give Huseynov a copy of the written verdict within the prescribed period. "This was a deliberate trick to make his appeal difficult, as this had to be filed within 20 days," Jehovah's Witnesses told Forum 18. Huseynov signed an appeal on 22 October, which he sent to the appeal court via the prison administration. However, on 5 November the court sent it back on the grounds that it was written in Russian. Huseynov re-wrote it in Azerbaijani and asked the prison administration to send it to the court on 8 November. However, on 26 November the court rejected the appeal as it said it had been received after the deadline for lodging appeals.

Sources: Forum 18 News Service, 22 January 2008