Report of the Working Group on Arbitrary Detention

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TURKEY

44. By note of 31 October 2000, the Government of Turkey challenged the Working Group’s Opinion No. 36/1999 (O. Murat Ulke). It argues that rather than evaluating the activities for which Mr. Ulke was convicted as “single offences” (i.e. consisting of a single action and its uninterrupted continuing results), one should interpret Mr. Ulke’s consistent refusal to perform his military service as “continuing offences”: every time he was deprived of his liberty the “continuity” of his offence was broken, and every new refusal to perform military service constituted another new offence for which he was once again convicted and deprived of liberty.

45. The Government observed that that the principle non bis in idem means that the same action cannot be punished twice; it is generally accepted that for the principle to apply, identity of the act is required. In examining whether the principle was properly applied to the case of Mr. Ulke, the Government relies on two criteria: identity of the perpetrator and identity of the act. Only the latter is considered relevant in Mr. Ulke’s case. In the Government’s opinion, Mr. Ulke’s trial, following his initial conviction, cannot be regarded as relating to “continuing offences” or a “single offence”. The only similarity between the offences he committed could be his motive, conscientious objection. But between his successive convictions, continuity is lacking: as a result, these convictions cannot be regarded as a violation of the non bis in idem principle nor as constituting arbitrary detention.

46. The Government of Turkey bases itself on the following considerations:

(a) The Working Group did not consider the detention of Mr. Ulke from October 1996 to December 1996 to be arbitrary, only from January 1997 onwards. The prison term he served at the time in question was, according to the Government, for a speech he had given in which he called on Turkish citizens not to perform military service. He was found guilty of insulting the military forces of the country for an article printed in a human rights publication but, owing to lack of jurisdiction of the court, the case was filed; these proceedings cannot be described as a violation of the principle of ne bis in idem, as a new legal subject was involved and the two acts in question were different;

(b) In 1997, Mr. Ulke was sentenced to a cumulative prison term of 10 months’ imprisonment for having deserted from the armed forces, non-compliance with (military) orders, failure to enrol in and late arrival for service. The Government explained that these offences are not the same as those which Mr. Ulke previously committed, and thus this conviction cannot be said to constitute a violation of the principle non bis in idem;

(c) The Government affirms that there were interruptions between Mr. Ulke’s various periods of detention and thus there was no element of “continuity”; each action had to be seen separately, not as a continuation of previous actions. Although Mr. Ulke frequently committed offences of the same nature, the “continuity” was interrupted by virtue of the various sentences he received and periods of detention served. Therefore, a “common offence” does not exist and a new, different offence was constituted after each sentence and period of detention. This interpretation, the State party noted, is shared by many international lawyers.

47. Finally, the Government noted that military service as provided for in article 72 of the Turkish Constitution is in conformity with article 4, paragraph 3 (b), of the European Convention on Human Rights and that detention for non-performance of such service is compatible with article 5, paragraph 1, of the European Convention and article 9, paragraph 1, of the International Covenant on Civil and Political Rights. Thus, the sentences against Mr. Ulke arise from his non-compliance with his obligations and are incompatible with neither the provisions of the European Convention on Human Rights nor the International Covenant on Civil and Political Rights.
48. The objections of the Government were considered by the Working Group at its twenty-ninth session. The Working Group believes that its Opinion is founded on a solid legal basis consistent with accepted jurisprudential norms.

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Source: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G00/161/45/PDF/G0016145.pdf?…