Conscientious Objection in Europe 2007
Report to the Committee for Civil Liberties, Justice and Home Affairs of the European Parliament
European Bureau on Conscientious Objection
INTRODUCTION
In
Paragraph 16 of the Resolution on conscientious objection in the
member states of the Community of 19 January 1994 (the Bandres Molet and Bindi Resolution) the Committee on Civil Liberties of the
European Parliament was instructed "to draw up an annual report
on the application by the Member States of its resolutions on
conscientious objection and civilian service, and to involve the
European Bureau for Conscientious Objection." The Committee was
reminded of this commitment in a resolution passed by the European
Youth Forum at its Council of members in Brussels on 9th
and 10th November 2008.
In furtherance of the Bandres Molet and Bindi Resolution, the European
Bureau for Conscientious Objection has the pleasure to submit the
following evidence on the application by the Member States of the
European Parliament's resolutions on conscientious objection and
civilian service during the calendar year 2007.
CONTENTS OF THIS REPORT
I RESOLUTIONS OF THE EUROPEAN PARLIAMENT
II IMPLEMENTATION OF THE RESOLUTIONS BY MEMBER STATES - OVERVIEW
III DEVELOPMENTS DURING THE CALENDAR YEAR 2007
i International Standards
ii Developments Within Member States
IV PARTICULAR CONCERNS WITHIN THE EUROPEAN UNION
i Serving members of the armed forces
ii Possible reintroduction of conscription
iii The Situation in Greece
iv The Situation in Cyprus
v The Situation in Lithuania
V CANDIDATE COUNTRIES
i Overview
ii The Situation in Turkey
iii The Situation in Serbia
VI RECOMMENDATIONS
I
RESOLUTIONS OF THE EUROPEAN PARLIAMENT
As well
as the “Bandres Molet and Bindi” Resolution itself (B), the right
of conscientious objection to military service has featured in three
resolutions of the European Parliament:
the “Macciocchi” Resolution of 7 February 1983 on conscientious
objection; (M)
the “Schmidbauer” Resolution of 13 October 1989 on conscientious
objection and alternative civilian service; (S)
and the “De Gucht” Resolution of 11th March
1993 on respect for human rights in the European Community. (D)
These Resolutions also endorse the following statements by other bodies:
Resolution 337 (1967) and Recommendation 816 (1977) of the Parliamentary
Assembly of the Council of Europe,
Recommendation R(87)8 of the Committee of Ministers of the Council of Europe,
General
Comment 22 of 20th July 1993 on Article 18 of the
International Covenant on Civil and Political Rights, made by the Human Rights Committee set up under that Covenant,
Resolution 1989/59 of the UN Commission on Human Rights. (The more comprehensive text adopted by that body in its Resolution 1998/77 ocurred subsequently to the European Parliament’s resolutions, and therefore has not been explicitly endorsed by the Parliament.)
The principles embodied in these various resolutions are:
that the right of conscientious objection to military service “whether armed
or unarmed” (S1)
“should be incorporated as a fundamental right in the legal systems
of the Member States (D46), even those “which do not have (or no longer have) conscription and military and civilian service” (B14)
that a conscientious objection may develop at any time, including while performing military
service (as stated in 1989/59 and subsequent resolutions of the UN Commission on Human Rights), with the consequence that the right includes to be permitted to withdraw from such service on grounds of conscience (M2), and more generally to apply for conscientious
objector status at any time (D49)
that conscientious objectors may base their refusal to perform military
service on religious, ethical or philosophical grounds or reasons of conscience (B2)
that “sufficient information is made available on conscientious objector
status” (D49), and
specifically that call-up papers should be accompanied “by a statement on the legal position with regard to conscientious objection”(S2)
that “no court or commission can penetrate the conscience of an individual”
(M3) and therefore
“a declaration setting out the individual’s motives should suffice in order to obtain the status of conscientious objector”(S4)
that the procedures “should be designed in such a way that they involve no
additional waiting period and administrative complications” (M7)
that “an effective means of appeal is made available” (D49, expanding on S8).
(Recommendation R(87)8 of the Committee of Ministers of the Council of Europe had previously specified that “The appeal authority shall be separate from the military administration and composed so as to ensure its independence (para 7).
that States should “refrain from subjecting conscientious objectors to
imprisonment” (UN Commission on Human Rights Resolution 1989/59; D50 and B11 condemned
such action)
that States with compulsory military service should introduce for conscientious objectors
“various forms of alternative service which are compatible with the
reasons for conscientious objection” (UN Commission on Human Rights
Resolution 1989/59)
that alternative civilian service should not be “seen as a sanction or
deterrent” (D51, expanding on M4), or “punitive in nature” (B4). It should therefore be
“organized in such a way as to respect the dignity of the person
concerned and benefit the community” (M4) and “not exceed the
period of normal military service including military exercises
following the period of basic military training” (M5; D51 stated
more briefly that it should be “of the same length as military
service” ; B9 called on the Member States to ensure compliance with
this recommendation)
that “individuals performing alternative service” must not be “denied
their constitutional and/or civil rights” (S3); and should “enjoy the same rights as
conscripts engaged in armed military service, both in social terms - in respect of access to
vocational training, for example -and in terms of pay”(B10, expanding on S6 and S10)
that “a clear distinction should be made between civilian alternative service
activities and vacancies on the job market, this to be agreed upon with the trade
unions” (S7)
that those engaged in alternative civilian service should be able “to
choose to perform it in another Member State or in a developing country as part of a
cooperation programme (B7, expanding on M4, S9 and 13, and D52).
This service “should also be able to be performed with
organizations in other member States, without the need for
reciprocity, and even when there is no conscription in the country
concerned”.(B8)
The
resolutions also call for harmonisation of legislation in this field
(B7), for the explicit incorporation of this right in the European
Convention (M9, S11 and B14), for the “Commission to ask the
member states of the European Union and the countries which have
applied for accession to comply with the principles laid down (in
these resolutions)” (B15)
B6 also
“Calls upon the Member States to study... the experience of those
which have abolished compulsory military service, in favour of fully
professional armed services”
II
IMPLEMENTATION OF THE RESOLUTIONS BY MEMBER STATES - OVERVIEW
Legislative
recognition. All member states of the European Union which
retain any legal basis for conscription into obligatory military
service include provisions permitting the recognition of
conscientious objectors and their allocation to an alternative
service. However those member states which have purely voluntary
armed forces with no provisions for conscription have generally
refrained from enshrining in their legislation any reference to a
right of conscientious objection to military service.
Ability
to manifest a conscientious objection at any time
Of the
member states which maintain conscription, Denmark, Finland, Germany,
and Sweden permit applications by conscripts at any time - including
during the performance of full-time military service and afterwards,
when classified as reservists. The others require conscripts to
register their objection before call up to military services, and in
general have no provisions for application by reservists (Austria
alone provides a limited “window” of one year after the end of
military service.)
The
ability to manifest a conscientious objection “at any time” must
however also include the ability to do this subsequently to having
volunteered for a career in the armed forces. In this respect, as
discussed at more length in Section IV i below, there is much room
for improvement in legislation and practice in member states.
Nature of objections accepted
In Cyprus
and Lithuania there is no clear indication in the legislation of the
nature of objections which may be accepted. Elsewhere the wording of
the relevant legislation clearly covers objections of any religious
or ethical nature. There is however considerable cause for doubt
about the implementation in practice of the legislation in Greece,
see Section IV ii below.
It should
also be noted that up to the suspension of conscription in 2006,
Romania would accept as conscientious objectors only members of
specified religious denominations. This anomaly in the legislation
ought to be remedied, even while obligatory military service is not
being imposed in practice.
Provision of information
Austria
provides an example of good practice in this respect. With the
initial summons to register for military service is included
information about the possibility of applying for recognition as a
conscientious objector, and a form for the purpose may be downloaded
from the website of the civilian service agency. In Greece, by
contrast, the only information officially provided is a statement
that “Applications under Law 2510/1997 are possible”, which
conveys nothing to those not already aware of the relevant
legislation.
Acceptance
of a declaration of conscientious objection
Denmark,
Germany, Finland and Sweden accept an appropriately-worded
declaration (sometimes of an officially-prescribed format) as
sufficient to give a potential conscript formal recognition as a
conscientious objector, without requiring an interview or other
detailed examination of the claim. A small minority of objectors who
insist on formulating their claim in a non-standard manner may find
it rejected. In Greece, Estonia, and Poland, however, all
applications are subject to approval following interview by a body
set up for this purpose, and appointed by the Ministry of Defence.
Although Austria does not require a personal interview, applications
to perform alternative service are automatically rejected if the
applicant has been convicted for a crime of violence, has held a
firearms licence, or has served in the constabulary (Wachkörper)
of regional authorities. Similar restrictions applied in various
other member states before the suspension of conscription.
Uncomplicated
procedures
Austria,
Denmark and Finland all provide a standard application form for the
use of conscientious objectors. The application process in Greece,
see Section IV ii below, is the most complicated in Europe.
Appeals
process
Generally,
there is a now a procedure whereby those who have not been recognised
by the military authorities as conscientious objectors may appeal to
the civilian courts, such appeals having a suspending effect on the
call up to military service. This procedure may however not be
readily accessible, in particular prohibitive cost may place it out
of reach to many of those affected.
Non-imprisonment
of conscientious objectors.
Several
Member States retain legal provisions which permit the imprisonment
of conscientious objectors who persist persist in their refusal to
perform military service or the alternative service to which they are
assigned. In practice, however, such cases are usually dealt with by
fines or suspended sentences.
Alternative
service which is compatible with the reasons for conscientious
objection
No member
state requires those whom it recognises as conscientious objectors to
bear arms. There are however doubts as to whether in Cyprus and
Lithuania a genuine civilian service exists for those whose objection
is to any form of uniformed or military service. In Sweden, the
alternative service as at present constituted is part of a system of
“total defence”, and administered by the Ministry of Defence. It
is estimated that about 400 conscripts per annum object to
participating in this system. Elsewhere, provisions allowing
objectors a choice between alternative service placements cater for
those who feel that some placements would in time of war be
explicitly complementary to armed service, but in most member states
a minority of “total objectors” take the view that the entire
system, including alternative service, is inescapably part of the
state military structure, and are unable to co-operate with it.
Other
conscientious objectors do not object to alternative service in
itself, but refuse to perform it in protest at its discriminatory
length and other conditions by comparison with military service.
Non-punitive
nature of alternative service
Best
practice in this respect is found in Germany and Sweden, where the
length and other conditions of alternative service are the same as
for those performing military service. At the other extreme, Poland
and Estonia still require from conscientious objectors double the
length of service which they do from those performing military
service. There is no indication that the reservist duties required
in practice would significantly reduce the discrepancy between the
two categories.
It should
be noted that in its view on the case of Foin v France (
Communication no. 666/1995; view adopted 3rd November
1999), the UN Human Rights Committee found that any differences
between the length of military and alternative service must be based
on “reasonable and objective criteria”, valid in a particular
case, and expressly dismissed the State’s argument that a different
length “was the only way to test the sincerity of the applicant’s
convictions”. By the time of this decision France itself had
suspended conscription, but elsewhere the acceptance of a declaration
of conscientious objection is often counterbalanced by a discrepancy
which seems to act only as a test of sincerity. The effect is
however punitive.
In many
member states, the other conditions of alternative service have
become less punitive over the years. It should however be noted that
in Austria new payment arrangements brought in the year 2000 resulted
in most conscientious objectors receiving approximately half the rate
of remuneration of those performing military service..
Rights
of those performing alternative service
With the
exceptions noted in the previous paragraph, and the section on
Greece, conscientious objectors generally enjoy similar rights to
those performing military service. In important respects these do
not equate to the normal rights of the civilian population; in
particular they may not include the right to strike or otherwise
engage in trade union activities. These issues require more
attention
Possibilities
for alternative service in other countries
In
Germany and Austria there are provisions allowing a slightly longer
period of voluntary work completed abroad to be accepted as
discharging the alternative service requirement..
III
DEVELOPMENTS DURING THE CALENDAR YEAR 2007
i) INTERNATIONAL STANDARDS.
In a
“View” published on 23rd January 2007
(CCPR/C/88/D/1321-1322/2004: Yeo-Bum Yoon and Myung-Jin Choi v
Republic of Korea), the Human Rights Committee established under the
International Covenant on Civil and Political Rights (ICCPR) found
the Republic of Korea to have violated Article 18, Paragraph 1 of the
Covenant, in the case of two conscientious objectors who had been
imprisoned for refusing military service. The Committee found that
the conviction and imprisonment of the conscientious objectors
amounted to a restriction on their ability to manifest their religion
or belief; that such a restriction must fall within the permissible
limits set out in Article 18, Paragraph 3 of the Covenant and must
not impair the essence of the right in question. The Committee did
not find that the actions of the State Party met these criteria; it
ruled that the objectors were entitled to compensation and that the
State was under an obligation to avoid similar violations in future.
This View
is significant for three reasons.
First, it
makes clear that conscientious objection to military service is
protected under the Covenant. Views adopted by the Committee on
individual cases have quasi-judicial status, and all member states of
the European Union are parties to the Covenant.
Second
the view applies to a State where there was no legislative
recognition of a right of conscientious objection to military
service. The lack of legal provisions was not deemed an acceptable
reason for refusal to consider an accommodation with individual
conscientious objectors.
Third,
the Committee dismissed the relevance of Article 8 of the ICCPR to
the question of recognition of conscientious objection. Article 8
concerns the prohibition of forced labour, and is almost identical to
Article 4 of the ECHR, which the (former) European Commission had
considered to preclude an obligation to recognise conscientious
objection.
Although
the human Rights Committee’s Views are not binding on the European
Court of Human Rights, they have persuasive value and are likely to
be taken into consideration in deciding future cases concerning
conscientious objection to military service.
In 2007, the Human Rights Committee also agreed its General Comment
No. 32, concerning Article 14 of the ICCPR (published 23rd
August). In the section on the principle “ne bis in idem”, the
prohibition of repeated punishment, paragraph 55 of the General
Comment refers explicitly to the repeated punishment of conscientious
objectors, in the following words: “Repeated punishment of
conscientious objectors for not having obeyed a renewed order to
serve in the military may amount to punishment for the same crime if
such subsequent refusal is based on the same constant resolve
grounded in reasons of conscience.” The comment cites among other
authority the opinion of the UN Working Group on Arbitrary Detention
on the case of Turkish conscientious objector Osman Murat Ülke
(Opinion No. 36/1999; UN
Document reference E./CN.4/2001/14/Add. 1, para. 9);
the same facts were also the subject
of a case (No 39437) before the European Court of Human Rights, which
in a judgment published on 24th
January 2006 ruled that the repetetive character of the punishments
and the situation of “civil death” to which the complainant was
reduced by virtue of his non-performance of military service together
constituted inhuman and degrading treatment in violation of Article 3
of the European Convention on Human Rights and Fundamental Freedoms.
(but see further developments reported in Section V ii, below).
Article
10.2 of the Charter of Fundamental Rights of the European Union,
approved by the European Parliament on 12th December, and
incorporated in the Treaty of Lisbon, signed on the following day,
states: “The right to conscientious objection is recognised in
accordance with the national laws governing its exercise.”
In an
interpretative statement, the Chairman of the Parliament’s
Committee on Constitutional Affairs, MEP Jo Leinen, noted that this
was the first explicit reference in a legally binding international
codification to the right of conscientious objection to military
service as an integral part of the freedom of thought, conscience and
religion. ‘Mr. Leinen continued:
“It
should also be noted that liberal legal regulations for conscientious
objectors do not yet exist in all EU member states: Greece is an
often quoted example. But also for the remaining states with
all-volunteer armies, the duty arises from the Charter of Fundamental
Rights to grant the right to refuse military service. Since each
soldier – man or woman – is responsible and continues to be
responsible to his or her own conscience, freedom of conscience must
also be guaranteed in conflict situations. This possibility is also
to be recognized legally and implemented liberally.
“Article 10 (2) of the EU Charter leaves the exact wording of such
laws to the national level. The scope of interpretation, however, is
essentially limited by the precept to maintain the article's
fundamental content and by the principle of anti-discrimination. The
paragraph's position in the Charter (Chapter II - Freedoms)
furthermore justifies the need for a clearly liberal forming of the
right to refuse military service.”
ii) DEVELOPMENTS WITHIN MEMBER STATES
Suspension of conscription into obligatory military service
Bulgaria The final cohort of conscripts was recruited in February 2007
and completed their nine-months service on 25th November.
Latvia Under legislation promulgated in 2004, the Latvian Armed Forces
have been manned entirely by volunteers since the beginning of 2007.
Of the 27
member states of the European Union, only ten will be conscripting
men into obligatory military service in 2008. They are: Austria,
Cyprus, Denmark, Estonia, Finland, Germany, Greece, Lithuania, Poland
and Sweden (see next paragraph). Military service for women has
always been voluntary in all member states.
Sweden In a study on the development of the Armed Forces over the next
20 years, published on 21st December 2007, the Swedish
Armed Forces recommended a move to completely voluntary recruitment
during peacetime. A parliamentary committee was established at the
beginning of December 2007 to study the practicalities of abolishing
obligatory military service. The committee is due to report in
February 2009, with revised legislation coming into effect from 2010.
Legislative Amendments
Cyprus
The
parliament has approved an amended National Guard Law put forward by
the Council of Ministers in June 2007. Under this Law, military
service was reduced from 26 months to 25 months and alternative
service for conscientious objectors from 42 months to 34 months.
Military service was made obligatory for members of the Maronite,
Latin and Armenian communities; it was previously obligatory only for
members of the Greek Cypriot Community.
Finland
An
amendment to Non-Military Service Act and Decree was passed by the
Parliament. With effect from January 2008, it shortens alternative
service for conscientious objectors from 13 months to 11 months. It
also removes the anomaly whereby the availability of alternative
service to conscientious objectors in Finland was suspended in time
of war or national emergency.
Imprisonment of conscientious objectors
Cases which came to the notice of EBCO in 2007 were Antti Rautiainen of
Finland - imprisoned for sixteen days for non-payment of
fines resulting from his refusal of repeated call-ups between 1997
and 2001 - and in Germany the repeated military arrest and
imprisonment.of Alexander Hense, Jonas Grote and Moritz Kagelman.
This list may however not be exhaustive.
IV
PARTICULAR CONCERNS WITHIN THE EUROPEAN UNION
- Serving members of the armed forces
The
resolutions of the European Parliament repeat that the right to
manifest a conscientious objection to military service applies to
everyone at any time, including during the performance of such
service. The right of conscientious objection to military service
implies not only the right to refuse such service, but, recognising
that a conscientious objection may develop over time, also the
ability to seek release from that service. As stated by the Chairman
of the European Parliament’s Constitutional Committee (quoted in
Section III i above on page 8), this right must extend to all serving
members of the armed forces, including “professional” personnel
who volunteered to join in the first instance. Article 18 of the
Universal Declaration of Human Rights states explicitly that the
freedom of thought, conscience and religion includes the freedom to
change religion or belief. This not only means that the individual
should be free to change denominational adherence, but also that in
matters of conscience he or she must not be considered unable to
develop convictions which might appear incompatible with his or her
earlier actions or decisions. Although the principle is true in any
circumstances, it might be particularly noted that the decision to
embark upon a military career is often made at a relatively young
age, when many people’s fundamental beliefs are still in the course
of development.
There are
however considerable doubts about the extent to which the right to
release from military service on grounds of conscience has been
realised in practice within the European Union. Only in Germany and
the UK are procedures known to exist whereby contracted serving
members of the armed forces may apply for release having developed a
conscientious objection; although their very existence is
commendable, the procedures in the UK certainly do not fully accord
with the relevant elements of the general criteria set out in
European Parliament resolutions and set out above (provision of
information, acceptance of a declaration, uncomplicated processes,
independent appeal opportunities etc). There have been reports that
such releases are theoretically possible in other member states (for
instance in a survey of provisions on conscientious objection issued
by the Committee on Legal Affairs and Human Rights of the Council of
Europe in May 2001), but no details have been given and there is no
indication that actual instances have ever occurred. Subject to
further information, it seems probably that such reports have been
based on questionable interpretation of legal provisions, inadequate
understanding of the issues involved, or both.
The issue
of human rights in the armed forces, including the provisions for
conscientious objection, is currently being studied in depth by a
sub-group of the Council of Europe’s Committee of Experts on the
Development of Human Rights, and it is to be hoped that this study
will result in the formulation of new standards..
As the
OSCE/DCAF Handbook has been published only now in 2008 following a
series of meetings in 2006, and as it would be rather difficult to
reconcile some of its analysis with the rest of this report, my
inclination would be to save it for the 2008 report.
For the
right of conscientious objection to be fully recognised in the
situation of serving members of the armed forces, it is necessary
that a release specifically on such grounds be available, and that
such a release be treated as “honourable”. Conscientious
objectors should not be discharged on conditions equivalent to those
whose performance of their duties has been inadequate, nor in
principle should their discharge be subject to any penalties or
potential impediments, such as the requirement to reimburse the cost
of training. The procedure for applying for release should be clear
and uncomplicated, and a person who applies for release on grounds of
conscientious objection should not as a result come under pressure to
accept discharge on other grounds - descriptions such as
“incompatibility with military life” or “compassionate reasons”
inevitably carry the implied stigma of some form of inadequacy on the
part of the person concerned. In particular it is essential that
release as a result of conscientious objection must be clearly
distinguished from release on mental health grounds, as some
conscientious objectors, in common with other former armed forces
personnel, may exhibit symptoms of post-traumatic stress disorder
following combat experience. Conscientious objection is not given
due respect when it is treated as equivalent to any decision to
terminate a contract of employment early; it is essential that an
application for release on grounds of conscientious objection has
immediate suspending effect - operational reasons can never justify
keeping a conscientious objector in active service any longer than
is practicable. Military contracts are more restrictive than those
for civilian employment, but in any case the concept of a
conscientious objector working out a period of notice in the front
line makes no sense, morally or militarily. It should also be noted
that whereas a civilian employment contract can in extremis come to
an end as a result of the employee’s refusal to continue to carry
out its terms, such a refusal can be subject only to civil penalties
consistent with the contract. By contrast breach of a military
contract of employment will usually lead to a court martial and
criminal penalties, which can include lengthy imprisonment.
Of particular relevance to the situation of volunteer members of the
armed forces is the case of conscientious objection only to a
particular conflict or military operation, which is often termed
“selective” objection. This may result from the moral
development of the objector, but in other situations may represent
his or her being faced with a specific situation which was not
reasonably foreseeable at the time of volunteering, or be associated
with the perceived illegality of the action concerned.
ii) Possible reintroduction of conscription Most of the member
states which have ceased in recent years to enforce conscription have
retained legal provisions enabling its reintroduction in the event of
war or national emergency. In such cases it is important that
appropriate arrangements for conscientious objectors should be
assured. Where the arrangements which applied at the time when
conscription was suspended were not in line with best practice,
improvements should be made in advance of any possible future
reintroduction; some examples have been given in the preceding
section. EBCO will in coming years be involved in the monitoring of
the precise situation in this respect, and in suggesting remedial
action where appropriate.
- The
situation in Greece Various resolutions of the European
Parliament have referred specifically to the iniquitous conditions
facing conscientious objectors in Greece. In 1997, Greece did
finally make provision for the performance of a civilian alternative
to obligatory military service by recognised conscientious
objectors. However despite this legislation there are still serious
concerns about the situation. In many respects Greek legislation
and practice is not consistent with the principles laid out in the
resolutions of the European parliament. Information on the
possibility of declaring a conscientious objection to military
service is not provided to conscripts in a readily comprehensible
format. There are strict time limits for application, and the
technical requirements, which include the provision of certificates
from the police and the forest service that the objector does not
have any convictions and has never had a firearms licence or a
hunting permit are arbitrary and difficult to fulfil. Conscientious
objectors are assessed by a tribunal which is dominated by the
military. Very few grounds for recognition are accepted - most
successful applications have been made by Jehovah’s Witnesses;
applications from members of the majority Greek Orthodox church
being routinely rejected as not having the support of the Church
authorities. The possibilities for recognition are so slim that
objectors generally seek other means of avoiding military service.
The length and conditions of alternative service are punitive and
although the service itself is performed for civilian organisations
it is allocated and monitored by the military authorities. In
particular, objectors may not be allocated to alternative service in
their home area or in the six largest cities (Athens, Salonica,
Patras, Volos, Larissa and Iraklion) - the sole reason for this
apparently being in order to make such service less attractive.
Disciplinary offences and breaches of the terms of engagement
committed by those performing alternative service are not subject to
appropriate sanctions within the terms of the alternative service,
but can - altogether inappropriately - lead to the recognition of
their conscientious objection being revoked, and military service
being required. Conscientious objectors who persist in their
refusal to perform military service are liable to repeated call-up
and imprisonment; they are also suffer permanent discrimination in
civil matters, being disenfranchised - unable either to vote or to
stand for election - excluded from employment in the public sector,
and forbidden to leave the country, obtain a passport, or serve on a
merchant ship plying outside territorial waters. A particularly
iniquitous feature of the Greek legislation is that, far from being
exempt from military service, as they would be in most other
countries, persons liable to military service who have taken up
permanent residence in Greece after having performed military
service in another state are by definition precluded from
recognition as conscientious objectors.
In 2001 the European Committee on Social Rights (Quaker Council of
European Affairs v. Greece; Complaint No. 8/2000; Decision on the
merits 25 April 2001) found that the disproportionate duration of
alternative service constituted a violation of Article 1.2 of the
European Social Charter - “the right of the worker to earn his
living in an occupation freely entered upon”. In response to this
and other criticism, particularly to the effect that alternative
service lasted more than twice as long as military service, the Greek
government in 2004 amended its legislation so that for any individual
conscientious objector the length of alternative service would be
exactly one month less than the length of military service he would
have faced, given his personal and family circumstances; the maximum
became 23 months, as against 12 months’ military service. Some of
the restrictions on the freedom of movement and the civil rights of
those performing alternative service were also eased.
The Greek government should now be encouraged to make further
reforms to bring its provisions for recognising the rights of
conscientious objection and its arrangements for alternative service
fully in accordance with European norms.
iv) The situation in Cyprus.
Despite
the 2007 revision to the National Guard Law, the legislation
concerning conscientious objection in Cyprus remains punitive in
nature and there are doubts as to whether a genuine civilian
alternative service actually operates in practice - the legislation
refers to “unarmed military service outside the armed forces”.
It should
also noted that these provisions only apply in the part of the island
under the control of the national government. There are no
provisions for conscientious objection to military service in the
northern part of Cyprus; where male residents aged between 19 and 30
are liable to military service of 15 months, under the provisions of
Law 59/2000 passed by the “Turkish Republic of Northern Cyprus”.
The fact that this entity, not being internationally recognised, has
no legal authority to require obligatory military service cannot
detract from the rights of the conscientious objectors affected by
the de facto conscription imposed. In this respect, the
responsibility of Turkey, as the controlling power is engaged under
international law.
It may be
noted that in December 2007 a new initiative was launched in Northern
Cyprus, campaigning for the recognition of the right of conscientious
objection to military service to be explicitly mentioned in the
“constitution” of the unrecognised republic.
v) The
situation in Lithuania
As
indicated in the summary under the different questions, there are
considerable doubts as to whether the legislation concerning
conscientious objection to military service in Lithuania is being
implemented in a systematic fashion and therefore of whether the
option of truly civilian service is in practice available to
conscientious objectors in Lithuania.
V
CONCERNS IN CANDIDATE COUNTRIES
i) Overview
Developments
in candidate countries and potential candidate countries have largely
mirrored those in member states. At the end of 2007 Croatia
joined fellow candidate country Macedonia and potential
candidate countries Bosnia-Herzegovina and Montenegro
in suspending obligatory military service. There is a functioning
system of alternative service in potential candidate country Serbia
(but see below for an outline of some shortcomings in the current
situation). Provisions on conscientious objection were included in
the 2003 Law on Military Service in potential candidate country
Albania; EBCO is still seeking detailed information on their
implementation in practice. The situation in candidate country
Turkey is however unique and of great cause for concern.
ii) The Situation in Turkey
There is
no legislative recognition of the right of conscientious objection to
military service in Turkey. Turkey is now the only member of the
Council of Europe to be in this situation. Moreover, Article 318 of
the Penal Code criminalises “Turning the people against military
service”, a provision which is used to limit discussion of, and
dissemination of information about, even the concept of conscientious
objection..
Conscientious
objectors face repeated call-up to perform military service. Because
their objection is not recognised, they are treated as members of
their armed forces and are punished under the military penal code for
disobeying orders or for desertion. No limit of time or number is
set on the proceedings which can be brought against any on
individual. In civilian life those who have not peformed military
service are unable to obtain any form of authorisation from the
authorities, they cannot work in the public sector, leave the
country, obtain a passport or have their marriage recognised for
civil purposes.
A
judgment of the European Court on Human Rights in January 2006 (Ülke
v Turkey - application no.39437/98), found that the repeated
imprisonment of a conscientious objector for failure to perform
military service and his subsequent lack of civil status constituted
inhuman or degrading treatment.
Far from
implementing the decision, the Turkish military prosecutors office in
July 2007 issued a renewed arrest warrant for Ülke on charges. In a
decision reached at its meeting on 17th October, the
Committee of Ministers of the Council of Europe
“URGES the Turkish
authorities to take without further delay all necessary measures to
put an end to the violation of the applicant's rights under the
Convention and to adopt rapidly the legislative reform necessary to
prevent similar violations of the Convention;
“INVITES in
particular the Turkish authorities rapidly to provide the Committee
with information concerning the adoption of the measures required by
the judgment;”
and “DECIDES to examine the implementation of
the present judgment at each human rights meeting until the necessary
urgent measures are adopted.”
Other cases concerning the
repeated imprisonment of conscientious objectors in Turkey are
currently pending before the ECHR, and further cases have been
referred to the UN Working Group on Arbitrary Detention.
It is
a matter of urgency that Turkey be persuaded to introduce legislation
recognising and implementing the right of conscientious objection to
military service and to cease the persecution of past conscientious
objectors.
iii) The Situation in Serbia
After
some initial difficulties, arrangements for conscientious objectors
in Serbia to perform civilian alternative service are now well
established, and the proportion of those liable for military service
who avail themselves of this legislation is one of the highest in the
world. However the entire system remains too closely under the
control of the army, which decides on applications for conscientious
objector status, allocates placements with no appeal possibilities,
and adjudicates on all disputes concerning the performance of
alternative service. The length of alternative service is punitive
in comparison with military service, and conscientious objectors do
not receive the same remuneration as those performing military
service.
Another
concern in the case of Serbia is the refusal to allow retrospective
recognition of the conscientious objector status of those who left
the country in order to avoid participating in the wars of the early
1990s, when there was no recognition of conscientious objection to
military service in the legislation of the then Yugoslavia. On
re-entering the country such persons remain liable to the requirement
to perform military service, without any alternative service option.
Amendments to the military service legislation raised the age of
liability from 27 to 35 years.
VI.
RECOMMENDATIONS
- Article
10 of the Charter for fundamental rights of the European Union needs
further attention to guarantee this fundamental right in all member
states without any discrimination whatsoever. - Discriminations
of conscientious objectors within the EU need to be addressed by the
Ombudsman, Parliament and the Commission. - No
EU citizen should be punished for his conscious decision to perform
military service - European
Voluntary service should be open for conscientious objectors. - Development
service and civil peace services need support from the European
Commission and the European Parliament. - Human
rights reports of the European Union should include the question of
conscientious objection and the protection of human rights defenders
in this field including refugee status for objectors from countries
where they expect punishment, for objectors refusing to serve in
unjustified wars or intervention specifically not covered by the UN
Charter.
Sources used in compiling this document.
Amnesty
International, Greece, replies to a survey by the embassies of EU
member states, 2007 (unpublished)
Conscience and Peace Tax International (2006) Military Recruitment and
Conscientious Objection: A Thematic Global Survey
(various dates 2004-present) Submissions to the UN Human Rights Committee
(http://www2.ohchr.org/en/bodies/hrc/sessions.htm)
EBCO, The Right to Refuse to Kill (periodical) (www.ebco-beoc.org)
EBCO, Sam Biesemans, (1995) Resolutions and decision by European institutions
on conscientious objection
Gee, D., (2008) “Informed Choice? Armed Forces and Recruitment Practice in
the UK” (www.informedchoice.org)
Horeman, B. and Stolwijk, M. (1998), Refusing to Bear Arms, and updates
by Stolwijk, M. (2005), War Resister International (www.wri-irg.org/co/rtba)
War Resisters International, CO Update (monthly)
(www.wri-irg.org)
These sources have been supplemented and updated by information supplied by
EBCO members.
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