Turkey: European Court of Human Rights reaffirms right to conscientious objection


On 22 November 2011, a Chamber of the European Court of Human Rights reaffirmed the right to conscientious objection in its judgement in the case of Erçep v. Turkey (application no. 43965/04). The case concerned a Jehovah's Witness from Turkey, who had been repeatedly imprisoned for his refusal to perform military service following approximately 15 call-ups.

Following up from the Grand Chamber judgement in the case of Bayatyan v Armenia, in which the European Court of Human Rights reviewed its previous case law on conscientious objection and "considered that opposition to military service, where it was motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience, constituted a conviction or belief of sufficient importance to attract the guarantees of Article 9."

It therefore did not come as a surprise that the new chamber judgement reaffirmed that conscientious objection is indeed protected under Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion). According to the Court's press release, the "Court observed that Mr Erçep was a member of the Jehovah’s Witnesses, a religious group that had consistently opposed military service. There was no reason to doubt that his objection was motivated by anything other than genuinely-held religious beliefs."
"In Turkey, all citizens declared fit for national service were required to report for duty when called up and to perform military service. No alternative civilian service existed. Conscientious objectors had no option but to refuse to enrol in the army if they wished to remain true to their convictions. In so doing, they laid themselves open to a sort of “civil death” because of the numerous sets of criminal proceedings which the authorities invariably brought against them; they could face prosecution for the rest of their lives. The Court considered that that situation was not compatible with law enforcement in a democratic society."
"The Court took the view that the numerous convictions imposed on Mr Erçep because of his beliefs, in a situation where no form of civilian service offering a fair alternative existed in Turkey, amounted to a violation of Article 9."

Besides the judgement on the violation of Article 9, the Court also found for a violation of Article 6 (right to a fair trial). "Mr Erçep complained of the fact that, as a civilian, he had had to appear before a court made up exclusively of military officers. The Court observed that, despite being accused of an offence under the Military Criminal Code, the applicant was, for criminal-law purposes, not a member of the armed forces but a civilian. Furthermore, it was clear from a judgment of the Jurisdiction Disputes Court dated 13 October 2008 that, in Turkish criminal law, a person was considered to be a member of the armed forces only from the time he or she reported for duty with a regiment."
"The Court considered it understandable that the applicant, a civilian standing trial before a court composed exclusively of military officers, charged with offences relating to military service, should have been apprehensive about appearing before judges belonging to the army, which could be identified with a party to the proceedings. In such circumstances, a civilian could legitimately fear that the military court might allow itself to be unduly influenced by partial considerations."
"Acknowledging that the applicant’s doubts about the independence and impartiality of that court could be regarded as objectively justified, the Court held that there had been a violation of Article 6 § 1 in that regard."

This is very significant, as it basically states that conscientious objectors who refuse to be enlisted into the military should not stand trial before a military court.

The judgement of the European Court of Human Rights reignited the discussion on conscientious objection in Turkey. After weeks of anticipation that the government would announce a new policy for conscientious objectors following statements by Turkish Justice Minister Sadullah Ergin that the right to conscientious objection "will be assessed, discussed and brought to parliament if deemed applicable", Turkish Prime Minister Recep Tayyip Erdogan announced at a group meeting of the AK Party parliamentary group on 22 November that the issue has been shelved from the government's agenda.

According to new regulations on military service in Turkey, people who have lived abroad for at least three years will be able to benefit from a newly introduced "paid exemption from military service" by paying €10,000. They will then be exempt from basic military training. This is not dependent on any age limit. The regulation will come into force once it has been published in the Official Gazette.

Only a few days after the judgement of the European Court, another conscientious objector, Muhammed Serdar Delice, was arrested. Another conscientious objector, İnan Suver, is still serving a prison sentence.

Sources: European Court of Human Rights: Press release: Chamber judgment Erçep v. Turkey, 22 November 2011, European Court of Human Rights: AFFAIRE ERÇEP c. TURQUIE, chamber judgement (French), 22 November 2011, Bianet: Landmark Ruling on "Conscientious Objection", 23 November 2011; Today's Zaman: Some happy, some still disappointed, 23 November 2011; Turkish Weekly: Government Shelves Reform of Policy on Conscientious Objectors, 1 December 2011, The Guardian: Turkey considers allowing conscientious objection to military service, 15 November 2011

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