FORUM 18 NEWS SERVICE, Oslo, Norway
The right to believe, to worship and witness
The right to change one’s belief or religion
The right to join together and express one’s belief
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Wednesday 17 March 2010
TURKEY: CONSCIENTIOUS OBJECTION A TEST OF TURKISH RELIGIOUS FREEDOM
Turkish non-recognition of the right to conscientious objection to military
service contributes to conscientious objectors being in an unending cycle
of prosecution – trial – punishment, Güzide Ceyhan notes in a commentary
for Forum 18 News Service <;. The case of Muslim
objector Enver Aydemir demonstrates this. He objects to conscription
because of the military’s "antagonistic feelings towards my beliefs". The
experience of his mother and sister, who were not allowed to visit him in
custody wearing veils, has, he thinks demonstrated this. Similarly trapped
in the prosecution – trial – punishment cycle are Jehovah’s Witness and
secular conscientious objectors. The refusal of the European Court of Human
Rights to address the religious freedom aspects of the Ülke case ignored
the prosecution – trial – punishment cycle’s coercion of a person to change
their beliefs. Sadly, it appears that conscientious objection is – like
non-recognition of the independent legal existence of religious communities
– another example of Turkey’s reluctance to recognise freedom of religion
or belief for everyone.
TURKEY: CONSCIENTIOUS OBJECTION A TEST OF TURKISH RELIGIOUS FREEDOM
By Güzide Ceyhan
Turkey does not recognise the right to conscientious objection to military
service, along with countries such as Azerbaijan, Belarus, Turkmenistan and
– in practice – Armenia, Forum 18 News Service notes. Without recognition
of this right – which is embedded in the right to freedom of religion or
belief – and even lack of any regulations to address their situation,
conscientious objectors find themselves in an unending cycle of prosecution
– trial – punishment.
In spite of Turkey’s repeated statements that legal efforts are underway to
address this problem, the current non-existing or inadequate legal
provisions create great difficulties for conscientious objectors. These
include violations of the right to freedom from cruel, inhuman or degrading
treatment or punishment, and of other fundamental human rights.
The continuing case of a Muslim objector, Enver Aydemir, demonstrates this.
Aydemir is a devout Muslim who objects to serving in the Turkish military
forces because "the elites of the Turkish Military Forces, relying upon
secular values, hold antagonistic feelings towards my beliefs and that I
will never never be a soldier of this order." The Turkish pacifist website
savaskarsitlari.org on 15 March 2010 reproduced his July 2007 letter
explaining this, in which he also commented that:
"I saw how appropriate my attitude was because my mother and my sister, who
came to see me [in military custody] after two days, were not allowed in
the guardhouse because of their veil. As a person whose most precious
values are his faith, I cannot accept the attitude of the elites of the
Turkish Armed Forces against Islamic values. For this reason I declare my
conscientious objection. It is not possible for me to be part of an
institution that insults even the most basic beliefs of Muslims."
Aydemir was detained and then arrested on 24 December 2009 and is held in
Eskişehir Military Prison. Aydemir’s lawyer, Davut Erkan, stated on 15
March 2010 that efforts were underway to trap his client in the prosecution
– trial – punishment cycle. The military prosecutor has asked for Aydemir
to be sentenced to up to 10 years in prison for "refusal to follow orders".
Charges of "desertion" have also been raised by the military prosecutor.
Aydemir himself stated, when he was tried on 31 January 2010 that he was
held naked in a cold room and also punished with falaka (a punishment
inflicted by beating the soles of the feet). His father sent a letter of
complaint to the Human Rights Commission of the Turkish Grand National
Assembly, who are investigating the complaint.
For conscientious objectors from a non-Muslim background, denial of
conscientious objection along with the marginalisation of non-Muslim
religious communities has a clear impact on the intolerance and physical
attacks members of these communities experience. This has been demonstrated
in the cases of young male Jehovah’s Witnesses, who have been maltreated
and repeatedly prosecuted in recent years for refusing compulsory military
service on grounds of religious conscience (see F18News 10 July 2007
< e_id=990>).
Compulsory military service in Turkey applies only to men, not to women.
Conscientious objectors to this service fall mainly into two groups:
pacifists who consider themselves ‘total objectors’ to any compulsory state
service, including any or fully civilian service, and Jehovah’s Witnesses,
who reject military service but are willing to serve within a strictly
civilian alternative service regime. There are approximately 89
conscientious objectors who are not Jehovah’s Witnesses, according to the
war resistor savaskarsitlari.org web site. About 30 conscientious objectors
are Jehovah’s Witnesses.
One reason for the small number of declared conscientious objectors –
around 120 out of 14,000,000 men in all age groups eligible for military
service – is that declared objectors have to face serious consequences for
refusing military conscription. Many prefer to find other ways of avoiding
military conscription. On 1 June 2008 the Minister of National Defence
stated that around 1,000,000 men had either postponed military service or
evaded the draft. Objectors often prefer to evade military service by
postponing (for example by continuing their education) service, working
abroad, or desertion.
As no legal regulations address the situation of conscientious objectors,
each time an objector refuses to wear a military uniform, or refuses
orders, or refuses conscription, it is considered as a refusal to obey
orders and the Military Criminal Code applies. Prosecution and sentencing
then follows. There starts an unending cycle of prosecutions and prison
sentences, because following the first conviction every act of refusal is
reckoned as an independent act of "insistence on refusing to obey orders".
Hence the objector is faced with a tough choice; virtually life long
prosecution and prison sentence, giving up on listening to the voice of his
conscience, or retreating to a life on the run.
Conscientious objection to military service is a legitimate part of
everyone’s right to freedom of thought, conscience and religion, as the
then UN Human Rights Committee stated in its General Comment 22 on Article
18 of the International Covenant on Civil and Political Rights (ICCPR). It
confirmed this in 2006, in a ruling on the case of Korean Jehovah’s Witness
conscientious objectors, Yeo-Bum Yoon and Myung-Jin Choi (Communications
no. CCPR/C/88/D/1321-1322/2004) (see ). The Committee ruled that, Korea’s
conviction and sentencing of the two conscientious objectors was "a
restriction on their ability to manifest their religion or belief". Turkey,
like Korea, has ratified the ICCPR and so this decision has direct
implications for Turkey in establishing the scope of its obligations under
Article 18.
Despite this, the government claims that international human rights law
does not protect the right to conscientious objection. This has been the
government’s argument in a case before the European Court of Human Rights
(ECHR) in Strasbourg about a Turkish pacifist conscientious objector: Osman
Murat Ülke v. Turkey (Application no. 39437/98) (see
< hbkm.asp?action=open&tableö9A27FD8FB86142 BF01C1166DEA398649&key=19858&sessionId=489 04771&skin=hudoc-en&attachment=true>).
The ECHR found against Turkey in January 2006 that Ülke’s conviction and
punishment had been "degrading treatment" under Article 3 ("Prohibition of
torture, inhuman or degrading treatment or punishment") of the European
Convention for the Protection of Human Rights and Fundamental Freedoms. The
Court ruled in extremely strong terms that: "the numerous criminal
proceedings brought against the applicant, the cumulative effects of the
ensuing criminal convictions and the constant alternation between
prosecution and imprisonment, together with the possibility that he would
face prosecution for the rest of his life, are disproportionate to the aim
of ensuring that he performs his military service. They are aimed more at
repressing the applicant’s intellectual personality, inspiring in him
feelings of fear, anguish and vulnerability capable of humiliating and
debasing him and breaking his resistance and will. The clandestine life,
amounting almost to "civil death", which the applicant has been compelled
to adopt is incompatible with the punishment regime of a democratic
society."
However, although Ülke also complained to the ECHR under Article 9
("Freedom of thought, conscience and religion"), the ECHR concluded that
"it was not necessary to give a separate ruling on the [other] complaints."
But the judgment did state that Turkey’s "legal framework is evidently not
sufficient to provide an appropriate means of dealing with situations
arising from the refusal to perform military service on account of one’s
beliefs. Because of the unsuitable nature of the general legislation
applied to his situation the applicant ran, and still runs, the risk of an
interminable series of prosecutions and criminal convictions." The Turkish
government promised to address this, but has yet to do so.
The refusal of the ECHR to address the Ülke case under Article 9 – which
refusal the Turkish Government had argued for – caused great disappointment
among Turkish civil society activists. This failure by the ECHR meant that
it failed to consider an extremely serious consequence of the Turkish
treatment of conscientious objectors. As the cycle of arbitrary detention,
prosecution and prison sentences is severe, it has the effect of applying
strong coercion to a person to change their conscientiously-held belief.
This is clearly an extremely serious violation of everyone’s freedom of
thought, conscience and religion.
In other religious freedom cases involving individuals against states, the
ECHR has also been reluctant to rule on whether there have been breaches of
Article 9 as against other European Convention articles. This was the case
when two Turkish Alevi Muslims successfully brought a case to the ECHR on
the question of compulsory lessons in religious culture and ethics (see
F18News 29 November 2007
< e_id=1053>).
Unfortunately, the ECHR, in an extremely dangerous October 2009 judgement
in the Bayatyan v. Armenia case, has made the extraordinarily mistaken
claim that Article 9 does not guarantee the right to conscientious
objection to military service. This put the ECHR out of step with the
international legal standards on conscientious objection to military
service, including those of the ICCPR, and is being challenged in the Grand
Chamber of the ECHR (see F18News 19 November 2009
< e_id=1377>).
Despite this, especially when the ECHR sees that other Convention articles
are involved, the Court has been becoming increasingly important in
defending freedom of thought conscience and belief in Turkey (see F18News
18 January 2007 < 901>).
The Ülke judgement has, as the Turkish government recognised, serious
implications for Turkey’s legal framework. Article 24 of the 1982 Turkish
Constitution guarantees freedom of religion or belief, and does not allow
suspension of this right even in times of national emergency. Article 72
lists military service as one of the two national service options which are
"the right and duty of every Turk," the second option being an undefined
"public service." There are no conflicts between the Constitution and
potentially recognising the right to conscientious objection.
But this is not the case with Turkey’s laws regulating military service.
The 1927 Military Law states that military service is "compulsory for every
male citizen." Failure to report for military service is, under the
Military Criminal Code’s Article 63, a crime. Article 87 of the Code
describes all subsequent refusals to undertake military service as
"insistence on disobedience to orders." As the Ülke judgement noted, this
opens up "the risk of an interminable series of prosecutions and criminal
convictions."
After the Ülke decision, Turkey informed the Committee of Ministers that
regulations concerning conscientious objection will be made in due course.
The Defence Ministry, in response to a parliamentary inquiry about
conscientious objection, said on 2 June 2008 that work is in progress for a
regulation on this right. However, nothing has to date (March 2010) been
done to fulfil the requirements of the January 2006 ECHR judgment.
Generally speaking, arguments by military circles in favour of not
recognising the right to conscientious objection are either based upon
national security arguments, or the perception that conscientious objection
is a concept foreign to Turkey’s culture. The Ministry of Justice and
Ministry of National Defence state that work on conscientious objection is
ongoing since the Ülke judgment. But no information is available as to the
specific content of this work, or when a result is expected. The reasons
behind this slow progress appear to include the military struggle against
the PKK in eastern Turkey and the many lives lost in this struggle; an
inequality of risk between conscientious objectors and those who risk their
lives in military service; and strong resistance from some parts of
society, because of a deeply rooted notion that (against Turkey’s
international human rights commitments) national security needs always
override religious convictions.
There have only been two positive moves since the ECHR judgment. A draft
code on conscientious objection to military service was submitted on 14
November 2008 to the Grand National Assembly by a Kurdish human rights
defender and parliamentary deputy from the opposition Peace and Democracy
Party (BDP), Akın Birdal. But there is no sign that this may become
law, as so far political parties have been unresponsive to the Bill.
Another significant development is a Decree issued on 3 July 2008 by the
Ministry of Justice, attempting to prevent the endless prosecution – trial
– punishment cycle that objectors have to face. This Decree states that
deserters can only be arrested and detained with a court warrant by the
police. This means that conscientious objectors cannot now be arrested by
military authorities from the recruitment office.
In light of Turkey’s international and constitutional human rights
commitments, will Turkey create a suitable legal regulation to assess
claims of conscientious objection to military service? It seems there is a
strong military and political will not to recognise a right to
conscientious objection. Some developments, such as the Ministry of Justice
Decree, which is in itself a positive step, still give the impression that
the right to conscientious objection will not be recognised soon. This is
because the Decree appears aimed at eliminating the consequences of
non-recognition of conscientious objection, instead of legally addressing
freedom of religion or belief issues that arise when one is forced to act
against genuinely held beliefs.
Sadly, it appears that conscientious objection is – like non-recognition of
the independent legal existence of religious communities – another example
of Turkey’s reluctance to recognise freedom of religion or belief for
everyone. (END)
PDF and printer-friendly views of this article can be accessed from
< e_id=1423>. It may freely be
reproduced, redistributed or quoted from, with due acknowledgement to Forum
18 <;.
For more background, see Forum 18’s Turkey religious freedom survey at
< id=1379>.
More analyses and commentaries on freedom of thought, conscience and belief
in Turkey can be found at
< mp;religion=all&country=68>.
A personal commentary on the European Court of Human Rights and
conscientious objection to military service is at
< id=1377>).
A compilation of Organisation for Security and Co-operation in Europe
(OSCE) freedom of religion or belief commitments can be found at
< id=1351>.
A printer-friendly map of Turkey is available at
< s/atlas/index.html?Parent=mideast&Rootmap=turk ey>.
(END)
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