Statement to ECHR Judgement Ülke v. Turkey
(20.09.2012) I, the representative of Osman Murat ÜLKE, the applicant in the above proceedings before the Committee of Ministers, would like to inform the Committee about recent developments.
There is no doubt that the decision by the Military Court of Eskisehir to lift the arrest warrant issued for our client, which was conveyed to the previous meeting of the Committee of Ministers constitutes an important development. This step to carry out the ECtHR verdict of 2006 in accordance with art. 90 of the Turkish Constitution is - albeit with a delay of six and a half years - by all means good news.
Having said that, we have to note that following phone calls to the judge of the military court in Eskisehir, officials of the Ministry of Justice and the Head Office of the National Recruitment Agency (ASAL) have not resulted in a clear frame of what our client has to expect from now on.
The military judge explained that the investigation against ÜLKE is still active and the only change so far is limited to the lifting of the arrest warrant. The reply to the question if this decision has been conveyed to the other relevant agencies concerning military service was naturally (as it is not the courts duty) negative.
The official from the Ministry of Justice stated that nobody can be apprehended without a duly issued warrant of arrest. We reminded them that the circular (see appendix) on draft evaders (issued on 03.07.2008) which addressed exactly this problem was revoked in 2009 and that the practice has resumed to its former state from before 2008. It's a fact that there is an abundance of cases in Turkey, in which personal freedom is restrained arbitrarily despite of the guarantees warranted by art. 5 of the ECHR, art. 90 and 19 of the Constitution. This problem is based on the perception that constitutional statutes are only abstract norms. Therefore various circulars are issued in order to take procedures by the executive bodies under control. However, with the revocation of the aforementioned circular the practice concerning "personal security and freedom" is once again subject to the arbitrary initiatives of varying actors - which is one of ÜLKE's concerns.
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In fact, an official from the National Recruitment Agency, which is affiliated to the Ministry of Defense informed us that the decision to lift the arrest warrant hasn't reached them and has therefore not entered the system.
When reminded of the circular from 2008, the official stated that "the situation of the client is special", he "doesn't know about the general practice", that the situation "might or might not play out according to the circular". The dialogue did not provide any clarity.
The official from the Ministry of Justice also pointed out that the freedom of travel cannot be limited without a court order, stressing that ÜLKE can receive a passport and travel. However, he was reminded that ÜLKE is still registered as a "soldier" and not as "having served" or as having "military service deferred", which will show up in the "general information gathering system", which will most likely lead to a limitation of freedom of travel.
Beside the continuing threat on ÜLKE's personal freedom, the problems concerning his freedom to work are still continuing unabatedly.
Art. 93 of the Military Law dictates that "who intentionally employs draft evaders and deserters in the public or private sector is to be punished according Military Penal Code". Art. 48/5 of the Law of Public Servants and many other laws feature parallel regulations, aiming to exclude draft evaders and deserters from work life.
The general enforceability of this article might be questionable, but for ÜLKE this problem was and is quite concrete and real. In the past ten years he always received payment for his translations through middlemen, without using his own name. He also worked as a web journalist in 2011 and 2012, but his employer refused to use his name on the web site and insisted on paying ÜLKE through someone else's bank account.
This situation does not only result in financial handicaps and a narrow spectrum of job possibilities, but is also a burden concerning fulfillment. ÜLKE is not only paid less and indirectly, he is also hindered in his ability to be a social "entity".
Another result is the impossibility to join the social security system. ÜLKE had no possibility to resume his registration in the social security system since his release from prison in March 1999. ÜLKE is now 42 years old, is not covered against possible health situations and can't even imagine to retire one day.
Consequently, the lifting of the arrest warrant against ÜLKE is unfortunately not sufficient to solve his problem. My client, ÜLKE, believes that the ECtHR verdict can only be considered as settled if the Turkish authorities acknowledge his legalization in a written and publicly conveyable manner.
Lawyer Hülya Üçpınar: Ref 39437/98, 24/01/2006 Ülke Judgment, Final on 24/04/2006. September 20, 2012