Council of Europe: Decision to Conscientious Objection in Turkey

Urgent individual measures

Case description

These cases concern the applicants’ repetitive convictions and prosecutions for having refused to carry out compulsory military service on account of their religious beliefs or convictions as pacifists and conscientious objectors.

In the cases of Ülke, Savda and Feti Demirtaş the Court found that the applicants’ repetitive convictions and prosecutions amounted to a violation of Article 3 of the Convention.

In the cases of Erçep, Savda and Feti Demirtaş, the Court found that the Turkish authorities have failed to comply with their positive obligation under Article 9 of the Convention because they did not make available to the applicants an effective and accessible procedure which would have enabled them to have established whether they were entitled to conscientious objector status. The Court also noted in this respect that there was no alternative service to compulsory military service in Turkey.

In the cases of Erçep, Savda and Feti Demirtaş, the Court found a violation of Article 6 § 1 of the Convention because the applicants, as civilian conscientious objectors, were tried and convicted by military courts.

Status of execution

Individual measures

Ülke: The applicant’s name was removed from the list of persons searched for by the police and the arrest warrant against him was lifted. The Turkish authorities gave assurances that the applicant can exercise his civic rights without hindrance, obtain a passport and travel abroad. However, an investigation against the applicant is still pending as a result of the legislation in force and there is a theoretical possibility that he could be subjected to further prosecution and conviction. Legislative measures should be taken to exclude any possibility of the applicant’s further prosecution and conviction (see the decision adopted by the Committee of Ministers at its 1150th meeting).

Erçep: The applicant was acquitted on all charges of draft evading in March 2011. In their decisions of acquittal, Turkish courts referred to the Convention requirements and the case-law of European Court as well as international standards concerning rights of conscientious objectors. However, the applicant is still under the obligation to pay an administrative fine for draft evading because draft evading is no longer categorised as a criminal offence but as an administrative felony following the legislative changes introduced in March 2011. The applicant is still under an obligation to carry out his military service in accordance with the current legislation but there is no arrest warrant or pending investigation against him.

Savda: The applicant is no longer under the obligation to carry out his military service as a consequence of a medical report issued in April 2008 finding that he was suffering from “anti-social behaviour” and therefore was not fit to carry out his military service (§32 of the judgment). There is no arrest warrant or pending investigation against the applicant.

Feti Demirtaş: The applicant is no longer under the obligation to carry out his military service as a consequence of a medical report issued in February 2007 finding that he was suffering from “anti-social behaviour” and therefore was not fit to carry out his military service (§56 of the judgment). However, on 16 May 2012, the applicant was convicted and sentenced to imprisonment for disobedience to a military order which was given on 1 December 2006 before the above-mentioned medical report was given. The applicant lodged an appeal against this decision. The appeal proceedings are still pending. There is no arrest warrant against the applicant.

General measures

Legislative measures: In its decision adopted at the 1150th meeting (September 2012), the Committee of Ministers urged the Turkish authorities to take the necessary legislative measures with a view to preventing repetitive prosecution and conviction of conscientious objectors. The Turkish authorities informed the Committee on 23 October 2012 that consultations between the relevant authorities were on-going with the aim of identifying the general measures required to execute these judgments.

Training and awareness raising activities: The Turkish authorities drew the Committee’s attention to the project carried out with the Council of Europe on “Human Rights Training of Military Judges and Prosecutors”. The overall aim of the project is to improve the application of the Convention at domestic level through raising awareness of military judges and prosecutors on the Court’s case-law. It is expected that the activities carried within the context of this project (such as training and translation of relevant judgments of the European Court) will have an impact on the direct application of the Convention standards in Turkish law.

Measures concerning the violation of Article 6 of the Convention: No information has been provided in this respect.

 1157th meeting – Notes:

Information provided with respect to individual measures: It appears from the information provided that there are no arrest warrant issued against the applicants. However, the applicants in the cases of Ülke and Erçep are still under the obligation to carry out their military service as a result of the legislation in force. There is also a theoretical possibility that they are subjected to further prosecution and conviction. In addition, the applicant in the case of Erçep is under the obligation to pay an administrative fine for draft evading. The applicants in the cases of Savda and Feti Demirtaş are no longer under the obligation to carry out their military service but the second applicant was convicted and sentenced to imprisonment for disobedience to a military order, although his conviction is not final yet.

Consequently, measures should be taken to ensure that the applicant in the case of Erçep is no longer under the obligation to pay an administrative fine and that the applicant in the case of Feti Demirtaş is no longer subjected to further prosecution and conviction.

Information with respect to general measures: As the Committee noted at its 1150th meeting, legislative measures should be taken with a view to preventing repetitive prosecution and conviction of conscientious objectors not only to exclude any possibility of the applicants’ further prosecution and conviction but also to prevent similar violations in the future. Legislative measures are also required to ensure that an effective and accessible procedure is made available to conscientious objectors in order to establish whether they are entitled to conscientious objector status. Lastly, information is awaited on the measures taken or envisaged in order to ensure that conscientious objectors are not tried before military courts in light of the findings of the European Court in the cases of Erçep, Savda and Feti Demirtaş.

Decisions

The Deputies

1. noted that there are no arrest warrants issued against the applicants in the Ülke group of cases for any crimes related to failure to carry out military service;

2. noted, however, with concern that the applicant in the case of Erçep is still under the obligation to pay an administrative fine draft evading and the applicant in the case of Feti Demirtaş was convicted and sentenced to imprisonment for disobedience to a military order, although his conviction is not final yet;

3. urged the Turkish authorities to take the necessary measures to ensure that the consequences of the violations found by the Court in these cases are completely erased for the applicants;

4. urged the Turkish authorities to take the necessary legislative measures with a view to preventing the repetitive prosecution and conviction of conscientious objectors and to ensuring that an effective and accessible procedure is made available to them in order to establish whether they are entitled to conscientious objector status;

5. invited the Turkish authorities to provide information to the Committee of Ministers on the measures taken or envisaged in order to ensure that conscientious objectors are not tried before military courts in the light of the findings of the European Court in the cases of Erçep, Savda and Feti Demirtaş.

Reference texts

Interim resolutions: CM/ResDH(2007)109 ; CM/ResDH(2009)45

Letter sent by the Chairman and the response of the Turkish authorities: DD(2009)556; DD(2010)107

Letter of 20/07/2011 sent by the applicant’s representative: DH-DD(2011)600

Action plan in Erçep, Savda and Feti Demirtaş (29/10/12) DH-DD(2012)1019

Communication from the applicant's representative DH-DD(2012)545E

Communication from the applicant's representative DH-DD(2012)844E

Communication from the authorities DH-DD(2012)791

Communication from the authorities (29/10/12) DH-DD(2012)1014

Decision adopted at the 1150th meeting

Council of Europe – Committee of Ministers. CM/Del/Dec(2012)1157E, Excerpt to Ülke Group v. Turkey, Application 39437/98. 1157^th Meeting (DH), 4-6 December 2012, Published 10 December 2012. CM/Del/Dec(2012)1157E; Source: https://wcd.coe.int/ViewDoc.jsp?id=2013315. Übersetzung: rf

Keywords:    ⇒ Conscientious Objection   ⇒ Europe   ⇒ Halil Savda   ⇒ Osman Murat Ülke   ⇒ Prosecution   ⇒ Turkey