Briefing paper for the Universal Periodic Review of UN Human Rights Committee of Turkey
Failure to legislate for conscientious objection
(03.12.2014) Turkey is the last country in the Council of Europe area to recognize conscientious objection to military service. Conscientious objectors face the possibility of a life-long cycle of prosecutions and imprisonment, and a situation of “civil death” which excludes them from the normal social, cultural and economic life.
In October 2012, the United Nations Human Rights Committee stated in paragraph 23 of its Concluding Observations regarding Turkey that it “is concerned that conscientious objection to military service has not been recognized by the State party. The Committee regrets that conscientious objectors or persons supporting conscientious objection are still at risk of being sentenced to imprisonment and that, as they maintain their refusal to undertake military service, they are practically deprived of some of their civil and political rights such as freedom of movement and right to vote. (arts. 12, 18 and 25)”, and recommended, “The State party should adopt legislation recognizing and regulating conscientious objection to military service, so as to provide the option of alternative service, without the choice of that option entailing punitive or discriminatory effects and, in the meantime, suspend all proceedings against conscientious objectors and suspend all sentences already imposed.”1 It also selected paragraph 23 as one of the three on which the Committee stipulated, "the State Party should provide, within one year, relevant information on its implementation of the Committee's recommendations" 2
Turkey submitted a follow-up report in July 2014, following a reminder from the Committee. Regarding paragraph 23, however, the response was very brief. “The State party quoted the law regarding compulsory military service and indicated that there are no plans to introduce a civilian alternative to compulsory military service.”3 The Committee's evaluation of this response was in their lowest category: “E: The response indicates that the measures taken are contrary to the Committee’s recommendations.”4 The Committee observed: “The State party’s reply indicates that there are no plans to introduce a civilian alternative to compulsory military service. The Committee’s recommendation has not been implemented and the Committee reiterates its recommendation.”
Turkey has been also under the enhanced supervision of the Committee of Ministers of the Council of Europe concerning five judgments of the European Court of Human Rights (ECtHR) regarding conscientious objection.5 On 23rd October 2012, the Turkish Government informed the Committee of Ministers of “ongoing discussions of legal amendments” to allow for conscientious objection to military service.6
Nevertheless no legislative steps have followed. The Bill introduced in 2011 by opposition Peace and Democracy Party MP Sebahat Tuncel has disappeared without trace7; the official responses by the Ministries of Defence and Justice to a further proposal by Tuncel on 21 May 2012 linked the recognition of conscientious objection to the establishment of a professional army, and stated that this was not on the agenda.8 Parliamentary questions by MPs Adil Kurt (2013)9, Husamettin Zenderlioğlu (two in 2013)10, Mülkiye Birtane (2012 and two in 2013)11 and Umut Oran (2012)12 received either no response at all, or an answer which did not address the legislative amendments on conscientious objection or the situation of objectors.
On 5th August 2014 the Ministry of Justice replied to a request from lawyer Davut Erkan submitted through the Turkey Human Rights Institute that no work was in hand to prepare a law on the right of conscientious objection.13 On 2nd October, the Ministry of Defence replied that nobody is immune from patriotic service within the framework of the Constitution of and the Law on Military Service.14
It is not known how many persons in Turkey have conscientious objections to military service. A majority of the individual cases which have been taken to the ECtHR under the European Convention on Human Rights or to the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights have concerned Jehovah's Witnesses. These may represent 30 to 40 Jehovah's Witnesses undergoing prosecution for their refusal of military service at any one time. Jehovah's Witnesses in Turkey have not however in the past published lists and statistics as detailed as for some other countries
Jehovah's Witnesses have characteristically responded to military call-up by reporting to the military unit as required but then requesting that they be provided with a civilian alternative service, even though they know there are no provisions in Turkey for this. For most conscientious objectors, however, the lack of provisions means that there is no incentive to report, and indeed many fear the consequences of identifying themselves publicly. Public declarations of conscientious objection to military service have been posted on the website of the Association for Conscientious Objection by 261 men who are liable for military service,15 but countless others whose objection to military service is based on religious, ethical, moral or humanitarian grounds have simply joined the vast numbers of “evaders” who have never reported for military service – 590,000 according to the Ministry of Defense; 800,000 according to the Turkish Institution of Statistics.16
The treatment of conscientious objectors
As there are no provisions for conscientious objection, objectors remain subject to the Law on Military Service, Article 3 of which divides military service into draft period, active service and the reserve. The draft period starts from the beginning of military [eligibility] age and continues until the time of entry into a unit; the normal duration of active military service is twelve months, and is followed by reserve service until the age of 41. However, there is no definition of the age of eligibility for active military service, and in practice no upper age limit on the when one may begin or complete the requirement.
Thus Vedat Zencir, who in 1989 had been one the first two declared conscientious objectors in Turkey, was on 22 October 2014 at the age of 51 apprehended by the police and brought to the local Conscription Office, where he was instructed to report to his military unit within three days. Likewise, Ali Fikri ISIK, who declared himself a conscientious objector when arrested in 2012 on desertion charges, served six months in prison during 2012 and 2013 following four separate convictions for desertion, as each time on release he was ordered to report to his military unit, but each time did not. Ultimately Edirne Military Court accepted a medical report that he is unfit for the military service, but the penalty imposed on that occasion with regard to his previous desertion – a fine of 15,000 Turkish Lira fine or otherwise 25 months imprisonment will still be imposed.
According to Article 47 of the Law on Military Service, evaders identified by the Ministry of Defense and recruiting offices are notified to the Ministry of Interior and the highest civilian authority of the district respectively. When an evader is apprehended by the police or the gendarmerie he must be sent to the nearest recruiting office within 24 hours. There is no domestic remedy to challenge this procedure.
Evaders are penalized by administrative fines in accordance with art. 89 of the Law on Military Service; the amount varies in relation with the duration of the evasion.17 If an evader still does not report for military service, he is prosecuted in accordance with art.89 and tried by Peace Courts in accordance with art.63 of the Military Penal Code, the sentence. A delay of more than four months in reporting for military service results in a sentence of between four and twelve months imprisonment; if the delay is more than a year the sentence can range from six months to 36 months. Unless the person decides or is forced to serve arrest warrants continue to be issued and he will be prosecuted each time he is arrested.
Many simple “evaders” proceed to perform military service once apprehended, but conscientious objectors persist in their refusal, and thus face vicious circles of arrests, prosecutions, criminal cases and imprisonment.
For example, on 5th February 2 013, the European Association of Jehovah's Christian Witnesses reported to the Committee of Ministers of the Council of Europe that one of their members, Ilker Sarialp, aged 31, of Istanbul, was continuing to receive a fresh call-up to military service three times each year, and each time refused on the grounds of conscientious objection. Between May 2012 and February 2013 he had been indicted three times. One court case against him had been heard and had resulted in a fine of 250TL, which he intended to appeal.18
The Human Rights Committee, has stated that such a situation “may amount to punishment for the same crime” breaching the principle of ne bis in idem if the “refusal is based on the same constant resolve grounded in reasons of conscience”.19
As soon as a person arrives at a military unit, whether by consent or forcedly, he acquires the status of a soldier, and becomes subject to military laws, military charges and punishments. If he leaves the unit without permission he is defined as a deserter and subjected to imprisonment between one to three years in accordance with the art.66 of the Military Penal Code. The same applies to those who do not return their units after a short period of legal leave or after a release from the prison.
A conscientious objector who has been forcibly recruited, or who developed objections after recruitment, may refuse to co-operate with the military authorities and will then face imprisonment of between three months and a year on charges of disobeying orders. Under certain conditions this imprisonment could be increased to five years.
In either case the cycle of prosecution and imprisonment may potentially continue for life unless the person finishes his military service. It should be noted that any period spent in prison is not included in the period of military service.
Three of the five objectors concerned in the judgments by the European Court of Human Rights have subsequently been found by the military authorities to suffer from “a psycho-social disorder rendering them permanently unfit for military service”. Two others, Osman Murat Ülke who was described by the ECtHR in 2006 as living under a state of “civil death” which constituted cruel, inhuman and degrading treatment in violation of Article 3 of the European Convention on Human Rights20 and Mehmet Tarhan, in whose case the ECtHR in 2012 found a similar violation (along with violations of Article 6 – Fair Trial and Article 9 – Freedom of Religion or Belief) remain subject to the requirement to perform their military service, are formally classified as deserters, and thus the situation of “civil death” continues; they must avoid any dealings with the police or public authorities, which might automatically trigger fresh prosecutions.
The dangers of apprehension have significantly increased in recent years as a result of the general information gathering system. The problems is based on the arrest warrants issued by the administration in accordance with the protocol signed between the Ministries of National Defense and Interior Affairs on 4 December 2012 and the fines issued thereafter. The Protocol put into practice by the Gendarmerie General Commandership on 25 September 2013 and by the Ministry of Interior on 3 October 2013. Until then the credentials of draft evaders were recorded in UYAP (National Network of Judiciary), GBT (General Database Collection) and GİYKİMBİL (Provisional Residency and Reporting Identity) systems.21
During the last three months of 2013, 4,920 evaders were detained as a result of regular ID checks under the General Database system.22 This system also enables evaders including conscientious objectors to be immediately identified while carrying out transactions at banks, airports, health institutions, etc.
Ercan Aktaş, one of the founders of the Association for Conscientious Objection was first apprehended in a hotel in Urfa on 20 August 2014 and released after signing arrest warrant. Secondly he was also apprehended in a hotel in Ankara and same procedure repeated. Last time while he was in the Passport Department of Besiktas Police Quarters he was subjected to the same procedure.
Other conscientious objectors were also apprehended as a result of their record within the General Database Collection system: Doğan Özkan when he was at the Besiktas Police Department on 14 April 201423; M. Lutfu Özdemir from the hotel he was staying in Bursa on 16 March 201424; Murat Demiroğlu from the hotel he was staying in Adana first time on 12 May 2014 and second time on 30 June 2014.25
In all the above cases separate charges will be brought as a result of each apprehension. Vedat Zencir, mentioned above with regard to age, also awaits charges as a result of two arrests in 2014.
Fines have been already been imposed on other objectors: Muslum Kılıc was fined 10.696 Turkish Liras on 23 September 201326, Gunce Ozberk 12.325 Turkish Liras on 4 September 201427 and Devrim Yucel 13.542 Turkish Liras on 24.04.201428.
The ever-present danger of arrests, fines and potential imprisonment, together with the pattern of repeated prosecutions for the same “offence” is what creates the situation described by the ECtHR in the Ulke case as “civil death”. Conscientious objectors are forced or intimidated into withdrawal from social, political and economical lives. The COs do not have the possibility to enjoy their economical freedoms on an equal basis with other citizens.
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 to 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.
As a result of the regulations in different laws in addition to the abovementioned ones the COs have to work illegally and under degrading conditions.
Another result is the impossibility to join the social security system. The COs have no possibility to resume their registration in the social security system and they are not covered against possible health situations and can’t even imagine to retire one day. Therefore they do not have access to public service on an equal basis with other citizens.
Suggested questions and recommendations
What action is the State under Review taking in order to implement the concluding observations and views of the Human Rights Committee and the verdicts of the European Court of Human Rights with regard to conscientious objection to military service?
That the State under Review adopt without delay legislation making provision for conscientious objectors to military service.
That the State under Review cease forthwith the practice of repeated prosecution and punishment of persons who have refused on grounds of conscience to perform military service.
That the State under Review progressively repeal all the legislative provisions which discriminate in civilian life against those who have not completed military service.
For enquiries please contact Ms. Hülya Üçpinar or Mr. Davut Erkan.
1 CCPR/C/TUR/CO/1, 2nd November 2012, Para 23
2 ibid, Para 26
3 Draft report on follow-up to the concluding observations of the Human Rights Committee (document ref. CCPR/C/112/2/22), October 2014, p18.
4 ibid, p. 2
5 Osman Murat Ülke v. Turkey, 39437/98, 24/01/2006; Yunus Erçep v. Turkey, 43965/04, 22/11/2011; Feti Demirtaş v. Turkey, 5260/07, 17/01/2012; Halil Savda v. Turkey, 42730/05, 12/06/2012; Mehmet Tarhan v. Turkey, 9078/06, 17/07/2012
6 Ucpinar, H. Execution of the Judgment Ulke v. Turkey: Monitoring report «The right to conscientious objection », IHOP (Insan Haklari Ortak Platformu – Human Rights Joint Platform, Istanbul, April 2013.
10 www.tbmm.gov.tr/develop/owa/yazili_sozlu_soru_sd.onerge_bilgileri?kanunlar_sira_no=145579; www.tbmm.gov.tr/develop/owa/yazili_sozlu_soru_sd.onerge_bilgileri?kanunlar_sira_no=124502
11 www.tbmm.gov.tr/develop/owa/yazili_sozlu_soru_sd.onerge_bilgileri?kanunlar_sira_no=131474 http://www.tbmm.gov.tr/develop/owa/yazili_sozlu_soru_sd.onerge_bilgileri?kanunlar_sira_no=126522 http://www.tbmm.gov.tr/develop/owa/yazili_sozlu_soru_sd.onerge_bilgileri?kanunlar_sira_no=109658
13 Ministry of Justice, General Directorate of Laws, email message ref. no. 94580662/2013-622.01-556/773/6935
14 Response of the Ministry of Defence, ref.no. 46987865-5010-1463-14/ASAL D.Er İşl.Ş.Özl.İşl.Ks.
15 This is the number of the objectors declared their objection in conjunction with the Association for Conscientious Objection, http://vicdaniret.org/category/retaciklama/
16 www.cumhuriyet.com.tr/haber/egitim/64407/Binlerce_ogrenciye_kotu_haber.html; http://haber.stargazete.com/politika/asker-kacaklari-icin-polis-tum-yollari-kapadi/haber-809100
18 Committee of Ministers of the Council of Europe, document reference DH-DD(2013)185, distributed 22nd February 2013.
19 General Comment 32, para 55.
20 Osman Murat Ülke v. Turkey, 39437/98, 24/01/2006; Yunus Erçep v. Turkey, 43965/04, 22/11/2011
21 www.ensonhaber.com/basbakandan-asker-kacaklarini-sevindirecek-talimat-2013-11-23.html; www.cumhuriyet.com.tr/haber/egitim/64407/Binlerce_ogrenciye_kotu_haber.html; www.radikal.com.tr/turkiye/asker_kacaklari_24_saat_icinde_teslim_edilecek-1162365
25 http://vicdaniret.org/vicdani-retci-murat-demiroglu-2-gozaltisinda-da-hic-evraka-imza-atmadi/; http://vicdaniret.org/vicdani-retci-demiroglu-hic-bir-evraki-imzalamadi-serbest-birakildi/
26 Istanbul Yeditepe Tax Department, ref.no: 2014071466505001430, 23.09.2014
27 Osmangazi District Governorship, 2014/ 5789 E, 158 K., 04.09.2014
28 Tunceli Peace Court, 2014/88 D.Is., 24.04.2014
Vicdani Ret Derneği: Briefing paper for the Universal Periodic Review: Turkey. 3rd December 2014. Contact: Söğütlüçeşme Caddesi No:76 Sevil İş Hanı Kat:5 Ofis:108 Kadıköy-İstanbul, eMail: dernek(at)icdaniret.org Tel:+90 (216) 345 01 00