INTERNATIONAL FELLOWSHIP OF RECONCILIATION
TURKEY: Follow-up report on Paragraph 23 of the Concluding Observations
Paragraph 23 of the Human Rights Committee's Concluding Observations on the Initial Report of Turkey under the International Covenant on Civil and Political Rights reads:
“The Committee 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)
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.”
Paragraph 26 stipulated: “ In accordance with rule 71, paragraph 5, of the Committee’s rules of procedure, the State party should provide, within one year, relevant information on its implementation of the Committee’s recommendations made in paragraphs 10, 13 and 23.”[1]
Summary
Turkey has not in the past twelve months introduced any legislation to recognise conscientious objection to military service or to provide the option of alternative service, nor has there been any public discussion of such proposals. If anything, the evidence is that the moves which were being made in this direction have been abandoned.
Proceedings against conscientious objectors have continued, and new proceedings have been initiated. The penalty in the first instance now tends to be a fine rather than detention, but the ultimate threat of imprisonment remains when all judicial proceedings are exhausted, and the pattern of repeated call-ups to military service persists.
Nothing has been done to suspend sentences already imposed.
In all three respects, Turkey would seem to fit in category C of the Committee's follow-up classification, “No action taken by the State Party to implement the recommendation.”; regarding legislation a case could be made for using the putative Category E - “The State Party's actions have been in a direction contrary to the recommendation.”
Adoption of legislation recognising and regulating conscientious objection to military service
On 23rd October 2012, five days after the conclusion of the Human Rights Committee's examination of Turkey's report, “ongoing discussions of legal amendments” to allow for conscientious objection to military service were mentioned by Turkey to the Commitee of Ministers of the Council of Europe,[2] with regard to the follow-up of the various European Court of Human Rights judgements[3] concerning conscientious objection to military service.
No legislative moves have however followed; the Bill introduced in 2011 by opposition BDP (Peace and Democracy Party) MP Sebahat Tuncel has disappeared without trace; the official responses by the Ministries of Defence and Justice to a further proposal by Tuncel on 21st May 2012 linked the recognition of conscientious objection to the establishment of a professional army, and stated that this was not on the agenda.[4]
Since receiving the Committee's Concluding Observations, Turkey has in fact moved away from legislating to recognise conscientious objection. On 11th April 2013, the Turkish Parliament adopted the Fourth Judicial Reform package, as part of the programme to align its legislation with the jurisprudence of the European Court of Human Rights. The initial draft had included provisions creating non-military national service options, and removing Article 318 of the Penal Code which created a very broadly-defined offence of “alienating people from military service”, thus stifling reporting on and public discussion of conscientious objection.[5] European Union enlargement Commissioner Stefan Füle issued a statement the following day in which while welcoming the package he regretted the lack of progress on the issue of conscientious objection. Füle expressed the hope that the outstanding issues would be dealt with in a forthcoming “Human Rights Action Plan”.[6] We are not aware of any further progress with this Plan.
Similarly the “Parliamentary Constitution Conciliation Commission”, tasked with drafting a replacement to the 1980 Constitution, discussed the question of conscientious objection to military service at its meeting on 22nd November, 2012, but failed to reach consensus. A group of conscientious objectors who had met with Commission members on 9th March 2012 reported that the Chairperson's questions had focussed on the implications for national security if no one was prepared to serve in the armed forces.[7]
It seems that in the national debate there is a degree of confusion – which may or may not be deliberate – between the acceptance of conscientious objection and the abolition of obligatory military service (which would of course in practice make the issue less urgent). Most obviously propagandist is the glib argument that to recognise conscientious objection would undermine national security. This deserves to be unpicked.
Prosecutions have been brought under the notorious Article 318 against people carrying banners reading “every Turk is born a baby”, as this is seen as mocking the popular slogan “Every Turk is born a soldier”. Does the political and military establishment really fear that the population as a whole no longer relates to this slogan – that if a right of conscientious objection were granted young Turks would seek to take advantage of it in such numbers as to create an insuperable shortfall in recruitment? Meawhile, it could also be argued that the resources diverted towards identifying and pursuing conscientious objectors, who at the end of the day still did not perform military service, represented a threat to national security than greater than the loss of the unwilling manpower.
Proceedings against conscientious objectors
It is important to realise that most Turkish conscientious objectors have simply not responded to the call up to military service and have subsequently lived semi-clandestinely so as not to be identified and prosecuted as “draft dodgers”. By contrast, many of the cases which figure in the jurisprudence have arisen when objectors co-operated with the requirement to report for military service, but then declared their objection.
Cenk Atasoy, the author of Communication 1853/08 to the Human Rights Committee under the First Optional Protocol to the ICCPR[8] was informed on 28th December 2012, in a reply from the Ministry of Justice to his petition asking for implementation of the Committee's Views, that the situation of conscientious objectors had already been somewhat ameliorated: “By the change of the related regulation on 31.03.2011, the crime of evasion of enlistment (bakaya) was converted to administrative pecuniary penal fine from penalty limiting freedom.” However, the letter continues, “In addition, based on the article 89 of the Military Service Law numbered 1111, after the decision concerning the administrative pecuniary penal fine becomes certain without any acceptable excuse about those committing the crime of evasion of enlistment, they will be penalized by imprisonment sentence.”
Various sources confirm that, following the judgements of the European Court of Human Rights in the cases of Ercep v Turkey, Feti Demirtas v Turkey and Savda v Turkey most cases of refusing the call-up to military service are now heard in the civilian courts which in the first instance generally impose fines rather than sentences of imprisonment. Conscientious objectors are however still not spared repeated call-ups and prosecutions. Moreover the Ministry of Justice's statement seems to imply that if objectors exhaust all appeal possibilities and refuse to pay the fines the courts may again revert to imprisonment.
On 5th February 2013, 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. A second case was pending at the time of the report.[9]
On 27th February 2013, Tekirdag Military Court sentenced Ali Fikri ISIK to 15 months' imprisonment on a charge of “desertion” relating to his refusal on grounds of conscience of his call-up to military service in 1993. Isik appealed against this verdict but while in custody started a hunger strike and was released after 15 days. He was again briefly taken into custody on 23rd January 2014. The police raided his home and took him to a police station in Beylikdüzü district of Istanbul. Then he was transferred to a military station, again in Istanbul. On 24th January he was taken before Tekirdağ Military Court to answer to a new charge of evading military service. Court proceedings on four previous such charges, brought at approximately eight-month intervals, are still ongoing. On each occasion he was taken into custody in order to appear in court; on this latest occasion the prosecutor asked for his arrest and transfer to a military prison but the court ordered his release pending trial.[10]
Protestant Pastor Kerem KOC, from Antalya, who was called up to military service on 15th November 2012, declared his conscientious objection in a letter to the Turkish military authorities, in which he emphasised his willingness to perform a civilian alternative service, but stated, “I cannot support an institution in which militarist world views and politics are sovereign, and where hatred leads brother to kill brother over race, religion, or language. For this reason, I will not be part of any armed force. Human beings are created in God's image, and are more important than any geopolitical boundaries or notions of ethnic territory. I believe people should live together in peace.”[11] On 10th December he received a reply stating that all Turks were equal before the law and that military service was obligatory. There could be no conscientious objection.[12] It has not been reported that any proceedings have yet been launched against Koc, but this is to be expected. Meanwhile he and his family have been subjected to abuse and threats from extreme nationalist elements.
Onur ERDEM, whose request for asylum was rejected by the authorities in Cyprus after he had managed to cross from the Turkish-controlled north of the island, was returned to Istanbul via Jordan on Thursday, July 11th 2013, and was immediately detained. Erdem had served in the military for three months in 2006, after which he deserted. He made a formal declaration of his conscientious objection in 2011. He had twice previously been sentenced and imprisoned for desertion; he alleges that he was tortured and abused during these detentions. On each occasion he was released on condition that he present himself within a day to “his” army unit, which as a conscientious objector he could not do. He now faces a third charge for the same offence issued, with an arrest warrant, by the Military Prosecutor of Gelibolu (Gallipoli). On his arrival in Istanbul on 11th July he was brought on arrival before the Military Prosecutor at Kasimpasa Naval Base, Istanbul, arrested and detained in the military prison in Kasimpasa. On 17th July, he was transferred to the 2nd Army Corps Command Military Prison in Gelibolu where he was detained until 5th September. His prosecution on the third charge of desertion is ongoing; to any sentence imposed is likely to be added nine months which remain unserved of the first two convictions.[13]
Moreover, there have recently been technical developments designed to facilitate the interception at random identity checks of those, including conscientious objectors, who have not performed military service. In order to obtain a new passport a man of military service age (20 to 38 years) has always been required to present a “Document of Completion of Military Service” and the issuing officer might indicate whether military service had been completed by writing in the appropriate place “yapmistir” (done) or, if a deferment had been granted to permit study abroad, “yapmamistir” (not done). In recent passports and identity documents, the bar code is electronically linked to the person's entry on the GBTS (Genel Bilgi Toplama Sistemi – General Information Gathering System) which - among such other details as convictions, arrest warrants, and tax arrears - indicates the person's military service status. A policeman or border official may read this information with a hand-held device, and if the person is in default can detain him on the spot.[14]
Suspension of sentences already imposed
The longest-standing conscientious objection case is that of Osman Murat ULKE, where the violations date back to 1993. In Opinion No. 36/1999 the Working Group on Arbitrary Detention found that his repeated imprisonments for his continued refusal on grounds of conscience to perform military service were arbitrary detentions, being in breach of the principle of ne bis in idem. In 2006, the European Court of Human Rights (ECtHR) ruled that the continuing possibility of further prosecutions and imprisonments, together with the situation of “civil death” he experienced as a result of his non-performance of military service, constituted inhuman or degrading treatment, in violation of Article 3 of the European Convention.
On 4th June 2012, Turkey reported to the meeting of the Committee of Ministers of the Council of Europe supervising the implementation of the EctHR's verdict the Ulke's name had been “removed from the list of persons searched for by the police and the arrest warrant against him was lifted.” (Ulke himself had not been informed of this, and learned it only when the proceedings were published.) Turkey also assured the Committee of Ministers “that the applicant can exercise his civic rights without hindrance, obtain a passport and travel abroad.” Nevertheless, it reported (and reiterated in its subsequent communication to the Committee of Ministers, on 23rd October 2012, that “as a result of the legislation in force, an investigation against the applicant on desertion charges is still pending and there is a theoretical possibility that he could be subjected to further prosecution and conviction.” “However”, the communication continues, “in this context the Government underlines the Military Court's reasoning [...] Referring to Article 90 of the Turkish Constitution and the evolving case law of the EctHR, the Military Court lifted the arrest warrant and, in order to prevent the applicant's potential victim status in future, did not impose any of the alternative measures which are provided in the Criminal Penal Code.” Reference was also made to a Council of Europe funded project on “Human rights training of military judges and prosecutors”, focussing specifically on the European Convention and the jurisprudence of the ECtHR. Although in itself no bad thing, this would be irrelevant if conscientious objectors no longer appeared in any circumstances before military tribunals.