Human Rights Watch Letter to Turkish Prime Minister
We write today to urge you to recognize the right to conscientious objection and to provide a civilian alternative for those who refuse on the basis of conscience to serve in the armed forces.
Turkish law punishes conscientious objectors under articles 58 and 87 of the Turkish Military Criminal Code, which provide imprisonment ranging from two months to two years for “undermining national resistance” and “wilfully disobeying an order” respectively. Conscientious objectors may also be punished under article 318 of the Turkish Criminal Code for “alienating the public from the institution of military service,” which carries a possible prison term of up to four and a half years.
These provisions conflict with international human rights law, which recognizes conscientious objection as a fundamental right. Article 18 of the International Covenant on Civil and Political Rights (ICCPR), and article 9 of the European Human Rights Convention (ECHR), both ratified by Turkey, safeguard freedom of thought, conscience and religion. The United Nations, in its interpretation of ICCPR article 18, affirmed that “the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief“ and urged member states to offer alternative civilian service. (General Comment No. 22: July 30, 1993.) The Council of Europe has urged that “Anyone liable to conscription for military service who, for compelling reasons of conscience, refuses to be involved in the use of arms, shall have the right to be released from the obligation to perform such service” (Recommendation R(87)8 of the Committee of Ministers of the Council of Europe.)
Many Council of Europe countries have no compulsory service. These are Andorra, Belgium, Czech Republic, France, Hungary, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, Poland, San Marino, Serbia, Slovakia, Slovenia, Spain and United Kingdom. Of the 24 Council of Europe states that do require military service, the overwhelming majority offer alternative civilian service. They are Albania, Armenia, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Denmark, Estonia, Finland, Georgia, Germany, Greece, Latvia, Lithuania, Norway, Portugal, Romania, Russian Federation, Sweden, Switzerland, Macedonia and Ukraine. In Greece, a 1998 law recognized the right of conscientious objection, and provided for alternative civilian service. Unfortunately the service was of punitive length — 23 months as compared to the standard service of 12 months (17 months for non-commissioned officers). Only Turkey and Azerbaijan provide no alternative whatsoever to military service, but Azerbaijan is currently developing draft legislation for alternative civilian service.
Turkish citizens who have followed their conscience in rejecting military service continue to be subjected to outright persecution by legal and other means.
The Case of Osman Murat Ülke
In January 2006 the European Court of Human Rights (ECtHR) ruled that Turkey had violated the convention by repeatedly imposing custodial sentences on Osman Murat Ülke for exercising his right to conscientious objection.
Osman Murat Ülke was one of the first to assert the right of conscientious objection in Turkey. He first refused military service on September 1, 1995; between then and 1999 he served nearly two years in military prisons for “alienating the public from the institution of military service” and “wilfully disobeying orders.” In 1998 Osman Murat Ülke filed a complaint with the ECtHR and, on January 24, 2006, the court ruled that:
The numerous criminal prosecutions against the applicant, the cumulative effects of the criminal convictions which resulted from them and the constant alternation between prosecutions and terms of imprisonment, together with the possibility that he would be liable to prosecution for the rest of his life, had been disproportionate to the aim of ensuring that he did his military service. They were more calculated to 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 had been compelled to adopt was incompatible with the punishment regime of a democratic society. (Osman Murat Ulke v. Turkey, January 24, 2006, Application no. 39437/98)
The court found the persecution to be degrading, and a violation of article 3 of the convention, and ordered Turkey to pay 11,000 euros in compensation.
Following the court decision, official harassment of Osman Murat Ülke and his family has increased. On March 7, 2006, plainclothes police who introduced themselves as gendarmerie officers from Ahýrlý, Konya—Osman Murat Ülke’s registered place of birth—approached Ülke’s father, who suffers from a severe heart condition, and questioned him concerning the whereabouts of Osman Murat Ülke. They said that they would keep the father’s house under observation until such time as they could “capture” Osman Murat Ülke; the house was indeed monitored, apparently by plainclothes policemen, over the following days. Yet Osman Murat Ülke is not, to his knowledge, subject to an arrest order for any crime, and his home address is well known to the relevant authorities.
The Case of Mehmet Tarhan
The personal misery inflicted on conscientious objectors is well described by the ECtHR decision, and further illustrated by the recent case of Mehmet Tarhan, who from April 8, 2005 until March 9, 2006 was imprisoned and ill-treated, and remains under threat of long terms of imprisonment because he refused on grounds of conscience to carry out military service.
Mehmet Tarhan declared his conscientious objection on October 27, 2001. On April 8, 2005, he was detained and held at Sivas Military Prison where fellow prisoners, reportedly incited by some members of the prison staff, threatened, intimidated, and beat him. Prison officials also forcibly shaved his hair and beard.
Mehmet Tarhan was sentenced to two consecutive terms of two years of imprisonment for “disobedience” under article 88 of the Turkish Military Criminal Code. However, on March 9, 2006, the Military Court of Appeal Council released Mehmet Tarhan on remand pending further proceedings. The court held that “Mehmet Tarhan had shown persistent disobedience to orders, and conscientious objection cannot be accepted as grounds [for this behavior].” Adding insult to injury, the court also ruled that Tarhan’s sexual orientation should be examined “under medical conditions in order to establish whether or not he is fit for military service.” It has been the practice of the military to subject candidates for military service who are seeking exemption on the basis of being gay to physical as well as psychological examination, to establish their sexual orientation and practice, despite the fact that such degrading physical examinations have been conclusively discredited.
Since there are now at least 57 declared conscientious objectors in Turkey, cases like these are likely to multiply unless the government brings its law on military service in line with its international commitments.
Not only does Turkey refuse to recognize the right of conscientious objection, it also restricts the right to freely discuss the issue. Article 318 of the Turkish Criminal Code provides for imprisonment for up to three years for making public statements that undermine the institution of military service. The Criminal Code was only passed into law last year and already numerous people have been charged under this article. The journalist Birgül Özbarýþ has been charged with seven counts of violating article 318 for a series of articles she wrote for the daily newspaper “Ülkede Özgür Gündem” (Free Agenda in the Nation) on the right of conscientious objection. Simultaneously indicted were the newspaper’s editor, Hasan Bayar, and the owner, Ali Gürbüz. Their trial continues at Beyoðlu Primary Court No. 2. These prosecutions were initiated by the Office of the Chief of General Staff. In an astonishing move, a July 2006 law made criticism of military service a terrorist offence. By bringing article 318 within the scope of the Anti-Terror Law, this law increased the existing maximum sentence for such an offence by half, and provided that sentences must be served in F-type special prisons, which apply a harsh regime of small group isolation. The courts decided that this law should apply retrospectively to Birgül Özbarýþ, and all her prosecutions are to be moved to the Special Criminal Courts which deal with Anti-Terror Law cases.
The Office of the Chief of General Staff also initiated the prosecution brought against journalist Perihan Maðden, who was charged under article 318 for an article she wrote entitled “Conscientious Objection Is A Human Right” in the weekly journal Yeni Aktüel on December 2005. In that article she stated that “service to the fatherland does not necessarily mean picking up a weapon. This service could be done by cleaning in a creche, driving an ambulance or teaching English in a children’s home.” The public prosecutor charged her with "prompting, encouraging or spreading propaganda to deter people from accomplishing military service." On July 27, 2006, in a welcome judgment, the Istanbul Primary Court No. 2 acquitted Perihan Maðden on the grounds that the expression of her views was protected by article 26 of the Turkish constitution and article 10 of the European Convention on Human Rights.
Human Rights Watch has been following with interest plans to amend article 25 of the Citizenship Law so that those who refuse to do military service on grounds of conscience (or indeed for any other reason) are not stripped of their Turkish citizenship. Describing the draft bill to the Citizenship Law, Justice Minister Cemil Çiçek stated on March 13, 2006, that “[n]ot undertaking military service will no longer be grounds for stripping a person of their Turkish citizenship. If there is to be any arrangement, that is, if a sanction is to be applied [in this respect], we believe it can be done through the relevant law, the Law on Military Service. With this draft, it will no longer be grounds for removal of citizenship.”
The draft is designed to harmonize Turkey’s law with the European Convention on Nationality, in preparation for Turkey’s accession to that convention. The convention, which is a Council of Europe instrument, provides that conscientious objectors of dual nationality who have fulfilled service requirements by completing a term of civilian alternative service in one of their countries of nationality shall be deemed to have fulfilled the military service requirement in their other country of nationality.
The proposed changes are welcome, and will be good news to those affected, but they may also lead to anomalies that only underscore the extent to which Turkey is out of step with the rest of Europe in its non-recognition of the right of conscientious objection. For example, a conscientious objector with dual citizenship who has undertaken alternative civilian service in Germany would be deemed to have fulfilled national service, while a conscientious objector who is a citizen of the United Kingdom, where there is no military service requirement, might risk imprisonment for up to 10 years for refusing armed service in Turkey.
Human Rights Watch welcomes the measures taken in order to harmonize Turkish law with the European Convention on Nationality, but these improvements do not resolve the fundamental problem of a lack of recognition of the right of conscientious objection and of a failure to provide alternative civilian service. We therefore urge your government to take the following additional steps:
- to enact legislation recognizing the right of conscientious objection in Turkish law;
- to establish, if necessary, a civilian alternative service equivalent in duration to military service;
- to investigate the ill-treatment inflicted on Mehmet Tarhan in Sivas Military Prison and bring those responsible to justice;
- ensure that the military authorities desist from any attempt to carry out any physical examination of military service candidates who are, or are believed to be, homosexual;
- to end the official harassment of Osman Murat Ülke and his family;
- to abolish article 318 of the Turkish Criminal Code, and drop all charges currently pending against Birgül Özbarýþ, Hasan Bayar, and Ali Gürbüz.
We appreciate your attention to this issue and look forward to your response.
Europe and Central Asia Division
Human Rights Watch
Abdullah Gül, Deputy Prime Minister, Foreign Minister, and State Minister responsible for Human Rights
Abdulkadir Aksu, Interior Minister, Ankara
Mehmet Vecdi Gönül, Milli Savunma Bakanı, Ankara
General Yaşar Büyükanıt, Chief of General Staff, Ankara