Mine Yildirim is head of the Norwegian Helsinki Committee’s Freedom of Belief Initiative in Turkey.

Nearly two decades after the 2006 Ülke v. Turkey[1] judgment of the European Court of Human Right (ECtHR), and findings of the United Nations (UN) bodies such as the Human Rights Committee (HRC or the Committee) and the UN Working Group on Arbitrary Detention, Türkiye still has not recognized the right to conscientious objection to military service. Punitive measures impacting freedom of thought, conscience, and religion and other fundamental rights for conscientious objectors continue to be integral to national policy. The robust recognition of the right to conscientious objection to military service right under international human rights law, within the scope of the right to freedom of thought, conscience, and religion, has provided the basis for the legal struggle to put an end to human rights violations that conscientious objectors have experienced in Türkiye.

Türkiye’s Human Rights Obligations and International Compliance Control

Türkiye has significant human rights obligations as a party to core international human rights treaties within both the UN and the Council of Europe human rights protection schemes. Both the ECtHR and the UN HRC have found that Türkiye has violated the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), respectively.[2]

In 2012 the HRC issued its view on the communication of Atasoy and Sarkut v. Turkey where the applicants claimed that the absence of an alternative to compulsory service violated their rights under Article 18(1) of the ICCPR.  The applicants did not seek exemption from compulsory national service; rather, they objected to the fact that a civilian alternative service was absent. The HRC considered that the applicants’ objection to being drafted for compulsory military service derived from their religious beliefs, genuinely held, and which had not been contested.

Furthermore, the criminal prosecution and prison sentences following the objection to military service constituted infringement of objectors’ freedom of conscience in violation of Article 18(1). The HRC held that “repression of the refusal to be drafted for compulsory military service, exercised against persons whose conscience or religion prohibits the use of arms, is incompatible with article 18, paragraph 1” and that Turkey violated Article 18(1) of the ICCPR.

The UN Working Group on Arbitrary Detention (WGAD) has also addressed applications from conscientious objectors from Türkiye. In 2003 the WGAD declared arbitrary the detention of conscientious objectors following a second conviction, on the grounds that imposing multiple successive detentions would be tantamount to compelling individuals to change their convictions and beliefs to avoid being subjected to criminal prosecution throughout their lives. The WGAD determined this result was incompatible with the principle of double jeopardy or ne bis in idem, thus violating Article 14(7) of the ICCPR.[3]

The UN WGAD has issued two opinions on the cases of two conscientious objectors in Türkiye: Osman Murat Ülke and Halil Savda. Regarding Ülke’s application, the Working Group considered Ülke’s repetitive detentions arbitrary and in violation of the fundamental principle non bis in idem, an essential guarantee of the right to a fair trial. The second opinion addressed the case of Savda, who did not return to his unit after basic training due to conscientious objection. He was convicted after being found to be a deserter. The WGAD found that Savda’s second conviction by the Military Court for insubordination and his sentence to a prison term of six months, upheld by the Military Court of Cassation, violated his right to a fair trial. The WGAD found that Savda’s deprivation of liberty violated Articles 9 and 18 of the Universal Declaration of Human Rights (UDHR) and the ICCPR.

The ECtHR found violations of several rights in a series of cases involving conscientious objection to military service, including Ülke v. Turkey (2006), Erçep v. Turkey (2012), Feti Demirtaş v Turkey (2012), Savda v. Turkey (2012), Tarhan v. Turkey (2012), Buldu & Others v. Turkey (2014), and Enver Aydemir v. Turkey (2016). Most recently, the ECtHR delivered a judgment on conscientious objection on 12 March 2024, in Kanatlı v. Turkey. Here the ECtHR found that even a refusal to participate in reserve service fell within the scope of this right.

The Ülke group of cases pertain to violations of Article 3 (the prohibition of torture and inhuman or degrading treatment), Article 9 (the right to freedom of thought, conscience, and religion) and Article 6 (the right to a fair trial) enshrined in the ECHR.

The ECtHR has made four key findings in the Ülke group of cases:

1. The lack of a sufficient legal framework for those who refuse to wear the military uniform and/or perform military service on grounds of conscience or religion and the ensuing interminable series of prosecutions and convictions are disproportionate to the aim of ensuring the performance of military service. The series of prosecutions and convictions aimed at repressing the objector’s intellectual personality and breaking the objector’s resistance, will, and compulsion to lead a clandestine life, amount almost to “civil death,” which is incompatible with the punishment regime of a democratic society (see Ülke). In the aggregate, the acts concerned constitute inhuman or degrading treatment within the meaning of Article 3 (see Ülke, Savda, Feti Demirtaş, Buldu & Others, Enver Aydemir, and Tarhan).
2. The lack of an effective and accessible procedure in Türkiye that would have enabled conscientious objectors to have established whether they were entitled to conscientious objector status was a violation of Article 9 of the Convention (see Erçep, Savda, Feti Demirtaş, Buldu & Others, and Tarhan).
3. The system of compulsory military service in Türkiye imposes on citizens an obligation that may have serious consequences for conscientious objectors: it does not allow any exemption on grounds of conscience and gives rise to the imposition of heavy criminal penalties. Thus, the interference in question originates not only from potential multiple convictions of the applicant but also from the absence of alternative service (see Ercep, Feti Demirtaş, and Tarhan).
4. The trial and conviction of civilian conscientious objectors by military courts constituted a violation of Article 6(1) of the Convention (see Erçep, Savda, Buldu & Others, and Feti Demirtaş).

In June 2024, the Council of Europe Committee of Ministers, tasked with supervising the implementation of judgments, adopted an interim resolution, the third for this group, regarding four of the above-mentioned judgments. The resolution noted that “the option of ‘paid military service’ and reduction of the length of compulsory military service cannot alleviate the need for the legislative amendments, as those measures do not offer an alternative to mandatory military service.” The Committee “strongly urged the authorities therefore to take without further delay all necessary measures to put an end to the violation of the applicants’ rights under the Convention and to adopt rapidly the legislative or other reforms necessary to prevent similar violations of the Convention.”

National Law

The Constitution of the Turkish Republic protects everyone’s right to freedom of religion and conscience. Article 24 states that “[e]veryone has the freedom of conscience, religious belief and conviction. . . . No one shall be compelled . . . to reveal religious beliefs and convictions, or be blamed or accused because of his religious beliefs and convictions.” Freedom of conscience protected under Article 24(1) is not subject to limitations, but there is no reference to conscientious objection. Furthermore Article 25 stipulates that “[e]veryone has freedom of thought and opinion” and that “[n]o one shall be compelled to reveal his/her thoughts and opinions” nor “be blamed or accused because of his/her thoughts and opinions.”

National service is regulated under Article 72 as “the right and duty of every Turk. Accordingly, the way this service will be performed, or considered as performed, either in the armed forces or in public service, shall be regulated by law.” Thus, military service is not compulsory under the Constitution; on the contrary, Article 72 allows national service to be performed through military or public service. Therefore, the recognition of the right to conscientious objection and alternative service in Türkiye would not require a constitutional amendment.

Article 10 further sets forth the principle of equality before the law for everyone. Despite a lack of explicit recognition of conscientious objection to military service, Article 90 contains a significant provision that automatically gives precedence to international human rights treaties. It prescribes that international human rights treaties prevail over national legislation. More specifically, in the case of conflicting differences between domestic laws and the provisions of international agreements, duly put into effect, concerning fundamental rights and freedoms, the provisions of international agreements shall prevail.

The Turkish Law on Conscription and the Military Criminal Law are particularly pertinent. These constitute the basis of the compulsory nature of military service, evader and deserter status, and the ensuing administrative and criminal punitive measures applied to conscientious objectors. There is no provision on or reference to conscientious objection to military service or alternative civilian service. There is also no mechanism for the assessment of conscientious objection requests.

The Law on Conscription stipulates that military service is compulsory for every male Turkish citizen between the ages of 20 and 41, for the duration of 6 months for cadets and 12 months for reserve officers and officers. Under Article 45 of the Turkish Military Criminal Code, “the fact that a person regards his action as necessary according to his conscience or religion does not prevent it from causing a punishment ensuing from doing or not doing it.” In my view, there is a clear tension here with Article 24 of the Turkish Constitution.

The Law on Conscription sets forth the way evaders and deserters are to be tracked and the administrative fines applicable to them. Once an administrative monetary fine is final, criminal proceedings are initiated under the Military Criminal Law. After the finalization of the first fine, every official record becomes a criminal case.

Administrative monetary fines can amount to a substantial sum. The Military Criminal Law enshrines important provisions on criminal measures applicable to conscientious objectors.  Under Article 63 of the Military Criminal Code, those who do not surrender to perform their military service “after the administrative fine under Article 89 of the Law on Military Service is final” will be sentenced to imprisonment for up to 3 years, depending on the duration of desertion.

Interference in Other Human Rights

In addition to interference in their right to freedom of thought, conscience, and religion, conscientious objectors experience restrictions on a number of human rights. This is because once conscientious objectors evade the draft or desert, military public authorities identify them as “evaders” or “deserters.” This status becomes part of the information linked to their national identity number and information.

In Ülke v. Turkey, the ECtHR stated that “the clandestine life, amounting almost to ‘civil death,’ which the applicant has been compelled to adopt is incompatible with the punishment regime of a democratic society.”  This situation remains a reality for conscientious objectors because of the unending cycle of “stop and checks,” fines, criminal prosecutions, and restrictions on a wide range of human rights. International human rights compliance control mechanisms fail to consider the implications of nonrecognition of the right to conscientious objection for other human rights. These rights include, inter alia, participation in public affairs and the right to vote, freedom of movement, right to education, and opportunity to earn a living.

Conclusion

It follows from the above that conscientious objectors in Türkiye are subjected to a punitive legal regime. In failing to recognize the right to conscientious objection to military service, Türkiye’s policy remains opposed to its protection under the right to freedom of thought, conscience, and religion. Conscientious objectors continue to be restricted in many aspects of their lives and are subject to violations of freedom of thought, conscience, and religion as well as other fundamental rights. Given the lack of strong national opposition to the recognition of this right, the roles of international compliance control mechanisms and civil society are critical.

References:

[1] Editors’ note: The spellings Turkey and Türkiye are used interchangeably throughout this post.

[2] Türkiye is also party to the First Optional Protocol to the ICCPR. Accordingly, Turkey recognizes the competence of the HRC to determine whether there has been a violation of the Covenant or not; all individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.

[3] Op. No. 36/1999 (Turkey), E/CN.4/2001/14/Add. 1 at 53 (UN Working Grp. Arbitrary Detention 9 Nov. 2000); see also Op. No. 16/2008 (Turkey), A/HRC/10/21/Add. 1 at 139 (UN Working Grp. Arbitrary Detention 4 Feb. 2009).

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