Conscientious objection to military service – again

Compulsory military service is now fairly rare, certainly among member states of the Council of Europe. However, it does still exist; and the European Court of Human Rights is becoming increasingly impatient with those states which refuse to make any provision for conscientious objectors, whether by exempting them or, as in Austria and Denmark, by allowing objectors to fulfil alternative civilian service. In Bayatyan v Armenia 23459/03 [2011] ECtHR (GC) 1095 (7 July 2011) the Grand Chamber held that the conviction and imprisonment of a Jehovah’s Witness for refusing compulsory military service violated his freedom to manifest his religion under Article 9 ECHR (thought, conscience and religion); while Article 9 does not refer explicitly to a right of conscientious objection, opposition to military service motivated by conscience or genuinely-held religious or other belief was of sufficient cogency, seriousness, and importance to attract its provisions.

However, the issue keeps recurring. In the latest case, Savda v Turkey [2012] ECHR 42730/05 (12 June 2012) [French text only] the Second Section held that the system of compulsory military service in Turkey without provision for conscientious objection failed to strike a proper balance between the general interest of society and that of conscientious objectors and that the penalties imposed on them were not “necessary in a democratic society”, contrary to Article 9 ECHR. It further held that including military officers in the courts that tried conscientious objectors breached Article 6 (independent and impartial tribunal). Turkish criminal law regards someone who is called up for military service as a serviceman from the moment he is incorporated into his regiment – but the Court took the view that a conscientious objector was simply not in the same situation as a regular solder who had volunteered and who had therefore submitted willingly to military discipline. The apprehensions of a conscientious objector about the impartiality of a court which included a regular army officer were objectively justified.

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