Turkey’s treatment of conscientious objectors breaches ECHR

Not for the first time, the European Court of Human Rights has held that imprisonment of conscientious objectors to military service is a breach of the Convention.

In Buldu & Ors v Turkey [2014] ECHR 567 the four applicants, Jehovah’s Witnesses, refused to perform military service on the grounds that it was contrary to biblical teaching. Before the Third Section they argued, inter alia, that their subsequent prosecution and sentences and the treatment they had suffered during the process had violated Article 3 ECHR (inhuman or degrading treatment). They also claimed that the fact that they had had to appear, as civilians, before courts composed exclusively of military officers had violated their right to a fair trial under Article 6. Finally, they complained that their imprisonment had been in breach of Article 9 (thought, conscience and religion).

As to the complaint under Article 3, the Court concluded that the fact that all four applicants had been the subject of numerous criminal prosecutions because of their refusal to wear military uniform, together with the sanctions imposed on them, had been sufficiently humiliating or degrading as to violate Article 3. As to Article 6, the complaint of Mr Buldu was out of time; and the Court held that the complaints of Mr Olgun and Mr Umdu were not sufficiently well-founded. As to Mr Görmez, however, the Court held that because he had been forcibly incorporated into the military, his misgivings about the independence and impartiality of the military court were objectively justified.

The Court had recently reviewed its decisions on the applicability of Article 9 in relation to conscientious objectors in Bayatyan v Armenia [2011] ECHR 1095, Erçep v Turkey 43965/04 [2011] ECHR and Feti Demirtas v Turkey 5260/07 [2012] ECHR. It had concluded that objection to military service motivated by a serious and insurmountable conflict between the obligation to serve and a sincere and deep conviction of conscience – whether religious or otherwise – reached a sufficient degree of cogency, seriousness, cohesion and importance to attract the guarantees of Article 9. Whether and to what extent a specific objection fell within that provision was to be determined on the facts [para 82]. In this case, it had no reason to doubt that the sincerity of the applicants’ objection [para 83].

Mr Buldu and Mr Görmez had been incorporated into their respective regiments repeatedly, notwithstanding their constant refusal to perform military service. Mr Olgun and Mr Umdu had been prosecuted and sentenced for insubordination. The Court did not doubt that successive convictions and the perpetual risk of prosecution amounted an interference with their Article 9 rights [para 84]; and even though “prescribed by law”, the penalties were inconsistent with Article 9. The Court also noted that the applicants had expressed themselves willing to perform some alternative civilian service but that option had not been available to them [para 90]. In short, the measures taken against them because of their refusal to perform military service were not “necessary in a democratic society” within the meaning of Article 9 and their rights under the Article had therefore been violated [paras 92 & 93].

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