In 2007 Enver Aydemir refused to do compulsory military service on grounds of conscience. He was taken by force to the Bilecik gendarmerie station, where he refused to put on a military uniform and obey orders from his superior. In July 2007 he was taken into pre-trial detention and, subsequently, two sets of criminal proceedings were instituted against him for persistent disobedience. In September 2007 he was provisionally released but did not return to his regiment: as a result, he was regarded as a deserter.
On 24 December 2009, he was arrested. A military court ordered his pre-trial detention and he was taken to Maltepe military prison. He claimed that he was beaten up by the prison warders and obliged to spend the night in a cell, naked. In August 2011 he was sentenced to imprisonment for persistent disobedience. Various proceedings were brought against him, and an appeal against a sentence of 10 months’ imprisonment is currently pending before the Military Court of Cassation.
In June 2010 the Ankara Military Hospital diagnosed Mr Aydemir as having an “antisocial personality disorder” and declared him unfit for military service with effect from 30 March 2010. On 8 October 2010, the Military Court acquitted him of persistent disobedience following two further refusals. In the meantime, he filed a criminal complaint about the ill-treatment allegedly inflicted on him on 24 and 25 December 2009. A sergeant and the prison governor were charged with assault; but the public prosecutor’s office ruled that there was no case to answer as regards the allegations that he had been forced to spend the night naked. That case is currently pending before the Istanbul Criminal Court.
In Enver Aydemir v Turkey  ECHR 490, relying on Article 3 ECHR (inhuman or degrading treatment) he complained that he was repeatedly prosecuted and convicted because of his refusal to wear military uniform and that he was tortured while in detention. He also complained that the investigation into his allegations was deficient. In addition, relying on Article 9 (thought, conscience and religion), he complained that he was repeatedly detained, prosecuted and convicted because he had claimed the status of conscientious objector.
The Second Section held unanimously that there had been a violation of Article 3 but that there had been no violation of Article 9.
The Military Court had found that two officers of the military had committed acts of violence against Mr Aydemir on 24 and 25 December 2009 and that he had also been forced to wear military uniform on 25 December; but the perpetrators had not been convicted because the Military Court had declined jurisdiction and had referred the matter to the ordinary courts. The Second Section saw no reason to depart from the Military Court’s findings: the treatment to which Mr Aydemir had been subjected could have undoubtedly caused him fear, anguish and humiliation and, possibly, could have broken his physical and moral resistance. It further noted that the cumulative impact of the several sets of criminal proceedings instituted against him was oppressive. All that was sufficiently serious to render the treatment complained of inhuman and degrading.
As regards the effectiveness of the investigation, the authorities had looked into the allegations of assault and the military prosecutor’s office had charged two officers with acts of violence. However, the Second Section observed that the prosecutor’s office had decided not to bring charges in respect of Mr Aydemir’s allegations that he had been forced to spend the night of 24 December 2009 naked. It had also declined jurisdiction to examine the complaint of insulting behaviour. The Court was therefore not satisfied that the authorities been sufficiently diligent in conducting the investigation: some six years after the events, the criminal proceedings instituted against the main perpetrators of the acts of violence were still pending. There had therefore been a violation of the substantive and procedural aspects of Article 3.
As regards the complaint under Article 9, however, the Second Section noted that the Turkish Military Court had found that Mr Aydemir’s objection to military service was political rather than religious: Mr Aydemir had argued in his defence submissions that he was unable to perform military service for the secular Republic of Turkey but would be able to do so under a system based on the Quran and subject to its rules. The Military Court had therefore concluded that he had not categorically refused to perform compulsory military service. Therefore, the Second Section took the view that it could legitimately be inferred from Mr Aydemir’s position before the national authorities that he had not claimed either to hold the belief that all military service was to be opposed or to support a pacifist and anti-militarist philosophy.
Though no definition of conscientious objection existed, the Second Section pointed out that the Human Rights Committee had held that conscientious objection was based on the right to freedom of thought, conscience and religion where that right was incompatible with the obligation to use “lethal force”. Furthermore, it was legitimate to restrict conscientious objection to religious or other beliefs that included a firm, fixed and sincere objection to participation in war in any form or to bearing arms.
Not all opinions or convictions fell within the scope of Article 9 §1. Mr Aydemir’s objection to military service for the benefit of the secular Republic of Turkey did not involve any manifestation of a religion or belief through worship, teaching, practice or observance within the meaning of 9 §1. Accordingly, his opposition to military service did not engage Article 9; and the evidence did not suggest that his stated beliefs included a firm, fixed and sincere objection to participation in war in any form or to bearing arms. There had therefore been no violation of Article 9.
Thanks for this Frank. Interesting to see the Court’s approach to politically, rather than religiously motivated, conscientious objection.
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