On 1 August 2006 five members of the Anti-Militarist Platform met in front of the Israeli Consulate in Istanbul in support of Israeli conscientious objectors. In the course of the gathering, Mr Savda read out a press statement entitled “We are in solidarity with the Israeli conscientious objectors”. He was arrested and charged and in August 2008 he was sentenced to five months in prison for having incited the population to evade military service by means of a public statement. The domestic court noted in particular that Mr Savda was a conscientious objector and that he had called on persons who did not define themselves as conscientious objectors to evade military service. The Court of Cassation upheld that judgment in November 2010.
In Savda v Turkey (No. 2) [2016] ECHR 1000 [French only] he argued that his conviction for having read out a press statement violated his rights under Articles 9 ECHR (thought, conscience and religion) and 10 (freedom of expression).
The Second Section noted that in Turkey all male citizens who are found fit for national service are obliged to perform military service and there is no substitute civilian service for conscientious objectors. Mr Savda was sentenced to prison terms on three occasions for refusing to wear a military uniform and on several occasions placed in solitary confinement. The treatment to which he had been subjected had caused serious pain and suffering that went beyond the usual element of humiliation inherent in a criminal conviction or detention. There had been therefore been a violation of Article 3 (inhuman and degrading treatment).
The Court had already held, in Bayatyan v Armenia [2011] that opposition to military service motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs was of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9. In the present case, the Government had put forward no convincing or compelling reason to justify its failure to recognise conscientious objection.
There was no procedure for examining Mr Savda’s case for recognition as a conscientious objector: the authorities merely used the criminal law to penalise refusal to carry out military service. The Court emphasised states parties’ obligation to provide a regulatory framework to protect the rights of individuals. Absent a procedure to examine requests for the purpose of establishing conscientious objector status, the obligation to carry out military service entailed a serious and insurmountable conflict with individual conscience. Therefore, the authorities were obliged to provide Mr Savda with an effective and accessible procedure that would have enabled him to have established whether or not he was entitled to conscientious objector status, as he requested. The absence of such procedure failed to strike the proper balance between the general interest of society and that of conscientious objectors. It followed that the relevant authorities had failed to comply with their obligation under Article 9.
Under Turkish criminal law, an individual was considered to be a serviceman from the moment of incorporation into his regiment. Following his conscription, Mr Savda refused to wear military uniform and stated that he did not wish to carry out military service for reasons of conscience. In the Court’s opinion, such a situation could hardly be equated with that of a regular soldier who willingly agreed to submit to military discipline. It was entirely understandable that a conscientious objector should be apprehensive about being tried by a bench of three judges that included a regular army officer. In itself, however, that mistrust was not enough to violate Article 6 §1. The Court endorsed the findings of the Turkish Constitutional Court which, in its judgment of 7 May 2009, had held that the participation of officers in the deliberations of military courts and the provisions subjecting military judges to military discipline and assessment reports were incompatible with the constitutional principle of judicial independence. Under a recent constitutional amendment, the legislature was no longer obliged to take into account the “requirements of military service” in enacting legislation on military courts.
The Court thought it understandable that Mr Savda, having had to face purely military charges before a court made up entirely of servicemen, had been apprehensive about being tried by judges who could be equated with a party to the proceedings. Because he could legitimately have feared that the court could be influenced by biased considerations, and given that his doubts as to that court’s independence and impartiality were objectively justified, the Court held that there had been a violation of Article 6 §1 (fair hearing).
Perhaps surprisingly, the Court chose not to examine his complaint under Article 10.
[Note compiled from the press summary.]
Comment
Turkey has quite a lot of previous for its treatment of conscientious objectors. In the earlier case involving the applicant, Savda v Turkey [2012] ECHR 42730/05 (12 June 2012) [French 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. The situation does not appear to have improved.