Information Note on the Court’s case-law 197

June 2016

Enver Aydemir v. Turkey - 26012/11

Judgment 7.6.2016 [Section II]

Article 9

Article 9-1

Freedom of conscience

Freedom of religion

Conscientious objection to military service not based on genuine religious convictions: inadmissible

Facts – Following his conscription in 2007, the applicant declared himself to be a conscientious objector and refused to perform his military service, citing his religious beliefs. He was then taken by force to the gendarmerie station to comply with his obligations. However, he refused to put on military uniform and obey orders.

He was consequently taken into pre-trial detention in July 2007. In August 2007 two sets of criminal proceedings were instituted against him for persistent disobedience. According to the indictment, the applicant had stated that he “refused to wear military uniform belonging to the Republic of Turkey, which is governed according to secular principles” and had claimed to support “sharia”. In October 2007 he was provisionally released but did not return to his regiment, thus becoming a deserter.

In December 2009 the applicant was arrested and taken back into pre-trial detention. He claimed that he was forced by soldiers to put on military uniform and was subjected to various forms of ill-treatment when he refused to do so. As a result, he went on hunger strike.

During the criminal proceedings against him, the applicant appeared before the Military Court. He again declared himself to be a conscientious objector and refused to perform military service because of his religious beliefs. In August 2011 the Military Court found the applicant guilty of persistent disobedience and sentenced him to two months and fifteen days’ imprisonment for each act of disobedience. However, it decided to suspend the delivery of the judgment.

In February 2010 a third set of criminal proceedings was instituted against the applicant for desertion. In July 2013 he was found guilty by the Military Court and given a prison sentence, which was subsequently commuted to a fine.

In December 2009 the applicant filed a criminal complaint on account of the ill-treatment allegedly inflicted on him during his detention and requested to undergo a forensic medical examination. The case is currently pending before the Criminal Court.

Law – Article 9: On the basis of the applicant’s statements – refusing, because of his idealistic and political views linked to the Koran and sharia, to perform military service for the secular Republic of Turkey – the Military Court had found that his objection to performing military service was not based on religious beliefs but on political reasons.

Regard being had to the applicant’s position as expressed to the national authorities, he was not claiming either that his beliefs were opposed to military service in itself, or that he supported a pacifist and anti-militarist philosophy.

It was legitimate for the national authorities to carry out a prior examination of the applicant’s claim in order to determine whether to recognise him as a conscientious objector. Although no definition of the term existed, the Human Rights Committee had held that conscientious objection was based on the right to freedom of thought, conscience and religion where this right was incompatible with the obligation to use “lethal force”. The Court also considered it 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 the bearing of arms. Furthermore, the Contracting States enjoyed a certain margin of appreciation in defining the circumstances in which they recognised the right to conscientious objection and in establishing mechanisms for examining claims made on that account.

The Court was mindful of the applicant’s beliefs concerning his objection to military service on behalf of the secular Republic of Turkey, but observed that not all opinions or convictions fell within the scope of Article 9 § 1 of the Convention. The applicant’s complaints did not relate to a form of manifestation of a religion or belief through worship, teaching, practice or observance within the meaning of the second sentence of Article 9 § 1. Furthermore, the term “practice” as employed in Article 9 § 1 did not cover each and every act that was motivated or influenced by a religion or belief.

Accordingly, the applicant’s opposition to military service was not such as to entail the applicability of Article 9 of the Convention. The evidence before the Court did not suggest that his stated beliefs included a firm, fixed and sincere objection to participation in war in any form or to the bearing of arms. That being so, the Court was not satisfied that the applicant’s objection to performing military service had been motivated by sincere religious beliefs which were in serious and insurmountable conflict with his obligation to perform military service.

Conclusion : inadmissible (incompatible ratione materiae ).

The Court also held unanimously that there had been a violation of the substantive aspect of Article 3 of the Convention, since the treatment to which the applicant had been subjected while in detention had undoubtedly been such as to arouse in him feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance. This finding was all the more valid as, in addition to the ill-treatment, the applicant had been the subject of several sets of criminal proceedings and the cumulative effect of his criminal convictions was likely to repress his intellectual personality.

The Court also unanimously found a violation of the procedural aspect of Article 3 of the Convention in that statements had not been taken from the applicant until more than a month after the events and the filing of his complaint. Moreover, some six years after the events, the criminal proceedings instituted against the main perpetrators of the acts of violence were still pending before the first-instance court.

Article 41: EUR 15,000 in respect of non-pecuniary damage.

(See Bayatyan v. Armenia [GC], 23459/03, 7 July 2011, Information Note 143 ; Erçep v. Turkey , 43965/04, 22 November 2011, Information Note 146 ; and Feti Demirtaş v. Turkey , 5260/07, 17 January 2012, Information Note 148 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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