Last Updated on July 3, 2019 by LawEuro
SECOND SECTION
DECISION
Application no. 25632/13
Çağatay BAYDAR
against Turkey
The European Court of Human Rights (Second Section), sitting on 19 June 2018 as a Committee composed of:
Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, DeputySection Registrar,
Having regard to the above application lodged on 1 April 2013,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Çağatay Baydar, is a Turkish national who was born in 1983 and lives in Kocaeli. He was represented before the Court by Mr B. Şahin, a lawyer practising in Kocaeli. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 1 January 2002 the applicant became eligible for military service. On 1 December 2003 the applicant joined the army for military service. He was assigned to a military barracks in the “Turkish Republic of Northern Cyprus” (the “TRNC”).
4. On 25 March 2004 the applicant was given leave for health reasons. However, at the end of his leave, on 13 April 2004, the applicant failed to return to barracks.
5. On 25 January 2011 the Turkish Peace Forces Command Military Court in the “TRNC” issued a warrant for his arrest for having committed the offence of abuse of leave. On 16 August 2011 the applicant was arrested by the police in Gölcűk and taken to a public prosecutor’s office to give a statement.
6. In his statement to the public prosecutor the applicant held that he had failed to return to the army barracks after his leave because of family and financial reasons. He claimed that his mother had been hospitalised for a heart condition and that he needed to work in order to pay for the treatment. He further maintained that two years before when he had enquired with the Sakarya Gendarmerie Command about his military status the latter had told him that there had been no problem.
7. On 17 August 2011 the applicant reported to the military barracks in Denizli in order to complete his military service.
8. On 19 August 2011 the Turkish Peace Forces Command Military Court in the “TRNC” sent aletter of request to the Denizli Criminal Court of General Jurisdiction in order to secure the applicant’s statements.
9. On 27 September 2011 the applicant gave evidence before the Denizli Criminal Court of General Jurisdiction, where he repeated that he had not returned to military service owing to his poor financial situation and his mother’s illness and that this action had not been intentional.
10. On 22 November 2011 2011 the Turkish Peace Forces Command Military Court in the “TRNC” held, inter alia, that the applicant had failed to provide valid excuses for not returning to his unit after his leave. In this connection, the court noted that the applicant was employed and that the medical reports submitted by the applicant to demonstrate his mother’s illness were dated from 2010 and 2011. The court convicted the applicant of the offence of abuse of leave under Article 66 § 1 (b) of the Military Criminal Code and sentenced him to ten months’ imprisonment. As the applicant did not appeal this decision became final on 3 December 2011.
11. On 13 April 2012 a warning letter was sent to the applicant informing him that he had failed to return to barracks since 26 December 2011 and thus was committing the offence of abuse of leave. He was advised to return to his unit as soon as possible in order to avoid criminal proceedings.
12. On 2 April 2013 the applicant applied to the Compensation Commission established to deal with applications concerning the length of proceedings and the non-execution of judgments under Law no. 6384. He claimed that he was a conscientious objector and that compulsory military service was against human rights. The latter rejected that application on 29 August 2013 on the grounds that the subject matter of the applicant’s complaint was outside the scope of its jurisdiction.
13. Following legislative amendments in 2013 the military prosecutor’s office requested that the decision of 22 November 2011 be revised and that provisions in favour of the applicant be applied. The applicant was heard by the Navy Command Military Court on 27 January 2014.
14. On 26 March 2014 the Turkish Peace Forces Command Military Court in the “TRNC” made a re-assessment of the applicant’s case. It convicted the applicant of the offence of abuse of leave under Article 66 § 1 (b) of the Military Criminal Code and sentenced him to ten months’ imprisonment. The court suspended the pronouncement of the conviction on condition that he did not commit another intentional offence for a period of five years, under Article 231 of the Code of Criminal Procedure. This decision became final on 10 May 2014.
B. Relevant domestic law and practice
15. A description of the relevant domestic law may be found in Savda v. Turkey (no. 42730/05, §§ 37-46, 12 June 2012).
COMPLAINT
16. The applicant complained under Article 9 of the Convention that, owing to the absence of the right to conscientious objection in Turkey, he had been asked to perform compulsory military service despite his opposition to military service for reasons related to his conscience and religious beliefs. In particular, he maintained that his religious views as well as his conscience had not allowed him to accept the killing of people or the teaching of how to kill people.
THE LAW
A. Alleged violation of Article 9 of the Convention
17. The applicant maintained that the obligation to perform compulsory military service despite his opposition to such service for reasons related to his conscience and religious beliefs had violated Article 9 of the Convention which reads as follows:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
1. The parties’ submissions on admissibility
18. The Government maintained that the applicant had failed to raise his allegations at the domestic level. In this connection, they underlined that neither at the administrative stage of the recruitment procedure nor at the subsequent investigation and trial, had the applicant claimed that he had been a conscientious objector. They further noted that the applicant had also failed to appeal against the decision of 22 November 2011. In view of the above, the Government considered that the applicant had failed to exhaust domestic remedies. They further submitted that the applicant had also failed to comply with the six-month rule. The Government noted that the relevant decision had become final on 31 December 2011, whereas the application had been lodged with the Court on 1 April 2013. Lastly, the Government asserted that the applicant’s claims regarding his opposition to military service on account of him being a conscientious objector were not convincing. They therefore considered that there had been no interference with his rights safeguarded by Article 9 of the Convention and that this complaint should be declared inadmissible for being manifestly ill-founded.
19. The applicant submitted that conscientious objection to military service had not been recognised in Turkey and that had he affirmed that he had been a conscientious objector then he would have been subjected to further criminal sanctions. In this connection, the applicant referred to the cases Ülke v. Turkey (no. 39437/98, 24 January 2006), and Erçep v. Turkey (no. 43965/04, 22 November 2011). He further submitted that lodging an appeal against the decision dated 22 November 2011 would have been futile and claimed that he had complied with the six-month time-limit. The applicant further informed the Court that his application to the Constitutional Court had been rejected on 29 August 2013.
2. The Court’s assessment
20. The Court considers it unnecessary to determine whether the applicant has exhausted domestic remedies or complied with the six‑month rule, within the meaning of Article 35 § 1 of the Convention, since his complaint is in any event inadmissible for the following reasons.
21. The Court reiterates that Article 9 does not explicitly refer to a right to conscientious objection. However, it considers that opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his or her deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9. Whether and to what extent objection to military service falls within the ambit of that provision must be assessed in the light of the particular circumstances of the case (see Bayatyan v. Armenia [GC], no. 23459/03, § 110, ECHR 2011).
22. The Court notes that the applicant claims to oppose military service for reasons related to his conscience and religious beliefs. However, it observes that neither before the relevant military authorities nor during the ensuing criminal proceedings did the applicant ever raise the argument that he was opposed to compulsory military service for reasons related to his conscience and religious beliefs (contrast Feti Demirtaş v. Turkey, no. 5260/07, § 6, 17 January 2012, and Tarhan v. Turkey, no. 9078/06, § 7, 17 July 2012). On the contrary, before the domestic courts, the applicant maintained that he had not returned to complete his military service owing to his poor financial situation and his mother’s illness. In view of the above, the Court finds that the applicant has not demonstrated that his opposition to compulsory military service constituted a conviction or belief of sufficient cogency, seriousness, cohesion and importance to fall within the scope of Article 9 of the Convention (see Enver Aydemirv. Turkey, no. 26012/11, § 83, 7 June 2016, and contrast Erçep v. Turkey, cited above, § 48). This complaint must accordingly be declared inadmissible as incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 §§ 3 (a) and 4.
B. Alleged violation of Article 3 of the Convention
23. The applicant complained in general about the difficulties he faced in his daily life due to the obligation to perform compulsory military service and his opposition to such service.
24. The Court deems it appropriate to examine this complaint under Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”
1. The parties’ submissions on admissibility
25. The Government maintained that there was no evidence beyond any reasonable doubt that the applicant had been subjected to ill-treatment. In this connection, they underlined that, unlike the situation in the case of Ülke v. Turkey (cited above),the applicant had not declared himself a conscientious objector, had had only one criminal action brought against him and that the sentence that had been imposed had not been executed and would not be, provided the applicant did not commit an intentional offence in the following five years.
26. In addition to his submissions above, the applicant also maintained that he lived with the fear and panic that he would be recalled for military service and that the only reason the criminal sanction against him could not be enforced because he had become a fugitive. The fact that he could not lead a normal and organised life had affected his mental health.
2. The Court’s assessment
27. According to Court’s well-established case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The Court has held that the assessment of that level is relative and depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Muršić v. Croatia [GC], no. 7334/13, § 97, ECHR 2016; Savda v. Turkey, cited above, § 79; and Enver Aydemirv. Turkey, cited above, § 59).
28. The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. On the other hand, the Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000‑XI).
29. The Court accepts that the applicant could have experienced fear and mental suffering due to the particular circumstances related to his desertion from the army as well as the ensuing criminal proceedings and sentence. However, it notes, firstly, that there is no indication in the case-file that the applicant was subjected to any physical or mental ill-treatment by the authorities (contrast Enver Aydemirv. Turkey, cited above, § 63, and Tarhan v. Turkey, no. 9078/06, § 46, 17 July 2012). Secondly, there is no information in the case file demonstrating that the applicant was subjected to or risks being subjected to lengthy detention, numerous criminal proceedings and ensuing imprisonment because of his alleged opposition to military service for reasons related to his conscience and religious beliefs (contrast Ülke v. Turkey, cited above, §§ 62-63, and Savda v. Turkey, cited above, § 83). In view of the above, the Court is not persuaded that the circumstances of the present case have caused the applicant severe pain and suffering which goes beyond the normal element of humiliation inherent in any criminal sentence. It accordingly finds this part of the application, which it raised of its own motion, to be also incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 §§ 3 (a) and 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 July 2018.
Hasan Bakırcı Paul Lemmens
Deputy Registrar President
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