SECOND SECTION
\nDECISION<\/p>\n
Application no. 25632\/13
\n\u00c7a\u011fatay BAYDAR
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 19\u00a0June 2018 as a Committee composed of:<\/p>\n
Paul Lemmens, President,
\nValeriu Gri\u0163co,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,
\nand Hasan Bak\u0131rc\u0131, DeputySection Registrar,<\/p>\n
Having regard to the above application lodged on 1 April 2013,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr \u00c7a\u011fatay Baydar, is a Turkish national who was born in 1983 and lives in Kocaeli. He was represented before the Court by Mr B. \u015eahin, a lawyer practising in Kocaeli. The Turkish Government (\u201cthe\u00a0Government\u201d) were represented by their Agent.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 2.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 3.\u00a0\u00a0On 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 \u201cTurkish Republic of Northern Cyprus\u201d (the \u201cTRNC\u201d).<\/p>\n 4.\u00a0\u00a0On 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.<\/p>\n 5.\u00a0\u00a0On 25 January 2011 the Turkish Peace Forces Command Military Court in the \u201cTRNC\u201d 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 G\u00f6lc\u0171k and taken to a public prosecutor\u2019s office to give a statement.<\/p>\n 6.\u00a0\u00a0In 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.<\/p>\n 7.\u00a0\u00a0On 17 August 2011 the applicant reported to the military barracks in Denizli in order to complete his military service.<\/p>\n 8.\u00a0\u00a0On 19 August 2011 the Turkish Peace Forces Command Military Court in the \u201cTRNC\u201d sent aletter of request to the Denizli Criminal Court of General Jurisdiction in order to secure the applicant\u2019s statements.<\/p>\n 9.\u00a0\u00a0On 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\u2019s illness and that this action had not been intentional.<\/p>\n 10.\u00a0\u00a0On 22 November 2011 2011 the Turkish Peace Forces Command Military Court in the \u201cTRNC\u201d 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\u2019s illness were dated from 2010 and 2011. The court convicted the applicant of the offence of abuse of leave under Article 66 \u00a7 1 (b) of the Military Criminal Code and sentenced him to ten months\u2019 imprisonment. As the applicant did not appeal this decision became final on 3 December 2011.<\/p>\n 11.\u00a0\u00a0On 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.<\/p>\n 12.\u00a0\u00a0On 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\u00a0August 2013 on the grounds that the subject matter of the applicant\u2019s complaint was outside the scope of its jurisdiction.<\/p>\n 13.\u00a0\u00a0Following legislative amendments in 2013 the military prosecutor\u2019s 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.<\/p>\n 14.\u00a0\u00a0On 26 March 2014 the Turkish Peace Forces Command Military Court in the \u201cTRNC\u201d made a re-assessment of the applicant\u2019s case. It\u00a0convicted the applicant of the offence of abuse of leave under Article 66 \u00a7\u00a01\u00a0(b) of the Military Criminal Code and sentenced him to ten months\u2019 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.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 15.\u00a0\u00a0A description of the relevant domestic law may be found in Savda\u00a0v.\u00a0Turkey (no. 42730\/05, \u00a7\u00a7 37-46, 12 June 2012).<\/p>\n COMPLAINT<\/strong><\/p>\n 16.\u00a0\u00a0The 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.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0Alleged violation of Article 9 of the Convention<\/strong><\/p>\n 17.\u00a0\u00a0The 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:<\/p>\n \u201c1. 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.<\/p>\n 2. Freedom to manifest one\u2019s 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.\u201d<\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions on admissibility<\/em><\/p>\n 18.\u00a0\u00a0The 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\u2019s 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.<\/p>\n 19.\u00a0\u00a0The 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 \u00dclke v. Turkey (no. 39437\/98, 24 January 2006), and Er\u00e7ep 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.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 20.\u00a0\u00a0The Court considers it unnecessary to determine whether the applicant has exhausted domestic remedies or complied with the six\u2011month rule, within the meaning of Article 35 \u00a7 1 of the Convention, since his complaint is in any event inadmissible for the following reasons.<\/p>\n 21.\u00a0\u00a0The 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\u2019s 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, \u00a7 110, ECHR 2011).<\/p>\n 22.\u00a0\u00a0The 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 Demirta\u015f v. Turkey, no.\u00a05260\/07, \u00a7 6, 17 January 2012, and Tarhan v. Turkey, no. 9078\/06, \u00a7\u00a07, 17\u00a0July 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\u2019s 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.\u00a026012\/11, \u00a7\u00a083, 7 June 2016, and contrast Er\u00e7ep v. Turkey, cited above, \u00a7\u00a048). This complaint must accordingly be declared inadmissible as incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 \u00a7\u00a7 3 (a) and 4.<\/p>\n B.\u00a0\u00a0Alleged violation of Article 3 of the Convention<\/strong><\/p>\n 23.\u00a0\u00a0The 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.<\/p>\n 24.\u00a0\u00a0The Court deems it appropriate to examine this complaint under Article 3 of the Convention, which reads:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment\u201d<\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions on admissibility<\/em><\/p>\n 25.\u00a0\u00a0The 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 \u00dclke\u00a0v. 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.<\/p>\n 26.\u00a0\u00a0In 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.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 27.\u00a0\u00a0According to Court\u2019s 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 Mur\u0161i\u0107 v. Croatia [GC], no. 7334\/13, \u00a7\u00a097, ECHR 2016; Savda v. Turkey, cited above, \u00a7 79; and Enver Aydemirv.\u00a0Turkey, cited above, \u00a7 59).<\/p>\n 28.\u00a0\u00a0The Court has considered treatment to be \u201cinhuman\u201d 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 \u201cdegrading\u201d 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 Kud\u0142a v. Poland [GC], no.\u00a030210\/96, \u00a7 92, ECHR 2000\u2011XI).<\/p>\n 29.\u00a0\u00a0The 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, \u00a7 63, and Tarhan v. Turkey, no. 9078\/06, \u00a7 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 \u00dclke v. Turkey, cited above, \u00a7\u00a7 62-63, and Savda v. Turkey, cited above, \u00a7 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 \u00a7\u00a7 3 (a) and 4.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 12 July 2018.<\/p>\n Hasan Bak\u0131rc\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Paul Lemmens
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n