Information Note on the Court’s case-law No. 146
November 2011
Erçep v. Turkey - 43965/04
Judgment 22.11.2011 [Section II]
Article 9
Article 9-1
Manifest religion or belief
Conviction of a Jehovah’s Witness for refusal to perform his military service and absence of an alternative form of service: violation
Article 46
Article 46-2
Execution of judgment
Measures of a general character
Respondent State required to enact legislation concerning conscientious objectors and to introduce an alternative form of service
Facts – The applicant was a Jehovah’s Witness and refused to perform his military service. Under the relevant legislation, persons who failed to report for duty when called for military service were regarded as deserters. Each time a new call-up period began, criminal proceedings for failure to report for duty were brought against him (over twenty-five sets of proceedings from 1998 onwards). He was sentenced to several terms of imprisonment. In 2004 the military court decided to impose an aggregate sentence of seven months and fifteen days’ imprisonment. After serving five months in prison, the applicant was released on licence.
Law – Article 9: The applicant was a member of the Jehovah’s Witnesses, a religious group whose beliefs included opposition to military service, irrespective of any requirement to carry weapons. The applicant’s objections had therefore been motivated by genuinely held religious beliefs which were in serious and insurmountable conflict with his obligations in that regard. The system of compulsory military service applicable in Turkey imposed obligations on citizens that were liable to have serious consequences for conscientious objectors. It made no provision for exemption on grounds of conscience and resulted in heavy criminal penalties for persons who, like the applicant, refused to perform their military service. Hence, the interference complained of stemmed not just from the fact that the applicant had been convicted on numerous occasions, but also from the absence of any alternative form of service. Conscientious objectors had no option but to refuse to enrol in the army if they wished to remain true to their beliefs. In doing so they laid themselves open to a kind of “civil death” because of the numerous prosecutions which the authorities invariably brought against them and the cumulative effects of the resulting criminal convictions, the continuing cycle of prosecutions and prison sentences and the possibility of facing prosecution for the rest of their lives. Such a system failed to strike a fair balance between the interests of society as a whole and those of conscientious objectors. Accordingly, the penalties imposed on the applicant, without any allowances being made for the dictates of his conscience and beliefs, could not be regarded as a measure necessary in a democratic society.
Conclusion: violation (unanimously).
Article 46: The violation of the applicant’s rights had its origins in a structural problem linked to the inadequacy of the existing legal framework governing the status of conscientious objectors and to the absence of an alternative form of service. A reform of the law, which was necessary in order to prevent further similar violations of the Convention, combined with the introduction of an alternative form of service, might constitute an appropriate means of redress by which to put an end to the violation found.
Article 41: EUR 10,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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