Atasoy and Sarkut v Turkey, UN Doc CCPR/C/104/D/1853-1854/2008 (19 June 2012)

Summary

The UN Human Right Committee recently decided that Turkey’s actions in response to Atasoy and Sarkut’s refusal to be drafted for compulsory military service on grounds of conscientious objection was incompatible with article 18 of the International Covenant on Civil and Political Rights.

Facts

Atasoy and Sarkut are both Jehovah’s Witnesses. Atasoy had repeatedly submitted petitions to the Military Recruitment Office explaining his conscientious objection to military service on the basis of his religious faith. He was told that under articles 10 and 72 of the Turkish Constitution he could not be exempted and was served with “Evasion of Enlistment Status Certificates” on each occasion for failure to attend military dispatch procedures. He was called before the Penal Court in respect of his latest failure to attend.

Sarkut also filled petitions seeking exemptions from military service on the basis of his religious faith. In response to his failure to participate, the Military Recruitment Office advised his employer to terminate his employment. In support of their claim that all domestic remedies have been exhausted Atasoy and Sarkut cited decisions of the Military Supreme Court which ruled that exemption from military service on the basis of conscientious objection on religious grounds was not possible.

Turkey argued that under its Constitution, the exercise of the freedom of conscience, religious belief and conviction could not be valued above the duty of military service. As exemption from military service was not possible under Turkish law, Turkey argued that this case fell into the “margin of appreciation of the domestic authorities”. Alternatively, it challenged Atasoy and Sarkut’s right to conscientious objection under article 18 of the ICCPR, arguing that no such tacit or express guarantee for this right exists. Turkey relied upon the ICCPR’s travaux preparatoires and a negative implication from article 8 which, unlike article 18, expressly refers to conscientious objection.

Decision

Considerations of admissibility

Turkey argued that Atasoy and Sarkut had failed to exhaust all domestic remedies and so their communication was inadmissible. However, the Committee agreed with Atasoy and Sarkut that their cases could not be appealed past their current level in the Turkish court system and ruled both communications admissible.

Article 18

The Committee noted that Turkey had failed to argue contrary to Atasoy and Sarkut’s allegation that they had been criminally prosecuted for their failure to participate in compulsory military service in breach of article 18 of the ICCPR. Turkey had instead solely denied the right to conscientious objection.

The Committee recalled its general comment No 22 (1993) to affirm the fundamental character of the article 18 ICCPR freedoms. These cannot be derogated from even in times of public emergency, as stated in article 4, paragraph 2, of the ICCPR. The Committee clarified its earlier position and considered that although the right to conscientious objection is not explicitly noted in article 18, it is a right that derives from this provision. This is justified on the basis that “being involved in the use of lethal force may seriously conflict with the freedom of conscience”. Therefore “the right of conscientious objection to military service is inherent to the right to freedom of thought, conscience and religion”. The Committee stated that the State party cannot coerce actions that would be in breach of this right. It can, however, compel the objector to undertake a civilian alternative which is not of a punitive nature and is “compatible with respect for human rights”.

As Atasoy and Sarkut’s religious beliefs were genuinely held, the prosecution for the failure to participate in compulsory military service breached their right to religious freedom under article 18 of the ICCPR. Under article 2, paragraph 3 (a) of the ICCPR, the Committee notified Turkey of its obligation to provide the authors with an effective remedy, including expunging their criminal records and providing them with adequate compensation.

Commentary

Section 14 of the Victorian Charter provides a right to freedom of thought, conscience, religion and belief. This is slightly broader than article 18 of the Covenant in that it expressly extends to “beliefs”. Since conscientious objection is an attempt to fulfil a person’s beliefs, a Court may find that this right also exists under section 14 of the Victorian Charter.

The decision is available online at: http://daccess-ods.un.org/TMP/207736.268639565.html

Aman Gaur is a Winter Clerk with the King & Wood Mallesons Human Rights Law Group.