CEDH · CASELAW;CLIN;ENG — 12 juin 2012

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Turkey - 42730/05 Judgment 12.6.2012 [Section II] Article 9 Article 9-1 Freedom of conscience Absence of statutory framework or a procedure to establish right to conscientious objection: violation   Facts – In May 1996 the applicant, a Turkish national, was conscripted into the army and incorporated into his regiment. In August 1996, however, he deserted. In November 1997 he was arrested in possession of a weapon, convicted of aiding and abetting the PKK (Worker’s Party of Kurdistan) and sentenced to a prison term. In November 2004, after serving his sentence, he was returned to his regiment to complete his military service but refused to wear military uniform. He then declared himself a conscientious objector. A series of criminal proceedings were brought before the military Courts In the meantime, he continued to refuse to join his regiment and deserted on several occasions. In April 2008 the applicant was exempted from military service and discharged from his regiment, after being diagnosed with an anti-social personality disorder. Law – Article 9: Since the Grand Chamber’s judgment in the case of Bayatyan v. Armenia *, opposition to military service, where motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constituted a conviction of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article   9. In the instant case, the applicant complained about shortcomings by the State. No convincing or compelling reason justifying the failure to recognise the right to conscientious objection in respect of compulsory military service had been put forward. The reference to concepts such as public safety, the prevention of disorder or protection of the rights of others was not sufficient to explain why recognition of this right was incompatible with the State’s general duty. As to the absence of a procedure which would have enabled the applicant to establish whether he met the conditions for recognition of a right to conscientious objector status, the applicant had not referred to any religious conviction, but said that he subscribed to a pacifist and anti-military philosophy. The Government had argued that the applicant could not be recognised as a conscientious objector. The question that arose, therefore, was to what extent the applicant’s objection to military service fell within the ambit of Article   9. It was noted that the applicant’s request had not been examined by the domestic authorities. The Court therefore considered that, in the absence of a procedure to examine such requests, the obligation to carry out military service was such as to entail a serious and insurmountable conflict between that obligation and an individual’s deeply and genuinely held beliefs. In the light of its case-law on Article   8 of the Convention, which had repeatedly emphasised the State’s positive obligation to provide a regulatory framework of adjudicatory and enforcement machinery to protect the right to private life, the Court considered that there was a positive obligation on the authorities to make available to the applicant an effective and accessible procedure which would have enabled him to have established whether he was entitled to conscientious-objector status, in order to protect the applicant’s interests as guaranteed by Article   9. A system that did not provide for alternative service or for a procedure as described above failed to strike the proper balance between the general interest of society and that of conscientious objectors. It followed that the relevant authorities had failed to comply with their obligation under Article   9. Conclusion : violation (unanimously). The Court also concluded, unanimously, that there had been a violation of Article   3, as the applicant had been subjected to degrading treatment, and a violation of Article 6 §   1, given that the applicant, as a conscientious objector, had been required to appear before a military court that was incompatible with the principle of the independence and impartiality of the courts. Article 41: EUR 12,000 in respect of non-pecuniary damage. * Bayatyan v. Armenia [GC], no. 23459/03, 7   July 2011, Information Note no.   143 . For more information about conscientious objection, see the Factsheet on this subject.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes