People should not be imprisoned when their religious or other convictions prevent them from doing military service. Instead they should be offered a genuinely civilian alternative. This is now the established European standard, respected in most countries – but there are some unfortunate exceptions.
The right to conscientious objection has been endorsed by the Council of Europe ever since 1967 when a first Resolution on the topic was adopted by the Parliamentary Assembly. The recognition of this right later became a requirement for states seeking accession to the organisation.
Recently the European Court of Human Rights recognised in the case Bayatyan v. Armenia that the right to conscientious objection was guaranteed by Article 9 of the European Convention, protecting freedom of thought, conscience and religion. This was another important step for many conscientious objectors who are still persecuted in Europe because of their refusal to perform military service.
In fact, the right to refuse military service for reasons of conscience is now recognised in the vast majority of the 47 member states. However, problems remain in some countries, where military service is still an absolute obligation (at least for males) or where the alternative service is under military control or has a discriminatory or punitive character, for instance through the requirement of a much longer service time.
Persecutions, imprisonments and ill-treatment
Among the 15 Council of Europe countries which retain the system of conscription, no less than seven have put objectors in prison in recent years.
In Armenia, for instance, conscientious objectors are still prosecuted, convicted and imprisoned for their refusal to perform military service.
On a visit to an Armenian prison last year I discussed this situation with a couple of young men who belong to the Jehovah’s Witnesses community. They explained that they had been sentenced because they could not accept the existing form of alternative service as it was administered by the military – an issue which was also raised by the Venice Commission in its recent opinion on the proposed amendments to the law on alternative service.
Azerbaijan undertook when joining the Council of Europe in 2001 to adopt a law on alternative service. Though the Constitution guarantees the right to conscientious objection, the corresponding legislative framework has not yet been adopted.
There is therefore no alternative to military service. Conscientious objectors have continued to be imprisoned when they have requested to perform alternative civilian service outside military control.
This has recently been the case for Bakhtiyar Hajiyev, a youth activist and candidate in the 2010 parliamentary elections, who was sentenced last year to two years in prison for evading military service, despite his request to perform alternative service.
Turkey is the only country of the Council of Europe that does not recognise the right to conscientious objection for conscripts, and conscientious objectors are prosecuted and imprisoned for their refusal to carry out military service. In several cases they have faced repeated imprisonment until they completed their term of military service. There have also been a number of reports of ill-treatment of conscientious objectors in detention.
In the Ülke case, the Strasbourg Court found that the applicant’s repetitive convictions and imprisonment for having refused to perform compulsory military service on account of his convictions as a pacifist amounted to degrading treatment (violation of Article 3 of the European Convention).
Limitation of the right to freedom of expression
The problem in Turkey is compounded by restrictions to freedom of expression. The Turkish Criminal Code (Article 318, formerly Article 155) has been used to prosecute non-violent expressions of support for conscientious objection. This has given rise to several judgments of the Strasbourg Court finding violations of Article 10 of the European Convention on free speech.
The Court has held that a newspaper article with such a message cannot be considered as incitement to immediate desertion. However, the Turkish Criminal Code treats dissemination through the press as an aggravating circumstance. Among many others, Halil Savda, himself a conscientious objector, has been condemned several times under Article 318 for speaking in public in favour of the right to conscientious objection.
The agreed standards should be implemented
In a Recommendation on human rights of members of the armed forces, the Council of Europe Committee of Ministers underlined in 2010 that conscripts should have the right to be granted conscientious objector status and that an alternative service of a civilian nature should be proposed to them.
The message from this as well as from the case-law of the Strasbourg Court is very clear: member states which have not done so should introduce a genuinely civilian alternative service, which is not under the control of the military, and of non punitive length and nature.
Conscientious objection is a human right. It is thus high time that all member states complied with their commitments and recognised this right effectively.
Thomas Hammarberg