CEDH · CASELAW;CLIN;ENG — 17 janvier 2012

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Turkey - 5260/07 Judgment 17.1.2012 [Section II] Article 3 Degrading treatment Inhuman treatment Ill-treatment of conscientious objector, a Jehovah’s Witness, in military prison on account of his refusal to serve in the army: violation   Facts – The applicant is a Jehovah’s Witness. In 2005 he refused, on the basis of Biblical precepts, to perform his military service and was forcibly conscripted. He joined the regiment but consistently refused to wear a military uniform. As a result, nine sets of criminal proceedings were brought against him before the Air Force Command Tribunal, made up of two military judges and one officer. The tribunal imposed several custodial sentences on the applicant, ranging from one to six months. In connection with those proceedings he was on several occasions taken into custody and placed in pre-trial detention in military prisons where he was ill-treated and threatened by prison officers. He was eventually demobilised and sent home. Law – Article 3: In September 2008 the military tribunal had found it established that at the material time – between 5 and 12   April 2006 – while the applicant was in prison, he had been forced to undress and to wear military uniform, had been handcuffed to a bed or a chair for several hours and had been threatened and beaten. In the tribunal’s view, such acts amounted to ill-treatment within the meaning of the Criminal Code. The Court saw no reason to depart from those findings. The treatment meted out to the applicant during his military service had been such as to cause feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance. This was all the more true since the applicant had also been the subject of multiple prosecutions and the cumulative nature of the sentences had had the effect of stifling his intellectual identity. In those circumstances, seen as a whole and given their seriousness, the manner in which the applicant had been treated had caused him severe pain and suffering which went beyond the usual element of humiliation inherent in any criminal conviction or in detention. The treatment to which the applicant had been subjected on account of his refusal to serve in the armed forces had been both inhuman and degrading. Conclusion : violation (unanimously). Article 9: The objections of the applicant, a Jehovah’s Witness, to serving in the armed forces had been motivated by genuinely held religious beliefs that had been in serious and insurmountable conflict with his obligation to perform military service. There had been interference with the applicant’s right to manifest his religion or beliefs, stemming from his multiple criminal convictions and from the failure to propose any form of alternative civilian service. It was apparent that the system of compulsory military service in force in Turkey did not strike a fair balance between the interests of society as a whole and those of conscientious objectors. Accordingly, the penalties imposed on the applicant, in circumstances where no allowances had been made for the exigencies of his conscience and beliefs, could not be considered a measure necessary in a democratic society. Lastly, the fact that the applicant had been demobilised did nothing to alter the findings outlined above. Although he faced no further risk of prosecution (in theory, he could have faced proceedings for the rest of his life), he had been demobilised only because of the onset during his military service of a psychological disorder. This further demonstrated the seriousness of the interference complained of. Conclusion : violation (unanimously). Article 6 § 1: In Turkish criminal law, a person was considered as a member of the armed forces from the time he or she joined a regiment. However, the applicant had been forcibly conscripted and had at no point accepted military status during the conscription process. It was understandable that, as a conscientious objector being prosecuted for offences of a purely military nature before a tribunal made up exclusively of military officers, the applicant should have been apprehensive about being tried by judges who were attached to the armed forces, which could be equated to a party to the proceedings. As a result, he could legitimately have feared that the Air Force Command Tribunal might allow itself to be unduly influenced by one-sided considerations. The applicant’s doubts as to the independence and impartiality of the tribunal could therefore be said to have been objectively justified. Conclusion : violation (unanimously). Article 41: EUR 15,000 in respect of non-pecuniary damage. (See also Ülke v. Turkey , no.   39437/98, 24   January 2006; Erçep v.   Turkey , no.   43965/04, 22   November 2011, Information Note no.   146 ; and Bayatyan v.   Armenia [GC], no.   23459/03, 7   July 2011, Information Note no.   143 )   © 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