A call to attention concerning the decision of October 10

Mehmet Tarhan, Istanbul, 16 October 2006

Certainly I was aware of the difficulty of the process I would go through, together with Erdem Yalçinkaya, in announcing my conscientious objection at the General Headquarters of the Human Rights Society on the 27th of October 2001 1 I knew that Osman Murat Ülke had been arrested countless times, charged and consequently imprisoned for nearly 2.5 years and that despite his never having avoided punishment, that he had nonetheless been forced to live as a kind of fugitive, leading a life lacking in many basic rights. 

Spending my life on the edge of a geography plagued by civil war and drowning in conflict has driven me to question the armed forces, the war economy, the states' system, in short, militarism. Seeing that it is enough merely to look at history and what has been and gone in order to see that violence is incapable of creating any positive effect in any field of life, or solving any kind of problem at all, it became clear to me that it was time to announce my rejection of the attitude of "Either you are with me or you are a terrorist" which the U.S.A. holds over people.

 I was afraid then and I am still afraid, though not as afraid as I am of leading a life bereft of the holistic continuity of thought-expression-action. In the end, I announced my conscientious objection at a press conference.
 

Due to the prison sentence passed on the10th of October by the Sivas Military Court, I would like, no matter how little I may be a lawyer, to give some information, by means of referring to my own legal process, about the legal situation of conscientious objectors and conscientious objection in Turkey.
 

Above all, it is necessary to know that the Turkish Republic does not refer to the concept of "conscientious objection" in either civil or military law. As a result, the right of conscientious objection is not recognized and conscientious objectors are classified as "military deserters". Objectors apprehended according to this definition are therefore sentenced under the Military Penal Code's articles 87. and 89. for the crime of "Aggravated Disobedience to Orders"2. If the case occurs outside a time of general mobilization or war, the first article demands a sentence of 3 months to two years whereas the second calls for a prison sentence of three months to five years.

 A conscientious objector, like any other fugitive from military service, is, when apprehended, handcuffed and forcibly taken to the barracks, dressed in military uniform and required to begin military service. The conscientious objector naturally rejects this demand and is then arrested, taken to a court martial and proceeds to be charged with the crime of "Aggravated Disobedience to Orders". Here the key issue is the classification of the sentenced conscientious objector as a "soldier".  In the case that the conscientious objector was not a soldier, it would be possible to fall back on the field of natural law as a civilian exercising a universally recognized human right3.

It remains that the creation of a state of "disobedience to orders" requires a highly skewed legal basis. That is, this brings up the ludicrous scenario of a military officer issuing orders to anyone in the street and, when these orders are not obeyed, throwing them into prison. The only difference considered between the two cases is that the event takes place on territory belonging to the military.
 

Another side to the matter moreover, is that a conscientious objector, after being tried, sentenced and serving out a term of imprisonment in a military prison, is then returned to the barracks. Then, inevitably, the objector is once more accused of disobedience to orders and arrested. In other words, the conscientious objector is subjected to a potentially endless vicious circle of barracks-court-prison. In this exercise, the conscientious objector comes face to face with the risk of a potentially unending prison sentence.

Likewise, when Osman Murat Ülke was first arrested (October 7 1996) he was charged according the military penal code's article 58.4 with "undermining national resistance" and also to the then-applicable article 155 of the Turkish penal code with the crime of "decreasing the people's enthusiasm for the military", he was then charged with eight counts of aggravated disobedience to orders. Even today, all conscientious objectors and supporters of the right to conscientious objection are faced with the risk of imprisonment under the Turkish penal code's articles 318 and 319.5
 

On April 8 2005 I was arrested in Izmir and, in military custody, was first taken to a military unit in Tokat on April 10 2005, then, afterwards on April 11 2005, I was placed before the Sivas Military Court and in accordance with its ruling, was transported to the Sivas Military Prison. On my first day in prison, I was subjected to an attempted lynching organized by the authorities but was able to survive with the help of several prisoners. In connection with these events and the subsequent mistreatment that occurred lodged in complaint by my lawyer 4 individuals, including members of the prison administration are currently standing trial at the Sivas Military Court.6
 

A short time later, I was sent to the military hospital and I was forced on this occasion to face the issue of my homosexuality with the military. In my declaration of conscientious objection, I had already stated that I am a homosexual and protested the military's aggressive and dishonorable attitude to homosexuality. Because, according to the Turkish Social Foundation's Competencies Administration, homosexuality is an illness7 this situation "had to be proven by means of official documentation".

This official documentation required reports from an anal examination, psychiatric reports and, as incredible as it may seem, photographic or film recordings of sexual activity. Of course I refused to accept these practices as a direct assault on the homosexual individual and as a result, was given an increase in the severity of my sentence.8  Until my release, I was subject pressure and indoctrination by military officials aimed at making me accepts a "dishonorable discharge". Not recognizing the concept of conscientious objection, they tried me for the crime of "disobedience to orders" and wanted me to accept a "dishonorable discharge".

Had I accepted this discharge, my trial would have ended and I would have escaped this vicious circle however I would also be complicit in this completely inane practice. A further important point is that for a "crime" to be something attributable to a person on logical grounds, the military in proving that I am homosexual by its own methods and withdrawing all the charges, would bring up the question of the definition of "person"-the definition of which is at the root of my conscientious objection 

    
On June 9 2005 I was released after my first trial, however I was returned to custody and removed to Tokat again where it was once more demanded that I put on military uniform which, again, referring to my stand as a conscientious objector, I refused to do. On June10 2005 I was arrested once more by the Sivas Military Court and returned to prison. On August 4 2005 the files on my "disobedience to orders" were amalgamated into a single file and on August 10 2005 each charge was doubled, sentencing me to a total of 4 years imprisonment.

    
The October 25 2005 Supreme Military Court due to the fact that the required physical examination had not been performed on me, overturned the verdict made concerning me.9 This decision would force me to submit to an anal examination, that is, in effect that I would be raped by the hand of the state.10 The local court on December 15 2005 insisted that my refusal to submit to an examination11 was grounds, no matter how great a violation of human rights the examination requirement may be, or my subjection to a four year prison term, for an increase in my sentence.

    
Upon our rejection of the sentence, I was released on March 9 2006 in compliance with the ruling of the Military Supreme Court Chambers Committee12 (in absentia). It was demanded that I go to join the unit in Tokat and despite stating that I would not go, I was released. Even if it may be accepted that my release may have been influenced by the European Court of Human Rights' ruling of January 24 2006 recognizing the mistreatment experienced by Osman Murat Ülke13, his current situation characterized as "civil death" and the demand that Turkey deliver compensation to him, the truth is that the anxiety felt by the

Turkish Republic's state and military at the subject of conscientious objection being brought to the agenda can be seen to have been a major factor.  In this event, every prisoner of conscience behind bars would become a cause for the subject to be brought up for discussion. Likewise, although prisoners of conscience such as Osman Murat Ülke, Mehmet Bal, Halil Savda and myself are recorded as "deserters", like other prisoners of conscience, we have neither fled nor are we in hiding. So, if we are committing crimes under the law, why are we not in prison?
 

1- A prisoner of conscience attracts attention both from the local and international public. The state finds itself in a difficult situation due to the agreements it has signed.

2- It is undesirable that the accepted number of, at least, 400.000 military deserters be made aware of the basic human right of conscientious objection and apply to have this right exercised as an alternative to desertion..

3- Turkey's already quite weak opposition can only manage to summon up energy in times of emergency and crisis.  The issues experienced by conscientious objectors who are not imprisoned, fall in priority in the face of burning issues (such as the Kurdish issue, F-type prisons and solitary confinement). It is undesirable that the civil disobedience-heralding conscientious objection movement unites with other sections of the social opposition, and there is an attempt to marginalize it on this path.

    
Looking from this perspective, it can be seen that the hegemonic powers are following quite a good strategy. This is the only explanation for why, apart from a few people, the 70 or so conscientious objectors have not been arrested despite being designated "deserters".

    
The sentence handed down to me by the October 10 2006 Sivas Military Court of a 10+15, 25 month prison sentence can be understood as following:

    
From the point of view of general preference, it would be expected that the Sivas Military Court's Supreme Chambers Committee would indicate a (6+6 total of 12 months) sentence and have my release bound to conformity to this ruling; this however, is not what occurred. The first file submitted to the Military Supreme Court Chambers Committee was this.   Had it been approved, all internal legal routes would have been exhausted and thus the European Court of Human Rights would have had access to the files and it became a priority to prevent this.

For the files to come before the Chambers Committee, I should have spent 11 months solid in prison. The files of imprisoned individuals undergoing trial are given priority. At the moment, no matter how much a "fugitive" I may be with my impending sentence of 1-3 years imprisonment, the opening of another trial against me and my wanted status, because of the fact that I am not in custody should mean that the result of my appeal application to the Military Supreme Court should take, as, for example with Halil Savda, up to 1.5 years.

In other words, the condition for the ECHR to be able to review the file that "internal legal routes must have been exhausted" will not be fulfilled for a long period. This means a way of gaining time. Another implication is that the state may be underlining its determination not to recognize this right because, especially after the PKK has announced its ceasefire, it might be expected that actions of civil disobedience against war, especially declarations of conscientious objection will be on the rise.

    
And finally: Conscientious objectors, even if not imprisoned are already being punished in the following ways:

Conscientious objectors live perpetually at risk of arrest.  As official records show the objector as a "deserter" they can be arrested when going to take identity cards. If there is no I.D. card, this means that, if the objector falls across the kind of I.D. check done at virtually every corner, the individual is liable to wind up in military prison. For this reason, the objector is prevented from developing any long-term personal or societal projects.

    
Leaving aside the fact that an objector can not even travel the streets without a valid I.D. card, he is also unable to make use of social services such as health clinics.

    
As the objector may undertake no official transactions, he is unable to marry, his children can not be registered to the population registry and he can not benefit from any civil rights including the right to inheritance.

As the objector is unable to produce any I.D., he may not open a bank account, start a company, be employed in any registered or ordered workplace, in short, he is seriously prevented from engaging in any economic activity at all.
 

As the objector may not obtain a passport he may not leave the country.He may not be a member of any society or political party and as a result is   excluded  from all political activity, but even if he does participate he is excluded from taking any part in decision-making mechanisms. As he is unable to produce a valid I.D. the objector may neither rent nor buy a home. Again, for the same reason, he may not receive delivery of a package addressed to him.
 

In brief, the conscientious objector is driven underground. To live with forged documents is so repulsive that no conscientious objector is prepared to live with the risks it brings because his greatest defense mechanism is his honesty. For example, by taking forged documents, the objector is signing his own name to the label imposed on him by the hegemonic powers of "fugitive".  This is how they are punished and forced out of the country, those who resist try to live with the threat of punishment. 

Despite all this the attraction of civil disobedience is irresistible because the only path to inner peace is through the holistic continuity of thought-expression-action.

_________________________________________________________________________________________________________ 

1 The announcement of 27 October 2001: It is thought that the bombs that are thrown upon Afghan people are the result of the killing of hundreds of people in USA while flies are crashing to Twin Towns on 11th of September. It is expected that all over the world should cooperate in the attack against Afghan people. I curse every kind of violence and I believe that joining or approving any kind of violent event is a responsibility that would open the door for new violent events and new traumas for every approving people. I think that wars are created by states for their power and primarily it is the denial of the right of living of people. Whatever the reason is, to deny the right of living is a crime and no international agreement can legitimize it. That is why I declare that I will not be an agent of that crime. I will not serve for any of the military apparatuses.

I miss a humanity that is purified from violence and power struggles, a humanity that is borderless and in peace with nature. The fact that it does not exist now does not change my ideas and my struggle to create it.

I do not believe in the necessity of the state and I do not feel any belonging to any state. I never want to strengthen military forces by actions called as the duties of citizenship. The state claming I am a citizen of it wants to use me for military service, to turn me into a death machine and to make me a part of the crime that I explained by compromising me in itself. The aim of the state is to reproduce its power and itself. I will not let it happen and I will protect my beliefs. I perceive the rotten report that is provided for me because I am a gay as the sign of the decadence of the state itself.

As an individual, I will not serve for any kind of military or other apparatuses of any state. I admit that to excuse for this is an insult to myself and I refuse every kind of state permission or deference of the state.

So, I totally refuse to serve in the military service. I quest everybody not to join to the army, not to let any kind of bureaucratic operations, to refuse control mechanisms of the state such as MERNIS and tax number. I quest everybody for solidarity by non violent actions.

The way to stop the war is to destroy its human resources.

Every kind of violence is a crime of humanity.

    
2 Articles 87 - 1.  (Amended: 22/3/2000-4551/22 md.) Military personnel failing to carry out orders pertaining to their service, shall be, from one month up to one year, in case of, in word or deed, openly refusing to carry out an order, or in failing to carry out an order in the case of its repetition, sentenced to three months to two years imprisonment. 2. If the abovementioned crimes be committed in times of mobilization or in the face of the enemy, a sentence of up to ten years hard labor shall be imposed.

Article 88 - (Amended: 22/3/2000-4551/23 md.)Crimes of disobedience, as defined in article 87, committed whether partially or in full, deliberate dereliction of collective military rules, orders under arms or while serving under arms shall be subject to three months to five years imprisonment, if on campaign up to five years hard labor and in the face of the enemy shall be subject to imprisonment with hard labor of not less than ten years.

    
3 The U.N. Declaration of Human Rights Article 18, The U.N. Pact on Political and Civil Rights (Accepted by the U.N. General Assembly on December 16 1966 and ratified on March 23  1976. Turkey signed the pact on August 15 2000.) Article 8. outlaws slavery.  An example of conditions of "Forcible employment or work not considered compulsory" in section 8/3-c-ii "In countries recognizing the right not to participate in military service on the basis of belief conscientious objectors should be provided with the substitute of public service as a means of completing legally required duties" The Council of Europe's 1967 decision 337, The European Pact on the Protection of Human Rights and Fundamental Freedoms  articles 9 and 4., The European Union Declaration on Fundamental Rights(This sets out the conditions of fundamental rights, fundamental rights of EU citizens and responsibilities of EU. Passed at the EU's December 7-8 summit in Nice, France.) Article 10-Freedom of Thought and Conscience, 10.2 The EU in relation to the exercise of this right recognizes the right to, in a manner consonant with national codes of law, refuse to perform military duties on religious grounds", in this language, the EU has codified the right to conscientious objection.. The United Nations Universal Declaration of Human Rights, to which Turkey is a signatory party, forbids the arrest or mistreatment of conscientious objectors exercising their right to reject military service and who seek to perform, as an alternative, public services of a non-punitary nature and of civilian character.  At the EU's June 22 1993 summit, under the rubric Basic Rights and Freedoms, acceptance of  the right to conscientiously object became a fundamental condition for membership under the Copenhagen Criteria, the 18th section and its 6th article concern the right to conscientious objection. The criteria which the Turkish Republic has taken upon itself to conform to relating to the chapter on conscientious objection are outlined below:

18 Participating states,

18.1 The UN commission on Human Rights clearly recognizes the right of every individual to conscientiously object.

18.2 A great many participating states, in order to remove the obligation of military service from individuals declaring themselves conscientious objectors, have recently taken appropriate measures,

18.3 A great many non-state organizations have determined their actions concerning conscientious objection in the case of compulsory military service.

18.4 If it has not yet been effected, the conscientious objector should investigate the possibility of creating a means consistent with ongoing requirements, of entering a different form of service as a compromise: this form of service should be on principal non-combatant or of a civilian nature, of service to the public and carrying no coercive features.

18.5 Information related to this issue will be explained,

18.6 Within the framework of the Conference of the Human Dimension, where laws are in force, individuals declaring themselves to be refusing military service on grounds of conscientious objection will be involved in an exchange of information and investigation of the issues. (Source: Declaration of the Conscientious Objection Platform)

4 Article 58 - (Amended: 21/8/1940 - 3914/1 md.) Anyone who, according to Turkish Penal Code articles 153, 161 and article 155 in publication or in spoken word, engages is speech or deeds  that break the national resistance will be subject, due to the felony, to the sanctions and castigations outlined in the abovementioned articles.

5 Articled 318. (Decreasing the people's enthusiasm for the military)- (1) Individuals engaging in deeds encouraging, or exhorting the people in ways decreasing their enthusiasm for military service, or producing propaganda with this aim, will be sentenced to six months up to one year imprisonment.

(2) If the offense is committed via the press or broadcasting, the sentence will be increased by half the sentence additionally.

    
Article ADDE 319.( Encouraging soldiers to disobedience) - (1) Individuals encouraging soldiers, or others subject to military command to engage in illegal disobedience or breaking the oath or military discipline or praising  or stating admiration for persons in front of soldiers who engage in actions contrary to the oath or discipline or laws or other duties or actions violating duties related to military service, shall be imprisoned for one to three years. (2) If the action is committed overtly and publicly, the sentence of two to five years imprisonment shall be passed. (3) If the action should take place in a time of war, the sentence shall be doubled..

6 The case's next hearing will be held on November 7 2006 at the Sivas Military Court.

    
7 Article 17 - (Amended: 30/1/1997 - 97/9106 K.) 3. Psychosexual disorders (homosexuality, transvestitism and others) DECLARATION: Those who come under this category are those whose sexual behavioral disorders are evident, the event of this being known in the military environment is an opening to complaint and this situation must be proven in official documentation.

    
8 While investigating  the basis for the accused's suitability or otherwise for military service in the course of our trial, the accused's rejection of a medical examination that would, in all probability, show the accused's unsuitability to serve, is another indication of the intensity of his criminal intention. (5th infantry Educational Brigade Command Military Court Martial rulings of 10.08.2005 and 2005/1029-498 E.K. numbered ruling) In the same paragraph, the Military Supreme Court's 3rd Chamber 25.10.2005 and 2005/1178-1174 E.K. numbered decision to overrule and the local court's 15.12.2005 and 2005/1535-908 E.K. numbered ruling are repeated.

9 (From the Military Supreme Court 3rd Chamber's 25.10.2005 and 2005/1178-1174 E.K. numbered decision to overrule)

Whether the accused is, as he claims,  homosexual and therefore unsuitable for military service, or attempting to avoid punishment by making false claims must absolutely be tested  by means of a somatic (physical) examination and, in this way it is necessary to determine whether the accused is indeed unsuitable or otherwise to serve.

    
The 5271 numbered CMK's article 75 sets out that in order to prove a matter in connection to a crime, the suspect or accused may be, with a  court order subjected to an internal physical examination.

    
The "Physical examination, genetic investigation and proof of physical identity in the Criminal Court statute" passed under the general framework of the CMK's article 82 in subclause 18 it states "If, under the laws of the land, all sought-after conditions have been fulfilled, the suspect, accused or other individual despite being ignorant regarding this subject,  who refuses to agree to a medical examination or permit samples of key significance to the outcome of the sentence to be taken from his body, the responsible state prosecutor may take the required action.".

    
With regard to the accused, the failure to perform a somatic (physical) examination and disregarding of his claim of being a homosexual  make the prepared medical report deficient and unsuitable as a legal basis for the sentence passed, for this reason it has been ruled that the sentence passed will be overturned..

    
10 In response to mistreatment towards my person (constant confinement to the cell, forced cutting of hair, violence etc) and in order to be able to enjoy standard rights (newspapers, telephone, radio etc) I performed two hunger strikes lasting 28 and 34 days. Despite a certain number of gains that I was able to obtain as a result of these actions, I could not claim that I was able to achieve humane conditions.  The most disturbing thing however, was the open risk of rape during the last 1,5 month period.

    
11 (From the 15.12.2005 and 2005/1535-908 E.K. numbered ruling) the accused has declared himself to be a homosexual. However the Turkish Social Foundation's Health Competencies Administration's addenda to the section dealing with mental health and illnesses article 17/B-3sets out the following ruling: "Those who come under this category are those whose sexual behavioral disorders are evident, the event of this being known in the military environment is an opening to complaint and this situation must be established by means of scant polling or official documentation". That is to say that in order to be able to determine that a homosexual is unfit for military service, it is necessary to observe the individual's behavior in the unit. It is possible to determine whether a homosexual individual's behavior renders him unfit for military service in so far as the individual's homosexual behavior is reflected in his interactions with the outside world. In other words, the individual's homosexual behavior should harm the discipline of his unit.  If this is the case, the accused should, without remaining free even one day longer in the barracks, be taken into custody. According to the relevant Turkish Social Foundations Health Competencies Administration article explained above, only taking into consideration the accused's own declaration of his homosexuality on October 27 2001 (Series-22), without observing his behavior within his unit or observing how his being homosexual has damaged the discipline of the barracks, it is impossible to determine his fitness or otherwise for military service. Not paying attention to the characteristics of the accused's homosexuality, or what kind of damage to the army has been effected from his homosexual behavior and not putting forward any concrete events for consideration but merely taking into account the accused's declaration without investigating whether the homosexual behavior in fact renders him unfit for service, constitutes grounds according to the EHCR, for discrimination on the basis of sexuality

Likewise the ECHR has in various countries rejected the dismissal of military personnel from the army on the basis of their homosexuality as discrimination on the basis of sexuality.   In concrete cases, 4 homosexual soldiers were removed from the army on the basis of a ruling passed by the British Department of Defense. The court in its ruling of 27.09.1999 found that an investigation of the soldiers' personal lives and, without concretely proving how these characteristics had damaged the military, expelling them from the army solely due to the fact of the soldiers' homosexuality, was a contravention of the European Human Rights Treaty's article 8. .

    
12 Decision No: 2006/84 Ruling No: 2006/62

    
13 The Court noted that, despite the large number of times the applicant had been prosecuted and convicted, the punishment had not exempted him from the obligation to do his military service. He had already been sentenced eight times to terms of imprisonment for refusing to wear uniform. On each occasion, on his release from prison after serving his sentence, he had been escorted back to his regiment, where, upon his refusal to perform military service or put on uniform, he was once again convicted and transferred to prison. Moreover, he had to live the rest of his life with the risk of being sent to prison if he persisted in refusing to perform compulsory military service.

    
The Court noted in that connection that there was no specific provision in Turkish law governing penalties for those who refused to wear uniform on conscientious or religious grounds. It seemed that the relevant applicable rules were provisions of the military penal code which made any refusal to obey the orders of a superior an offence. That legal framework was evidently not sufficient to provide an appropriate means of dealing with situations arising from the refusal to perform military service on account of one's beliefs. Because of the unsuitable nature of the general legislation applied to his situation the applicant had run, and still ran, the risk of an interminable series of prosecutions and criminal convictions.

The numerous criminal prosecutions against the applicant, the cumulative effects of the criminal convictions which resulted from them and the constant alternation between prosecutions and terms of imprisonment, together with the possibility that he would be liable to prosecution for the rest of his life, had been disproportionate to the aim of ensuring that he did his military service. They were more calculated to repressing the applicant's intellectual personality, inspiring in him feelings of fear, anguish and vulnerability capable of humiliating and debasing him and breaking his resistance and will. The clandestine life amounting almost to "civil death" which the applicant had been compelled to adopt was incompatible with the punishment regime of a democratic society.

    
Consequently, the Court considered that, taken as a whole and regard being had to its gravity and repetitive nature, the treatment inflicted on the applicant had caused him severe pain and suffering which went beyond the normal element of humiliation inherent in any criminal sentence or detention. In the aggregate, the acts concerned constituted degrading treatment within the meaning of Article 3.

 
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