Emine KART
Turkey versus principle of "double jeopardy" in Ülke case

Almost one-and-a-half years after the top European court of human rights ruled Turkey had violated the rights of Osman Murat Ülke, a Turkish citizen who was the first conscientious objector in the country to openly declare his refusal to perform compulsory military service, Ülke still faces imprisonment for earlier convictions which were actually the subject of the European Court of Human Rights’ ruling, dated Jan. 24, 2006.

On July 9 of this year Ülke learnt of a communication sent to his father’s residence from the military prosecutor’s office in Eskişehir informing him that he was expected within 10 days of issue of that notice to present himself to the prosecutor in order to serve a sentence of 17 months and 15 days regarding earlier convictions for refusing to undertake military service. Failure to do so would result in a warrant being issued for his arrest, according to the document, dated June 14.

Late in July, Ülke’s lawyer, Hülya Üçpınar, applied to the Eskişehir Military Court for a stay of execution but her plea was rejected. This week she also appealed the rejection, Üçpınar told Sunday’s Zaman, describing the situation as a “legal scandal.”

Ülke describes the June14 communication as “a document proving the state’s determination to overrule the European court’s decision,” which charged Turkey with forcing Ülke to live a “clandestine life amounting almost to ‘civil death’.”

“Turkey is not acting in compliance with a simple and universal legal principle, which is ‘Non bis in idem’,” Ülke, who lives in the Aegean city of İzmir, said in a telephone interview with Sunday’s Zaman this week. He was referring to a Latin expression which means “not twice for the same thing,” in essence the concept of “double jeopardy”: No man can be tried a second time on the same charge.

“What is more, Turkey is constantly contradicting itself, with its institutions abroad and within the country displaying varying stances,” Ülke added.

The path to a ‘civil death’

With the January 2006 ruling, the Strasbourg-based court found that Turkey had violated Article 3 of the European Convention on Human Rights concerning the prohibition of inhumane or degrading treatment and ruled that Turkey pay 11,000 euros in compensation to the complainant.

One needs to go back to Sept. 1, 1995 in order to fully understand the grounds of the ruling. On that day Ülke publicly burned his military call-up papers and stated at a press conference: “I am not a draft evader, but a conscientious objector. ... I am not a soldier and I never will be. ... I will never, ever, do military service in any way.”

In October 1996 Ülke was detained; in November of the same year he was put on trial at the General Staff’s military court in Ankara, charged with “alienating the public from the institution of military service” under Article 155 of the Turkish Penal Code (TCK) and in conjunction with Article 58 of the Military Penal Code. He was released from custody and taken to his military unit. As a result of refusing to don a uniform, he was put on trial for insubordination. In January 1997 the court of the General Staff in Ankara sentenced him to six months’ imprisonment and a fine. Noting in addition that the applicant was a deserter, the court ordered the military prosecutor attached to the General Staff court to enlist him. Between March 1997 and November 1998, Ülke was convicted on eight occasions of “persistent disobedience” on account of his refusal to wear a military uniform. During that period he was also convicted on two occasions of desertion because he had failed to rejoin his regiment.

In all, Ülke served 701 days of imprisonment. His application, lodged with the European Commission of Human Rights (now obsolete) in January 1997, was transmitted to the European Court of Human Rights in November 1998.
Eventually the court ruled last year concerning the vicious circle in which Ülke has been trapped and said: “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 of the European Convention on Human Rights.”

Turkey’s pledge over a concrete draft

After January 2006, the judgment in Ülke’s case has been considered by the Council of Europe’s Committee of Ministers on three occasions to date. At its meeting in February this year, the deputies “deplored the fact that the Turkish authorities had as yet taken no individual measure to put an end to the violation found by the court, the applicant still being subject to an arrest warrant with a view to the execution of his sentence,” reliable sources told Sunday’s Zaman.

At the committee’s meeting on June 6, only a week before the issue of the communication to Ülke, the Turkish authorities stated that a draft law to prevent repeated punishment of conscientious objectors was in preparation and that this law would also “remedy all negative consequences of the violation for the applicant,” the same sources said.

Diplomatic sources in Ankara only said that “consultations over necessary legal arrangements on the issue are still ongoing with related official institutions,” without elaborating, when approached by Sunday’s Zaman. “We believe that this has not been done. An explanation for the action of the prosecutor in Eskişehir may be that he has not been informed of the court’s judgment,” Üçpınar said, noting that the Committee of Ministers at the time had called upon Turkey to publish and disseminate the judgment to the relevant authorities, including the General Staff.

Upon receiving information from Ülke’s lawyers concerning the recent situation, the Council of Europe Secretariat-General sent a letter to Turkey’s permanent representative to the Council of Europe, noting in the letter that the latest situation in Turkey “is in total contradiction of” the information provided by the Turkish authorities at the June meeting. The Council of Europe also expressed its wish in the letter that the related officials “urgently” become involved in the applicant’s situation due to the oppression that he has been facing.

Circle of prison-ransfer-unit-prison

At the time, in an interview held soon after the ruling in January 2006, Ülke had said that he preferred not to be registered on any official records, like a bank account or a social insurance card, as he believed that it would not be meaningful to be taken for military service by “accident” or “coincidence.”

“I’ve been still living the unregistered life that has been imposed on me, but I’m not exerting a special effort to hide. There is no barrier in front of the state if it really wants to arrest me beyond all of these formal correspondences and channels. Anyhow, I believe that it is even impossible for the officials not to know my whereabouts due to my studies,” Ülke, earning his livelihood as a translator, said last week, speaking to Sunday’s Zaman, when asked whether his life has continued in the same way since then.

At the time of a trial concerning another conscientious objector it was said that “the decision was binding only for the applicant, not for the others” when defense lawyers brought the ruling concerning him to the trial’s agenda, Ülke said. “This is not true at all. However, now it emerges, with the rejection of our application for stay of execution by the Eskişehir Military Court, that they believe the decision should not even lead to a concrete consequence even for me.”

Referring to the Council of Europe’s Committee of Ministers meeting on June 6, Ülke said that at the time representatives of the Turkish government pledged that they have a concrete draft and that ongoing violations at both an individual and general level would be terminated.
“Only one week after this pledge was made, let alone the rectification of violation against me, I’m called for re-arrest and returned to the circle of prison-transfer-unit-prison, only by relying upon earlier convictions made before 1999 — almost all of which have been served, except only three or five days.”

When asked whether he planned to surrender, Ülke ruled out such a possibility, saying that it was out of the question.

“While Turkey is not able even to implement a European court decision which is accepted as a domestic remedy and is openly committing a crime by continuing its contradiction, my being put in prison, whether by my own will or not, would basically be trivial. As I said earlier, they can come and take me, but this would harm at most Turkey’s report card concerning the rule of law as a whole.
“What they need to do now is repair the mistake while they still have a chance to do so and not let the issue become gangrenous. Besides, whatever they do, the consequence will not change in the long run, as the will of conscientious objectors will not be broken, and the state will have to make appropriate arrangements in line with universal principles of the law, as well as in line with the demands that have emerged from these lands.”