Introduction

International bodies show an increased tendency towards recognition of the right to conscientious objection, yet implementation of the right varies from one state to another. While some countries have legally recognised conscientious objection and prevent the criminalisation of objectors, others have not (Leigh and Born 2008: 74). The national legislation on compulsory military service in Turkey exemplifies the controversial implementations of the right to conscientious objection well. This chapter, therefore, analyses the non-recognition of the right to conscientious objection in the Turkish domestic legal system and its compatibility with international standards. It first examines the national legislation on military service and significant domestic cases in relation to the right to conscientious objection in Turkey. Then it analyses Turkey's compliance with the international standards on prevention of arbitrary detention of conscientious objectors: namely, the principles of ‘ne bis in idem’ and the ‘right to fair trial’. Finally, it scrutinises conscientious objection in the light of the right to freedom of expression under Article 10 of ECHR: first, to show the intersection of the right to freedom of expression with the right to religion, thought and conscience, particularly in situations that involve declaring objections to military service and criticising the use of force; and second, to reveal the contradiction between Article 318 of the Turkish Criminal Code and Article 10 of the ECHR.

National Legislation on Compulsory Military Service

Article 72 of the 1982 Constitution, entitled ‘national service’, states that ‘national service is the right and duty of every Turk. The manner in which this service shall be performed, or considered as performed, either in the Armed Forces or in public service shall be regulated by law.’ The wording of Article 72 does not reduce national service to military service; whether national service will be performed as ‘public service’ or ‘military service’ is open to interpretation. Yet, compulsory military service is imposed as national service through Article 1 of the Law on Military Service Act No. 1111, which states that ‘every male Turkish citizen is obliged to perform his military service in accordance with this law’.