Turkey’s top court says failure to implement ECtHR judgement is a violation of right

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Examining the application of Cahit Tamur, Eyyup Yaşar, Fuat Bor and Hüseyin Duman, the Constitutional Court has concluded that the "right to a fair trial" of the applicants has been violated by the local court's rejection of their requests for a retrial despite the ruling of right violation handed down by the European Court of Human Rights (ECtHR).

In its ruling, the top court has emphasized that "conviction must not be based on statements that were not confirmed before the judge and were taken by the law enforcement without the presence of a lawyer."

ECtHR concluded the application 10 years later

Applicants Tamur, Yaşar, Bor and Duman were sentenced to life imprisonment on charge of "armed action against the state" by the Diyarbakır 6th Heavy Penal Court in February 2007. The ruling was taken to the ECtHR in February 2008 after it became final.

The applicants indicated that their conviction was based on the statements taken in detention in absence of a lawyer, that no independent or impartial trial was held and that the trial lasted too long.

The ECtHR, in its judgement dated November 2017, concluded that their right to benefit from a defense counsel in detention and the right to a trial within reasonable time were violated. Finding other allegations inadmissible, the ECtHR ruled that the applicants should be paid damages on the grounds that their right to a trial within reasonable time was violated.

As for the allegation that no legal assistance was provided by a lawyer in detention, the Court indicated that a retrial could eliminate the violation in question if the applicants made a request for retrial.

In response to this, the applicants made an application for a retrial in Turkey in January 2018; however, their application was rejected by the Diyarbakır 6th Heavy Penal Court. As their appeal against this rejection was also rejected by the upper court, the Diyarbakır 7th Heavy Penal Court,Tamur, Yaşar, Bor and Duman took the issue to the Constitutional Court.

Constitutional Court refers to Turkey's obligations

Concluding the application, the Constitutional Court has referred to the bindingness of the ECtHR judgements. Noting that Turkey is obligated to guarantee fundamental rights and freedoms in the European Convention on Human Rights (ECHR), the top court has emphasized that the ECtHR's rulings of right violation must be executed in the domestic law as required.

As was also the case in the ECtHR judgement, the Constitutional Court has noted that "the right to benefit from a defense counsel is violated when the failure to offer the opportunity to access a lawyer in detention stems from an established practice based on legal regulations and the statements taken in the meantime became the basis of a ruling of conviction."

In its ruling, the top court has emphasized that "conviction must not be based on statements that were not confirmed before the judge and were taken by the law enforcement without the presence of a lawyer."

Examining the application, the Constitutional Court has also concluded that "the right to defend oneself with legal assistance as part of the right to a fair trial was violated on the grounds of the rejection of the request for retrial despite the ECtHR's request for retrial." Accordingly, the top court has said, "It is understood that the violation was caused by the court."

That being the case, the Constitutional Court has emphasized that there is legal interest in holding a retrial so that the consequences of the right to benefit from legal assistance can be eliminated.

Referring to the Article 36 of the Constitution, the Constitutional Court has found the allegation of a violation of the right to defend oneself by legal assistance as part of the right to a fair trial was violated and ruled that a retrial shall be held to eliminate the consequences.

Kavala, Demirtaş arrested despite ECtHR rulings

On the other side, former Co-Chair of the Peoples' Democratic Party (HDP) Selahattin Demirtaş and businessperson and rights defender Osman Kavala are still behind bars for years by local court rulings despite the ECtHR rulings of right violation and immediate release. (HA/SD)