THE FACTS

 [8-26] The applicant was sentenced to life imprisonment by the State Security Court (the SSC), and the sentence became final upon the appellate review of the Court of Cassation.

 The applicant lodged an application with the European Court of Human Rights (“the ECHR”), stating that he had not been tried by an independent and impartial tribunal due to the sitting of a military judge on the bench of the SSC.

 Having found a violation of the right to be tried by an independent and impartial court, the ECHR indicated that a re-trial, if requested, would be an appropriate means of the redress of the violation.

 The applicant requested a re-trial, relying on the violation judgment rendered by the ECHR. However, the incumbent assize court dismissed this request on the ground that the legal conditions sought for a re-trial were not satisfied.

 The applicant appealed against the decision dismissing his re-trial request that had been filed by virtue of the ECHR’s judgment finding a violation of his right to be tried by an independent and impartial tribunal. Upon the dismissal of his appellate request, he lodged an individual application with the Court.

 V. EXAMINATION AND GROUNDS

27. The Constitutional Court, at its session of 17 June 2018, examined the application and decided as follows:

A. The Applicant’s Allegations and the Ministry’s Observations

28. The applicant maintained that his request for a retiral, in pursuance of the violation judgment rendered by the ECHR, had been dismissed unlawfully; that the dismissal had been manifestly in contravention of law and the ECHR’s judgment; and that the ECHR’s judgment had not been therefore executed. He accordingly alleged that his constitutional rights had been violated and requested a retrial.

29. The Ministry, in its observations, noted that the applicant’s request for a retrial had been dismissed in accordance with the conclusion reached by the judicial bodies examining the request. Making a reference to the ECHR’s case-law to the effect that Article 6 of the European Convention on Human Rights (“the Convention”) did not guarantee the right to the re-opening of the terminated proceedings, as in the requests for a retrial, the Ministry indicated that it was within the Constitutional Court’s discretion to consider these issues.

30. In his counter-statements against the Ministry’s observations, the applicant reiterated his allegations that he had already specified in the application form.

B. The Court’s Assessment

31. Article 36 § 1 of the Constitution titled “Right to a legal remedy” reads as follows:

 “Everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures. No court shall refuse to hear a case within its jurisdiction.”

 32. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). In this sense, the applicant’s allegations were examined from the standpoint of the right to be tried by an independent and impartial tribunal.

 1. Admissibility

 33. The applicant’s complaint in this part must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

 2. Merits

 a. General Principles

 34. Article 36 of the Constitution does not include any explicit indication as to the independence and impartiality of tribunals. However, pursuant to the Court’s case-law, this is an implicit element inherent in the right to a fair trial. Besides, in the legislative intention for adding the notion “the right to a fair trial” to Article 36 of the Constitution, it is underlined that the right to a fair trial, which is also enshrined in the international convention to which Turkey is a party, has been incorporated into the said Article. As a matter of fact, Article 6 of the Convention explicitly sets forth the right to be tried by an impartial tribunal, as an element inherent in the right to a fair trial.

 35. Besides, regard being had to the fact that impartiality and independence of tribunals are two elements complementing one another, it is explicit that, as required by the principle of constitutional holism, Articles 138, 139 and 140 of the Constitution must also be taken into consideration in making an assessment as to the right to be tried by an impartial tribunal (see the Court’s judgments no. E.2005/55, K.2006/4, 5 January 2006; and no. E.1992/39, K. 1993/19, 29 April 1993).

 36. In deciding whether a tribunal is independence, the way in which its members are appointed and their terms of office, the security of tenure afforded to judges and their appearance of independence are of importance. Impartiality means lack of bias, prejudice and interest which would have a bearing on the settlement of the case, as well as having no opinion or interest vis-à-vis, in favour, or to the detriment of, the parties of the case. Impartiality has two aspects, subjective and objective. In this respect, not only the judge’s personal impartiality in the case but also the impression given by the court, as an institution, on an individual must be taken into consideration (see Hikmet Kopar and Others [Plenary], no. 2014/14061, 8 April 2015, §§ 109 and 110).

 37. The ECHR considered the status of the military judge sitting on the bench of the State Security Courts (“the SSC”) and concluded that these courts lacked independence and impartiality. Following its judgment in the case of Incal v. Turkey, the ECHR found a violation of the right to be tried by an independent and impartial tribunal also in several cases involving the alleged lack of independence and impartiality of these courts. In line with these judgments, the provision which allowed the military judges to sit on the bench of the SSC was annulled, and the SSCs were abolished.

 38. The Convention signed on 4 November 1950 for the protection and improvement of fundamental rights and freedoms was ratified by the Grand National Assembly of Turkey through Law no. 6366 and dated 10 March 1954 and took effect in terms of Turkey after the certificate of ratification was deposited to the Secretary General of the Council of Europe on 18 May 1954. By virtue of the resolution of the Council of Ministers dated 22 January 1987 and no. 87/11439, the right to lodge an individual application with the European Commission on Human Rights was introduced, and by virtue of the resolution dated 25 September 1989 and no. 89/14563, the compulsory jurisdiction of the ECHR was recognised by Turkey. Thereby, Turkey has undertaken the liability to secure the fundamental rights and freedoms enshrined in the Convention and afforded all individuals within its jurisdiction the right to lodge an application with an international tribunal which may render legally binding judgments finding a violation (see Sıddıka Dülek and Others, no. 2013/2750, 17 February 2016, § 68).

 39. The fundamental rights and freedoms that are safeguarded under the Convention may be effectively protected only when the violation judgments rendered by the ECHR are duly executed in the domestic law. The failure to duly execute the ECHR’s violation judgments in the domestic law means that the fundamental rights and freedoms safeguarded by the Convention could not be effectively protected in practice (see Sıddıka Dülek and Others, § 69). In this regard, a violation judgment rendered by the ECHR is accepted, by virtue of the Code no. 5271, as a ground for a retrial with a view to ensuring effective protection of the fundamental rights and freedoms both in theory and in practice.

 40. It is for the Constitutional Court, which is empowered to deal with individual applications, to examine any alleged violation of the fundamental rights and freedoms under the joint protection realm of both the Constitution and the Convention. Any consideration to the contrary would be incompatible with the constitutional objective which envisages the effective protection, through individual application mechanism, of the fundamental rights and freedoms which are safeguarded jointly by the Constitution and the Convention. Therefore, the question whether a violation judgment rendered by the ECHR has been duly executed must be examined by the Court. However, such an examination by the Court will not involve a re-examination of the facts from the outset but will be confined to the question whether the violation judgment rendered by the ECHR has been duly executed (see Sıddıka Dülek and Others, § 70).

 41. As a requisite of the subsidiary nature of the individual application mechanism, it is in principle for the inferior courts to interpret and implement the legislation; however, it is naturally within the Court’s jurisdiction to assess whether the impacts of such interpretation and practices are compatible with the fundamental rights and freedoms which are jointly safeguarded by the Constitution and the Convention (see Kemal İnan, no. 2013/1524, 6 October 2015, § 49).

 b. Application of Principles to the Present Case

 42. The applicant requested a retrial, relying on the ECHR’s judgment finding a violation of the right to be tried by an independent and impartial tribunal. His request was dismissed on the grounds that the violation found by the ECHR to the effect that the SSC had not been independent and impartial was not the basis underlying his conviction and that the condition specified in Article 311 § 1 (f) of the Code of Criminal Procedures no. 5271 was not satisfied. The 4^th Chamber of the Diyarbakır Assize Court, dealing with the applicant’s challenge, found the dismissal decision lawful on similar grounds.

 43. In the present case, what would be discussed by the Court is the questions whether the allegations raised by the applicant, who requested the inferior court to conduct a retrial in pursuance of the ECHR’s violation judgment, within the scope of the right to be tried by an independent and impartial tribunal were examined in an effective and sufficient manner, and whether the ECHR’s judgment finding a violation was duly executed. In other words, the question whether the inferior courts redressed the violation found by the ECHR in its judgment as to the applicant’s case as well as the consequences thereof is of importance.

 44. It has been observed that the applicant’s case, which is the subject-matter of the ECHR’s violation judgment, was heard by the SSC’s jury consisting of one military judge. The violation found by the ECHR in the applicant’s case could be redressed only by conducting a retrial by a court consisting of no military judge on its bench. However, the incumbent inferior court dismissed the applicant’s request for a retrial, stating that sitting of a military judge on the trial bench was indeed related to the procedure. Whereas, in its judgment, the ECHR pointed to the presence of a military judge on the trial bench as a reason giving rise to the violation, regardless of the conclusion reached. It was further indicated that if requested, to conduct a retrial would be an appropriate means of redressing the violation in question.

 45. In this sense, it has been observed that the ECHR’s violation judgment has a bearing on the soundness of the final decision in the domestic law and thereby constitutes a significant ground for the conduct of a retrial; and that however, the interpretation by the inferior court of the relevant provision of Code no. 5271 did not comply with the ECHR’s judgment and did not involve an examination to the extent, and with due diligence, as required by Article 36 of the Constitution; that the ECHR’s judgment was not fully executed; and that the violation of the right to be tried by an independent and impartial tribunal could not be redressed.

 46. Consequently, the Court has found a violation of the right to be tried by an independent and impartial tribunal due to the failure to execute the ECHR’s violation judgment, which was contrary to the safeguards inherent in the said right.

 3. Application of Article 50 of Code no. 6216

 47. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

 “1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled…

 (2)If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

 a. General Principles

 48. Pursuant to Article 49 § 6 of Code no. 6216, during an examination on the merits, it is determined whether any fundamental right has been violated, and if any, how the violation would be redressed. According to Article 50 § 1 of the same Code, in cases where a violation judgment is rendered, the steps required to be taken for the redress of the violation and its consequences shall be indicated. Accordingly, in case of any violation, not only a violation of a given fundamental right or freedom is found, but also “it must be determined how the established violation would be redressed”, in other words, “the steps required to be taken in order to redress the violation and consequences thereof must be indicated”.

 49. In cases where a violation of any fundamental right and freedom is found within the scope of the individual application, the basic rule for redressing the violation and its consequences is to ensure restitution as much as possible, that is to say, to ensure restoring to the former state prior to the violation. To that end, it must be primarily required to end the continuing violation, to eliminate the decision or the act giving rise to the violation or their consequences, to compensate the pecuniary and non-pecuniary damages resulting from the violation, as well as to take the other measures deemed necessary in this respect.

 50. However, as required by Article 50 § 1 of Code no. 6216, in indicating the steps required to be taken for the redress of the violation and consequences thereof, no decision can be issued in the form of an administrative act and action. Accordingly, the Court cannot perform an action by replacing the administration or the judicial organs or the legislative body in ordering how the violation and its consequences would be redressed. It indicates the way in which the violation and its consequences would be redressed and sends its judgment to the relevant authorities in order to ensure the necessary actions to be taken (see Şahin Alpay (2) [Plenary], no. 2018/3007, 15 March 2018, § 57).

 51. Before indicating the steps required to be taken for redressing the violation and its consequences, the reason giving rise to the violation must be identified. Accordingly, the violation may be caused by an administrative act and actions, judicial processes, or the actions of the legislative body. The identification of the underlying reason of the violation is of importance for determining the appropriate means of redress.

 52. In cases where the violation is resulted from a court decision, it is in principle held that a copy of the judgment be sent to the relevant court to conduct a retrial, with a view to redressing the violation and its consequences, pursuant to Article 50 § 2 of Code no. 6216 and Article 79 § 1 (a) of the Internal Regulations of the Constitutional Court.

 53. The notion of retrial, which is indicated in Article 50 of Code no. 6216, involves differences in certain aspects from the reopening of the proceedings, which is set forth in the relevant procedural laws. Undoubtedly, also in cases where the Constitutional Court orders a retrial, the inferior court re-handles the proceedings which have been already ended with a final decision. In this sense, there is no difference between the practice of reopening of the proceedings set out in the relevant procedural laws and the retrial ordered by the Court. However, in cases where the Court orders a retrial for the redress of the violation found, no discretion is left to the inferior court in acknowledging the ground necessitating the retrial and revoking its initial decision, which is different from the practice of reopening of the proceedings set out in the relevant procedural laws. The inferior court is obliged to take the necessary steps as indicated in the Court’s judgment finding a violation, with a view to redressing the violation and consequences thereof.

 54. In this regard, the first step to be taken by the inferior court is to revoke its initial decision which has been found to be in breach of a fundamental right or freedom or to have failed to redress the violation of a fundamental right or freedom. At the subsequent stage following the revocation of the initial decision, the inferior court would take the necessary actions to redress the consequences of the violation found in the Court’s judgment. In this regard, if the violation has been caused by a procedural action performed during the proceedings or a procedural deficiency, it is required that the procedural action in question be re-performed (or if not performed yet, be performed for the first time) in a way that would not give rise to a violation. On the other hand, if the Court finds that the violation is resulted from an administrative action or practice itself or the outcome of the inferior court’s decision, the inferior court is then required to redress the consequences of the said violation without performing any procedural action but by merely issuing a decision over the case-file, which is contrary to its former decision.

 b. Application of Principles to the Present Case

 55. The applicant requested a retrial.

 56. In the present case, the Court found a violation of the right to be tried by an independent and impartial tribunal. It has been therefore observed that the violation resulted from the court decision.

 57. In this regard, there is a legal interest in conducting a retrial with a view to redressing the consequences of the violation of the right to be tried by an independent and impartial tribunal. The retrial to be conducted accordingly is for redressing the violation and its consequences pursuant to Article 50 § 2 of Code no. 6216. Within this framework, the inferior courts must firstly revoke the impugned decision which has led to the violation and ultimately issue a fresh decision in accordance with the judgment finding a violation. A copy of the judgment must be therefore sent to the relevant court for a retrial.

 58. The court fee of 206.10 Turkish liras (“TRY”), which is calculated over the documents in the case-file, must be reimbursed to the applicant.

 VI. JUDGMENT

 For these reasons, the Constitutional Court UNANIMOUSLY held on 17 June 2018 that

 A. The alleged violation of the right to be tried by an independent and impartial tribunal be DECLARED ADMISSIBLE;

 B. The right to be tried by an independent and impartial tribunal safeguarded by Article 36 of the Constitution be DECLARED ADMISSIBLE;

 C. A copy of the judgment be SENT to the 6^th Chamber of the Diyarbakır Assize Court (file no. 2013/422) for a retrial in order to redress the consequences of the violation of the right to be tried by an independent and impartial tribunal;

 D. The court expense including the court fee of TRY 206.10 be REIMBURSED TO THE APPLICANT;

 E. The payment be made within four months as from the date when the applicants apply to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date; and

 F. A copy of the judgment be SENT to the Ministry of Justice.