THE FACTS

 [8-27] A criminal case was filed against the applicant by the incumbent chief public prosecutor’s office for allegedly committing a sexual assault against the victim, his cousin, on 5 November 2019.

 By its decision of 29 November 2011, the incumbent assize court convicted, by a majority, the applicant of the imputed offence relying on the victim’s statements which were mainly coherent and in support of the other available evidence, the report issued by the Forensic Medicine Institute and the witness’ statements. In the dissenting opinion, it was indicated that given the contradiction in some of her statements and the way in which the incident occurred, the impugned incident had taken place with the victim’s consent.

 On 18 September 2014, the applicant submitted a letter to, and requested, the appellate court to take into consideration a message which was sent to him by the victim following 9 August 2014 and where the victim wrote that indeed the applicant had no fault.

 However, his conviction decision was unanimously upheld by the Court of Cassation.

 On 3 March 2015, the applicant requested a retrial due to the new evidence that appeared following his finalised conviction decision. However, his request was dismissed as the issues raised in his request were indeed the same with those already raised and assessed during the first- and second-instance proceedings. His challenge against the dismissal decision was also dismissed by a majority.

 On 8 June 015, he lodged an individual application with the Constitutional Court.

 V. EXAMINATION AND GROUNDS

28. The Constitutional Court, at its session of 7 June 2018, examined the application and decided as follows:

A. The Applicant’s Allegations

29. The applicant maintained that the relevant court had dismissed his request for a retrial on incorrect grounds despite the failure to consider, at any stage of the proceedings, the new and significant evidence which appeared following the conviction decision and was capable of influencing the outcome of the proceedings. He accordingly alleged that his right to a reasoned decision had been violated.

B. The Court’s Assessment

30. Retrial or reopening of the proceedings, which is applied for in cases where it is subsequently revealed that there is an erroneous in the final decision issued at the end of a trial, is a remedy whereby a fresh decision may be issued, if the grounds specified in the law are fulfilled, by the incumbent trial court by means of a retrial following the finalisation of the initial decision issued at the end of the criminal trial.

31. In criminal trials, the right to apply for a retrial against the finalised decisions is afforded to the parties, pursuant to Article 311 of the Code of Criminal Procedure no. 5271 (“Code no. 5271”) on limited grounds. As set out in Article 319 of the same Code, the request for a retrial shall be rejected if it has not been lodged in the way specified in the Code, or if there is no legal ground that would justify reopening of the proceedings, or if the evidence that would substantiate such request has not been provided. Otherwise, the request for a retrial shall be notified to the public prosecutor as well as to the relevant party within 7 days if there is any opinion or consideration to be submitted. If the incumbent court finds the request for a retrial justified, then the evidence would be gathered. Following the evidence-gathering process, if the incumbent court finds the request for a retrial founded and admissible, it would then order a retrial and holding of a hearing pursuant to Article 321 of the same Code.

32. In its judgment in the case of H.Ç. (no. 2015/6867, 18 April 2018, §§ 24-27) as well as in its several other judgments, the Court has considered that the judicial processes prior to the order for a retrial are also covered by Article 36 of the Constitution and accordingly accepted that the safeguards inherent in the right to a fair trial would apply also to such processes.

33. However, the Court now deems it necessary to review this case-law. The ground leading the Court to engage in such a review is its current decisions whereby it found the individual applications, lodged with respect to decisions dismissing certain requests made at any stage upon the issuance of the final decision, not to fall within the scope of its jurisdiction ratione materiae as there is no longer a criminal charge. In its decisions in the cases of Topo Kaya (no. 2014/5363, 5 December 2017) concerning the dismissal of the requests for the stay of execution of the prison sentence as well as of İnan Çoban (no. 2014/15208, 19 December 2017) concerning ex post facto trial, the Court held that these applications did not fall into the scope of its jurisdiction ratione materiae, stating that the applicants’ requests were not related to a stage when they were under a criminal charge. Therefore, the complaints with respect to the stages prior to the order for a retrial had also to be re-examined, with a view to ensuring adaptation of the case-law concerning the question whether the different requests filed at the stage where the person concerned is not under any criminal charge would be considered to fall under the right to a fair trial.

34. Pursuant to Article 45 § 1 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, in order for an examination of an individual application, the right alleged to be infringed by a public authority must be safeguarded not only by the Constitution, but it must also fall under the scope of the Convention and its additional protocols to which Turkey is a party. Applications involving any alleged violation of the rights falling outside the joint protection realm of the Constitution and the Convention are not within the scope of the individual examination (see Onurhan Solmaz, no. 2012/1049, 26 March 2013, § 18).

35. In Article 6 of the Convention, it is set forth that the rights and principles concerning the right to a fair trial shall apply to the determination of the disputes as to civil rights and obligations or of any criminal charge. Thereby, the scope of this right is limited to these issues. Accordingly, the applications involving alleged violation of the right to a fair trial, except for these issues, cannot be examined through individual application mechanism for falling outside the scope of both the Constitution and the Convention (see Onurhan Solmaz, § 23).

36. It is clear that the admissibility stage, which is the first stage when the request for a retrial is assessed, is not conducted in a way that would resolve the question of proving the facts. In other words, at this stage, the merits of the criminal charge is not examined upon revoking the initial decision. In the present case, the applicant’s complaints are related to a stage when he was not under a criminal charge (he was convicted). That is to say, it has been observed that his complaint relates to the stage as to the admissibility of the request for a retrial which is held pursuant to Article 319 of the Code no. 5271 upon the finalisation of the conviction decision; that the alleged violation does not concern a stage under which the applicant was under a criminal charge; and that therefore, this part of the application does not fall under the scope of the right to a fair trial.

37. Besides, the fundamental rights and freedoms that are safeguarded under the Convention may be effectively protected only when the violation judgments rendered by the European Court of Human Rights (“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, no. 2013/2750, 17 February 2016, § 69). As a matter of fact, a violation judgment rendered by the ECHR is considered as a ground for a retrial by virtue of the Code of Criminal Procedure no. 5271 (“Code no. 5271”), with a view to ensuring protection of t fundamental rights and freedoms both in theory and in practice. The Code no. 5271 leaves no discretion to the judicial authorities in this sense and entails that a case which is concluded with a finalised decision would be reheard through the reopening of the proceedings.

38. As also set forth in Article 50 of Code no. 6216, if the violation found by the Constitutional Court arises out of a court decision, the file shall be sent to the relevant court for holding a retrial in order for the redress of the violation and the consequences thereof. In cases where the Court orders a retrial with a view to ensuring the redress of the violation found, the inferior court has no discretion to admit the existence of the ground requiring retrial and to revoke the initial decision, unlike the practice of reopening of the proceedings introduced in the relevant procedural laws. That is because in cases where a violation is found, the discretion as to the necessity of holding a retrial is not left to the inferior courts but to the Constitutional Court that has found the violation. The inferior courts are obliged to take necessary actions so as to redress the consequences of the violation, as indicated in the violation judgment rendered by the Constitutional Court.

39. Therefore, the allegations as to the requests for a retrial, which are intended for the redress of the violations found by the Constitutional Court and the ECHR and the consequences thereof, fall under the scope of the right to a fair trial. As also in the present application, the allegations as to the requests for a retrial, save for these two exceptions, are not explicitly within the scope of the right to a fair trial.

40. For these reasons, the application must be declared inadmissible for lack of jurisdiction ratione materiae without any further examination as to the other admissibility criteria.

 VI. JUDGMENT

 For these reasons, the Constitutional Court UNANIMOUSLY held on 7 June 2018 that

 A. The alleged violation of the right to a reasoned decision be DECLARED INADMISSIBLE for lack of jurisdiction ratione materiae;

 B. The court fee be COVERED by the applicant.