12/12/2019

Individual Application 108/19

Press Release concerning the Judgment Finding a Continued Violation due to Non-Enforcement of the Constitutional Court’s Judgment

The Facts

By the decision of the incumbent assize court dated 4 May 2011, the applicants were sentenced to life imprisonment for attempting to overthrow the constitutional order by force. Following the finalization of the conviction decision upheld by the Court of Cassation, the applicants lodged an individual application with the Court. Finding a violation of the right to a fair hearing in respect of all applicants as well as a violation of the right to legal assistance solely in respect of the applicant Aligül Alkaya, the Court sent a copy of its judgment to the incumbent court to conduct a retrial in order to redress the consequences of the violation.

In that judgment, it is indicated that the applicants other than Aligül Alkaya were convicted based on the latter’s [police] custody statements taken in the absence of a lawyer; and that in spite of the request by the applicants other than Aligül Alkaya for examination of a witness, the assize court failed to consider this request. It is further stated that conviction of some of the applicants was mainly based on the statements of the witnesses heard by various courts; however, the applicants were not provided with the opportunity to examine these witnesses during the hearing, which fell foul of the right to examine a witness; and that there was therefore a violation of the right to a fair hearing as a whole.

Invoking the Court’s judgment finding a violation in their cases, the applicants requested a retrial. By the additional decision of 30 March 2016, the assize court dismissed the request for a retrial without holding a hearing.

The Applicants’ Allegations

The applicants maintained that their right to a fair hearing had been violated due to the dismissal of the retrial request filed on the basis of the Court’s violation judgment.

The Court’s Assessment

Enforcement of the judgment whereby the Constitutional Court finds a violation of any fundamental rights and freedoms is a mandatory consequence of the power and task of concluding individual applications entrusted to the Constitutional Court. Non-enforcement of a violation judgment rendered by the Court amounts to the continuation of the previously-found violation.

In cases where the Constitutional Court orders a retrial in conjunction with its violation judgment, the relevant inferior court has no discretionary power in assessing whether a ground requiring a retrial exists, which differs from the process of a retrial in procedural law. Therefore, the legal obligation of the relevant court, upon such a violation judgement, is to take the necessary steps indicated in the Court’s judgment with a view to redressing the consequences of the violation found.

Besides, in cases where the Court orders a retrial, there is no need to file a request, by those in favour of whom the violation judgment is or by any other person or persons concerned, with the inferior court to conduct the retrial. Unlike the process of retrial laid down in the relevant procedural laws, the inferior court is obliged, immediately upon receiving the Court’s judgment, to conduct a retrial without awaiting an application by those concerned. Accordingly, in cases where a retrial is to be conducted by virtue of the violation judgment rendered by the Court, the inferior court does not make an assessment as to the admissibility of retrial order unlike the process in the procedural law / an assessment as to the admissibility is not made unlike the process in the procedural law .

In this sense, the first step needed to be taken by the inferior court is to decide to conduct a retrial by virtue of the Court’s judgment finding a violation.  As a matter of fact, after the inferior court takes such a decision, its previous decision which has been found by the Court to be in breach of any fundamental rights and freedoms will automatically become null and void. The liability incumbent on the inferior court at the subsequent stage is to take necessary steps in order to redress consequences of the violation found by the Court.

Within this framework, if the violation results from any procedural negligence, failure or other omission during the trial, such negligence, failure or omission is to be remedied/eliminated in a way that would not lead to a violation. Nevertheless, this liability cannot be construed to the effect that the inferior courts cannot satisfy the requirements indicated in some of the violation judgments by way of reaching a conclusion opposite to the former one over the case-file -without holding a hearing- or varying its decision so as to eliminate the causes resulting in violation. If it is possible to redress the violation found by the Court in its judgment without holding a hearing, consequences of the violation may be redressed in this way. In determining the method by which consequences of the violation will be redressed, nature of the violation must be taken into consideration.

In the present case, the Court found, in the first application lodged by the applicants, a violation of the right to a fair hearing in its entirety due to the inferior court’s failure to fulfil the requirements inherent in the rights to examine and cross-examine witnesses as well as to legal assistance.

In its various judgments, the Court has laid down the principles with respect to the rights to examine and cross-examine witnesses and to legal assistance falling under the right to a fair hearing.

Accordingly, for a fair hearing, an accused should be able to examine the witnesses and confront them during the criminal proceedings as well as be afforded with the opportunity to test the veracity of witness statements. However, it is not an absolute right and may be subject to restrictions based on reasonable grounds. On the other hand, if the conviction is based on statements given by a witness whom the accused could neither examine nor cross-examine, it would constitute a restriction on the accused’s rights to the extent in defiance of the constitutional safeguards.  

Reliance, in a conviction decision, on a confession by an accused who was not provided with legal assistance causes irreparable damage to the right to legal assistance.  In cases where the accused person denies his confession obtained at the investigation stage under ill-treatment and torture but the court relies on this confession without conducting an inquiry, it will constitute a significant lack of due diligence.

In the circumstances where, as in the present case, the Court finds a violation and orders redress of the violation and its consequences, the relevant judicial authorities are to take necessary steps to redress the violation and its consequences, considering the nature of the violation judgment.

In the present case, the first instance court dismissed the request for a retrial, which is contrary to its statutory obligation.  The step to be taken is to eliminate the causes giving rise to a violation of the procedural safeguards by conducting a re-trial, to make assessments based on the available evidence and to reach a new conclusion accordingly.

It is not possible to examine, without holding a hearing, the witnesses who provided testimony against the applicants and whose statements were decisively relied on in their conviction. The applicants can be afforded with the opportunity to confront the witnesses against them as well as to test the veracity of the latter’s statements only when the incumbent court decides to conduct a retrial and to hold a hearing.

Besides, the questions as to whether the pre-trial investigation confession of the applicant Aligül Alkaya was obtained under ill-treatment and torture and whether his confession could be relied on as evidence in conviction may be clarified after the deficiencies concerning the witnesses’ examination are eliminated. It has been observed that the interpretation of the incumbent assize court in refusing the request for a retrial did not comply with the Court’s violation judgment, and that therefore, the violation found by the Court in its judgment with respect to the applicants and the consequences thereof were not redressed by the inferior courts.

Consequently, the Court has found a violation of the right to a fair hearing safeguarded by Article 36 of the Constitution.

Regard being had to the fact that it is the second time that the Court finds a violation in the same case due to non-enforcement of its previous judgment finding a violation of the right to a fair trial, the Court has considered that merely finding a violation and ordering a retrial will not provide a sufficient redress to the applicants and thus awarded them compensation.