PRESS RELEASE

7/10/2020

Press Release No: Individual Application 60/20

Press Release concerning the Judgment Finding a Violation of the Right to Legal Assistance due to the Failure to Comply with the Violation Judgment by the European Court of Human Rights

The Facts

The applicant, taken into custody by the anti-terror branch and subsequently detained on remand in 1993, was not provided with legal assistance at the investigation stage. In 2004, the State Security Court (“the SSC”) sentenced him to aggravated life imprisonment, which became final following the Court of Cassation’s appellate review.

The applicant then lodged an application with the European Court of Human Rights (“the ECHR”). In its judgment of 2009, the ECHR found violations of the right to legal assistance due to his lack of legal assistance at the investigation stage, as well as of the right to a trial within reasonable time. Relying on the ECHR’s judgment finding a violation in his case, the applicant filed a request with the incumbent assize court (“the court”) for a stay of execution of his sentence and for a retrial.

However, the court dismissed the applicant’s request for a retrial in 2011. He appealed the dismissal decision before the Court of Cassation, which referred the case-file to the relevant assize court, the authority for challenge, as the impugned decision was subject to a challenge procedure. The authority reviewing the applicant’s challenge annulled the dismissal decision of 2011. Thereafter, the court upheld the decision of 2004, issued by the SSC with respect to the applicant, in 2015. The Court of Cassation upheld the decision, appealed by the applicant, with minor changes.

It appears that the ECHR’s violation judgment was among the judgments, execution of which was supervised by the Committee of Ministers of the Council of Europe; but the case in question has been closed.  

The Applicant’s Allegations

The applicant maintained that his right to legal assistance had been violated due to the dismissal of the request for a retrial he filed in accordance with the ECHR’s violation judgment.

The Court’s Assessment

It falls within the jurisdiction of the Constitutional Court, empowered to examine alleged human right violations through individual application mechanism, to deal with an alleged violation of any fundamental rights and freedoms, which are enshrined in the Constitution and also safeguarded by the European Convention on Human Rights. In this sense, it is also the Court to examine the compliance with the ECHR’s violation judgments. However, the Court’s examination in this respect does not include a re-assessment of the particular circumstances of the given case from the very beginning, but is limited to the question whether the ECHR’s violation judgment has been properly executed.

In cases where the ECHR issues a judgment finding a violation, the relevant judicial bodies must act in a way that would redress the violation and its consequences, given the nature of the relevant judgment.  However, in the present case, the first instance court conducted a re-trial and accordingly heard the applicant and his defence counsel. It ultimately upheld the SSC’s decision on the basis that there was still sufficient evidence for his conviction even if the accused person’s impugned statements obtained at the preliminary stage of the proceedings were not taken into consideration. However, it cannot be fully comprehended whether the applicant’s statements, obtained at the investigation stage in the absence of his defence counsel and forming the subject matter of the ECHR’s violation judgment, was relied on as a ground in his conviction ordered at the end of the re-trial.

Besides, the other evidence underlying the applicant’s conviction was not discussed in the reasoned decision. Finally, it cannot be comprehended from the reasoned decision whether the defence had been provided with the opportunity to challenge the available evidence and to put forward their counter-arguments. Accordingly, the Court has concluded that the incumbent assize court’s assessments failed to comply with the ECHR’s violation judgment, to involve a meticulous examination to the extent required by Article 36 of the Constitution, as well as to redress the violation found by the ECHR and the consequences thereof.

Consequently, the Court has found a violation of the right to legal assistance.