Press Release No: Individual Application 48/18
21.09.2018

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE RIGHT TO TRIAL BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL FOR NON-COMPLIANCE WITH THE VIOLATION JUDGMENT OF THE ECHR

On 17 July 2018, the First Section of the Constitutional Court found a violation of the right to trial by an independent and impartial tribunal safeguarded by Article 36 of the Constitution in the individual application lodged by Abdullah Altun (no. 2014/2894).

The Facts

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 trial 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 for re-trial were not satisfied.

The applicant appealed the decision dismissing re-trial request relying on the judgment the ECHR finding that his right to trial by an independent and impartial tribunal was breached. Upon the dismissal of his appeal, he lodged an individual application with the Constitutional Court. 

The Applicant’s Allegations

The applicant maintained that his right to trial by an independent and impartial tribunal was violated as his request for a re-trial on the basis of the ECHR’s judgment was dismissed.

The Constitutional Court’s Assessment

The independence and impartiality of tribunals are not explicitly enshrined in Article 36 of the Constitution. However, it is an implicit element of the right to a fair trial under the Court’s case-law.

Considering the status of the military judge sitting at the bench of the SSC at the time they were operating, the ECHR concluded that these courts lacked independence and impartiality. Also in many applications lodged against Turkey with respect to the status of the military judge sitting on the bench of these courts, the ECHR found a violation of the right to trial by an independent and impartial court. Following the ECHR’s judgments, the SSCs were completely abolished along with the law regarding military judges at the bench of these courts.

In the present case, the question as to whether the violation found by the ECHR and its consequences were redressed by the inferior courts is of importance. The violation found by the ECHR should have been redressed by conducting a re-trial before a court involving no military judge. However, the relevant court refused a re-trial on the ground that presence of a military judge on the bench during the proceedings was only a procedural matter. In fact, in the judgment in the applicant’s case, the ECHR considered sitting of a military judge on the bench as a ground giving rise to violation, independently from the outcome of the trial. It was also indicated that, if requested, conducting a re-trial would be an appropriate means for the redress of the violation. 

It has been concluded that the violation judgment is a substantial reason for a re-trial and the interpretation of the relevant law otherwise was not compatible with the ECHR’s judgment. The request for re-trial was not duly examined in relation to Article 36 of the Constitution. Consequently, the requirements stated in the violation judgment of the ECHR were not fulfilled and, therefore, the violation of the right to trial by an independent and impartial tribunal was not redressed.

For the reasons explained above, the Constitutional Court found a violation of the right to trial by an independent and impartial tribunal safeguarded by Article 36 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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