ECtHR rulings are binding, Turkey’s top court tells lower court

Turkey’s Constitutional Court ordered a retrial due to violation of the defendants’ rights in a case in which the Diyarbakır 6th High Criminal court refused to abide by a European Court of Human Rights (ECtHR) ruling.

In its unanimous decision published in the Official Gazette on Thursday, the high court said refusal to implement ECtHR decisions would amount to a failure to effectively protect fundamental rights and freedoms that are included in the European Convention on Human Rights.

“Law No. 5271 [law of criminal procedure] does not provide judicial discretion to relevant judicial authorities,” the Constitutional Court said.

The case in question dates back to 2007. In February of that year the Diyarbakır 6th High Criminal Court sentenced Cahit Tamur, Eyyup Yaşar, Fuat Bor and Hüseyin Duman to life imprisonment for taking part in attacks on the state. The defendants took the case to the ECtHR.

In November 2017 the European rights court decided that the defendants’ right to a fair trial was violated due to their inability to meet with a lawyer during their detention and asked for a retrial. Yet, the local court refused to implement ECtHR’s decision in January 2018.

In its decision the Constitutional Court said, “Testimony given to law enforcement officials without legal support should not be the basis of a court decision unless it is validated in front of a judge or a court of law.”

Turkish authorities have recently ignored the ECtHR and failed to implement its decisions in two well-known cases despite the fact that its judgements are legally binding.

In the cases of philanthropist Osman Kavala and Kurdish politician Selahattin Demirtaş the court found that Turkey had violated the right to liberty and other rights (Articles 5 and 18 of the ECHR, respectively) and took the rare step of ordering their immediate release.

The Council of Europe’s (CoE) Council of Ministers on Thursday threatened to launch disciplinary proceedings against Turkey over its failure to implement the court order for Kavala.

The Committee of Ministers has the authority to take infringement proceedings against a Council of Europe member state that refuses to carry out European court judgments. It was used for the first time in 2017 when the government of Azerbaijan repeatedly refused to secure the unconditional release of wrongfully jailed opposition politician Ilgar Mammadov.

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