Press Release No: Constitutionality Review 27/22

Press Release concerning the Decision Annulling the Provision Prescribing Ten Years for Retrial in so far as It Relates to the Finalised Violation Judgments of the European Court of Human Rights

The Constitutional Court, at its session dated 21 June 2022, found unconstitutional and annulled the part “… in any case ten years after the finalisation of the judgment subject to the request for retrial” of the provision linking the subparagraphs of paragraph (1) of Article 377 of the Code of Civil Procedure no. 6100, in relation to subparagraph (e) of the said paragraph (file no. E.2022/7).

Contested Provision

The contested provision provides that where a finalised judgment of the European Court of Human Rights (ECHR) on a violation establishes that the judgment subject to retrial was rendered on the basis of violation of the European Convention on Human Rights or its Protocols, or where the application to the ECHR against the judgment is dismissed as a result of an amicable settlement or a unilateral declaration, the time limit prescribed for retrial shall not exceed ten years from the date of finalisation of the judgment subject to the request for a retrial.

Ground for the Request for Annulment

The impugned provision is claimed to be unconstitutional on the grounds that the grounds for retrial, in accordance with the violation judgment of the ECHR, should be separated from the other grounds, that the other grounds are essentially present during the proceedings, even if they are unknown to the persons concerned, that the ground for retrial arose later in the violation judgment of the ECHR, and that it is incompatible with the right to a fair trial to make subject to a ten-year period in any event a fact that does not yet exist and is likely to exist in the future.

The Court’s Assessment

The effective protection of the fundamental rights and freedoms enshrined in the European Convention on Human Rights depends, inter alia, on the proper execution in domestic law of ECHR judgments on violations. In cases where the ECHR has found a violation, the aim is to remedy the violation and its consequences and to restore the situation prior to the violation. In this sense, one of the means of restoration is retrial.

In this regard, to effectively protect fundamental rights and freedoms in accordance with Law no. 6100, the violation judgment of the ECHR has been accepted as a ground for retrial. Article 377 of the aforementioned Law, which contains the contested provision, provides that the application for retrial on the basis of the finalised judgment on the violation of the ECHR must be made within three months of the date of notification of that judgment and, in any event, within ten years of the date on which the judgment giving rise to the application for retrial became final. In other words, there are two types of time limits for the retrial of the proceedings: three months (short time limit) and ten years (maximum time limit).

The time limit for the application of the remedy of retrial, which is intended to ensure that the judgments on violations of the ECHR are properly enforced in domestic law, should not be so long as to render that remedy ineffective. In this respect, it is necessary to examine whether the time limit set by the contested provision for applying for a retrial on the basis of the finalised violation judgment of the ECHR renders that remedy ineffective.

On the other hand, it is not sufficient for the legislation to provide a remedy for alleged violations of fundamental rights and freedoms. The remedy must also be effective in practice, i.e. it must have a reasonable chance of success.

The contested provision provides that the maximum period of ten years shall run from the date of the final judgment, which is the subject of the request for retrial, which may render this remedy ineffective if this time period is exceeded for reasons beyond the control of the persons concerned, such as the requirement to lodge an individual application to the Constitutional Court before applying to the ECHR and the increased workload of the latter. In this respect, it was concluded that the maximum time limit laid down in the provision could render the request for retrial ineffective.

Consequently, the contested provision has been found unconstitutional and therefore annulled.

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