Individual Application

The Facts

The applicant, one of the defendants in the criminal case known to the public as the Gezi Park trial, requested the Court of Cassation to order a stay of execution and his subsequent release, stating that he was entitled to legislative immunity, as he had been elected as an MP. The applicant’s request was dismissed pending further examination on the merits. Upon the individual application lodged by the applicant, the Constitutional Court (the Court) found violations of the applicant’s right to stand for election and engage in political activities, as well as his right to personal liberty and security. The 13^th Chamber of the İstanbul Assize Court (the court of first instance), receiving the violation judgment, indicated no legal remedy regarding its decision and referred the case file to the 3^rd Criminal Chamber of the Court of Cassation (the 3^rd Criminal Chamber) on the grounds that the applicant’s conviction had been upheld by the Court of Cassation. The Chief Public Prosecutor’s Office at the Court of Cassation submitted an opinion to the 3^rd Criminal Chamber, indicating that the applicant could not invoke legislative immunity; however, the relevant opinion was not served on the applicant. Thus, the 3^rd Criminal Chamber rendered a novel decision, which did not have a basis in Turkish law, stating that “the Constitutional Court’s judgment will not be complied with”. The competent chamber, examining the applicant’s subsequent appeal, held that there was no ground for a decision.

The Applicant’s Allegations

The applicant claimed that his right to individual application, as well as his right to stand for election and engage in political activities had been violated due to non-enforcement of the violation judgment rendered by the Court, and that his right to personal liberty and security had been violated due to the continued execution of his conviction.

The Court’s Assessment

In the present case, the Court’s judgment finding a violation was not enforced. Failure to enforce the judgments of the Court contravenes Article 153 § 6 of the Constitution, which provides that the judgments of the Court shall be binding on the legislative, executive, and judicial organs, on the administrative authorities, and on persons and corporate bodies. This provision on the binding nature of the Court’s judgments refers to an additional safeguard that also applies to the constitutional rights and freedoms found by the Court to have been violated in individual applications. Besides, the retrial proceedings were carried out by a court having no jurisdiction or authority, which was in manifest violation Article 142 of the Constitution and the principle of natural judge enshrined in Article 37 of the Constitution.

Pursuant to Article 148 of the Constitution, anyone who meets the required conditions may lodge an individual application with the Court. Undoubtedly, the effective enforcement of the Court’s judgments is also inherent in the right to individual application. Failure to enforce the Court’s judgments, as determined in the violation judgment in question, amounts to a flagrant and grave violation of the right to individual application which constitutes a special form of the right to an effective remedy. Failure to enforce individual application judgments would render the individual application mechanism ineffective. As a matter of fact, it is precisely for these reasons that the last paragraph of Article 153 of the Constitution does not grant any discretionary power to the legislative, executive, and judicial organs, as well as to the administrative authorities in terms of compliance with and duly enforcement of the Court’s judgments, nor does it introduce any exception in this regard.

In addition, since the Court has designated the court of first instance as the incumbent court in the relevant proceedings, the Court of Cassation is not authorised to conduct a retrial as per Code no. 6216. The court of first instance receiving the violation judgment failed to fulfil its duty regarding retrial in the case brought before it in accordance with the Court’s judgment, thus failing to conduct a trial also safeguarding the constitutional rights of the applicant.

The Court is exclusively vested with the authority to adjudicate, in a final and binding manner, the cases regarding the constitutionality of the acts, actions and omissions of the public authorities. In this sense, once the Court concludes in a given individual application that a fundamental right or freedom has been violated, no other authority may examine or supervise whether the Court’s judgment complies with the Constitution or the law.

It is not laid down either in the Constitution or in the laws that the public authorities that are obliged to enforce the Court’s judgment and, in the present case, the court of first instance may refer the case file to a different judicial authority, nor can they discuss the binding nature of such judgments. The binding nature of the Court’s judgment covers both the actions to be taken so as to redress the violation and its consequences, and the designation of the competent authority to take these actions. Denial to enforce the Court’s judgment, and hence the failure to redress the violation and its consequences, by not following the methods prescribed by the law has amounted to an interpretation and practice explicitly contravening the wording of Article 153 of the Constitution, as well as contrary to the will of the constitution-maker.

Consequently, the impugned process that started with the court of first instance referring a case within its jurisdiction to the Court of Cassation, and where the latter rendered a judgment in disregard of the provisions of the Constitution, has clearly contravened the wording of the Constitution and thus led to violations of the applicant’s right to individual application, right to stand for election and engage in political activities, as well as right to personal liberty and security.