Press Release No: Individual Application 51/18
26.09.2018

PRESS RELEASE CONCERNING THE DECISION FINDING INADMISSIBLE THE ALLEGED VIOLATION OF THE RIGHT TO A FAIR TRIAL IN TERMS OF THE REQUESTS FOR RETRIAL FOR LACK OF JURISDICTION RATIONE MATERIAE

On 7 June 2018, the Plenary of the Constitutional Court found inadmissible the alleged violation of the right to a reasoned decision within the scope of the right to a fair trial for lack of jurisdiction ratione materiae in the individual application lodged by Nihat Akbulak (no. 2015/10131).

The Facts

The Chief Public Prosecutor’s Office charged the applicant for sexual assault. The Assize Court convicted the applicant as charged. The Court of Cassation upheld the conviction. After the verdict became final, the applicant requested a retrial, alleging that new evidence was found. Upon the rejection of his request, the applicant lodged an individual application.

The Applicant’s Allegations

The applicant maintained that although a new and significant evidence was found, his request for retrial was rejected on irrelevant grounds, which was in breach of his right to a fair trial.

The Constitutional Court’s Assessment

Retrial is a legal remedy that is available if an error was discovered in the final judgment delivered at the end of a trial. This remedy ensures that after the verdict delivered at the end of the original criminal proceedings became final, the trial court shall conduct a retrial and deliver a new judgment, provided the conditions set forth in the law are fulfilled.

Pursuant to the Code on Establishment and Rules of Procedures of the Constitutional Court, in order for an individual application to be examined, the right alleged to have been violated by the public authorities must, in addition to being guaranteed by the Constitution, also be enshrined in the European Convention of Human Rights (“the Convention”) to which Turkey is a party. The applications concerning the alleged violations of rights which are not under the joint protection of the Constitution and the Convention shall not fall into the scope of individual application.

The European Court of Human Rights (“the ECHR”) considers that a person whose sentence has become final and who applies for a retrial is not “charged with a criminal offence” within the meaning of Article 6 of the Convention. Therefore, this Article cannot be applied in terms of the applications for retrial.

In Article 6 of the Convention, the scope of the right to a fair trial is set by stating that the rights and principles of a fair trial shall be applicable in the adjudication of disputes about civil rights and obligations or of any criminal charge. Accordingly, the alleged violation of the right to a fair trial, except for those asserted under the above-mentioned circumstances, cannot be the subject-matter of an individual application, as it is out of the joint protection of the Constitution and the Convention. It is obvious that the requests for retrial in order to redress the violations found by the Constitutional Court and the ECHR, as well as the consequences thereof, must be considered within the scope of the right to fair trial. .

In the present case, the applicant submitted his complaints with regard to a process during which he was not under a criminal charge (he was already convicted). In other words, the applicant’s complaint regarding assessment of his demand for retrial under Law No. 5271 relates to the process after the sentence became final, not to a process where the applicant was under a criminal charge. Therefore, the present application did not fall into the scope of the right to a fair trial.

Consequently, the Constitutional Court declared the present application inadmissible for lack of jurisdiction ratione materiae.

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

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