Individual Application

The Facts

The applicants lodged an individual application with the Court after the decisions convicting them had become final. Examining the applications, the Court ordered a retrial in both cases. The applicants accordingly applied to the incumbent assize courts, seeking the re-opening of the proceedings and the stay of the execution of their imprisonment sentences. However, the assize courts dismissed the requests as there was no ground to conduct a retrial and stay the execution of the imprisonment sentences. Upon the finalisation of the decisions, the applicants once again lodged individual applications with the Court. 

The Applicants’ Allegations

The applicants claimed that the continued execution of their imprisonment sentences, albeit the violation judgment previously rendered by the Court in their cases, had been in breach of their right to personal liberty and security.

The Court’s Assessment

In the present cases, the applicants maintained that they had been deprived of their liberty in the absence of a justified decision due to the erroneous interpretation of statutory provisions, albeit the violation judgment where the Court had ordered a retrial.

Therefore, the main issue to be resolved in the present cases is whether the failure of the inferior courts to order the stay of execution of imprisonment sentences at the end of the retrial conducted in line with the Court’s violation judgment constituted a breach of the right to personal liberty and security.

As regards the Applicant Erol Eşrefoğlu

In the present case, the Court ordered, in its previous judgment, the communication of its judgment to the incumbent trial court so as to ensure the redress of the violation found by the Court and the consequences thereof. However, this judgment does not include any compulsory step required to be taken by the inferior courts for redress, other than a retrial. Thus, it should be acknowledged that as the Court did not order the revocation of the first instance decision, it was at the inferior courts’ discretion to order the suspension of the execution of imprisonment sentence during the retrial.

The Court’s previous judgment finding a violation of the right to a reasoned decision does not sever the link between the applicant’s post-conviction detention and his conviction. Therefore, the order for a retrial does not have a bearing on the nature of the applicant’s detention. In this sense, it cannot be said that the applicant has been deprived of his liberty based on a criminal charge. 

It appears that the continued execution of the decision convicting the applicant was ordered on the basis of that previous decision which had been finalised. In this sense, the decision ordering the continued execution of the applicant’s conviction is based on a conviction decision that was already issued by a competent court as well as lawful, within the meaning of Article 19 § 2 of the Constitution.

Consequently, the Court has found no violation of the right to personal liberty and security.

As regards the Applicant Behzet Çakar

In its previous judgment rendered by the Court in the present case, the Court found a violation of the right to a fair hearing in conjunction with the right to legal assistance.  Along with the retrial, the Court also ordered the revocation of the first instance decision, as a redress of the violation found in the case.

The inferior court had to take the necessary steps indicated by the Court in its violation judgment so as to eliminate the consequences of the violation and thus to revoke its decision.

Besides, as a consequence of the decision to be issued by the inferior court at the end of the retrial conducted in line with the violation judgment, it was requisite to ensure the discontinuation of the applicant’s post-conviction detention, which no longer had a basis. Accordingly, the inferior court must order the immediate stay of execution of the applicant’s imprisonment sentence while revoking its previous decision in line with the Court’s violation judgment.

As a result, the inferior court should have, in accordance with the violation judgment previously rendered by the Court in the applicant’s case, ordered the revocation of its decision as well as the discontinuation of his detention that no longer had any basis (stay of execution).  However, in the present case, the inferior court dismissed the applicant’s request for the stay of execution of his imprisonment, and thus the applicant’s post-conviction detention continued even for a certain period of time, which constituted an unlawful interference with his right to personal liberty and security.

Consequently, the Court has found a violation of the right to personal liberty and security.