The Constitutional Court has ruled that a local court’s decision not to release a defendant during their retrial, which was initiated after a European court decision, did not constitute a violation of rights.

Four out of the high court’s twelve members dissented, arguing that the applicant’s continued detention contradicted the European Court of Human Rights (ECtHR) and their right to liberty and security had been violated.

The case concerns Yaşar Alat, who remained in prison despite a 2021 decision by the ECtHR.

The incident

The case stems from a bombing incident near a police lodge in Iğdır, eastern Turkey, on Sep 23, 2006. A car bomb had exploded, killing one person and injuring 18 others.

The explosive device had been planted in a stolen minibus with fake license plates and detonated remotely.

Based on intelligence reports, police identified Alat, who worked as a taxi driver, as a suspect. After evading police, Alat turned himself in in July 2007 and was taken into custody. A year later, formal charges were filed against him.

Alat denied any involvement in the bombing. However, in Aug 2009, the Erzurum 2nd Heavy Penal Court sentenced him to two life terms and an additional 110 years and 8 months in prison for "disrupting the unity of the state" and "qualified intentional homicide."

The verdict was based primarily on the statement of a witness identified as C.A., who was never cross-examined in court. The Court of Cassation upheld the conviction in Nov 2010.

Alat filed an application with the ECtHR in Mar 2011, claiming his right to a fair trial had been violated because he had not been allowed to question the key witness.

In Jun 2021, the European court ruled that Turkey had violated Alat’s right to a fair trial by denying him the opportunity to cross-examine C.A. It also noted the absence of concrete evidence proving that Alat had planted or detonated the bomb and ordered his release and retrial.

Sentence reduced

Following the ruling, Alat applied in Aug 2021 for a retrial and suspension of his sentence. The Erzurum court agreed to a retrial but decided to continue enforcing the original sentence.

His requests for release during the proceedings were repeatedly rejected, including on appeal. In Dec 2021, he filed an individual application with the Constitutional Court.

While the case was pending, the Erzurum court issued a new ruling in Jun 2023. It vacated the previous conviction and sentenced Alat to 8 years and 4 months in prison for “membership in a terrorist organization,” acquitting him of all other charges.

The court also acknowledged the time he had already served and ruled to suspend enforcement of the vacated sentences.

Referring to the ECtHR ruling, the court concluded, “It has been understood that the witness statement of C.A. was inconsistent, and a conviction cannot be based solely on such testimony.”

Alat was released the same day.

'No violation'

The Constitutional Court issued its ruling nearly three and a half years after the application and almost two years after Alat’s release. It concluded that no violation had occurred.

The court stated, “The courts of instance have a discretion on whether or not to suspend the enforcement in the retrial to be held upon the violation decision of the ECtHR. In the concrete case, the court of first instance exercised its discretion not to stay the execution."

It interpreted the ECtHR decision as a call to correct procedural flaws and make a ruling accordingly, rather than a direct order to release the applicant.

The high court also emphasized that Alat’s detention was based on a valid conviction and therefore legally justified.

'Retrial and continued detention are contradictory'

The ruling was passed by majority vote, with members Hasan Tahsin Gökcan, Engin Yıldırım, Yusuf Şevki Hakyemez, and Kenan Yaşar submitting dissenting opinions.

In his dissent, Hasan Tahsin Gökcan argued that ordering a retrial implicitly acknowledges a rights violation, and continuing to enforce the original conviction undermines this acknowledgment.

"What should be done is to stay the execution and annul the previous verdict with a retrial according to the reason for the violation of rights," he wrote. "In this case, the detention of the defendant turns into detention on a criminal charge in terms of Article 19 of the Constitution.

"Therefore, the court must make a decision on the continuation or termination of the detention following the aforementioned decision. For the reasons I have explained, I am of the opinion that the applicant's right to liberty and security has been violated."

Engin Yıldırım argued that the lower court was obligated to take measures to remedy the violation identified by the ECtHR. (HA/VK)