Erdoğan's legal adviser argues ECtHR rulings 'not binding on the merits'

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A senior legal adviser to President Recep Tayyip Erdoğan has asserted that the rulings of the European Court of Human Rights (ECtHR) and the Constitutional Court are not "binding on the merits."

"There are two types of control over court decisions: hierarchical control and guiding control ... The decisions of the ECtHR and the Constitutional Court are guiding control," said Murat Uçum, the deputy head of the Presidency Legal Council, in an interview with pro-government daily Sabah on Monday (January 25).

"The decisions of the ECtHR and the Constitutional Court are binding in terms of retrying the cases. Courts have to retry these cases. When it retries the case, it can give a new judgment or not," he explained.

Turkey's courts have not implemented multiple ECtHR decisions for the release of Selahattin Demirtaş, a former co-leader of the Peoples' Democratic Party (HDP), and Osman Kavala, a businessperson and a rights defender.

After the ECtHR Grand Chamber ruled on December 22 that Demirtaş should be released immediately, senior government officials, including the president, dismissed the verdict as it was "not binding."

A European court decision in May 2020 for the release of Kavala has also not been implemented.

On Monday, the secretary-general of the Council of Europe (CoE), Marija Pejčinović Burić, urged Turkey to implement the decisions, saying that those are "not kind requests but binding legal requirements."

Turkey's courts also defied the Constitutional Court in the cases of Enis Berberoğlu, a lawmaker from the main opposition Republican People's Party (CHP), and Şahin Alpay and Mehmet Altan, two former academics.

According to Uçum, the Court of Cassation and the Council of State are the courts that can hierarchically examine court verdicts. 

"If a violation is found with an ECtHR decision ... courts retry cases. They either uphold their previous verdicts or give a party or completely new verdict," said Uçum, citing the Code of Criminal Procedures and the Code of Civil Procedures.

"Those who make this criticism don't recognize our law in force. It's not possible to attribute a legal attribute to the views of those who don't recognize the law in force. So, there is a political approach and it would be a mistake to view political approaches in the field of law," he added. (VK)