The Binding Nature of European Court of Human Rights (ECtHR) Judgments on the Turkish Judiciary: An Analysis from the Perspective of International Law and Constitutional Order

The Binding Nature of European Court of Human Rights (ECtHR) Decisions on Turkish Judiciary: An Examination from International Law and Constitutional Order Perspectives

1. Introduction: The Concept of "Binding Nature" and False Equivalencies

When speaking of the binding nature of ECtHR decisions, it is necessary not to confuse two different types of "binding nature":

1. International binding nature (in the context of state responsibility): The obligation of the state to comply with the final decision of the ECtHR in the case to which it is a party and the necessity to remedy the violation. This typically produces results such as "elimination of the violation" and "general measures to prevent repetition of similar violations."
2. Domestic law binding nature (in the context of judicial application): The extent to which national courts will take into account the ECHR and ECtHR case law in disputes before them; the position of decisions relative to national norms; whether national judicial decisions can change the outcome; whether they can trigger mechanisms such as retrial/restoration.

In Turkish law, the approach that "ECtHR decision = automatically abolishes the law in domestic law" is incompatible with the Constitutional Court's norm review case law. Conversely, the approach that "ECtHR decisions are merely advisory in nature" is neither compatible with the logic of the ECHR system nor with the procedural mechanisms accepted in domestic law. The correct assessment is that ECtHR decisions are binding at the international level, and at the domestic level possess: (i) the nature of an interpretive standard, (ii) the legal basis for concretizing the obligation to remedy violations, and (iii) a normative reference guiding state bodies.

2. International Law Dimension: The Binding Nature of ECtHR Decisions Within the ECHR System

2.1. The Logic of ECHR Article 46: "Obligation to Comply" and Its Consequences

The ECHR system does not establish a classic "appellate court" model. The ECtHR is not a higher court of appeal that stands in place of national courts and assesses evidence. However, when the ECtHR renders a decision finding a violation, the international responsibility of the state is established and the state is expected to remedy it.

In this context, "binding nature" is not an automatic consequence like the expiration of a domestic law norm; rather, it creates an obligation directed at the state. This obligation can be summarized in two main categories:

• Individual measures: Restoring the situation of the person who suffered the violation as much as possible to the state before the violation (restitutio in integrum approach), retrial, reconsideration, removal of consequences, etc.
• General measures: Legislative amendments, administrative practice amendments, judicial case law adaptation, education and institutional reforms to prevent repetition of similar violations, etc.

The fact that Turkish domestic law provides for "retrial/restoration" as a remedy following an ECtHR violation finding is one of the most visible examples of the international obligation finding a counterpart in domestic law (CCP Article 311/1-f, CCP Article 375/1-i).

2.2. The Scope of Decisions: Inter Partes Effect, Precedential Value and Case Law Standard

ECtHR decisions generally produce binding effect on the respondent state in the case to which it is a party. Nevertheless, because ECtHR case law concretizes the Convention provisions, it effectively produces a "common standard." For this reason, Turkish courts must observe not only the decisions rendered against Turkey but also the general case law line that clarifies the interpretation of Convention articles.

This point does not mean that "ECtHR case law = law" in domestic law; however, regarding "the correct understanding of the ECHR," ECtHR case law is practically indispensable. The fact that the Court of Cassation and the Constitutional Court make references to ECtHR case law in their decisions demonstrates that this standard is positioned as an "interpretive criterion" in domestic law.

3. Constitutional Dimension: Article 90 of the Constitution and the Position of ECtHR Decisions in Domestic Law

3.1. The Function of Article 90 of the Constitution: Priority in Treaty-Law Conflicts

In Turkish law, international treaties properly ratified have the force of law. Furthermore, when treaties concerning fundamental rights and freedoms and laws contain different provisions on the same subject, it is accepted that the provisions of the treaty shall be applied.

This normative approach imposes on the judge the duty of "interpretation and application in accordance with the ECHR." The Court of Cassation's General Civil Assembly's determination that domestic law and international treaties must be interpreted and applied together in disputes is the judicial projection of this constitutional orientation.

3.2. ECtHR Decisions Do Not Perform "Norm Abrogation": The Constitutional Court's Boundary

As explicitly emphasized by the Constitutional Court in its norm review decisions, ECtHR decisions do not have the capacity to directly eliminate (abrogate) domestic law provisions; Article 90/final of the Constitution cannot be interpreted in this direction.

This determination brings two critical consequences:

1. ECtHR case law alone does not remove a law provision from force. A national court cannot nullify an explicit statutory provision because "the ECtHR said so" and thereby create a new norm; particularly in criminal proceedings, the principles of legality and foreseeability limit this.
2. Compliance is often achieved through interpretation; if interpretation is insufficient, it is achieved through legislative activity. As the Constitutional Court has stated, if legislation cannot be interpreted in line with ECtHR case law, the solution is a change in law.

This approach does not contradict the "obligation to achieve results" understanding of the ECHR system: The state must find or create a way to remedy the violation in domestic law; however, in doing so, it must act within the limits of competence and procedure established in domestic law.

3.3. Court of Cassation Criminal Law General Assembly Perspective: Obligation to Comply and Domestic Law Mechanisms

In decisions of the Court of Cassation's Criminal Law General Assembly, the commitment to comply with ECtHR decisions in accordance with ECHR Article 46 is recalled; it is noted that Article 90 of the Constitution gives special importance to international texts in the field of fundamental rights. This approach confirms that ECtHR decisions should not be viewed as completely "external" to Turkish courts; there is an area of obligation that must be taken into account in judicial practices.

4. Areas Where Binding Nature Is Concretized in Turkish Courts: Procedural Mechanisms and Institutional Channels

4.1. In Criminal Proceedings: Renewal of Proceedings via CCP Article 311/1-f

In criminal proceedings, if a final judgment was rendered in violation of the ECHR/additional protocols and the ECtHR's final decision (or friendly settlement/unilateral declaration with withdrawal decision) establishes that the judgment was based on this violation, renewal of proceedings is possible.

The fundamental idea here is as follows: Complying with the ECtHR's violation finding should not be limited to paying compensation; if the violation affected the conviction, the judgment should be reconsidered. This is one of the instruments of the international obligation being met as "effective remedy" in domestic law.

Important detail: CCP Article 311/1-f also provides a time limit (within one year from the finality of the ECtHR decision). Therefore, the domestic law effect of an ECtHR decision is not an "unlimited grounds for reversal"; it is a path operated within the procedural limits drawn by law.

4.2. In Civil Proceedings: Restoration of Proceedings via CCP Article 375/1-i

Similarly in civil proceedings, an ECtHR violation finding is a ground for restoration of proceedings. This regulation shows that ECtHR decisions can produce consequences not only in the criminal field but also in proceedings concerning civil rights and obligations.

At this point, "binding nature" is not the national court directly applying the ECtHR decision as if it were a "court of cassation decision"; rather, it is a procedural gateway that, to the extent of the connection between the violation established by the ECtHR and the national judgment, makes possible the reconsideration of the national judgment.

4.3. Constitutional Court Individual Application: Transferring ECHR Standards to Domestic Law

With the 2010 constitutional amendment accepting the individual application path (Article 148 of the Constitution) and the relevant provisions of Law No. 6216, the application of ECHR standards in domestic law with a "preventive and remedial" mechanism has been strengthened.

According to Article 50/2 of Law No. 6216, if the violation originates from a court decision, the file is sent to the relevant court and retrial is conducted. This mechanism also carries the aim of providing an effective remedy route within domestic law before resorting to the ECtHR.

Within this framework, there is a practical interaction between the binding nature of ECtHR decisions and the binding nature of Constitutional Court individual application decisions: As domestic law increases its compliance with the ECHR through the Constitutional Court channel, the likelihood of an ECtHR violation finding against Turkey decreases; this is also consistent with the system's "subsidiarity" logic.

4.4. Execution and Coordination Dimension: The Role of Administration and Institutional Structures

Compliance with ECtHR decisions is not solely the responsibility of the judiciary; the executive body and administration also have a role in the execution of decisions, payment of compensation, and adoption of general measures. For this reason, within domestic law, the follow-up of ECtHR decisions, coordination of relevant institutions, and reporting procedures gain importance.

5. Limits of Binding Nature and Tension Points

5.1. Legality, Foreseeability, and the Problem of "Norm Abolition Through Case Law"

Particularly in criminal law, the principle of legality includes: determination of crimes and penalties by law, foreseeability, and prohibition of analogy. The Constitutional Court's statement that acceptance that internal law norms could be eliminated through ECtHR case law would create a risk of violation of legality/foreseeability principles is important in this context.

For this reason, the role of national courts is, where possible, to interpret domestic law in accordance with the ECHR; but if interpretation is not possible, not to act "like a legislator" and produce a new norm, but to demonstrate the necessity of changing the relevant norm.

5.2. The Threshold Between "Compliance Through Interpretation" and "Legislative Amendment"

In practice, the most critical question is: In what circumstances can compliance with the ECHR be achieved through judicial interpretation; in what circumstances is legislative change required?

The Constitutional Court's norm review case law establishes this distinction as follows: If legislation can be interpreted in line with ECtHR case law, then interpretation; if not, the Grand National Assembly must make regulation. This is an effort to ensure compliance without turning the supremacy of the ECHR in domestic law into "unlimited norm-creating authority for judges."

5.3. The Relationship Between "Compliance with the Decision" and "Judicial Independence"

The application of ECtHR decisions should not be understood as an instruction to national courts to "decide in this manner." The ECtHR establishes the violation, may in some cases point to types of remedy; however, the national system generally determines how the violation will be remedied within its own procedural regime.

This situation should be read not as a conflict between judicial independence and international obligations, but as a "separation of powers": National courts are independent; however, by becoming a party to the Convention system, the state has accepted certain standards. Independence does not mean freedom to disregard these standards.

6. Conclusions for Turkish Courts: The Actual and Normative Effect of ECtHR Decisions

6.1. Normative Effect: Standard Setting and Interpretation Guide

The references made to ECtHR case law in the decisions of the Court of Cassation and the Constitutional Court demonstrate acceptance of the determinative role of the ECtHR in the interpretation of Convention provisions. This effect does not produce the same result in every specific case; however, in questions such as "which balancing tests will be applied, which procedural safeguards will be sought, which proportionality analysis will be conducted?" ECtHR case law produces a strong reference.

6.2. Concrete Effect: Retrial / Restoration / Reconsideration Gateways

When an ECtHR violation finding is obtained (or when a friendly settlement/unilateral declaration with withdrawal decision is rendered), the doors opened by the CCP and CCP in domestic law represent the "concretized" form of binding nature. This is not "automatic annulment because the ECtHR said so," but rather "reconsideration pursuant to the procedure provided by law because the ECtHR found so."

6.3. Systemic Effect: Compliance Strengthened by Individual Application

The Constitutional Court's individual application brings ECHR standards into operation in domestic law at an earlier stage. In this way, the binding nature of the ECtHR ceases to be the "final stage" and becomes a system that increases domestic law's capacity for self-correction. Retrial pursuant to the Constitutional Court's violation finding (Law No. 6216 Article 50) is the primary instrument of this transformation.

7. Assessment: A "Binding But Non-Norm-Abrogating" Model

To summarize, the binding nature of ECtHR decisions with respect to Turkish courts finds its most correct formulation as follows:

1. It is internationally binding for the state: Turkey is obligated to comply with the final decision of the ECtHR in the case to which it is a party (the logic of ECHR Article 46; also recalled in Court of Cassation General Assembly decisions).
2. It is a strong standard for national courts: As directed by Article 90 of the Constitution, the ECHR and ECtHR case law must be interpreted together as a criterion in resolving national disputes (the approach of the Court of Cassation General Civil Assembly).
3. It does not automatically eliminate domestic law norms: The Constitutional Court's norm review case law emphasizes that ECtHR decisions cannot directly abrogate domestic legislation, and that compliance will be achieved through interpretation or, if necessary, through legislative activity.
4. It triggers procedural tools for remedying violations: CCP Article 311 and CCP Article 375 make ECtHR violation findings grounds for retrial/restoration, thereby connecting binding nature to "effective remedy" channels.

Conclusion

ECtHR decisions are positioned in the Turkish legal order at a more sophisticated point between two extreme approaches (full automatic legal supremacy vs. mere advice). ECtHR decisions produce results that must be complied with at the international level; at the domestic law level, they do not automatically eliminate national norms but produce a strong and institutionalized effect as (i) an interpretive standard and (ii) the legal basis for retrial/restoration mechanisms to remedy violations. When this model is read together with both the Constitutional Court's normative boundary-setting and the Court of Cassation's approach taking ECHR-ECtHR standards into account, it becomes apparent that Turkey's status as a party to the ECHR system creates in domestic law an "effective but procedural" binding regime.