The court said: “Since it is not possible to draw a direct or indirect link between the Constitutional Court’s judgment regarding Mustafa Balbay and the accused on trial in our court it has been decided to reject the request by the defence counsel for release citing this judgment as a precedent.”
The Court added: “Constitutional Court judgments have varying effects. There are two significant effects of a judgment of annulment made by the Constitutional Court. Firstly the norm annulled by the judgment is binding for everyone. Secondly, with the coming into force of the judgment since the norm has been removed the practice in that field will continue taking into consideration the fact the norm no longer exists. Article 153 of the 1982 Constitution states: ‘Decisions of the Constitutional Court contain the provision that they are binding on organs of legislature, executive and justice, and on administrative bodies’. In accordance with this, decisions of the Constitutional Court have a general binding character. However, this applies to norms. As regards decisions made regarding individual application examination is needed.”
Constitutional Court judgments are only binding for the applicant!
The court emphasised in its reasoned judgment that decisions of the Constitutional Court are effective for the plaintiff, adding: “The Constitutional Court has jurisdiction to make decisions in applications made by individuals restricted to the issue in question and solely binding on the parties concerned. Since individual application may only be made by those whose personal and contemporary right has been affected, the Constitutional Court verdict that emerges will be binding and valid for the person and the administrative or judicial subject or procedure in question. Since it is not possible to draw a direct or indirect link between the Constitutional Court’s judgment finding a violation regarding Mustafa Balbay and the accused on trial in our court it has been decided to reject the request by the defence counsel for release citing this judgment as a precedent.”
One judge opposed the verdict
The decision of the Diyarbakir 5th High Criminal Court rejecting the request for the release of Ibrahim Ayhan was a majority one. Judge Ismail Yogurtçu took a different view, saying: “While the judgment of the Constitutional Court regarding prolonged pre-trial detention and violation of the right to be elected is not of a binding character, since there is a possibility that the time the accused has been in custody may cause a contravention of the right to be elected, I consider that, taking into account the Constitutional Court’s reasoned judgment, accused Ibrahim Ayhan should be released on the condition that he not leave the country and be the subject of judicial control, and therefore I do not agree with the majority decision to renew the custody order.”
ANF – AMED