A Constitutional Court (AYM) violation ruling in a criminal case does not mean that the conviction automatically turns into an acquittal, or that release must follow immediately in every case. However, where the AYM has ordered a retrial, the relevant court must start that process and remove the violation together with its consequences as set out in the ruling. What is required for release, suspension of enforcement and compensation depends on the nature of the violation, the AYM’s reasoning on redress, the operative part of the ruling and the person’s current legal position. [1–3]
For this reason, a defence after a violation ruling cannot rest only on the statement that “the AYM ruled in our favour”. It must set out which step the ruling makes mandatory, who is to carry it out, and which remedy applies if it is not carried out. In particular, the request for a retrial, the request for suspension of enforcement and the claim for compensation should be separated and reasoned individually.
Binding force and scope of the Constitutional Court violation ruling
Article 153 of the Constitution governs the finality and binding force of Constitutional Court rulings. The basic provision on remedying a violation in individual applications is Article 50 of Law No. 6216 on the Constitutional Court (Anayasa Mahkemesinin Kuruluş ve Yargılama Usulleri Hakkında Kanun). The AYM does not merely find that a right has been violated; it also rules on what must be done to remove the violation and its consequences. [1–2]
Where a retrial is ordered, its purpose is to return the applicant, as far as possible, to the legal position that existed before the violation. Redress, however, does not consist of the same steps in every file. A failure to hear the defence, the lack of an opportunity to question a decisive witness and a conviction that directly violates a constitutional freedom may each require different steps.
The relevant court is not an authority that reviews whether the AYM’s finding of violation was correct. The view that “the AYM assessed the evidence wrongly” or “exceeded its powers” does not give authority to disregard a final violation ruling. The binding force that requires the ruling to be implemented and the court’s margin of appreciation in drafting the new judgment are separate matters, and the margin of appreciation does not allow the established violation to continue. [4, 10]
For a ruling to have legal effect, it is not always necessary to wait for its publication in the Official Gazette. The notification or transmission of the ruling to the relevant judicial authority is the decisive point. This distinction avoids needless delay, particularly in files where deprivation of liberty continues. The point was expressly assessed in Şahin Alpay (2). [8, §§ 68–79]
In legal scholarship, the effect of a ruling on the applicant and on the public authority concerned is examined separately from its effect on similar disputes. Akçil’s study, which approaches the subject through administrative jurisdiction, also addresses this distinction. The discussion is useful so that the obligation to implement the applicant’s own violation ruling is not confused with citing a ruling from another file as a precedent. [14, pp. 16–18]
Is a retrial after a Constitutional Court ruling the same as reopening proceedings under the CMK?
Redress specific to Article 50 of Law No. 6216
The retrial that follows an AYM violation ruling is not entirely identical to the extraordinary legal remedy of reopening proceedings under Articles 311 et seq. of the Code of Criminal Procedure (CMK). Where the AYM has ordered a retrial, the court may not stall the process by requiring the applicant to present new evidence or to prove one of the grounds for reopening listed in the CMK. The ground for the retrial is the AYM’s violation ruling itself. [2–4]
The court should act without waiting for a petition once the ruling reaches it. In practice, however, it is still useful to check that the ruling has been placed in the file and to request the required steps in a clear petition. That petition should not be presented as a mandatory condition for exercising the right to a retrial.
Mehmet Doğan [GK], Application No. 2014/8875, June 7, 2018, is one of the leading decisions on this distinction. Although it does not concern a criminal case, it sets out the general principles of redress in individual applications: depending on the source of the violation, the procedural act must be repeated, or a new decision must be given that removes the consequences of the decision that caused the violation. The decision should be used not as a precedent for facts in criminal files, but as the basis for the legal nature of the retrial. [3, §§ 54–60]
Why the one-year period based on an ECtHR judgment cannot be transferred here
CMK Article 311/1-f regulates reopening of proceedings in the cases set out in the law, such as where a final judgment of the European Court of Human Rights (AİHM) establishes that the conviction rests on a breach of the Convention. The one-year period in that paragraph is linked to the finality of the AİHM judgment. The same paragraph also covers discontinuance decisions given on the basis of a friendly settlement and unilateral declarations under the conditions stated there. [11]
The one-year period does not apply to a retrial ordered by the AYM under Article 50(2) of Law No. 6216. The thirty-day period that applies to the AYM’s initial application or to a later new individual application is not a separate petition period for starting a retrial either. However, this distinction does not mean that remedies against non-implementation, or the period for a new individual application, are unlimited. [2, 4, 11]
What must the court do in a retrial?
Remedying a violation of the right to defence and to examine witnesses
If the right to examine a witness has been violated, assigning a new case number is not sufficient. The witness must be examined on the problem identified in the violation ruling, the defence must be able to put its questions, and the reliability of the statement must be discussed. If access to the witness has changed, the court must state this situation and reassess the use of the statement in the judgment, taking into account the safeguards identified by the AYM.
Where the right to legal assistance by counsel is concerned, the court must consider which statement was taken, under which conditions, and what effect it had on the conviction. The defence should tie the relevant paragraph of the AYM ruling to the hearing minutes and to the evidence used in the judgment. Merely repeating old defences en bloc makes it harder to identify the act that must be carried out.
In Aligül Alkaya and Others (2), Application No. 2016/12506, November 7, 2019, the AYM examined a case in which no retrial had been held after an earlier violation ruling. The ordinary court refused the request on the ground that the outcome would not change, without remedying the gaps in procedural safeguards. The AYM did not consider this sufficient and found that the violation continued. The practical lesson of the decision is that a retrial cannot be avoided by repeating the evidence assessment made before the violation. [4, §§ 57–68]
Remedying a violation concerning the reasoned decision
A violation of the right to a reasoned decision is not remedied merely by lengthening the text of the judgment. The decisive defence argument that the AYM found had not been assessed must genuinely be addressed. For example, if the effect of a record showing that the person was elsewhere at the time of the incident was never assessed, the new judgment must explain why that record was accepted or rejected. This example is hypothetical.
In the defence petition, three points should be clear: the claim left unanswered in the earlier decision, the file document that supports that claim, and the AYM’s finding on that deficiency. This makes the court’s duty to give reasons concrete. The sufficiency of reasons and the final assessment of evidence must not be confused; a finding of a procedural violation by the AYM does not always require an acquittal.
Can a new conviction be entered?
If the violation arises only from a procedural deficiency in the proceedings, it is possible to reach the same or a different result once that deficiency has been remedied. However, the new judgment may not perpetuate the cause of the violation identified by the AYM. If the violation arises directly from a conviction that infringes a constitutional right, repeating the same outcome in different words does not provide real redress. What is decisive is whether the problem identified by the AYM has been remedied. [3–4]
When a new judgment is given, the ordinary legal remedies open against that judgment are assessed separately. The fact that the AYM previously found a violation does not make the newly established judgment final or immune from review. On the other hand, it cannot be said that the violation ruling has not been implemented merely because the result is still a conviction; the decisive question is whether the problem identified by the AYM has been remedied.
Does a Constitutional Court violation ruling automatically result in release?
Pretrial detention and enforcement of a final sentence must be distinguished
The legal bases for depriving a person of liberty differ between a person held in pretrial detention on a criminal charge and a person serving a final prison sentence. If the person’s current status is not determined in the application, referring only to “continued detention” may lead to the use of the wrong constitutional standard.
A finding by the AYM on the lawfulness of pretrial detention and a finding of a violation of the right to a fair trial in proceedings that led to a final conviction do not have the same consequences. Moreover, the AYM may have expressly considered that quashing the earlier judgment, suspending enforcement or securing release is required for redress. The first source of a release request is therefore the reasoning of the applicant’s own ruling and its operative part. [5–9]
Article 312 of the CMK provides that a request for reopening does not automatically suspend enforcement. However, that provision cannot be used to prevent the redress that the AYM has made binding in the specific file from being implemented. Whether there is discretion to suspend enforcement must be assessed together with the content of the AYM ruling. [5–7, 11]
Decisions in which continued enforcement was not found to be a violation
In Erol Eşrefoğlu [GK], Application No. 2018/23111, July 1, 2021, the AYM considered continued enforcement during a retrial that followed a violation of the right to a reasoned decision. The majority found that the link between the conviction and the detention had not ceased in the concrete case, and held that there was no violation of the right to liberty and security with regard to that complaint. The dissenting opinions argued that when a retrial begins following a violation finding, the earlier judgment should be annulled and a new detention assessment made where necessary. [5, §§ 66–80 and dissenting opinions]
In Aligül Alkaya and Others (3) [GK], Application No. 2022/9358, February 25, 2025, the majority found that the AYM’s earlier decisions contained no determination requiring suspension of enforcement, and that detention during the retrial retained its character as dependent on the conviction. The complaint concerning the right to liberty and security was manifestly ill-founded. The second Aligül Alkaya decision concerned the failure to start a retrial, whereas the third decision addresses continued enforcement during the retrial; these two outcomes must not be confused. [7, §§ 25–29]
In Dilek Hatipoğlu and Nurullah Çiftçi (3), Application No. 2023/2743, March 26, 2025, the complaint about non-suspension of enforcement was also found inadmissible. The decision further stressed that remedies must be exhausted for claims that the fair trial guarantees were not respected in the retrial. The dissenting opinions object to the continuation of detention after the violation. These views may be discussed in a defence, but they cannot replace the majority decision. [12, §§ 23–30 and dissenting opinion]
The effect of annulling the judgment on enforcement
In Behzet Çakar and Others (2) [GK], Application No. 2019/2333, July 1, 2021, the result was different. An earlier violation ruling had determined that the conviction judgment must be annulled. In line with that determination, the AYM stated that detention under the judgment, which no longer had a basis once the judgment was annulled, must be ended and enforcement suspended. The AYM found a violation of the right to liberty and security as regards Behzet Çakar. [6, §§ 61–67]
In the same decision, the complaints of the two other applicants, whose arrest warrants had not yet been executed and whose physical liberty had therefore not been restricted, were manifestly ill-founded. Thus, even within the same file, each applicant’s current situation was assessed separately. [6, §§ 32–39]
The end of detention under the judgment does not categorically prevent a new pretrial detention order based on the criminal charge where the conditions are met. That requires a separate assessment based on the conditions set out in the Constitution and the law. Simply continuing the old enforcement decision under a different name is not sufficient. [6, § 64]
The limits of decisions specific to pretrial detention and immunity
In Şahin Alpay (2) [GK], Application No. 2018/3007, March 15, 2018, the AYM examined the non-implementation of an earlier violation ruling concerning the lawfulness of pretrial detention, and found that in the concrete case the detention had to be ended. The decision distinguishes between the exceptional possibility of relying on genuinely new facts that the earlier ruling did not assess, and continuing detention on the same grounds. The subject of this decision is not the enforcement of a final conviction. [8, §§ 79–89]
In Kadri Enis Berberoğlu (3) [GK], Application No. 2020/32949, January 21, 2021, the special situation arising from legislative immunity is decisive. The AYM stated that, in addition to starting retrial procedures, suspension of enforcement, securing release, ending the convicted status and ordering a stay of the retrial should follow. This concrete redress cannot be generalised into a rule that the same steps are mandatory for every violation of the right to defence. [9, §§ 129–140 and operative part]
What can be done if the court does not implement the Constitutional Court ruling?
Distinguishing non-implementation from unlawfulness in the new proceedings
Failing to start a retrial despite the AYM’s retrial order, refusing to recognise the binding force of the ruling, or not carrying out an explicit redress instruction may become the subject of a new individual application. On the other hand, where the retrial has started and another evidential or procedural dispute arises in that process, the ordinary legal remedies must, as a rule, be exhausted first. It should not be assumed that the AYM can be approached at the same stage in both situations. [4, 10, 12]
Where an objection is available against a rejection, it must be used. The subject of the objection is not to re-argue whether the AYM was right, but to show why the step required in a specific paragraph of the ruling was not carried out. The general objection period under the CMK is two weeks from learning of the decision, unless a special provision applies. This change applies to decisions given on or after June 1, 2024; earlier acts are subject to the transitional provision. [11, Arts. 267–268 and Provisional Art. 6]
In a new individual application, the thirty-day period is, as a rule, calculated from exhaustion of the effective ordinary remedies or, where no remedy is provided, from learning of the violation. Repeated submission of the same request should not be treated as creating a new application period. When calculating the period, the rejection ruling, the outcome of any objection and the record of learning must be kept separate. Where the court remains silent, the specific features of the process must be examined separately. [2, Arts. 45 and 47]
Recent example: Tayfun Kahraman (2)
In Tayfun Kahraman (2) [GK], Application No. 2025/57667, April 2, 2026; Official Gazette (Resmî Gazete) of October 6, 2026, No. 33392, the failure to start retrial procedures despite an earlier violation ruling was examined. The AYM did not accept that the ordinary court’s assessment of exceeding its powers justified non-implementation of the violation ruling. It found a violation of the right to individual application (bireysel başvuru hakkı) unanimously, and a violation of the right to a fair trial by majority. [10, §§ 62–77]
An important limit of the decision is this: since no retrial had been started, the majority did not examine requests for suspension of enforcement and release at that stage. The decision therefore cannot be presented as “the AYM ordered immediate release”. The court was referred to start the retrial procedures, and non-pecuniary compensation of 100,000 Turkish lira (TL) was awarded. That amount belongs to the concrete decision; it is not a tariff for other files. [10, §§ 78–83 and operative part]
A complaint to the Council of Judges and Prosecutors (Hâkimler ve Savcılar Kurulu, HSK) also cannot replace the legal remedy against a court decision. Disciplinary review and the judicial remedy for a violation serve different purposes. The fact that the HSK was merely informed in the Tayfun Kahraman (2) decision does not remove the applicant’s need to follow the judicial remedies. [10]
How, and through which route, is compensation claimed?
Payment of compensation awarded by the AYM
Depending on the circumstances, the AYM may award compensation alongside a retrial order. A retrial order does not mean that every pecuniary and non-pecuniary loss is automatically accepted. The nature of the loss, its connection with the violation and the scope of the redress requested are each assessed separately. [2, 10]
If compensation has been awarded in the ruling, the payment and interest provisions must be read first. For example, in Tayfun Kahraman (2) the payment period was set at four months, counted from the application to the Ministry of Treasury and Finance (Hazine ve Maliye Bakanlığı) after the ruling was notified. The start of default interest is also tied to the end of that period. The four months therefore must not be counted from the date of the ruling. [10, operative part F]
The payment request should identify the ruling and the applicant clearly, and should include the notification document and the information needed for payment. The date of the application must be documented. Compensation awarded by the AYM, litigation costs and attorney fees should be tracked as separate items. A damage item that was rejected or never awarded in the ruling cannot be added to the court judgment through a payment petition.
Acquittal at the end of a retrial and damage caused by enforcement
CMK Article 323/3 regulates compensation, under CMK Articles 141–144, for pecuniary and non-pecuniary losses resulting from the full or partial enforcement of an earlier conviction, where the retrial ends in an acquittal or in a decision that no penalty is to be imposed. The conditions of this route are separate from the AYM having found only a procedural violation. The new judgment, its finality and the period actually enforced must be shown in the file. [11]
For pecuniary loss, income records, wage slips, tax documents, specific expenses and their connection with the relevant period are important. In assessing non-pecuniary loss, the duration of the deprivation of liberty and its person-specific effects should be explained. Compensation already received must also be stated; a claim based on the assumption of double payment for the same loss cannot be prepared.
Under CMK Article 142/1, the general period is three months from notification of the finality of the decision or judgment to the person concerned, and in any event one year after the date of finality. The current distinction on the competent body matters: the general rule points to the heavy penal court, but claims under Article 141/1(e), (f) and (l) have been left to the Compensation Commission under Law No. 6384 on the Duties and Working Procedures of the Compensation Commission (6384 sayılı Tazminat Komisyonunun Görevleri ile Çalışma Usul ve Esasları Hakkında Kanun). A claim arising from the enforcement of an earlier conviction under Article 323/3 and a claim arising from a protective measure in an investigation or prosecution must not be merged under a single heading without identifying their legal bases. [11, Art. 142; 13]
A compensation petition should state the legal basis and the competent body for each loss item separately. The law provides that where a claim within the Compensation Commission’s scope has been submitted to the heavy penal court, it is forwarded; where claims are mixed, the part outside the court’s competence is separated. This provision preserves the date of the application. Nevertheless, preparing the file correctly from the start on the right legal basis reduces delay. [11, Art. 142/2]
How the ruling, documents and request are matched
A post-violation petition should centre on a short chronology of events and a list of concrete steps. Rather than repeating the whole history of the file, it should show the developments after the AYM ruling, the dates of notification and learning, the procedural acts of the court and the outcome that continues.
| Requested step | Ground to be cited | Core document to attach |
|---|---|---|
| Starting the retrial | The AYM’s referral to the court and the reasoning on the violation | The full AYM ruling, the relevant case number, record of the court’s receipt |
| Examining a witness or opportunity to defend | The specific procedural deficiency that caused the violation | Hearing minutes, earlier requests, the relevant statement or report |
| Suspension of enforcement and release | The redress instruction, the current ground for detention and the personal situation | Conviction and enforcement documents, sentence calculation sheet, latest refusal decision |
| Objection on grounds of non-implementation | The mismatch between the obligation in the AYM ruling and the reasons for refusal | The refusal decision, record of learning, earlier implementation petition |
| Recovery of compensation or a separate damage claim | The payment provision or a separate ground for compensation | Notification, application record, the new final judgment and damage documents |
The request outcome should follow this matching. For example, starting the retrial, examining specific witnesses, separately ordering a decision on enforcement and notifying the relevant enforcement unit may each be requested in separate paragraphs. A request for release must be tied not merely to the word “violation” in the ruling, but to whether it affects the current basis for depriving the person of liberty.
Whether the steps required by the violation ruling have been carried out should be checked against the hearing minutes. If a witness was examined, the questions and answers should be recorded; if access to evidence was granted, the date of delivery and the period allowed for the defence should be recorded; if a new reasoning was built, the answer given to the decisive claim should be recorded. These records also form the basis of any later legal remedy review.
Separate deadline tracker
| Step | Time limit or starting point | Key distinction |
|---|---|---|
| Retrial in a file sent by the AYM | Carried out once the ruling reaches the relevant court | The one-year period in CMK Article 311/1-f does not apply |
| General objection under the CMK | Two weeks from learning, unless a special provision applies | Transitional provisions are examined for decisions before June 1, 2024 |
| New AYM individual application | As a rule, from exhaustion of remedies; if there is none, thirty days from learning | Non-implementation is separated from a new complaint in a pending retrial |
| Compensation under CMK Article 142 | Three months from notification of finality; in any event one year from finality | The legal basis and the competent body are determined separately |
| Payment of the sum awarded by the AYM | The payment provision of the concrete ruling | The date of the ruling, notification and application to the Ministry are not the same date |
The table is based on CMK Articles 142, 267–268 and Provisional Article 6, Articles 45, 47 and 50 of Law No. 6216, and the redress provisions of the rulings examined. The calendar for each file must be built from the actual notification and learning documents. [2, 10–11]
Conclusion
After an AYM violation ruling, effective defence begins with making sure the ruling is implemented. The obligation to hold a retrial, the procedural steps needed to remedy the violation, suspension of enforcement and compensation are different parts of the same legal problem. Each must be explained separately, on the basis of the reasoning of the ruling and the person’s current position.
Whether the court complies with a violation ruling is not a matter of discretion. As regards release, however, whether the earlier conviction has been annulled and what legal basis the detention rests on may change the outcome. A sound implementation petition brings together, at one point, the obligation identified by the AYM, the document confirming it and the concrete step requested from the court.
Frequently Asked Questions
Does an AYM violation ruling erase the sentence?
Not every violation ruling automatically results in the sentence disappearing. The steps to be taken are determined by the AYM’s redress reasoning and operative part. The judgment established at the end of the retrial also depends on the nature of the violation and the file.
Is a petition always required for a retrial?
Where the AYM has ordered a retrial, the court must act without waiting for a request once the ruling reaches it. Even so, it is useful in practice to check that the ruling has been placed in the file and to set out the required steps in a concrete petition.
Can a year be waited for a retrial after an AYM ruling?
The one-year renewal period related to an AİHM judgment does not apply to the AYM’s redress under Article 50(2) of Law No. 6216. The court must carry out the ruling without delay. The time limits for challenging non-implementation are considered separately.
Is a retrial order enough for release?
It is not sufficient in every case. The AYM’s violation and redress findings are examined, together with whether the person is held in pretrial detention or is a convicted person serving a final sentence. If release or suspension of enforcement is expressly required, that step must be carried out.
Can the court impose the same sentence again?
Once the procedural deficiency has been remedied, it may be possible to reach the same result. However, the new judgment cannot perpetuate the violation identified by the AYM. Reaching the same result and not implementing the violation ruling are not the same assessment.
Can the court decline to implement the ruling because it disagrees with it?
No. The relevant court has no power of review or of disagreement that removes the binding force of an AYM ruling. The obligation arising from a violation ruling must be carried out within the redress framework of the concrete file.
Can a new individual application be made?
Non-implementation of a violation ruling may become the subject of a new application. However, effective and open legal remedies and the thirty-day period must be assessed. For new procedural complaints in a pending retrial, the rule that ordinary remedies must be exhausted also applies.
When is compensation awarded by the AYM paid?
The payment provision of the concrete ruling is decisive. In the Tayfun Kahraman (2) decision, the four-month period runs from the application to the Ministry of Treasury and Finance after notification. In each file, the payment and interest start dates must be checked against the ruling.
If the defendant is acquitted at the end of a retrial, can compensation also be claimed?
Under the conditions of CMK Article 323/3, compensation may arise for losses caused by the enforcement of an earlier conviction. The new judgment, its finality, the enforcement period, the loss and the competent body are considered together; the existence of an AYM violation ruling alone is not sufficient.
Does a complaint to the HSK replace an objection or an AYM application?
No. Disciplinary proceedings do not replace judicial remedies. The open legal remedies and the individual application periods must be followed separately to secure implementation.
Sources and legal bases
[1] Constitution of the Republic of Türkiye, Articles 19, 36, 148 and 153. Official text.
[2] Law No. 6216 on the Constitutional Court (Anayasa Mahkemesinin Kuruluş ve Yargılama Usulleri Hakkında Kanun), March 30, 2011, especially Articles 45, 47, 49/6 and 50. Constitutional Court legislation page.
[3] AYM, Mehmet Doğan [GK], Application No. 2014/8875, June 7, 2018, §§ 54–60. Decision.
[4] AYM, Aligül Alkaya and Others (2), Application No. 2016/12506, November 7, 2019, especially §§ 49–68. Decision.
[5] AYM, Erol Eşrefoğlu [GK], Application No. 2018/23111, July 1, 2021, especially §§ 66–80 and dissenting opinions. Decision.
[6] AYM, Behzet Çakar and Others (2) [GK], Application No. 2019/2333, July 1, 2021, especially §§ 32–39 and 54–67. Decision.
[7] AYM, Aligül Alkaya and Others (3) [GK], Application No. 2022/9358, February 25, 2025, §§ 25–29 and dissenting opinions. Decision.
[8] AYM, Şahin Alpay (2) [GK], Application No. 2018/3007, March 15, 2018, especially §§ 68–89. Decision.
[9] AYM, Kadri Enis Berberoğlu (3) [GK], Application No. 2020/32949, January 21, 2021, especially §§ 97–100 and 129–140. Decision.
[10] AYM, Tayfun Kahraman (2) [GK], Application No. 2025/57667, April 2, 2026; Official Gazette (Resmî Gazete) of October 6, 2026, No. 33392, §§ 62–83 and operative part. Decision.
[11] Code of Criminal Procedure No. 5271 (5271 sayılı Ceza Muhakemesi Kanunu), December 4, 2004, especially Articles 141–144, 267–268, 311–312, 323 and Provisional Article 6. Official consolidated text.
[12] AYM, Dilek Hatipoğlu and Nurullah Çiftçi (3), Application No. 2023/2743, March 26, 2025, §§ 23–30 and dissenting opinion. Decision.
[13] Law No. 6384 on the Duties and Working Procedures of the Compensation Commission (6384 sayılı Tazminat Komisyonunun Görevleri ile Çalışma Usul ve Esasları Hakkında Kanun), especially Articles 2/3-b and 5/A. Ministry of Justice text.
[14] Akçil, Yılmaz, “Examination of the Subjective and Objective Effects of Individual Application Decisions from the Perspective of Administrative Jurisdiction” (Bireysel Başvuru Kararlarının Subjektif ve Objektif Etkisinin İdari Yargı Yönünden İncelenmesi), Anayasa Yargısı, 39(1), 2022, pp. 1–45; especially pp. 16–18. Article and DOI.