December 09, 2025
by Dr. Ufuk Yeşil
The European Court of Human Rights (ECtHR), acting as the ultimate supranational authority monitoring whether member states fulfil their obligations under the European Convention on Human Rights (the Convention), regards the effective implementation of its judgments within domestic law not merely as a procedural formality, but as a fundamental requirement of the rule of law. One of the most critical mechanisms for ensuring this effectiveness is the principle of restitutio in integrum (restoration to the original state), which aims to eliminate the negative consequences of a violation once it has been established by the Court. In the specific context of criminal proceedings, the most concrete and often the only viable manifestation of this principle is the institution of “retrial” (or the reopening of proceedings). The ECtHR’s judgment of November 13, 2025, in the case of Abo v. Turkey, serves as a highly instructive, critical, and timely precedent that exposes serious malfunctions in the operation of this mechanism, deep divergences in judicial interpretation between Strasbourg and Ankara, and worrying weaknesses in the supervisory role of the Constitutional Court (AYM).
The Court unanimously found a violation of Article 6 § 1 on account of the unfairness of the proceedings, whereas the violation relating to the excessive length of the proceedings was found by four votes to three, giving rise to a joint partly dissenting opinion. The dissenting judges argued that both the overall duration of the proceedings and the periods of inactivity were shorter than those that the Court’s case-law typically considers sufficient to establish a violation of the “reasonable time” requirement. Although this decision appears at first glance to concern merely the technical rejection of a request for retrial following an ECtHR violation judgment, a closer examination reveals that it points to much deeper, systemic, and structural problems within the Turkish judiciary. The judgment fundamentally questions how ECtHR case law is interpreted—or misinterpreted—by national courts, how the artificial distinction between “procedure” and “substance” can be weaponized to render the right to a fair trial ineffective, and the ultimate responsibility of high judicial bodies in this process. This article aims to comprehensively address the legal background of the Abo v. Turkey decision, the nuanced and multi-layered grounds underlying the ECtHR’s finding of a violation, the specific and sharp criticisms directed at the stance of the Constitutional Court, and the profound significance of this decision for the Turkish legal system and the individual’s freedom to seek justice from an academic perspective.
Davut Abo’s journey before the ECtHR is not a singular event but encompasses a legal struggle spanning over twenty years, consisting of two fundamental and distinct stages. Understanding this chronological and procedural process is essential to grasping the full significance of the second judgment.
The process began on October 1, 2000, when Davut Abo was detained on suspicion of ‘membership in an armed terrorist organization’. At that specific time in Turkish legal history, for crimes falling under the jurisdiction of the State Security Courts (DGM), access to a lawyer during police custody was systematically restricted by law. Consequently, Abo was interrogated by the police and the public prosecutor without any legal assistance whatsoever. During these interrogations, he gave statements admitting to the accusations against him. However, at his very first hearing before the court, he asserted that the interrogations had been carried out under torture and refused to accept the content of the statements he had signed. The Diyarbakır DGM nevertheless sentenced Abo to aggravated life imprisonment in 2006, and he applied to the ECtHR in 2007.
In its first judgment dated November 26, 2013 (Davut Abo v. Turkey, No. 22493/07), the ECtHR identified two significant violations:
The ECtHR explicitly stated that the most appropriate form of redress to remedy the consequences of the violation would be a retrial, should the applicant request it.
Following the finalisation of the ECtHR judgment, Abo requested a retrial pursuant to Article 311/1-f of the Code of Criminal Procedure (CMK). However, this request was rejected by the domestic court after a one-year delay, relying on two arguments that the ECtHR would later characterise as “automatic and insufficient” (§§ 69-71 and § 83):
With the Constitutional Court’s subsequent rejection of the application on the grounds of being “manifestly ill-founded,” domestic remedies were exhausted, forming the basis of the Abo v. Turkey case (§§ 28-30).
Before examining the merits of the second application, the ECtHR had to address a significant procedural hurdle raised by the Government. The Government argued that the application was inadmissible under Article 46 of the Convention, asserting that the supervision of the execution of judgments falls exclusively within the competence of the Committee of Ministers, not the Court. However, the ECtHR dismissed this objection by relying on its established case law in Moreira Ferreira v. Portugal (No. 2)and clarified that the domestic court’s refusal of the retrial request did not simply replicate the original violation but rather constituted a “new issue” — that is, a new violation — falling within the Court’s competence to review (§§ 56-57). By engaging in a fresh assessment of whether the initial violation had affected the outcome of the case, the domestic court had effectively taken a new decision on the merits, thereby granting the ECtHR jurisdiction to examine whether this new decision complied with the Convention standards.
In the second judgment, the ECtHR examined the process within the framework of Article 6 § 1, ruling that the proceedings were both unfair and not concluded within a reasonable time.
The ECtHR rigorously refuted the local court’s formalistic arguments:
-Invalidity of the “Irreparable Violation” Argument: The ECtHR found the domestic court’s categorical assertion that the violation could not be remedied to be “too unnuanced” (§ 85). Most strikingly, the ECtHR noted that it had explicitly stated in the first judgment that “the most appropriate form of redress would be a retrial” (§ 310). The domestic court’s arrival at a contrary conclusion without persuasive reasoning constituted a violation of the right to a reasoned judgment (§ 311).
-Fallacy of the “Violation Did Not Affect the Merits” Argument: In Abo v. Turkey, the domestic court’s narrow construction—limiting the breach of the right to legal assistance to the context of the applicant’s allegations of ill-treatment—was categorically rejected by the EctHR. The Court held that the right to legal assistance serves not merely as a safeguard against ill-treatment but constitutes a fundamental element of the right to defence, further emphasising that, even where a statement has not been obtained under torture, the absence of fair-trial guarantees renders it unlawful. This approach undermined the “spirit and conclusion” of the first judgment, rendering the violation finding ineffective (§ 87).
One of the most critical sections of the judgment for the Turkish judiciary is the ECtHR’s analysis of the Constitutional Court’s stance, noting that the domestic court’s decision—characterised by manifestly erroneous and essentially “automatic” reasoning—had not been remedied by the Constitutional Court (§ 89). In paragraph 89, the ECtHR observed that the Constitutional Court’s approach in the present case stood in clear contradiction with its own established case-law. The Court recalled that, in previous comparable cases—such as Cahit Tamur and Others—the Constitutional Court had held that evidence obtained in the absence of legal assistance must be excluded from the case file and that the applicant’s conviction should be reassessed on the basis of the remaining evidence (§ 43).
However, in the applicant Abo’s case, the Constitutional Court departed from this precedent and dismissed the application on a procedural ground—namely, that it was “manifestly ill-founded” —without addressing the substance of the complaints (§ 29). The ECtHR characterised this situation as the “Constitutional Court’s failure to remedy that shortcoming” (§ 90). This formulation amounts to an implicit yet forceful reproach, indicating that the Constitutional Court failed in its supervisory duty to safeguard fundamental rights and to secure the practical and effective implementation of ECtHR judgments within the domestic legal order. The ECtHR implied that the Constitutional Court created an inconsistency in case law and lost its function as an effective remedy in this specific case.
The ECtHR further found that the examination of the applicant’s request for a retrial, which extended over a period exceeding two years, violated the requirement of a “reasonable time.” The Court reiterated that applications by detained individuals must be examined with “due diligence” and particular expedition, and found that the eight-month exchange between the domestic court and the Ministry of Justice to verify the judgment’s finalisation constituted an unjustified delay (§ 100-102).
The Abo v. Turkey decision extends beyond an individual case, offering important lessons regarding the functioning of the Turkish legal system, judicial culture, and the effectiveness of rights protection mechanisms.
The decision fundamentally critiques the rigid formalist interpretation occasionally adopted by Turkish courts. The domestic court’s labeling of the violation as a “procedural” deficiency with no effect on the “merits” is a typical example of this approach. This perspective views the right to a fair trial not as a whole, but as disconnected parts, trivialising procedural violations in the absence of credible evidence or strong indication of torture.
In Abo, the ECtHR rejects this dangerous distinction. Recalling that the Convention seeks to make rights “practical and effective,” the Court stressed that a procedural violation may compromise the fairness of the entire proceedings. Access to a lawyer is essential to ensuring “equality of arms,” and a statement taken without legal assistance can taint the subsequent course of the trial and its overall fairness (§ 84). Therefore the Court, in Abo, calls on Turkish courts to abandon mechanical formulas in favor of a holistic assessment focused on the essence of the right in each specific case.
The Abo judgment confirms that the retrial remedy under Article 311/1-f of the CMK is not an arbitrary discretion but a fundamental mechanism ensuring the effectiveness of ECtHR judgments. The domestic court’s grounds for dismissal reveal a fundamental misunderstanding of the nature and purpose of this mechanism. A finding by the ECtHR of a violation of the right to a fair trial—particularly one concerning the admissibility or reliability of evidence—necessarily casts serious doubt on the “safety of the conviction” and requires a substantive reassessment of the case (§ 42).
Retrial is not a favor but a mandatory path to remedy the violation and test the safety of the conviction. The Abo decision shows that judicial discretion is limited by the spirit of the Convention and the principle of restitutio in integrum. Courts cannot render this mechanism dysfunctional with abstract statements like “the violation cannot be remedied.” The impact can only be determined through a retrial where evidence is re-evaluated in a fair process. Thus, CMK Article 311/1-f must be interpreted as a bridge to implement ECtHR judgments, not a shield to neutralise them.
One of the most noteworthy aspects of the judgment is the implicit criticism it directs at the effectiveness of the Constitutional Court’s individual application mechanism and, more broadly, at the role of the higher judiciary within the domestic system. The ECtHR considered it particularly problematic that the Constitutional Court dismissed a lower court decision—which was manifestly incompatible with the Convention and even with the Constitutional Court’s own established case-law—on procedural grounds, such as being “manifestly ill-founded,” without engaging with the substance of the applicant’s complaints. The Constitutional Court’s approach undermines the protective function of the individual application remedy, whose very purpose is to rectify clear judicial errors and to provide redress for violations of fundamental rights.
The Constitutional Court is not merely an appellate body; it is also the guardian of the constitutional order and fundamental rights, an organ that sets norms and standards nationwide. One of the most important functions of a high court is to ensure “consistency in case law.” The ECtHR’s reference to the Constitutional Court’s divergent decisions in similar cases indicates that this consistency was not achieved in the Abo application, thereby damaging legal predictability. This situation also points to a weakness regarding the principle of “subsidiarity,” one of the pillars of the ECtHR system. According to this principle, the responsibility to prevent and remedy rights violations lies primarily with national authorities, particularly high judicial bodies. The Constitutional Court’s failure to remedy such a clear violation and inconsistency in the Abo case effectively means referring the problem back to the ECtHR instead of resolving it. This not only reduces the overall effectiveness of the system but also sends a negative signal regarding the problem-solving capacity of the national judicial system.
Forcing an individual to endure a new, exhausting legal struggle to implement a favorable ECtHR judgment deeply damages the principle of “legal certainty.” This principle encompasses not only the binding and conclusive effect of final judgments (res judicata) but also legal predictability and the trust individuals place in the state. Rendering an ECtHR judgment ineffective within domestic law fundamentally shakes this trust.
The Abo decision exposes this as a form of “secondary victimisation“: the applicant was victimised first by an unfair trial, and subsequently by the state’s failure to provide an effective remedy. This highlights a breach of the state’s “positive obligations” under the Convention. The state’s duty extends beyond merely refraining from violations (negative obligation) to actively and rapidly remedying them (positive obligation). The unjustified eight-month delay and eventual rejection in Abo constitute a clear neglect of this duty. Such negligence erodes the “rule of law” itself; for in a system where the state evades binding judicial decisions, the supremacy of law is inevitably compromised.
The judgment in Abo v. Turkey provides a concrete illustration of the ECtHR’s rigorous scrutiny to ensure that the rights enshrined in the Convention are not rendered merely theoretical or illusory. It makes clear that a remedy designed to address a violation must not, in its implementation, give rise to a further violation. For the Turkish judicial system, this decision points to the necessity of a mindset change regarding ECtHR judgments. Instead of circumventing judgments through judicial activism or hollowing them out with formalistic interpretations, a sincere, rights-oriented practice consistent with the spirit of the Convention must be adopted. Otherwise, Turkey will continue to lose reputation regarding the rule of law. Although Davut Abo’s twenty-year struggle shows how arduous the journey of justice can be, this decision stands as an important milestone keeping alive the belief that law will ultimately find its way.
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1 Comment
The author is no doubt correct to emphasise the significance of this case, which has involved the applicant in a 20 year battle to vindicate his rights.
However, one cannot be too sanguine about the speed of the Court’s own response to this issue: the application was lodged in December 2016, but only communicated to the Turkish Government over five years later, on 30 May 2022.
Admittedly, the Court categorised the case as a category IV case, implying many others were a higher priority, but it is hard to explain that categorisation and neither the judgment, nor any other source on the Court’s website, provides an explanation.