27.08.2026 07:10
Presidential Chief Advisor Mehmet Uçum stated that Article 90 of the Constitution cannot serve as a basis for the binding nature of European Court of Human Rights (ECHR) decisions. Uçum emphasized that the article pertains to norm conflicts between international conventions and laws, not judicial decisions, and noted that this view has 'no relevance to positive law.'
Chief Presidential Advisor and Vice Chairman of the Presidential Legal Policies Board Mehmet Uçum stated that the last paragraph of Article 90 of the Constitution cannot constitute a basis for the binding nature of European Court of Human Rights (ECHR) decisions. Uçum noted that the said provision pertains to norm conflicts between international agreements and laws, not to judicial decisions.
In a statement on his social media account, Uçum said:
“Article 90 of the Constitution cannot be cited as a basis for the binding nature of ECHR decisions!
The first sentence of the last paragraph of Article 90 of the Constitution is as follows: ‘International agreements duly put into effect have the force of law. No appeal to the Constitutional Court can be made regarding these agreements on the grounds that they are unconstitutional.’
According to the last sentence of Article 90 of the Constitution, ‘In the case of a conflict between international agreements concerning fundamental rights and freedoms duly put into effect and domestic laws due to differing provisions on the same matter, the provisions of the international agreement shall prevail.’
THE DEBATE ON THE BINDING NATURE OF ECHR DECISIONS
Some circles base the obligation to comply with ECHR decisions on this provision. However, this regulation concerns entirely norm conflicts, not judicial decisions. The precondition for the application of this provision is the emergence of a direct conflict between an agreement concerning fundamental rights or freedoms and the provisions of a law. When a conflict arises, the provisions of the agreement must prevail.
Of course, it is the national authorities that will apply this. If this conflict arises in executive practices, the executive makes an assessment according to this provision; if it arises in judicial activity, the judiciary does so. In other words, this regulation has nothing to do with the implementation of ECHR decisions.
“AN ECHR DECISION IS NOT A PROVISION OF AN AGREEMENT”
First, even though ECHR decisions are rendered in accordance with the European Convention on Human Rights (ECHR) and its additional protocols, this does not confer upon ECHR decisions the identity of an international agreement on fundamental rights and freedoms. An ECHR decision is a court decision, not a provision of an agreement, i.e., a norm. Therefore, it is not possible to cite a constitutional provision designed for norm conflicts as a basis for the implementation of ECHR decisions.
Second, a direct conflict between an ECHR decision and any legal provision can never occur. Because ECHR decisions resulting from individual applications are only rendered in response to a court decision. The ECHR cannot directly rule on a law in force in a country. However, through the court decision it examines, it can point out a legal provision that contradicts the provisions of the ECHR and its additional protocols. This is not a direct agreement-law conflict in the sense regulated by the Constitution.
REFERENCE TO CPL AND CCP PROVISIONS
Third, when a court re-examines the relevant file and upholds its previous decision regarding an ECHR violation judgment, this does not mean a conflict has arisen between a legal provision and an agreement. In this case, the reason for not accepting the ECHR decision on the merits is the provisions of the Criminal Procedure Code and the Civil Procedure Code. That is, courts confirm the validity of their own decisions pursuant to Article 323 of the CPL or Article 380 of the CCP, depending on the type of case.
This confirmation is never a norm conflict within the meaning of the last sentence of Article 90 of the Constitution. Therefore, no unconstitutional situation arises.
“IT COULD BE IGNORANCE OR DELIBERATE DISTORTION”
Therefore, asserting the obligation to comply with ECHR decisions based on the mentioned provision of the Constitution could be either ignorance or a deliberate distortion; however, it is certain that this view has no connection with positive law.
AN “ADDITIONAL NOTE” FROM UÇUM
A provision similar to the one in the last paragraph of Article 90 of the Constitution, which is cited as the basis for monist law and prioritizes international agreements concerning rights and freedoms over laws in case of conflict, exists in only four European countries: the Czech Republic, Croatia, Romania, and Bulgaria, which adopted it under the pressure of the EU process.
One should also reflect on the fact that such a provision does not exist in 50 European countries, including Germany and France. When Turkey drafts its new constitution, this provision will likely not be among those to be retained.”