Turkish Constitutional Court Repealed the Provision on the Distribution of Litigation Costs According to the Degree of Justification of the Parties in Cases of Partial Acceptance of the Case with Regard to Claims for Non-Pecuniary Damages
Turkish Constitutional Court Repealed the Provision on the Distribution of Litigation Costs According to the Degree of Justification of the Parties in Cases of Partial Acceptance of the Case with Regard to Claims for Non-Pecuniary Damages
Turkish Constitutional Court ["TCC"] on Friday, March 14, 2025, published in the Official Gazette No. 32841, with its decision dated December 25, 2024, numbered 2024/29 E. 2024/226 K., repealed the provision of Article 326, paragraph 2, of Turkish Code of Civil Procedure ["HMK"] as contrary to Articles 13 and 36 of the Constitution, with effect from the date of its publication in the Official Gazette. The decision will enter into force 9 months after its publication in the Official Gazette, on December 14, 2025.
Annulled Provision
The provision subject to repeal is the second paragraph of Article 326 of the Civil Procedure Code, which reads: "If both parties are partially justified in the case, the court shall distribute the litigation costs in proportion to the extent of their justification."
This provision applies to all cases subject to the HMK, regardless of the nature of the case.
Grounds Introduced in the Annulment Request
In summary, the decision on the application states that the court has discretion to determine the amount of compensation to be paid to the plaintiff in cases of non-pecuniary damage, therefore, in cases where the claim is partially granted, holding the plaintiff liable for a portion of the litigation costs, despite the violation of the plaintiff's right to personality, is inconsistent with the right to protect and develop one's material and moral existence, and also violates the right to property and the freedom to seek redress, there is no fault attributable to the plaintiff in the partial dismissal of the claim for non-pecuniary damages due to the absence of a method for calculating moral damages, and that the plaintiff being required to pay attorney's fees in the partially accepted claim for non-pecuniary damages is inconsistent with the principle of fairness, and that the rule violates the principle of the rule of law, the fundamental objectives and duties of the state, and the right to respect for private life, it is argued that the rule is unconstitutional in relation to claims for non-pecuniary damages.
Grounds for Annulment by Turkish Constitutional Court
Turkish Constitutional Court examined the constitutionality of the provision subject to annulment in light of Article 13 of the Constitution, titled "Limitations on fundamental rights and freedoms," and Article 36, titled "Freedom to seek justice."
In the decision, it was stated that, in accordance with the rule subject to the case, which stipulates that in cases where each of the two parties is partially justified, the costs of the proceedings shall be shared according to the degree of justification of the parties, holding the plaintiff liable for a portion of the costs of the proceedings in the event that the claim for non-pecuniary damages is partially accepted and partially rejected limits the right of access to the courts due to the pressure this places on the plaintiff.
According to Article 13 of the Constitution, the requirement that regulations imposing restrictions on fundamental rights and freedoms be enacted by law does not suffice for the formal existence of such regulations; rather, the rules must be specific and foreseeable in nature so as not to permit arbitrariness. It was stated that the legality criterion specified in Article 13 of the Constitution as a criterion for restriction must be considered in light of the principle of the rule of law with respect for human rights, and that it was therefore necessary to examine whether it was possible to predict the extent to which the claim for non-pecuniary damages would be accepted by the court within the scope of the legality requirement.
There is no calculation method in Turkish law for determining an appropriate amount as for moral damages. In this context, it was stated that the amount of moral damages to be paid to the plaintiff was within the discretion of the judge, and it was determined that the person filing a non-pecuniary damages' compensation lawsuit could not be expected to predict the amount of compensation that would be awarded at the end of the lawsuit. It was stated that persons who may suffer a loss of rights in the event of a low claim in a compensation of non-pecuniary damages case and who may be held liable for court costs in accordance with the rule if part of their claim is rejected at the discretion of the judge cannot be said to have access to the courts in accordance with constitutional guarantees relating to fundamental rights and freedoms, and therefore, the second paragraph of Article 326 of the Code of Civil Procedure was annulled by a majority vote with regard to "non-pecuniary damages cases."
Conclusion
In Turkish law, it is a general rule that litigation costs are shared in proportion to the merits of the case. In accordance with this rule, in cases where the claim is partially accepted and partially rejected, the litigation costs are shared in proportion to the acceptance/rejection ratios.
In cases of non-pecuniary damages, since the harm suffered cannot be quantified and objectively measured, the risk that the amount claimed may be less than the amount awarded is higher than in other cases. Even if the entire amount claimed is not accepted by the court, the distribution of litigation costs in accordance with the provision of the law subject to annulment is applicable.
This risk has been eliminated by TCC's annulment decision. However, in its decision, TCC ruled that the decision would enter into force nine months after its publication in the Official Gazette, with the aim of giving the legislature time to make the necessary amendments. Since the decision has not yet entered into force, the second paragraph of Article 326 of the Civil Procedure Code will continue to apply until December 14, 2025, unless a legal regulation is enacted.
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