Turkey: The Constitutional Court Ruled That The Court Of Cassation's Ruling Contrary To The Case-Law On Similar Issues Without Justification Violated The Right To A Fair Trial.

Recent development

With its decision on individual application numbered 2019/22055 and dated 15 November 2023 ("Decision"), the Constitutional Court ruled that the Court of Cassation's decision that the breach of contractual obligation would not lead to non-pecuniary damages, contrary to its previous case-law, violated the applicant's right to a fair trial. The Decision was published in the Official Gazette dated 28 February 2024.

Background

The applicant purchased some furniture to be used after his wedding. Despite agreeing with the seller to deliver the furniture before the wedding, the furniture was delivered twenty-six days after the wedding. As a result, the applicant, who experienced tension with his wife due to the late delivery of the furniture, filed a lawsuit against the seller at the Istanbul Anadolu 1st Consumer Court for compensation of his non-pecuniary damages.

The first instance court accepted the applicant's claim and ordered the seller to pay non-pecuniary damages. The seller appealed the first instance court's judgment, and the 13th Civil Chamber of the Court of Cassation held that, "in cases where personal rights are not damaged, it is not possible to award non-pecuniary damages even if the action is unlawful. In the concrete case, it cannot be said that the plaintiff's personal rights were damaged due to the delivery of different products and late delivery." It then reversed the judgment of the court of first instance. Upon the first instance court's compliance with the reversal decision and the Court of Cassation's upholding of this judgment, the judgment became final for the applicant.

The applicant claims that the furniture was delivered to him later than promised, causing unrest with his wife and family, and that he suffered non-pecuniary damages. However, the Court of Cassation rejected the claim for non-pecuniary damages, departing from its previous case law on similar issues. The applicant argued that this practice violated his right to a fair trial and the principle of equality.

What Does the Decision Say?

The Constitutional Court firstly stated in the Decision that the rendering of conflicting decisions in cases brought by different persons in relation to similar facts and legal situations would be contrary to the principles of legal certainty and predictability, and that the judicial authorities should act with a certain degree of consistency to maintain confidence in the judiciary. At the same time, the Constitutional Court emphasized that a change of case law cannot be regarded as a violation of legal foreseeability per se, but that a certain degree of consistency is required.

In applying the aforementioned principles to the concrete case, the Constitutional Court cited examples from previous decisions of the 13th Civil Chamber of the Court of Cassation and the General Assembly of the Court of Cassation in similar cases, and found that the 13th Civil Chamber of the Court of Cassation had consistently awarded non-pecuniary damages in cases where breaches of contractual obligations also caused damage to personal rights. The Constitutional Court also noted that the General Assembly of the Court of Cassation had taken a parallel approach.

Lastly, the Constitutional Court pointed out that there were differences between the decision subject to the individual application and the previous case law of the Court of Cassation on similar cases, which would be incompatible with the principle of legal certainty and predictability. Therefore, the Decision concluded that the right to a fair trial under Article 36 of the Constitution of the Republic of Türkiye was violated.

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