The decision of the Constitutional Court (“Constitutional Court”) dated 25/12/2024 and numbered 2024/29 E. 2024/226 K. (“Decision”) was published in the Official Gazette dated 14 March 2025 and numbered 32841.
With this decision, it has been decided that the rule in paragraph (2) of Article 326 of the Code of Civil Procedure No. 6100 (“CCP”), which is subject to objection in cases filed for non-pecuniary damages, is unconstitutional in terms of “cases for non-pecuniary damages” and should be annulled.
Two separate applications for the annulment of similar articles of law were made by two different Courts of First Instance and these applications were examined together. The applications are summarized as follows,
- In compensation cases, the judge has discretionary authority to determine the amount of compensation to be paid to the plaintiff, therefore, in the event of a partial acceptance of the lawsuit, holding the plaintiff responsible for a part of the judicial expenses in accordance with the rule, which is determined to have violated the right of personality, is incompatible with the right to protect and develop the material and spiritual existence of the person, and the rule violates the right to property and the freedom to seek rights,
- There is no fault attributable to the plaintiff in the partial rejection of the claim for non-pecuniary damages due to the lack of a method of calculating non-pecuniary damages, and the fact that the plaintiff has to pay an attorney’s fee in the partially accepted non-pecuniary damages case contradicts the principle of equity,
- In addition, the rule violates the principle of the rule of law and the fundamental aims and duties of the state, as well as the right to demand respect for private life,
It was argued that the rule is contrary to various articles of the Constitution in terms of non-pecuniary damages cases. The Constitutional Court summarized the problem of unconstitutionality by evaluating;
- that the person who files a lawsuit for non-pecuniary damages cannot be expected to foresee the amount to be awarded as compensation at the end of the lawsuit,
- the amount of non-pecuniary damages will not be possible to be determined by the information and documents entered into the file during the trial process,
- Considering that there is no special regulation regarding the trial expenses for the cases in which the amount of non-pecuniary damages is determined according to the judge’s discretion, Article 326/2 of the CCP “If either party is partially justified in the case, the court shall apportion the trial expenses according to the proportion of the parties’ justification.” should be annulled in terms of “non-pecuniary damages cases”.
Since the legal gap that will arise due to the annulment of Article 326/2 of the CCP in terms of “non-pecuniary damages cases” is deemed to violate the public interest, it has been deemed appropriate for the annulment provision to enter into force 9 months after the publication of the decision in the Official Gazette, i.e. on 14.12.2025.
The full text of the Decision is available at: https://www.resmigazete.gov.tr/eskiler/2025/03/20250314-7.pdf
Best Regards,
Balay, Eryiğit & Erten
