Case-Law Summary

Case

Decision

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Hasan Durmuş
2019/19126

23 January 2025 (Plenary)

Violation of the right to property safeguarded by Article 35 of the Constitution

-Alleged violation of the said right due to the insufficient compensation awarded for the annulment of his property title and its registration to the Treasury as forest land.

- A plot of land was registered in the applicant’s name in the land registry on 19 November 1990. However, on 15 May 2008, the General Directorate of Forestry brought an action seeking the annulment of the applicant’s title deed and the registration of the property in the name of the Treasury as forest land, on the grounds that the property had previously been forest and fell within the boundaries of a definitively demarcated forest area.  

- At the end of the proceedings before the inferior courts and the Court of Cassation, the State was found liable for the damage arising from the annulment of the title deed, and the applicant was awarded TRY 38,521.12 in pecuniary compensation. However, he was also ordered to pay TRY 11,383.43 as attorney’s fees to the defendant Treasury, in the name of which the property had been re-registered following the annulment of his title deed. This amount corresponds to approximately 29.55% of the compensation granted to him.

- This situation placed an excessive individual burden on the applicant, as it led to a significant decrease in the actual value of the property at the time of the interference: striking the fair balance between the applicant’s property rights and the requirements of the public interest underlying the interference.

- Consequently, the Court has found a violation of the right to property.

II. Constitutionality Review

E. 2025/50

6 March 2025

(Plenary)

Annulment of Articles 134 and 135 of Attorneys Act no. 1136, amended by Article 65 of Law no. 4667

- The contested provisions concern the disciplinary procedure and sanctions applicable to lawyers who have committed acts and behaviours inconsistent with the honour, order, traditions, and professional rules of the legal profession, as well as to those who have failed to perform their duties.

- It was maintained in brief that the contested provisions provided for no clear and precise principle as to the disciplinary practices and the types of sanctions applicable to specific disciplinary offenses and therefore granted unlimited discretionary power to the administration: infringing the principle of nullum cri- men nulla poena sine lege.

- In its previous decision no. E.2021/16, K.2021/62, dated 22 September 2021, the Court reviewed Article 30 of Law No. 6643 on the Turkish Pharmacists' Association, insofar as it concerned the disciplinary procedure and sanctions. The respective part was found unconstitutional and annulled, on the grounds that it failed to afford those concerned a clear and foreseeable legal framework as to the disciplinary acts or circumstances and the corresponding legal sanctions or consequences. The Court pointed to the lack of necessary and sufficient mechanisms to ensure a fair balance between these acts and the disciplinary sanctions, as well as of legal safeguards against arbitrary interpretation and application regarding the disciplinary sanctions.

- The Court found no reason to depart from its previous findings.

- Consequently, the contested provisions have been found unconstitutional and thus annulled.

Case

Decision

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Sani Bayar
2021/26642

21 November 2024

(Plenary)

Violation of the right to a reasoned decision within the scope of the right to a fair trial, safeguarded by Article 36 of the Constitution

-Alleged violation of the said right due to the failure of the authorities to address the claims capable of affecting the outcome of the proceedings.

- The trial court convicted the applicant of aggravated theft, violation of the inviolability of domicile, and damage to property, relying on evidence obtained through the interception of his communications.

- In accordance with the established case-law of the Court of Cassation, communication records incidentally obtained during the interception of telecommunications regarding offences not enumerated among the so-called “catalogue offences” cannot be lawfully admitted as evidence.

- The applicant appealed the decision, arguing that the impugned evidence was obtained unlawfully and therefore could not be relied on for his conviction.

- It is clear that the applicant’s claims concerning the unlawfulness and inadmissibility of incidentally obtained evidence constituted substantial claims, which could have affected the outcome of the proceedings.

- The appeal court failed to provide any explanation as to the reasons for departing from its earlier case-law.  

- Consequently, the Court has found a violation of the right to a reasoned decision within the scope of the right to a fair trial.

II. Constitutionality Review

E. 2024/135

16 January 2025 (Plenary)

Annulment of the third sentence added to Additional Article 1 § 1 of the Expropriation Law no. 2942 by Article 3 of Law no. 7421

- The contested provision stipulates that, as regards the immovable properties subject to legal restrictions on use in a manner that interferes with the essence of the right to property as being allocated for public services and government facilities under urban development plans, zoning plans or their implementation shall be carried out within five years from the entry into force of the implementation zoning plans, and such properties shall either be expropriated by the relevant authorities within budgetary means, or, in any event, the zoning plan shall be amended so as to eliminate the restrictions that prevent the exercise of property rights.

- It is argued that the provision envisaged the bringing of an action for claims related to property rights before the courts of law, whereas the issuance and implementation of zoning plans constituted administrative acts, thus maintaining that such actions should fall within the jurisdiction of the administrative courts. 

- Article 46 § 1 of the Constitution stipulates that expropriation may be carried out only on the condition that actual compensation is paid for the immovable property. In this respect, not only the awarding of compensation by the courts, but also the prompt payment of the awarded amount to the property owners is a requisite for putting an end to the unlawful interference.

- However, the contested provision alters the standard legal framework governing expropriation procedures, shifting the burden of litigation onto property owners whose land has been subjected to de facto expropriation.

- Any legal arrangement intended to regulate such interference with the right to property cannot be considered to meet the requirements of Article 46 in the absence of safeguards to prevent the registration of the property in the name of the administration without the awarded compensation being paid to the property owner.

- It has been thus concluded that the contested provision, which enables the administration to confiscate properties designated for public services in zoning plans without conducting formal expropriation and in a manner contrary to the respective principles set forth in the Constitution, is incompatible with the express wording of the Constitution.

- Consequently, the contested provision has been found unconstitutional and thus annulled.

Case

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E.2024/66

5 November 2024

(Plenary)

Annulment of the phrase “…deaf and mute …” included in Article 250 § 12 and Article 251 § 7 of the Code of Criminal Procedure no. 5271

- The contested provisions stipulate that accelerated and simplified trial procedures shall not be applied in cases where the suspect is deaf and mute.

- It is argued that the exclusion of deaf and mute individuals, who are in a disadvantaged position due to their physical disabilities, from the application of accelerated and simplified trial procedures deprives them of the opportunity to benefit from a criminal procedure mechanism that has an impact on substantive criminal law.

- The contested provisions contribute to the effective conduct of criminal proceedings regarding deaf and mute individuals under the age of twenty-one, thereby ensuring their protection and serving the public interest. However, it must also be assessed whether the distinction introduced by the provisions has reasonable and objective grounds for deaf and mute individuals who have reached the age of twenty-one.

- Pursuant to the contested provisions, if the accelerated trial procedure is not applied to deaf and mute individuals for their disability, they will be deprived of an opportunity for reduction in punishment by fifty percent, while the absence of the simplified trial procedure will result in the deprivation of an opportunity for reduction by twenty-five percent. In other words, a deaf and mute perpetrator over the age of twenty-one, who has full criminal liability, may be imposed more severe punishment than other perpetrators of the same act.

- Furthermore, accelerated and simplified trial procedures are applied to cases where there are no issues of credibility, are not complex, or do not require oral presentation of evidence, and which have not attained a certain threshold of severity. In such cases, a deaf and mute suspect/accused may be at a disadvantage compared to other suspects/accused.

- It has been concluded that there is no objective and reasonable ground for the distinction in the application of accelerated and simplified trial procedures between deaf and mute suspects/accused over the age of twenty-one and other suspects/accused over the age of eighteen.

- Consequently, the contested provisions have been found unconstitutional and thus annulled.

E.2023/158

5 November 2024

(Plenary)

Annulment of Article 27 § 1 of Law no. 5718 on International Private and Civil Procedure Law

- The contested provision prescribes that the parties to an employment contract shall be subject to the law of their own choosing, without prejudice to the minimum protection to be afforded to the employee pursuant to the imperative provisions of the law of the country where the employee performs the work.

- It is argued that the contested provision, which foresees the application of the law of the country where the respective place of work is located, to the disputes with respect to employees working at any foreign branch of a place of work, deprives the employee of his constitutional rights; and that as the Turkish employees working at foreign branches of the Türkiye-based companies are, in principle, subject to foreign law, they are not entitled to the rights enjoyed by the employees of the same company who are working in Türkiye, which falls foul of the principle of equality and the State’s obligation to protect the employees.

- Pursuant to Article 27 § 4 of Law no. 5718, in cases where the employment contract has not been made subject to the law of the parties’ own choosing and it is more closely affiliated with the law of another country, the law of that other country can be applied.

- However, if the parties have chosen the law to apply to their contracts, the law of any another country, which is more closely affiliated, can no longer be applicable.

- Besides, in choosing the applicable law, it is extremely difficult for the employee, who is the weaker party to the contract vis-à-vis the employer, to have a sufficient level of knowledge as to the content and scope of the respective foreign law and to foresee whether its application would be more favourable to him.

- Accordingly, the Court has noted that in choosing the applicable law, the employer may evade the obligations set forth in the law of another country, which is more closely affiliated, and the employee may be deprived of the protection afforded by that law.

- Thus, the contested provision which allows -in the absence of a chosen applicable law- for setting aside the rights to be enjoyed by the employee by making such a choice- fails to strike a reasonable balance in respect of employee-employer relationship and conflicts with the State’s positive obligation to protect the employees.

- Consequently, the contested provision has been found unconstitutional and thus annulled.

E.2023/123

4 December 2024

(Plenary)

Dismissal of the request for annulment of Additional Article 134 § 3 of the Enforcement and Bankruptcy Law no. 2004

- The contested provision stipulates that proportional fee shall be collected from the persons other than the creditor requesting the sale, the debtor, registered interested parties, and holders of limited real rights in order to submit a request for termination of a tender; that half of this fee must be paid in advance at the time of the request; that if the request is granted, the fee shall not be imposed on any other party and shall be refunded upon request; and that unless the request is granted, the fee already paid shall not be refunded, and the remaining portion of the fee shall collected from the party requesting the termination of the tender.

- The provision is claimed to be unconstitutional on the ground that it introduces a different practice to the detriment of the winner of the tender.

- The Court considers that the contested provision pursues a legitimate aim in terms of limiting the right of access to a court in order to prevent unfair requests for termination of the tender. The imposition of an extraordinary proportional fee for termination requests also prevents tender process being prolonged due to unnecessary applications.

- The impugned restriction has been found to be proportionate.

- Consequently, the contested provision has been found constitutional and therefore the request for its annulment has been dismissed.

E.2024/29

25 December 2024

(Plenary)

Annulment of Article 326 § 2 of the Code of Civil Procedure no. 6100, insofar as it concerns the phrase “actions for non-pecuniary damages”.

- The contested provision stipulates that if either party is partially justified in the case, the litigation costs shall be allocated between the parties according to the percentage method.

- It is argued that in the proceedings regarding actions for non-pecuniary damages, it is at the discretion of the trial judge to determine the amount of compensation, since there is no calculation method in place. In this sense, if the amount requested by the applicant is partly accepted, litigation costs will also be collected from him/her, which is in breach of the right of access to a court.

- In principle, a person who will bring an action for non-pecuniary damages cannot be expected to foresee the amount to be awarded at the end of the proceedings, namely the extent to which his/her claim will be justified.

- In actions for non-pecuniary damages, individuals who set their claims at a lower amount may suffer loss of rights. Additionally, if a portion of their claim is not granted at the judge’s discretion, they may be held liable for litigation costs under the contested provision. Therefore, the contested provision imposes a restriction on the right of access to a court.

- Consequently, the contested provision has been found unconstitutional and thus annulled.

E.2025/39

11 February 2025

(Plenary)

Annulment of the phrase “…when the final decision is issued by the first instance court or the regional administrative court…” in the first sentence of Additional Article 1 § 2 of Law no. 2577 on Administrative Procedure, which was amended by Article 54 of Law no. 7524

- The contested provision sets forth that in administrative actions, the subject-matter of which is below the monetary value on the date when the final decision is issued by the first instance court or the regional administrative court, no appeal can be lodged against decisions of these courts.

- It is argued that in instituting an action or seeking the amendment of the initial claim, the plaintiff cannot be reasonably expected to know the revaluation rate of the subsequent years and thus the monetary limit on the date of the decision, that a decision -which is in fact appealable by the date of the initial action or the action seeking an amendment- may not be appealable because of current monetary value limitations especially in case of prolongation of the proceedings and in periods of high inflation, which is in breach of the principles of legal certainty, predictability, as well as of a fair trial.

- In its decision no. E.2023/182, K.2024/203, the Court has already annulled a contested phrase laid down in the Code of Civil Procedure no. 6100, which stipulates that a decision issued by the first instance court or the regional court of appeal cannot be appealed against, if the value and amount of the claim, the subject-matter of the action, is below the monetary amount (limit) on the date of the decision. In annulling the phrase, the Court has noted that the entire burden caused by inflation was imposed on the parties, and the contested provision put a disproportionate burden on the right to appellate review of a decision. The phrase, which was already annulled by the Court, relates to judicial proceedings, whereas the contested phrase in the present case relates to administrative proceedings.  

- As for the present case, the Court sees no reason to depart from its findings and conclusion in its decision no. E.2023/182, K.2024/203, as the contested phrase may preclude the right to appellate review of a decision issued by the first instance court or the regional administrative court on the basis of the monetary limit to file an appeal.

-  Consequently, the contested phrase has been found unconstitutional and thus annulled.

Case

Decision

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Ramazan Kavak

2017/20729

5 September 2024 (Plenary)

No violation of the freedom of expression safeguarded by Article 26 of the Constitution

-Alleged violation of the said right due to imposition of a disciplinary penalty in the form of the deferment of promotion for sharing a social media post.

- A disciplinary penalty was imposed on the applicant, a teacher, due to sharing a social media post in support of a political party, explicitly instigating people to vote for the political party in the upcoming parliamentary elections. The applicant challenged the disciplinary penalty but the courts dismissed his request for annulment.

-The Court considered that the applicant, as a public officer, had failed to demonstrate that he had not aimed to give publicity to the statement, or that he had acted within his obligation to exercise due diligence to prevent its public dissemination.

-In addition, the Court found proportionate the measure of imposing the deferment of promotion, which is considered as more lenient measure compared to the measure of dismissal from the public office and which will not impede the individual from sustaining his/her life with income.

- Consequently, the Court found no violation of the freedom of expression.

Case

Decision

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Kadir Toprak
2022/2407

9 October 2024

(Plenary)

Violation of the right to have adequate time and facilities for the preparation of defence safeguarded by Article 36 of the Constitution

-Alleged violation of the said right due to rejection of defence counsel’s health-related excuse.

- The applicant was indicted for inflicting minor bodily harm while the COVID-19 pandemic had been ongoing. In the subsequent proceedings, the applicant’s defence counsel was unable to attend the second hearing for his health problems, which he specified in a letter of excuse.

- However, the aforementioned letter of the applicant’s defence counsel was rejected, and the applicant was imposed a judicial fine based on the final opinion of the public prosecutor on the merits.

- Presentation of the public prosecutor’s final opinion was undoubtedly a procedure that might have affected the outcome of the proceedings.

- In similar cases, the Court of Cassation has considered the rejection of the letter of excuse submitted by the applicant or her/his defence counsel as a restriction on the right to defence.

- It should be noted that it was not possible for the applicant’s defence counsel to substantiate his excuse at the time of submission, as the test results required a specific process to be finished.

- Considering the particular circumstances prevailing at the time of the proceedings, the court should have examined health-related excuses with a higher degree of scrutiny, without categorically dismissing them, regardless of they are substantiated or not.

- However, the court, dismissing the excuse of the applicant’s defence counsel, rendered its decision without allowing the applicant and his defence counsel to exercise their right to defence.

- Consequently, the Court has found a violation of the right to have adequate time and facilities for the preparation of defence within the scope of the right to a fair trial.

Kombassan Kağıt Matbaa Gıda ve Tekstil Sanayi ve Ticaret A.Ş.

2019/30300

18 July 2024

(Second Section)

Violation of the right to access to a court, under the right to a fair trial, safeguarded by Article 36 of the Constitution

- Alleged violation of the right to access to a court due to the dismissal of the applicant’s request for an increase in the amount in dispute during the appellate proceedings within the scope of the full remedy action initiated with a specified claim.

- The applicant company, sought reimbursement of overpaid default interest concerning its immovable property for the years 2003–2005, which had been judicially determined to be subject to limited taxation, but its request was dismissed.

- Although the tax court ruled in favour of the applicant and ordered the reimbursement of TRY 500,000 along with accrued deferred interest, the applicant’s subsequent request to increase the amount in dispute was rejected by the Council of State, and the decision became final.

- In the present case, the court issued an interlocutory decision requiring the defendant administration to provide information on the default interest collected. Referring to the principle of being bound by the claim, the court annulled the impugned administrative act and ordered the reimbursement of the overpaid amount to the applicant.

-The administration’s response to the interlocutory decision, which contained critical information for the applicant’s claim, was not communicated to the applicant, who became aware of it only upon receiving the court’s judgment, thus preventing an earlier request for an increase in the impugned amount.

-Despite promptly submitting a petition to increase the amount upon learning the actual figures from the court’s reasoned decision, the applicant’s appeal was dismissed on the grounds that such a request could only be made before the inferior court’s judgment, which imposed an excessive burden on the applicant and disproportionately interfered with the right to access to a court.

- Consequently, the Court found a violation of the right to access to a court under the right to a fair trial.

E.2024/114

5 November 2024

(Plenary)

Dismissal of the request for annulment of the provision precluding the refund of organisation fee in case of termination of the savings finance contract after 14 days

- The contested provision, the second sentence of Article 39/A (4) of the Law no. 6361 on Financial Leasing, Factoring and Finance and Savings Finance Companies insofar as it concerns the phrase “… excluding the organisation fee…” thereof, stipulates that the organisation fee shall not be refunded if the customer terminates the savings finance contract after 14 days following the date of its signature.

- It is argued that the contested provision significantly restricts the customer’s right to terminate the contract as well as its financial independence, which is in breach of the State’s obligation to protect customers.

- The Court considers that the provision intends to take into consideration certain services provided by the company during the period set forth therein.

- If the customer was entitled to a refund of the organisation fee for an indefinite period of time, the company would suffer commercial difficulties given the investments it has made, personnel it has employed and various expenses it has made to this end.

- Therefore, imposition of a restriction on the customer’s ability to receive a refund of the organisation fee does not upset the fair balance between the interests of the parties.

- It has been concluded that the aforementioned provision does not impose an excessive burden on the customer, and that a fair balance has been struck between the conflicting interests of the parties.

- Consequently, the contested provision has been found constitutional and therefore the request for its annulment has been dismissed.

E.2021/78

5 November 2024

(Plenary)

Annulment of the provisions entrusting the administration with determining the principles and procedures regarding the transfer of pension commitment contracts to the private pension system

- The contested provisions grant the Insurance and Private Pension Regulation and Supervision Authority the power to determine the principles and procedures for the eligibility of members, including the age and duration requirements for obtaining pension rights, following the transfer of pension commitment contracts to the private pension system.

- It was claimed that the contested provisions were unconstitutional as they delegated to the administration the regulation of essential aspects of social security rights which must be regulated by law, thereby violating the principle of legality and the right to social security.

- The Court has observed that the contested provisions allowed the Authority to interfere with the contractual terms agreed upon between individuals and their institutions or employers by modifying the conditions for obtaining pension rights under the transferred contracts. This interference has been deemed as a restriction on the freedom of contract safeguarded by Article 48 of the Constitution.

- Furthermore, the contested provisions grant the Authority a broad discretionary power to determine the conditions for pension eligibility without establishing a legal framework, thereby subjecting individuals’ pension rights subject to administrative changes. The lack of legislative safeguards has been found to be incompatible with the principle of legality.

- The Court has concluded that the contested provisions violated constitutional safeguards, particularly regarding the freedom of contract and the principle of legality, and therefore annulled them. The annulment decision will enter into force nine months after its publication in the Official Gazette.

- Consequently, the contested provisions have been found unconstitutional and thus annulled.