Constitutionality Review

Contested Provision

The contested provision stipulates that in cases where both parties to the proceedings are partially successful, the court shall apportion the litigation costs in proportion to the degree of their success in the proceedings.

Grounds for the Request for Annulment

It was maintained in brief that in actions for non-pecuniary damage, the judge enjoys discretion in determining the amount of compensation to be awarded to the claimant, and that therefore, where such a claim is accepted in part, the claimant would be, pursuant to the contested provision, required to bear the relevant part of the litigation costs, despite the court’s finding that claimant’s personality rights have been infringed, which is incompatible with the right to protect and improve one’s corporeal and spiritual existence and also infringes the rights to property as well as to legal remedies. It was further argued that due to the absence of a specific method for calculating non-pecuniary compensation, no fault could be attributed to the claimant for the partial dismissal of the action, and that requiring the claimant to pay counsel’s fee in respect of actions for non-pecuniary damage that are accepted in part (and dismissed in part) would run contrary to the principle of equity. It was accordingly claimed that the contested provision, in so far as it concerns “actions for non-pecuniary damage”, is unconstitutional, since it infringes the principle of the rule of law, the fundamental aims and duties of the State, as well as the right to respect for private life.

The Court’s Assessment

Pursuant to the contested provision, allocating litigation costs in proportion to the extent to which the parties’ claims are granted where both parties are partially successful, requiring the claimant to bear the partial litigation costs where the action for non-pecuniary damage is dismissed in part, places pressure on the claimant party, thereby constituting a limitation on his right of access to a court. Article 13 of the Constitution provides for that any regulation imposing a limitation on fundamental rights and freedoms must be prescribed by law. In this regard, the formal existence of statutory regulations does not alone suffice; it must also be sufficiently clear and foreseeable to prevent arbitrariness.

As regards the requirement of clarity, the Court has noted that the contested provision clearly sets out the procedure for apportioning the costs between the parties in an action for non-pecuniary damage.

However, in the light of the principle of the rule of law respectful of human rights, the requirement of legality enshrined in Article 13 of the Constitution as a ground for restriction requires that the claimant be able to foresee the extent to which the claim may be dismissed by the court, rather than focusing solely on the clarity of the procedure in which the costs are apportioned following the court’s decision. In this sense, it must also be assessed, under the requirement of legality, whether the claimant is able to foresee the extent of the award for non-pecuniary damage that may be granted by the court.

In the Turkish legal system, the relevant statutory provisions do not provide for any specific method of calculating an appropriate or fixed amount of non-pecuniary compensation. In other words, there is no mathematical method for calculating the amount to be awarded as non-pecuniary compensation. In this regard, it falls within the judge’s discretion to determine the amount of non-pecuniary compensation to be awarded to the claimant. Accordingly, the claimant cannot be expected to foresee the amount of non-pecuniary compensation that would be awarded. In other words, in the action for non-pecuniary damage, the claimant is, in principle, unable to foresee to what extent the claim will be granted by the court.

The limited discretion enjoyed by judges in determining the amount awarded as non-pecuniary compensation and the consistency of jurisprudence applied in such cases do not eliminate the unforeseeable nature of the outcome for the claimant. Nor is there any possibility for the amount of non-pecuniary compensation to become foreseeable on the basis of the information and documents in the case-file during the proceedings.

It cannot be said that individuals -who may incur a loss of rights in cases where they claim a relatively low amount for non-pecuniary compensation and who may also be required to bear part of the litigation costs if their claim is partly granted by the court- have effective access to a court in accordance with the constitutional safeguards inherent in fundamental rights and freedoms.

In this regard, given that the claimant is unable to foresee the amount to be awarded by the judge in compensation for non-pecuniary damage, that is to say the extent to which the claim will ultimately be granted, and that there is no special provision governing the costs of the proceedings where the compensation amount is determined at the judge’s discretion, the Court has concluded that the restriction imposed by the contested provision on the right of access to a court does not satisfy the requirement of legality in respect of “actions for non-pecuniary damage”.

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