Individual Application

The Facts

The applicant, who was a fifty percent owner of a building with eight flats, filed an application requesting the dissolution of joint ownership with his father-in-law who was the other fifty percent owner of the said property. The incumbent magistrate’s court (in civil matters) held that four detached sections of the building be registered in the name of the applicant. The applicant served a notice to his father-in-law, who had been living in one of the flats registered in his name, to vacate it. Claiming that his father-in-law occupied his flat without his consent and without paying the rent, the applicant also brought an action seeking the prevention of the alleged seizure. In his petition, the applicant claimed 2,500 Turkish liras (TRY) to compensate for the ten months’ rent and indicated the value of the case as TRY 5,000. The expert report issued in the course of the proceedings determined the total rent as TRY 2,200.

Upon the death of the defendant pending the proceedings, the applicant requested that five heirs of the deceased intervene in the case. In the following process, the applicant stated that since the occupation had been terminated, the actio negatoria he had brought became devoid of substance. Thus, the applicant only proceeded with his compensation claim.

The court, partially accepting the applicant’s compensation claim, awarded him TRY 2,200 and dismissed the remainder of his claims. In addition, the court awarded two of the intervening defendants, who had participated in the proceedings with the assistance of their respective lawyers, a total of TRY 5,450 -each was awarded TRY 2,725- for the counsel’s fee, as well as TRY 424,88 for the litigation costs calculated on the basis of the percentage method (degree to which the party is found to prevail in the case), which were payable by the applicant. The litigation costs were calculated on the basis of not the amount of compensation claimed in the main case, which was TRY 2,500, but rather the value of the case indicated in the letter of complaint, which was TRY 5,000. The applicant’s subsequent appeal against the relevant decision was dismissed.

The Applicant’s Allegations

The applicant claimed that his right of access to a court had been violated due to the award of unreasonably high amount of litigation costs against him at the end of the proceedings he had initiated.

The Court’s Assessment

A. Admissibility

The Code no. 6216 on the Establishment and the Rules of Procedure of the Constitutional Court stipulates two conditions to declare inadmissible the applications lacking constitutional and personal significance. The first condition, which is constitutional significance, refers to the fact that the application has no bearing on the implementation and interpretation of the Constitution or on the determination of the scope and limits of fundamental rights and freedoms, while the second condition, which is personal significance, refers to the fact that the applicant has not suffered any significant damage.

The condition of personal significance entails that the applicant has not suffered any significant damage. In this sense, any application must be dealt with in its particular circumstances. If the subject-matter of a dispute is related to a pecuniary damage, the issues such as whether the amount is small, the significance of the impugned amount for the applicant regardless of its being small or high (the applicant’s job/profession, the importance of the case for him, and its comparison with his income), whether the application concerns principal matters, and the applicant’s behaviour and conduct in the case are to be taken into consideration. Given the probability of depreciation of currency over time due to inflation, an assessment should be made according to the calendar year at the date of the application in determining the pecuniary damage, in an objective sense, within the framework of the personal significance condition. This is particularly important for the applications adjudicated in the next calendar year after they were lodged. Besides, regard also being had to the legislative intent of Article 148 of the Constitution, the criterion of not having suffered a significant damage should be taken into consideration to ensure an objective comparison as regards the amount of the alleged damage. Lastly, it should be noted that in the application of the personal significance condition, the foregoing elements will be evaluated together so as to determine whether the application bears personal significance.

In the present case, the applicant argued that a total of TRY 5,874.88 had been awarded against him for the litigation costs. Given that the application had been lodged in 2019, it has been observed that the applicant suffered a significant pecuniary damage. Considering the economic situation of the applicant, the nature of the case, the judicial proceedings, and the scope of the impugned interference, it has been concluded that the application bears both constitutional and personal importance.

B. Merits

In the present case, it has been first examined whether the award of several attorney’s fees against the applicant was in breach of his right of access to a court. It is set forth in the Minimum Attorneyship Fee Tariff as well as in the judgments of the Court of Cassation that in cases regarding disputes involving more than one defendant, intervening party or persons with joint liability, if the case is dismissed on common grounds, a single attorney’s fee shall be awarded, even if they are represented by separate lawyers. It is also stipulated therein that the relative attorney’s fee to be determined cannot exceed the value of the case that has been accepted or rejected. In the present case, which was dismissed on common grounds at the end of the proceedings before the first instance court, attorney’s fees were awarded against the applicant in favour of the defendants who had retained respective lawyers, which were over the dismissed part of the value of the case.

In addition, it is laid down in the Code of Civil Procedure no. 6100 that if either party is partially justified in the case, the litigation costs shall be allocated between the parties according to the percentage method. In spite of this provision, it could not be understood how the trial court allocated the litigation costs, other than the attorney fee, among the parties. In this regard, it remains obscure whether the impugned litigation costs were allocated on the basis of the percentage method.

Therefore, it has been concluded that the trial court failed to demonstrate the legal basis for such an interference with the applicant’s right of access to a court.

Consequently, the Court has found a violation of the right of access to a court.