Press Release No: Individual Application 35/21

Press Release concerning the Judgment Finding a Violation of the Right to Property due to the Termination of the Payment of the Share of Attorney Fees and Reclamation of the Payments Already Made

On 22 January 2021, the Plenary of the Constitutional Court found a violation of the right to property safeguarded by Article 35 of the Constitution in the individual application lodged by Süleyman Kurtel (no. 2016/1808).

The Facts

The applicant works as a civil servant in the Provincial Directorate of Social Security Institution. While the applicant had been granted a share of the attorney fees for years, his entitlement in question was abolished on the basis of the provisions of Decree Law no. 666, and such shares out of the attorney fees were no longer paid.

The applicant applied to the Social Security Institution (“the Institution”), seeking the payment of the relevant shares of the attorney fees received in 2012; however, his request was rejected. The applicant’s subsequent action before the administrative court, challenging the Institution’s decision, was accepted. Thereupon, the Institution paid the attorney fees of the years 2012-2014 to the applicant, considering the reasons stated in the decision. The applicant again applied to the Institution, seeking the payment of a share for the remaining part of the attorney fee paid for the year 2014. This time, on the contrary, the share being paid to the applicant was revoked by the Institution. Moreover, it was decided that the amount of 5,832.26 Turkish liras (TRY) that had been paid to the applicant as the relevant share of the attorney fees for the years 2013 and 2014, plus the legal interest, would be collected from him. Thus, the applicant was charged retrospectively.

Thereafter, the applicant brought an action against the Institution, as a result of which the administrative court annulled the impugned process and ordered the payment of the monetary rights that the applicant had been deprived of due to the said process.

Upon appeal by the defendant Institution, the Regional Court of Appeal, quashing the administrative court’s decision, examined the appeal and dismissed it on the merits. The applicant’s subsequent request for rectification was also rejected.

The Applicant’s Allegations

The applicant claimed that his right to property had been violated, stating that the request for granting a share to the other employees out of the attorney fees awarded to the Institution had been rejected and that the amounts already paid in this scope, plus the legal interest, had been reclaimed.

The Court’s Assessment

In the present case, additional Article 12 of Decree Law 666 was relied on in terms of the revocation of the payment of a share of the attorney fees to the applicant as well as the return of the payments made to the applicant for the years 2013 and 2014, plus the legal interest.

It is obvious that the applicant was entitled to a share of the attorney fees as per Article 28 of Law no. 5502. It is also undisputed that the share of the attorney fees that had been paid to the applicant was then regarded as his property. Accordingly, the impugned process cannot be regulated by a decree law for its being related to the payment of the share of attorney fees that falls under the scope of the right to property. As a matter of fact, the criterion of legality primarily entails the existence of a formal law in terms of the limitation of fundamental rights and freedoms. The Court’s case-law regarding the interference with the right to property stipulates that no regulation limiting the right to property shall be made through decree laws even if the Grand National Assembly of Turkey grants an express authority to the Council of Ministers.

Therefore, the termination of the payment of a share of attorney fees and the request for the return of the already paid amounts, plus the legal interest, were not based on a statutory provision.

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

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.