Constitutional Court Decision Annulling the Rule on Apportionment of Litigation Costs Based on the Degree of Justification in Non-Pecuniary Damage Claims
Introduction
Article 326 of the Turkish Code of Civil Procedure No. 6100 (“CCP”) stipulates that, where the parties are each partially successful in the proceedings, litigation costs shall be allocated between them in proportion to their respective degrees of justification.[1]
With respect to compensation claims arising from de facto expropriation, the Constitutional Court annulled this principle by its decision dated 30 November 2023, which was published in the Official Gazette No. 32433 of 18 January 2024 (E.2023/101, K.2023/207).
As of the date of this study, the Constitutional Court (“CC”) has further held, in its decision dated 25 December 2024 and published in the Official Gazette No. 32841 on 14 March 2025 (E.2024/29) (“Decision”), that the same principle set forth in CCP Article 326/2 is unconstitutional with respect to non-pecuniary damage claims, and therefore annulled it. This article evaluates the background, rationale, and practical implications of the Decision, which introduces a significant change regarding the allocation of litigation costs.
Annulment Request
The application before the Constitutional Court concerned the alleged unconstitutionality of Article 326/2 of the CCP insofar as it applies to non-pecuniary damage actions. The challenged provision reads:
“If each of the two parties is partially justified in the lawsuit, the court shall apportion the litigation costs according to the degree of their justification.”
Under this rule, in a non-pecuniary damages claim brought for a specified amount, the parties’ degrees of justification are determined by comparing the accepted and rejected portions of the claim. Consequently, the mere presence of a compensable non-pecuniary damage does not automatically render the claimant fully justified.
The objections were raised separately by the İzmir 2nd Commercial Court of First Instance (E.2024/29) and the 4th Civil Chamber of the Trabzon Regional Court of Appeal (E.2024/58). Given the legal connection between the two, the Constitutional Court joined and examined them together. Both courts considered the rule unconstitutional, specifically in relation to non-pecuniary damage lawsuits, and therefore referred the matter to the CC.
In their referral decisions, the courts reasoned that the amount of non-pecuniary damages to be awarded is subject entirely to the judge’s discretion. Accordingly, in cases where the claim is partially accepted, obliging the claimant whose personal rights were found to be violated to bear part of the litigation costs is incompatible with the constitutional right to protect and develop one’s material and moral integrity. They further argued that the rule infringes the right to property and the freedom to claim rights. The courts also emphasized that because no statutory method exists for calculating non-pecuniary damages, a partial dismissal of such claims cannot be attributed to any fault on the claimant’s part; requiring the claimant to pay attorney’s fees in partially accepted cases contradicts principles of fairness.
Assessment of the Constitutional Court
The CC first examined the challenged provision within the framework of the freedom to claim rights protected under Article 36 of the Constitution. It found that, where non-pecuniary damage claims are partially rejected, requiring the claimant to bear part of the litigation costs places pressure on the claimant and thus restricts the right of access to a court.
Pursuant to Article 13 of the Constitution, any restriction on the right of access to a court must have a statutory basis. However, the Court underlined that the mere existence of a statutory rule is not sufficient; the restriction must be clear, foreseeable, and not open to arbitrary application. Based on these criteria, the Court carried out the following analyses:
i. Certainty Regarding the Allocation of Litigation Costs
The CC noted that in non-pecuniary damage claims filed for a specified amount, the degree of justification is determined by comparing the accepted and rejected portions of the claim. Therefore, when a claim is partially accepted, no uncertainty exists concerning the apportionment of litigation costs, since this allocation is explicitly regulated by the challenged provision and leaves no discretion to the judge.
ii. Predictability of the Amount of Non-Pecuniary Damages and the Claimant’s Justification
The CC determined that Turkish law does not contain any formula or calculation method for determining the “appropriate amount” of non-pecuniary damages. In other words, non-pecuniary damages cannot be calculated mathematically.
Accordingly, the assessment of the amount to be awarded falls wholly within the discretion of the judge, and it cannot reasonably be expected of the claimant to anticipate the degree to which the claim will be considered justified.
The Court emphasized that neither the existence of judicial guidelines nor the limitation of judicial discretion removes this uncertainty. Even if a judge awards an amount far below the claimant’s request, the claimant will nonetheless remain responsible for a portion of the litigation costs.
The Court further stated that it is not possible for non-pecuniary damages to become fully ascertainable during the proceedings based on the evidence submitted to the file.
iii. Pressure on the Claimant
According to the CC, it is inevitable that claimants will feel compelled to claim a higher amount to avoid the risk of under-compensation. Moreover, the possibility of being held liable for litigation costs if part of the claim is rejected constitutes an additional source of pressure when determining the claimed amount.
In this context, the Court held that individuals who risk under-compensation if they claim a low amount and who may bear litigation costs if their claim is partially rejected cannot be said to have effective access to a court in a manner compatible with constitutional guarantees.
iv. Consideration of Groundless or Exaggerated Claims
The CC also addressed whether exempting claimants from litigation costs could lead to excessive or unfounded claims. The Court concluded that even if the claimant is not required to pay litigation costs when awarded less than requested, this would not necessarily encourage frivolous applications, nor would it disrupt the functioning of the judicial system.
To support this conclusion, the CC referred to Article 327(1) CCP, titled “Liability for litigation costs due to breach of good faith,” which provides that a party who unnecessarily prolongs the proceedings or causes unnecessary expenses may be ordered to pay all or part of the litigation costs—even if that party ultimately prevails. Thus, existing mechanisms are sufficient to prevent abusive conduct by claimants.
The Constitutional Court’s Decision
Based on the above assessments, the CC concluded that in non-pecuniary damage cases, claimants cannot foresee the amount the judge will award or the degree to which their request will be accepted; the amount is determined purely through judicial discretion, and no special regulation exists regarding litigation costs in such cases.
Accordingly, the restriction imposed by the rule on the right of access to a court fails to meet the constitutional requirement of legality under Article 13, insofar as it applies to non-pecuniary damage claims.
For these reasons, the Court held that the rule violates Articles 13 and 36 of the Constitution and annulled the rule in respect of non-pecuniary damage lawsuits.
Dissenting Opinions
The dissenting justices set out the following main arguments:
Although claimants may feel compelled to inflate their claims to avoid under-compensation, uncertainty regarding the amount of non-pecuniary damages affects both parties, not only the claimant.
Because the claimant directly experiences the harm and emotional impact of the wrongful act, they may be in a better position than the defendant to assess the extent of the harm.
The challenged rule falls within the legislature’s discretionary power and serves the public interest by ensuring efficient and expeditious adjudication. It also helps prevent exaggerated, unfounded, or unserious claims that would otherwise burden courts and enforcement offices.
While the claimant’s right to a fair trial and access to a court is important, the defendant’s rights and interests must be equally protected. Annulment of the rule may incentivize claimants to bring lawsuits seeking excessively high amounts, knowing that litigation costs would fall entirely on the defendant.
Although judges have no discretion over litigation costs, their wide discretion in determining the amount of non-pecuniary damages functions as a balancing tool that prevents unfair outcomes.
Conclusion
The CC’s Decision introduces a significant shift in the allocation of litigation costs in non-pecuniary damage lawsuits. Once the Decision becomes effective, litigation costs can no longer be apportioned based on the degree of justification when the claimant’s request is partially accepted in non-pecuniary damage cases.
The Decision will enter into force nine months after its publication in the Official Gazette—that is, on 14 December 2025.
- Constitutional Court of Türkiye, Decision No. E.2024/29, K.2024/226 (Dec. 25, 2024), Official Gazette No. 32841 (Mar. 14, 2025), https://normkararlarbilgibankasi.anayasa.gov.tr/ND/2024/226
All rights of this article are reserved. This article may not be used, reproduced, copied, published, distributed, or otherwise disseminated without quotation or Erdem & Erdem Law Firm's written consent. Any content created without citing the resource or Erdem & Erdem Law Firm’s written consent is regularly tracked, and legal action will be taken in case of violation.
Other Contents
The Turkish Constitutional Court (“TCC”), in its decision dated 17 June 2025 and numbered E.2024/237, K.2025/137 (“Decision”), decided that significantly reshapes civil procedural law. The Court annulled the phrase “…and this decision shall be binding on the other court” contained in Article 166(1) of the Code...
One of the most significant safeguards afforded by the right to a fair trial is the right of access to a court. Moreover, one of the essential components of the right of access is the ability of individuals to make effective use of appellate and other legal remedies…
The Court of Cassation General Assembly on Civil Matters (“General Assembly”), by its decision dated 08.10.2025 and numbered 2024/572 E. and 2025/607 K. (“Decision”), in the dispute brought before it, prior to examining the merits of the matter, discussed and assessed as a preliminary issue whether the…
With its decision dated 22.05.2024 and numbered 2022/31465 E. (“Decision”) published in the Official Gazette dated 22.10.2024 and numbered 32700, the Constitutional Court examined the claim that the decision to deem the case as not filed due to the failure to complete the addresses and identification numbers...
Under the principle of “procedure precedes substance” prevailing in Turkish law, the correct determination of the period for filing a lawsuit is crucial. In its decision dated 02.05.2024 numbered 2020/13187 E. and 02.05.2024 K. (“Decision”), the Constitutional Court examined the claim that the right of access...
The Code of Civil Procedure (“CCP”) regulates the judicial procedure in our jurisprudence and foresees prescription periods at each stage. Prescription periods constitute a form of sanction that causes the loss of the use of the right for the party who does not comply with the time limit...
The concept of intervention has fundamental differences in administrative trial procedure compared to civil procedure. These differences are critically important in terms of the intervenor’s right to seek legal remedies in the administrative trial procedure. As is known, there are two ways to become a plaintiff in an...
With its decision dated June 8, 2023 on the application numbered 2019/17969, the Constitutional Court, as published in the Official Gazette numbered 32331 on October 6, 2023 (“Decision”), considered the rejection of a lawsuit for an unquantified debt related to the payment of labor dues due to the absence of a legal...
The Grand General Assembly of the Unification of Jurisprudence ("GGAUJ") ruled with the Decision of the Grand General Assembly of the Unification of Jurisprudence dated 28.04.2023 numbered 2021/5 E. 2023/2 K. ("Decision") that if the legal remedy period is erroneously indicated longer in the decision in...
The issue of proving damages in cases related to the excess damages is frequently subject to the examination and evaluation of both the Supreme Court and different chambers of the Court of Cassation. With its decision dated 29.03.2022 and numbered 2021/928 E. 2022/401 K., the Court of Cassation General...
Under Turkish law, the term “limits of certainty” refers to monetary limits to the rights of appeal and cassation. While it is possible to appeal to a higher court against the decisions of the courts of the first instance and the courts of appeal where the amount of the claim or the value of the case is above these...
The Court of Cassation General Assembly of Civil Chambers and the Chambers of the Court of Cassation both issued opinions on whether a lawsuit filed for not due receivables should be dismissed with or without prejudice by the court on the grounds that the time of performance has not yet come, and whether the...
In general terms, the amendment of pleading is accepted as an exception to the prohibition of expanding and amending claims and defenses. With the amendment of pleading, the parties can partially or completely correct or amend the procedural actions that they could not perform due to the prohibition...
The possibility of appellate review of questions of fact, as well as of law, was introduced into Turkish law with an amendment made in the abrogated Civil Procedure Code No. 1086, through Law No. 5239 dated 26.09.2004. However, the Regional Courts of Appeal, which are the courts...
Recently, the requirements of unquantified debt lawsuits have been subjected to the examination and review of the Court of Cassation. The Court of Cassation General Assembly of Civil Chambers, in its decision dated 07.07.2021 and numbered 2021/485 E. 2021/971 K. (“Decision”), examined whether...
In a state where the rule of law prevails, legal remedies are indispensable to eliminate judicial errors through the supervision of court decisions. However, legal disputes must be settled at some point and decisions must be finalized. In this Newsletter, appellate procedures against final court decisions will be...