The Constitutional Court, in the application brought before it through an appeal, annulled the second paragraph of Article 326 of the Code of Civil Procedure No. 6100 ("CPL") which envisages the allocation of litigation costs according to the degree of merit. In its annulment decision, it was emphasized that this provision especially restricts the right to access to justice in cases of non-pecuniary damages claims.
In the Constitutional Court decision published in the Official Gazette No. 32841 dated March 14, 2025, the objection regarding the claim that the second paragraph of Article 326 of the CPL No. 6100 is unconstitutional was evaluated in a case involving a claim for non-pecuniary damages. The Constitutional Court examined the provision in the context of the rule of law (Article 2) and the right to access to justice (Article 36), and made an assessment regarding its constitutionality. The provision subject to the annulment request is as follows:
'If both parties are partially successful in the case, the court shall allocate the litigation costs according to the parties' degree of success.'"
As emphasized in the Constitutional Court decision, the second paragraph of Article 326 of the CPL was regulated in the abolished Code of Civil Procedure No. 1086, where, in case both parties are partially successful, the allocation of litigation costs was left to the discretion of the court, granting the judge discretion in this matter. However, with the regulation introduced in the HMK, this discretion was removed, and the allocation of litigation costs is now directly based on the degree of success."
In the review conducted by the Constitutional Court, the second paragraph of Article 326 of the CPL was primarily evaluated within the scope of Article 36 of the Constitution, titled 'Right to Access to Justice.' According to the Constitutional Court, under this provision, if a non-pecuniary damages claim is partially dismissed, holding the plaintiff responsible for a portion of the litigation costs creates a deterrent effect on individuals' right to access the courts. This situation limits individuals' freedom to exercise their right to seek justice through judicial means and constitutes an interference with fundamental rights and freedoms.
Secondly, an evaluation was made within the framework of Article 13 of the Constitution, titled 'Limitation of Fundamental Rights and Freedoms.' The decision stated that limitations on fundamental rights and freedoms can only be provided by law; however, it emphasized that merely having a legal regulation in place is not sufficient on its own. In this context, it was stated that the rules regarding the limitation must be specific, clear, and foreseeable in a way that does not lead to arbitrariness. The Constitutional Court, relating this issue to the principle of the rule of law, which is guaranteed under Article 2 of the Constitution, pointed out that the foreseeability of the limitation should be evaluated in light of the rule of law that respects human rights, and noted that the provision in question violated this principle.
Therefore, the Constitutional Court has decided to annul the second paragraph of Article 326 of the CPL on the grounds that it violates the rights protected under Articles 36 and 2 of the Constitution.
The annulment decision will take effect 9 months after its publication.
You can access the full text of the Constitutional Court's decision through this link (only available in Turkish).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
