New Ruling of the Constitutional Court Unravelling Legal Inconsistencies

The Turkish Constitutional Court has recently issued a notable decision on the matter of inconsistencies observed in the decisions rendered by 13^th Civil Chamber of the Court of Appeal (“Chamber”) regarding non-pecuniary damages cases filed on the grounds of damage to the right of personality due to breach of contract. The heart of this issue revolves around the lack of uniformity and consistency in the application of legal principles, particularly evident in the divergence between the decisions of the Chamber.

The Turkish Constitutional Court, in its decision dated November 11, 2023, based on the application of Ziya Metehan Arısoy (Case No: 2019/22055), ruled that the failure to ensure a consistent and uniform application in decisions would be contrary to the principles of legal certainty and predictability, and may also damage individuals’ trust in the judicial system and court decisions. In this respect, it has been concluded that the fairness of the proceedings has been damaged due to the unpredictable practice for the applicant and Article 36 of the Turkish Constitution that stipulates that everyone, through the use of legitimate means and ways, has the right to a fair trial before the judicial authorities, as plaintiff or defendant, with claim and defence.

In summary, in the case subject to the Constitutional Court’s decision; the applicant filed a lawsuit for non-pecuniary damages before the local consumer court, stating that he and his wife had to spend the first twenty days of their marriage without furniture. He and his wife experienced discomfort due to the delivery of the furniture he had purchased twenty-six days after the promised date of delivery, even though it was promised to be delivered before the wedding.

Local consumer court decided to accept the case, taking into account the difficulties the applicant had experienced due to the non-delivery of the furniture on the date specified in the contract, the unrest in the family, the sadness he felt, and the social and economic situation of the parties. However, upon the defendant’s appeal, the Chamber annulled the decision, stating that in order to award moral damages, personal rights must be unlawfully damaged. In cases where personal rights are not damaged, it is not possible to award moral damages even if the action is unlawful. The Chamber further rules that in this particular case, it cannot be accepted that the applicant’s personal rights were damaged based on the delivery of different products and late delivery. The local court dismissed the case in accordance with Chamber’s reversal decision. The subsequent appeal by the applicant was rejected, leading to the application to the Constitutional Court. The applicant contended that his right to a fair trial was violated due to the rejection of the lawsuit contrary to the previous case-law.

The Constitutional Court provided details of a number of decisions adopted by the Chamber as well as the Court of Appeal Assembly of Civil Chambers that underline that the person whose personal rights are unfairly enjoined may request non-pecuniary damages, that the provisions regarding tortious liability can also be applied to breach of contract by analogy and that non-pecuniary damages can also be decided in case of breach of contract. The Constitutional Court observed that the Chamber awarded non-pecuniary damages in the event that the personal rights of the plaintiffs are damaged due to the behaviour contrary to the contract, it further stated that the Chamber reached a different conclusion in the decision subject to the individual application. The Constitutional Court noted that while the Chamber decided differently from its previous case-law, it did not make any explanation as to why it departed from this case-law, nor did it show any justification for this.

This decision underlines the inconsistencies observed in the decisions that have significant implications for the fairness and integrity of the legal system. Addressing these inconsistencies and promoting greater uniformity in decision-making are essential steps towards upholding the principles of legal certainty and ensuring public trust in the judiciary.