Constitutional Court Annuls Attorney’s Fee Award Against Plaintiffs in Moral Compensation Cases in Turkey

With the decision of the Constitutional Court numbered 2024/29 E. and 2024/226 K., the practice of awarding attorney's fees against plaintiffs for the dismissed portion of moral compensation claims has been annulled. The decision was published in the Official Gazette on 14.03.2025. This article will cover the Constitutional Court’s ruling on attorney’s fees in moral compensation cases, the reasoning behind the decision, and its effective date.

Application to the Constitutional Court

In the appeal brought before the Constitutional Court regarding attorney’s fees in moral compensation cases, it was argued that the determination of the amount of compensation payable to the plaintiff is at the discretion of the judge. Therefore, when a case is partially accepted, holding the plaintiff, whose personal rights have been found to be violated, responsible for a portion of the litigation costs is incompatible with the right to protect and develop one's material and moral existence. Furthermore, it was claimed that this practice violates property rights and the right to seek legal remedies. It was also argued that since there is no established method for calculating moral compensation, plaintiffs are not at fault in cases of partial acceptance, yet they are required to pay attorney’s fees. This, in turn, violates the principles of the rule of law and respect for private life. For these reasons, it was asserted that Article 326/2 of the Code of Civil Procedure should be annulled with regard to moral compensation claims.

Reasoning of the Constitutional Court’s Annulment Decision

In its reasoning for the annulment decision, the Constitutional Court stated that plaintiffs have limited ability to determine the amount of moral compensation, as it is subject to the judge's discretion. This uncertainty is interpreted against the plaintiff, leading to a situation where individuals seeking relief from their suffering face additional costs due to partial acceptance of their claims. The summary of the reasoning of the court is as follows:

“When a moral compensation claim is partially dismissed, holding the plaintiff responsible for a portion of the litigation costs imposes a financial burden that restricts access to the courts. In this regard, a legal regulation limiting court access is not sufficient; the rules must also be clear and foreseeable, preventing arbitrariness.

The amount of moral compensation to be awarded is determined at the judge's discretion. Therefore, it is unreasonable to expect the plaintiff to predict the awarded amount at the time of filing the lawsuit. Furthermore, the available evidence does not allow for an accurate determination of the compensation amount. Consequently, if a plaintiff sets a low claim amount, they risk losing potential compensation, while a higher claim may result in partial acceptance and liability for litigation costs. This creates an unconstitutional restriction on access to justice and violates fundamental rights and freedoms.

Given that plaintiffs in moral compensation cases cannot foresee the compensation amount the judge will award and that there is no specific regulation on litigation costs for such cases, the restriction on court access fails to meet the legality requirement in these cases.”

Justification for the Annulment of Attorney’s Fees in Moral Compensation Cases

Moral compensation is a monetary remedy aimed at alleviating emotional distress and suffering. In cases involving death or injury, victims or their relatives seek moral compensation to mitigate their pain. However, moral damages are not quantifiable in concrete terms. Consequently, plaintiffs determine an amount based on their own estimation, but judges often find these amounts excessive, leading to partial acceptance or dismissal of claims. As a result, plaintiffs, despite partially winning their cases, suffer financial losses and may even regret pursuing legal action.

A striking example illustrates this issue. In a fatal traffic accident where the deceased was found 50% at fault, suppose the three heirs of the deceased each claim 60,000 TL in moral compensation against both the driver of the vehicle in which the deceased was a passenger and the driver of the other vehicle involved. If each claim is partially accepted at 30,000 TL, each heir would be entitled to receive a total of 60,000 TL. However, if represented by an attorney, each heir would be required to pay 30,000 TL in attorney’s fees to both the passenger vehicle’s driver’s attorney and the opposing driver’s attorney. Since separate enforcement proceedings would be initiated, the total amount payable per defendant would be approximately 40,000 TL. As a result, even if the plaintiff’s attorney does not take a share from the collected amount, each plaintiff, despite winning 60,000 TL, would face 80,000 TL in attorney’s fees. Moreover, in cases where the heirs are minors, elderly, or financially disadvantaged, one heir may have to bear the full financial burden, exceeding 200,000 TL. This practice, which should provide solace to those who have lost loved ones, instead exacerbates their suffering and erodes trust in the legal system. Thus, the annulment decision by the Constitutional Court is justified.

Effective Date

The annulment decision will take effect nine months after its publication in the Official Gazette, on 14/12/2025. Therefore, until this date, attorney’s fees for the dismissed portion of moral compensation claims will continue to be imposed in concluded cases.

For your inquiries or legal assistance regarding this matter you may contact us at info@paldimoglu.av.tr.