Turkish
CONSTITUTIONAL COURT OF THE REPUBLIC OF TURKEY
SECOND SECTION
DECISION
APPLICATION OF ARİFE DURAN AND OTHERS
Application Number: 2022/30839
Date of Decision: 8/1/2025
PART TWO DECISION
Chairperson: Basri BAĞCI
Members: Yıldız SEFERİNOĞLU
Kenan YAŞAR
Ömer ÇINAR
Metin KIRATLI
Rapporteur: Olcay ÖZCAN
Applicants:
1. Arife D. (TR Identity Number: 58495******)
2. Cemile U. (TR Identity Number: 10289******)
3. Firdevs S. (TR Identity Number: 60523******)
4. Gülseren B. (TR Identity Number: 33877******)
5. Hanife O. (TR Identity Number: 60292******)
6. Hasan Ş. (TR Identity Number: 10214******)
7. İbrahim U. (TR Identity Number: 58252******)
8. Mustafa B. (TR Identity Number: 61435******)
9. Naci K. (TR Identity Number: 53884******)
10. Ömer Ş. (TR Identity Number: 10220******)
11. Saadet Ç. (TR Identity Number: 58006******)
12. Selahattin U. (TR Identity Number: 58234******)
13. Ümit O. (TR Identity Number: 60274******)
14. Yakup Ş. (TR Identity Number: 10223******)
Attorney: Attorney. Şaziye İrem TANDOĞAR EKİNCİ
I. SUMMARY OF THE APPLICATION
1. The application concerns the claim that
the right to property
has been violated due to the loss of value of the receivables from public institutions (or payment after being caused to be made) and the right to enforcement of the decision due to the non-enforcement of the court decision. The applicants
made individual applications within the time limit after learning the final judgment on different dates. The Second
Section decided on 7/11/2023 and 28/12/2023, and the First Section decided on 29/12/2023
that the claim regarding the violation of the right to a fair trial within a reasonable time was inadmissible due to non-exhaustion of remedies, and since the admissibility of the claim regarding
the violation of the right to property was subject to a decision by the Department , the application should be sent to the Department.
2. It has been decided to combine applications numbered 2022/30866 and 2022/32906
with individual application numbered 2022/30839 and to continue the examination on the individual application file numbered 2022/30839 .
II. EVALUATION
A. Allegation Regarding Violation of the Right to Execution of the Decision
3. The applicants complained that the awarded amount had not been paid.
4. In its decision in
Veysi Ado ([GK] B. No: 2022/100837, 27/4/2023), the Constitutional Court concluded that the examination of the applications made with the allegations that the trials had not been concluded within a reasonable time, which were pending as of 9/3/2023 (inclusive) and in accordance with the amendment made to Article 40 of Law No. 7445 dated 28/3/2023 in the temporary article 2 of the Law No. 6384 dated 9/1/2013 on the Resolution of Certain Applications Made to the European Court of Human Rights by Payment of Compensation, without exhausting the remedy of applying to the Compensation Commission , would not be compatible with the secondary nature of the individual application . According to the same article, it has been made possible for the Compensation Commission to examine the applications made with the claim that the court decisions were executed late or incompletely or not at all, which were pending as of the said date. In this case, the same conclusion should be reached in terms of the concrete application including the claim that the court decision was executed late or incompletely or not at all (Hamdullah Gürleyik, B. No: 2019/1554, 16/11/2023, § 26).
5. For the reasons explained , it should be decided that this part of the application is inadmissible due to non-exhaustion of remedies .
B. Alleged Violation of the Right to Property
6. The Constitutional Court has examined complaints regarding the devaluation (or payment after depreciation)
of various receivables from public institutions due to inflation and determined the constitutional principles to be applied. In this context, the Court ruled that the significant loss in value of receivables from public authorities (or their payment after being suffered) in the face of inflation imposed an excessive and unusual burden on the applicants personally and that their right to property had been violated ( with regard to a social security payment, see Ferda Yeşiltepe [GK], B. No: 2014/7621, 25/7/2017; with regard to a tender receivable, see ANO İnşaat ve Ticaret Ltd. Şti. [GK], B. No: 2014/2267, 21/12/2017; with regard to a tax refund receivable, see Akel Gıda San. ve Tic. A.Ş., B. No: 2013/28, 25/2/2015; with regard to compensation due to earthquake, see Abdulhalim Bozboğa, B. No: 2013/6880, 23/3/2016; Yıldız Korkut, B. No: 2016/8532, 9/5/2019; for the refund of the salary differences of the suspended civil servant , see Vildan Utku Atalay, B. No: 2015/4812, 7/2/2019).
7. There is no situation that requires a departure from the principles explained in the decisions mentioned in the concrete application and the conclusion reached . For the reasons explained , it should be decided that the right to property guaranteed in Article 35 of the Constitution has been violated.
III. REMEDY
8. The applicants requested the determination of the violation and the payment of material and moral compensation . There is a legal interest in holding a retrial
in order to eliminate the consequences of the violation of rights determined in the application .
In this context, the task that needs to be done by the judicial authorities to which the decision was sent is to initiate retrial proceedings
and to make a new decision that eliminates the reasons that led the Constitutional Court to conclude that there was a violation and
complies with the principles stated in the violation decision (Mehmet Doğan [GC], App. No:
2014/8875, 7/6/2018, §§ 54-60; Aligül Alkaya and others (2), App. No: 2016/12506,
7/11/2019, §§ 53-60, 66; Kadri Enis Berberoğlu (3) [GC], App. No: 2020/32949, 21/1/2021,
§§ 93-100). Since it has been understood that holding a retrial
will provide sufficient redress to eliminate the violation and its consequences, it should be decided to reject the compensation claims.
IV. PROVISION
For the reasons explained; A. The claim that the right to enforcement of the decision has been violated is UNACCEPTABLE due to non-exhaustion
of remedies , B. The claim that the right to property has been violated is ACCEPTED, C. The right to property guaranteed by Article 35 of the Constitution is VIOLATED, D. A copy of the decision is SENT to the Akşehir 2nd Civil Court of First Instance (E.2017/68, K.2020/457), (E.2015/445, K.2021/598), (E.2021/134, K.2021/326) for retrial in order to eliminate the consequences of the violation of the right to property, E. The applicants’ compensation claims are REJECTED, F. The total amount consisting of TL 1,992.30 fee and TL 30,000 attorney’s fee is decided as follows: It was UNANIMOUSLY decided on 8/1/2025 that the litigation expenses of 31,992.30 TL be PAID JOINTLY to the applicants, G. The payments will be made within four months from the date of the applicants’ application to the Ministry of Treasury and Finance following the notification of the decision , and in case of delay in payment , legal interest will be APPLIED for the period from the end of this period until the payment date , H. A copy of the decision will be SENT to the Ministry of Justice.
| Minister | Member | Member |
| Basri BAĞCI | Yildiz SEFERİNOĞLU | Kenan YAŞAR |
Member Member
Omer CINAR Metin KIRATLI