Alimony Exceeding Salary

CONSTITUTIONAL COURT

INDIVIDUAL APPLICATION

Application Number: 2016/3140

Decision Date: 07.11.2019

Official Gazette Date: 17.12.2019

Official Gazette Number: 30981

THE PERSON’S RIGHT TO PROTECT AND DEVELOP HIS MATERIAL AND SPIRITUAL EXISTENCE HAS BEEN VIOLATED DUE TO THE DECISION TO PAY ALMOST AN AMOUNT OF ALIMONY HIGHER THAN THE INCOME HE EARNED AS A RESULT OF THE ALIMONY INCREASE CASE

IBRAHIM ACAR APPLICATION

2709k/17

4721k/175, 176, 182, 330

SUMMARY: A. The claim that the right to protect and develop the material and spiritual existence of the person has been violated is ACCEPTED,

B. The right of the person to protect and develop his/her material and spiritual existence, guaranteed by Article 17 of the Constitution, has been VIOLATED,

C. A copy of the decision shall be SENT to the Konya 4th Family Court for retrial to eliminate the consequences of the violation of the person’s right to protect and develop his/her material and spiritual existence (related to the file of the Court’s decision dated 26/5/2015 and numbered E.2014/1249, K.2015/600).

D. REJECTION of the applicant’s compensation claims,

E. A total of 2,714.50 TL trial expenses, consisting of 239.50 TL fee and 2,475 TL attorney’s fee, shall be PAID TO THE APPLICANT,

F. The payment shall be made within four months from the date of the applicant’s application to the Ministry of Treasury and Finance following the notification of the decision, and in case of a delay in payment, from the date of expiration of this period to the payment date APPLYING legal INTEREST for the period until,

G. SENDING a copy of the decision to the Ministry of Justice.

I. SUBJECT OF THE APPLICATION

1. The application is related to the claim that the person’s right to protect and develop her material and spiritual existence has been violated because she was decided to pay alimony in a higher amount than the income she earned as a result of the alimony increase case.

II. APPLICATION PROCESS

2. The application was made on 15/2/2016.

3. The application was submitted to the Commission after the preliminary administrative review of the application form and its annexes.

4. The Commission decided that the application’s admissibility examination would be conducted by the Department.

5. A copy of the application documents was sent to the Ministry of Justice (Ministry) for information. The Ministry did not comment.

III. EVENTS AND FACTS

6. The events, as stated in the application form and its annexes, are as follows:

7. The applicant married K.G. on 16/9/1994, and was ordered to divorce by the Konya 3rd Family Court on 7/1/2011 due to the fundamental breakdown of the marital union. The parties have four children. The decision ordered the applicant to pay alimony of 100 TL per month to his ex-wife and 75 TL for each child they share. The decision was finalized after being reviewed by the Court of Cassation.

8. On 19/12/2014, the applicant’s ex-wife K.G. filed a lawsuit with the Konya 4th Family Court (the Court) requesting an increase in the amount of alimony awarded for her and her children. In her petition, G.K. stated that all four of the children she has custody of are students, one of them is studying at a university, and that she is a housewife and does not have any job or income.

9. The court investigated the economic situations of the parties. As a result of the investigation conducted by the police, it was reported that the applicant worked as a civil servant at Selçuk University Medical Faculty Hospital, there was no information about his monthly income, he was married for the second time, his wife was a teacher, he had no children from his second marriage, and he lived in his father’s house without paying rent. It was determined that the applicant’s ex-wife K.G. was a primary school graduate and a housewife, received a monthly alimony of 200 TL, and also received 200 TL in aid from the Municipality, lived in her father’s house, had four children whose custody was his, two of the children were students outside the province, the other two were primary school students and were staying with K.G.

10. In her response petition dated 9/1/2015, the applicant stated that she was working as a company employee at Selçuk University Medical Faculty Hospital for minimum wage and that she did not have the financial means to pay the alimony increase.

11. The court decided to partially accept the case on 26/5/2015. In the decision, it was ruled that a monthly alimony of 250 TL be paid in favor of K.G., 300 TL per month in favor of the university student child, and 150 TL per month for each of the other three children.

12. The applicant requested an appeal. In his appeal petition, the applicant stated that he was working as a company employee at Selçuk University Medical Faculty Hospital for minimum wage, receiving a monthly salary of 950 TL, and that the Court’s decision to award a total of 1,000 TL in alimony was unjust and excessive. The decision was approved by the Court of Cassation 3rd Civil Chamber on 30/11/2015.

13. This decision was notified to the applicant on 14/1/2016.

14.The applicant made an individual application on 15/2/2016.

IV. RELEVANT LAW

15. Article 175 of the Turkish Civil Code No. 4721, dated 22/11/2001, titled “Alimony” is as follows:

“The party who will become poor as a result of the divorce may request indefinite alimony from the other party for his/her own living, in proportion to his/her financial means, provided that his/her fault is not more severe.

The fault of the alimony payer is not sought.”

16. The relevant parts of Article 176 of Law No. 4721 titled “Method of payment of compensation and alimony” are as follows:

“… it may be decided that the poverty alimony shall be paid in a lump sum or in the form of an income, depending on the requirements of the situation.

…

The alimony decided to be paid in the form of an income shall automatically be terminated in the event of the remarriage of the creditor party or the death of one of the parties; it shall be terminated by a court decision in the event that the creditor party lives as if they were actually married without getting married, their poverty is eliminated or they lead a dishonorable life.

In cases where the parties’ financial situations change or equity requires, the income may be decided to be increased or decreased.

Upon request, the judge may decide on the amount of the alimony decided to be paid in the form of an income, in accordance with the social and economic situations of the parties in the coming years.”

17. The second and third paragraphs of Article 182 of Law No. 4721 titled “Judge’s discretion” are as follows:

“In regulating the personal relationship of the spouse who is not granted custody with the child, the child’s benefits, especially in terms of health, education and morality, shall be taken as a basis. This spouse must contribute to the child’s care and education expenses to the extent of his/her means.

The judge may, upon request, decide on the amount of these expenses decided to be paid in the form of income, to be paid in the coming years according to the social and economic situations of the parties.”

18. Article 330 of Law No. 4721 titled “Alimony amount” is as follows:

“The amount of alimony is determined by taking into account the child’s needs and the living conditions and financial capacity of the mother and father. The child’s income is also taken into consideration in determining the amount of alimony.

Alimony is paid in advance every month.

Upon request, the judge may decide on the amount of alimony to be paid in the form of income in the coming years, depending on the social and economic situations of the parties.”

V. REVIEW AND JUSTIFICATION

19.The application was reviewed and its merits were taken into consideration at the meeting held by the court on 7/11/2019:

A. Applicant’s Claims

20. The applicant claimed that he was working as a company employee at Selçuk University Medical Faculty Hospital for minimum wage, receiving a monthly salary of 950 TL, and that the Court’s decision to award him a total of 1,000 TL in alimony was unjust. He claimed that he had no money left to support himself, that it was not possible for him to sustain his life, and that for these reasons, the principle of equality, the right to life, and the protection of one’s material and spiritual existence were violated. The applicant also claimed that he had remarried and had a child from this marriage, and that the Court did not take his new wife and child into account when determining alimony, and that his right to respect for family life was violated.

B. Evaluation

21. The first paragraph of Article 17 of the Constitution titled “Personal inviolability, material and spiritual existence”, which will be taken as basis in the evaluation of the claim, is as follows:

“Everyone has the right to live and to protect and develop their material and spiritual existence. ”

22. The relevant part of Article 5 of the Constitution is as follows:

“The basic purposes and duties of the state are to (…) remove political, economic and social obstacles that limit the fundamental rights and freedoms of the individual in a way that is incompatible with the principles of justice and the social state governed by the rule of law, and to strive to provide the necessary conditions for the development of the material and spiritual existence of man.”

23. The Constitutional Court is not bound by the legal characterization of the events made by the applicant, but evaluates the legal description of the events and facts itself (Tahir Canan, App. No: 2012/969, 18/9/2013, § 16).

24. The applicant’s claims are that the amount of alimony awarded is higher than the income he earns, and therefore he will not be able to support himself. Although the applicant also claimed that the principle of equality was violated, it is seen that the applicant based his claims of violation exclusively on the result of the decision given by the Family Court. Considering that the claim in question had a significant impact on the applicant’s economic future, all of the applicant’s complaints were examined within the scope of the right to protect and develop one’s material and spiritual existence regulated in the first paragraph of Article 17 of the Constitution. On the other hand, the applicant claimed that his right to respect for family life was violated by stating that he had remarried and had a child from this marriage, and that the Court did not take his new spouse and child into consideration when determining alimony. However, it is understood that his child from his second marriage was born on 16/10/2015 after the trial at the first instance court ended, and that the applicant did not submit his claims in question to the first instance courts during the trial process and the appeal stage. Therefore, due to the principle of secondary nature of the individual application, it is not possible to examine the allegations in question in the concrete application.

1. Kabul Edilebilirlik Yönünden

25. The claim that the person’s right to protect and develop his/her material and spiritual existence has been violated must be decided as acceptable if it is not clearly ill-founded and there is no other reason to decide that it is inadmissible.

2. In terms of the main

a. General Principles

26. The first paragraph of Article 17 of the Constitution states that everyone has the right to protect and develop their material and spiritual existence, and the right to protect and develop their material and spiritual existence included in this regulation corresponds to the right to physical and mental integrity guaranteed within the scope of the right to respect for private life within the framework of Article 8 of the European Convention on Human Rights (the Convention) and the right of the individual to self-actualize and make decisions regarding themselves {Sevim Akat Eşki, B. No: 2013/2187,19/12/2013, § 30).

27. The right to the protection of the material and spiritual existence of the individual, when considered together with Article 5 of the Constitution, imposes positive and negative duties on the state (Serpil Kerimoğlu and others, No. 2012/752, 17/9/2013, §§ 50, 51). These positive obligations necessitate taking measures to ensure respect for the rights mentioned, even in the field of interpersonal relations (Marcus Frank Cerny [GK], No. 2013/5126, 2/7/2015, §§36,40).

28. The positive obligation of the state in question also includes the responsibility to establish effective mechanisms, to provide judicial procedures that provide the necessary procedural safeguards, and thus to ensure that judicial and administrative authorities make effective and fair decisions in disputes between individuals and the administration and private persons {Semra Özel Üner, B. No: 2014/12009,26/10/2016, § 36).

29. However, since the obligations in question will be completed with the implementation of the aforementioned regulations, the judicial authorities should take into account the fundamental rights and freedoms when examining disputes between private law persons, and a trial should be held that has the necessary procedural safeguards {Melahat Karkin, [GK], B. No: 2014/17751, 13/10/2016, § 60).

30. In this context, in order to be able to say that the procedural safeguards have been fulfilled in the concrete case, the decisions of the courts of first instance must contain relevant and sufficient justification. It should also be noted that this obligation does not mean responding to all of the plaintiff’s claims, but the fundamental claims and objections regarding the merits that affect the outcome of the case concerning the person’s right to protect and develop his/her material and spiritual existence must be carefully evaluated and met by the judicial authorities (for similar evaluations, see Fındık Kılıçaslan, B. No: 2015/97, 11/10/2018, § 53).

31. In addition, it is necessary to determine whether the courts of first instance have achieved a fair balance between the conflicting interests of the parties when exercising their discretionary powers in disputes between private individuals. The interests of both parties must be balanced as much as possible and the process must not lead to a disproportionate result against one of the parties. Imposing an excessive and unusual burden on one of the parties individually in establishing the balance of interests may result in a violation of positive obligations. It should be assessed whether the interests have been balanced fairly by taking into account all the circumstances of the case, all the opportunities granted to the parties and the attitudes and behaviors of the parties. The justifications put forward by the courts of first instance are of great importance in the review of whether this fair balance has been achieved {Marcus Frank Cerny, § 73; T.A.A., B. No:2014/19081,1/2/2017, § 99).

b. Application of Principles to the Case

32. In the present case, the Court ruled that the applicant pay a total of 1,000 TL per month as alimony for his ex-wife and four children. It is observed that the Court relied solely on the information provided by the police during the investigation of the parties’ economic situations. The Court accepted that the applicant worked as a civil servant at the Selcuk University Medical Faculty Hospital and that there was no information about his monthly income. However, the applicant claims that he worked as a company employee at the minimum wage, not as a civil servant at the Selcuk University Medical Faculty Hospital, and that he received a monthly salary of 950 TL. If the applicant’s monthly income was indeed 950 TL, it cannot be said that the total monthly alimony of 1,000 TL ruled against him was proportionate. In order to understand whether an excessive and unusual burden was imposed on one of the parties individually in the case, it is important to fully demonstrate the parties’ economic situations.

33. The applicant has stated his claim that he works for minimum wage as a company employee and receives a monthly salary of 950 TL in his response petition and appeal petition dated 9/1/2015 before the first instance court. The record in the National Judiciary Network Information System (UYAP) and the Social Security Institution (SGK) Information System indicates that the applicant works in the cleaning and auxiliary services class at Selçuk University Medical Faculty Hospital. It should be emphasized that while the first instance court could have shed light on the issue by contacting the institution where the applicant works and investigating what the applicant’s job is and how much monthly income he earns, including additional income and other payments, it has not conducted any investigation or evaluation on this issue and has not provided any justification for this claim in the decision. It is understood that the applicant has also put forward these allegations at the appeal stage, but the Court of Cassation has not made an evaluation on this issue either.

34. In this case, it has been determined that the decisions of the courts of first instance do not contain sufficient justification to respond to the applicant’s claims and objections that may affect the outcome of the case regarding the right to protect and develop his material and spiritual existence. For this reason, it has been concluded that the procedural safeguards for the protection of the person’s right to protect and develop his material and spiritual existence have not been fulfilled in the concrete case. Therefore, it has been concluded that the positive obligations within the scope of the person’s right to protect and develop his material and spiritual existence have not been fulfilled by the public authorities in the case subject to the individual application.

35. For the reasons explained above, it must be decided that the right of the individual to protect and develop his/her material and spiritual existence, as guaranteed by Article 17 of the Constitution, has been violated.

3. In Terms of Article 50 of Law No. 6216

36. The relevant part of paragraph (1) and paragraph (2) of Article 50 of the Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court dated 30/3/2011 are as follows:

“(1) At the end of the main examination, it is decided whether the applicant’s right has been violated or not. In case of a violation, the necessary actions to be taken to eliminate the violation and its consequences are decided. …

(2) If the violation determined was due to a court decision, the file is sent to the relevant court for a retrial to eliminate the violation and its consequences. In cases where there is no legal benefit in holding a retrial, compensation may be awarded to the applicant or a lawsuit may be filed in the general courts. The court responsible for holding a retrial will, if possible, decide on the file in a manner that will eliminate the violation and its consequences as explained in the violation decision of the Constitutional Court.

37. In the Constitutional Court’s decision on Mehmet Doğan ([GK], B. No: 2014/8875, 7/6/2018), general principles were determined regarding how to eliminate the violation in case of a violation.

38. In the Mehmet Doğan decision, it was emphasized that in order to determine the appropriate remedy, the source of the violation must first be determined. Accordingly, in cases where the violation stems from a court decision, in accordance with Article 50, paragraph (2) of Law No. 6216 and Article 79, paragraph (1), subparagraph (a) of the Constitutional Court Rules of Procedure, a copy of the decision is ordered to be sent to the relevant court for retrial in order to eliminate the violation and its consequences (Mehmet Doğan, §§ 57, 58).

39. In cases where the Constitutional Court has ruled for a retrial in order to remedy the detected violation, unlike the institution of retrial regulated in the relevant procedural laws, the first instance court does not have any discretionary power regarding the acceptance of the existence of the reason for retrial and the annulment of the previous decision. Because in cases where a violation decision is given, the discretion regarding the necessity of retrial is left to the Constitutional Court, which determined the existence of the violation, not to the first instance courts. The first instance court is obliged to take the necessary actions to remedy the consequences of the violation in line with the Constitutional Court’s violation decision (Mehmet Doğan, § 59).

40. In this context, the first thing that the first instance court should do is to annul its previous decision, which was found to have violated a fundamental right or freedom or failed to remedy a violation of a fundamental right or freedom by administrative authorities. After the annulment of the decision, the first instance court must take the necessary actions to remedy the consequences of the violation determined in the Constitutional Court decision. Within this framework, if the violation arises from a procedural act carried out during the trial or a procedural deficiency that was not carried out, the procedural act in question must be repeated (or for the first time if it has never been carried out before) in a way that will remedy the violation. On the other hand, in cases where the Constitutional Court determines that the violation arises from the administrative act or action itself or (not from the procedural acts carried out or not carried out by the first instance court) from the result of the first instance court decision, the first instance court must eliminate the consequences of the violation by directly ruling on the file as much as possible, without taking any procedural action, and by directly ruling against its previous decision (Mehmet Doğan, § 60).

41. In the case under review, the Constitutional Court reached a conclusion of violation because the decision of the first instance court did not contain sufficient justification to respond to the applicant’s claims and objections that could affect the outcome of the case. Therefore, it is understood that the violation in the concrete application stems from the court decisions.

42. In this case, there is a legal benefit in holding a retrial to eliminate the consequences of the violation of the applicant’s right to protect and develop his/her material and spiritual existence. The retrial to be held is aimed at eliminating the violation and its consequences in accordance with Article 50, paragraph (2) of Law No. 6216, which contains a regulation specific to individual applications and different from similar institutions in procedural law. In this context, the work to be done by the courts in the retrial process consists primarily of eliminating the court decision that led to the violation of rights and giving a new decision that eliminates the reasons that led the Constitutional Court to the conclusion of violation and complies with the principles stated in the violation decision. For this reason, it should be decided that a copy of the decision be sent to the relevant court for retrial.

43. The applicant requested that the trial be retried upon the determination of the violation and that an appropriate amount of compensation be awarded to him. However, since it was understood that a decision to send the file to the relevant judicial authority for a retrial would provide sufficient redress to eliminate the violation and its consequences, the request for compensation should be rejected.

44. It should be decided that a total of 2,714.50 TL litigation expenses, consisting of 239.50 TL fee and 2,475 TL attorney’s fee determined from the documents in the file, be paid to the applicant.

VI. PROVISION

For the reasons explained;

A. The claim that the person’s right to protect and develop his/her material and spiritual existence has been violated is ACCEPTED,

B. The right of the individual to protect and develop his/her material and spiritual existence, as guaranteed by Article 17 of the Constitution, has been VIOLATED.

C. A copy of the decision is SENT to the Konya 4th Family Court for retrial in order to eliminate the consequences of the violation of the right to protect and develop the material and spiritual existence of the person (It is related to the file of the Court’s decision dated 26/5/2015 and numbered E.2014/1249, K.2015/600).

D. REJECTION of the applicant’s compensation claims,

E. A total of 2,714.50 TL litigation expenses, consisting of 239.50 TL fee and 2,475 TL attorney’s fee, BE PAID TO THE APPLICANT,

F. Payment shall be made within four months from the date of the applicant’s application to the Ministry of Treasury and Finance following the notification of the decision, and in case of delay in payment, legal INTEREST SHALL BE APPLIED for the period from the end of this period until the payment date.

G. A copy of the decision is SENT to the Ministry of Justice,

UNANIMOUSLY decided on 7/11/2019.