Recognition And Enforcement Of A Foreign Court’s Decision On Appointment Of A Trustee
T.C. JUDICIARY
18th Civil Chamber
Main: 2013/19774
Decision: 2014/6261
Date of Decision: 07.04.2014
ENFORCEMENT CASE – THE CASE IS RELATED TO THE REQUEST FOR RECOGNITION AND ENFORCEMENT OF THE TRUSTEE APPOINTMENT DECISION MADE BY A FOREIGN COURT AND SINCE THE CONDITIONS ARE MET, IT IS NECESSARY TO DECIDE TO ACCEPT THE CASE – THE DISMISSAL OF THE CASE IS INAPPROPRIATE
SUMMARY: The lawsuit is related to the request for recognition and enforcement of the decision of the foreign court for the appointment of a trustee and since the conditions are met, the lawsuit should be decided to be accepted, but it was not deemed correct to reject the lawsuit with grounds that are not appropriate.
(Art. 6 ECHR) (Art. 3, 9, 10, 54, 58 of the Law No. 5718) (Art. 411, 412, 426, 427, 428, 430, 431 of the Law No. 4721) (YİBK 10.02.2012 T. 2010/1 E. 2012/1 K.)
Case and Decision: In the petition, the enforcement of the foreign court decision on the appointment of a trustee for Y. Z. was requested. The court decided to dismiss the lawsuit and the judgment was appealed by the plaintiff’s attorney.
After it was understood that the appeal request was within the time limit, all the papers in the file were read and considered accordingly:
The plaintiff’s attorney stated in the petition that his client’s husband Y. Z. remained in an awake coma with tetraparesis after a heart attack, that he could not speak, move or express himself, and that as a result of the application made to the Pforzheim Civil Court of First Instance, his client was appointed as a trustee for his wife Y. Z. Z. and requested the enforcement of this decision; the court decided to dismiss the case on the grounds that the recognition and enforcement of foreign court decisions cannot be decided since the subject matter of the case falls within the exclusive jurisdiction of Turkish courts.
Article 58 of the Code of Civil Procedure No. 5718, which repealed the Code of Civil Procedure No. 2675 and entered into force on 12.12.2007, regarding the recognition of foreign court judgments, stipulates that the acceptance of a foreign court judgment as conclusive evidence or final judgment depends on the court’s determination that the foreign judgment meets the conditions for enforcement, and in recognition, Article 54. subparagraph (a) of the first paragraph of Article 54 shall not be applied in recognition, the recognition of undisputed judgments is subject to the same provision, and the same procedure shall be applied in the execution of an administrative act in Turkey based on a foreign court judgment, and Article 54/b stipulates that in the enforcement of a foreign court judgment, it must be rendered in a matter that does not fall within the exclusive jurisdiction of the Turkish Courts, and Articles 10/1 and 3 stipulate In the articles of the Law, it is clearly stated that the reasons for making or terminating a decision of guardianship or restriction are subject to the national law of the person for whom a decision of guardianship or restriction is requested to be made or terminated, and that all matters related to restriction or guardianship and trusteeship other than the reasons for making or terminating a decision of guardianship or restriction shall be subject to Turkish law.
Here, it is seen that a dual distinction is made in terms of the law to be applied in the provisions of guardianship and trusteeship, and while the national law of the person concerned is determined as the competent law in the decision of restriction or the lifting of the restriction decision, Turkish law is authorized on the personality, care, health, education, representation, management of assets, duties, powers and responsibilities of the guardian and the guardianship and supervision authority, which can be briefly expressed as the management of guardianship.
In fact, while the General Assembly of Civil Chambers accepted that restriction decisions (decisions to appoint a guardian) cannot be recognized, it was stated in the justification that it was aimed to eliminate the possible drawbacks that may arise due to decisions on the management of guardianship. The legislator has also authorized Turkish law in Article 10/3 of the Law No. 5718 in order to prevent the possible drawbacks stated in the decision of the General Assembly of Civil Chambers. In the event that the decision of the General Assembly of Civil Chambers is accepted to be applied in the field of trusteeship as well as in all areas related to guardianship, it will not be possible to decide on the recognition in Turkey of the restriction decision issued by the court of the state in which the foreign citizen is a citizen in accordance with the national law (Article 10/1 of the Law No. 5718).
In this case, the foreigner will have to file a new lawsuit in Turkey and the Turkish Courts will have to decide according to the national law of the person concerned. This practice is in the nature of interference with the authority of foreign courts to judge and decide on the citizens of the state to which it belongs. Considering the purpose of the provisions of Law No. 5718, it is undisputed that foreign courts are authorized to try and decide on Turkish citizens according to the rules stipulated regarding their personal status. Pursuant to the authority granted to foreign courts in the matters described, it is not possible not to recognize their decisions.
This is because the non-recognition of foreign judgments may impose a burden on Turkish citizens and it will be more difficult for them to benefit from their national law than foreign law. Forcing Turkish citizens living in foreign countries to file the same lawsuit in Turkish courts in case of non-recognition of a trusteeship decision issued by a foreign court is contrary to the purpose of the Law No. 5718. Since it will be determined as a result of the trial whether the provisions regarding the trusteeship regulated between Articles 426-428 of the Turkish Civil Code are fulfilled or not, forcing a person who falls into this situation to be brought to his/her country, where the national law is in force, is a practice that will seriously hinder the right to a fair trial and the right to be heard, which is included in Article 6 of the European Convention on Human Rights. Moreover, there is no special and separate provision regarding trusteeship in the Law No. 5718.
Exclusive (absolute) jurisdiction rules are the rules that are established to ensure that the case is heard only in Turkish courts, and the main basis of such rules is public order. The fundamental values of Turkish law, the Turkish general sense of decency and morality, the basic sense of justice and general policy on which Turkish Laws are based, the fundamental rights and freedoms enshrined in the Constitution, the rules of common and private law valid in the international arena based on the principle of good faith, the legal norms that are the expression of the moral principles and sense of justice commonly adopted by civilized communities, the level of civilization of the society, the political and economic regime and human rights and freedoms constitute the basis of public order in our national law. Public order should be understood as the totality of the rules arising from public and private law that the parties are obliged to comply with and which the parties cannot freely dispose of.
In Article 54/c of the Law No. 5718 on International Private and Procedural Law, the fact that the judgment is not clearly contrary to public order is listed among the conditions for enforcement, and accordingly, it is necessary to investigate whether the consequences that will occur if the foreign judgment is executed in Turkey will violate the Turkish public order, not the law applied in the issuance of the foreign court decision and the criteria according to which it is applied. It should be concluded from the phrase “the judgment is not clearly contrary to the public order” in the aforementioned article that the contradiction of the law applied to the merits of the foreign court judgment to the Turkish public order cannot be examined, and the request for enforcement of the foreign court judgment will be rejected only if the legal consequences arising as a result of the enforcement of the judgment are contrary to the public order. The request for enforcement of the foreign judgment cannot be rejected for reasons such as the law applied on the merits being different from Turkish Law or being contrary to the mandatory rules of Turkish Law. (YİBGK.nun 10.02.2012 dated and 2010/1 Esas 2012/1 Karar numbered case law)
The criterion to be taken as basis here is the national law and the issues explained above, which constitute the basis of public order. In Turkish law, some of the jurisdiction rules related to public order are exclusive jurisdiction provisions. Exclusive jurisdiction rules are the rules that express the absolute power and authority of the state within its own territory and borders, and that show and symbolize the exercise of the sovereignty and sovereignty rights of the state. What is important here is that not every rule of jurisdiction regarding public order in Turkish Law is an exclusive rule of jurisdiction. Whether a jurisdictional rule is an exclusive jurisdictional rule or not can be determined from the wording and the purpose of the jurisdictional rule. The exclusive jurisdiction rule is determined by taking into account the wording of the article, the purpose of the article and the characteristics of the cases with foreign elements.
In Article 431 of the Turkish Civil Code, “The rules regarding the procedure for the appointment of the guardian shall also apply to the appointment of trustees and legal counselors.” Article 430 stipulates that “The representative trustee shall be appointed by the guardianship authority in the place of residence of the person to whom the trustee is to be appointed. The management trustee shall be appointed by the guardianship authority in the place where the majority of the assets are managed or where the goods falling to the share of the person represented are located.” Article 411 reads as follows: “The authority in guardianship affairs belongs to the guardianship offices in the place of residence of the minor or restricted person.” Article 412 reads as follows: “The person under guardianship cannot change his/her place of residence without the permission of the guardianship authority. If the place of residence changes, the authority passes to the new guardianship offices. In this case, the restriction shall be announced in the new place of settlement.“ and in Article 19: ”The place of settlement is the place where a person resides with the intention to stay permanently. A person cannot have more than one settlement at the same time.”
In Article 3/e of the Law No. 5490, it is stated that the place of residence refers to the place where one resides with the intention to stay permanently, and in Article 50/2 of the same Law and Article 13/1 of the Address Registration System Regulation, which was enacted on the basis of this Law and put into force on 15.08.2007; it is stated that the written declaration of the persons shall be taken as basis in keeping the addresses of the place of residence, and the notifications in the address declaration form are valid until the contrary is proven.
Considering that the place of residence does not express certainty, and that it may change with the permission of the guardianship authority after the decision of restriction is made with the change of conditions and the intention to stay permanently, it is clearly seen that it is not unchangeable and absolute in this nature.
In the practices of the Court of Cassation, it is accepted that the authorization in Articles 411, 412 and 430 of the Turkish Civil Code is final and related to public order. However, as stated above, every jurisdictional rule that is definitive and of public order is not exclusive jurisdiction in terms of international law.
In the concrete case, Y. Z., born in 1947, who is a Turkish citizen and lives in Germany, was appointed as a trustee by the decision of the Pforzheim Civil Court of First Instance dated 07.02.2012. It is understood from the content of the decision that the appointment of the trustee was made in accordance with the German Civil Code and the reason for the appointment of the trustee was also in accordance with Article 427 of the Turkish Civil Code. Although the national (Turkish) law was not applied to the restricted person, Article 38/e of the Law No. 2675, which regulates this issue as an obstacle to enforcement and recognition, is not included in the Law No. 5718. As of the date of the case, the applicable law is not Law No. 2675, but Law No. 5718. Because the Law No. 2675 has been repealed. In order for a foreign court judgment to be recognized or enforced, it is not necessary for the parties or at least one of them to be a Turkish citizen. Even if the parties are not Turkish citizens, they may request the enforcement or recognition of the foreign judgment, provided that they have legal interests.
As explained in detail above, it is clear that this issue alone will not constitute a violation of public order. The provision of Articles 9 and 10 of the Civil Procedure Law, which states that the grounds for the issuance of a judgment of guardianship or restriction of rights and capacity to act and the grounds for the issuance of a judgment of guardianship or restriction shall be governed by the national law of the person whose guardianship or restriction is sought to be granted or terminated, should be interpreted as that such judgments may also be issued by foreign courts provided that they exist in the national law. Because the institutions of guardianship, restriction and trusteeship exist in both German and Turkish law, there can be no mention of a decision made by German courts about an institution that does not exist in Turkish law.
One of the main criteria to be considered in this area is whether the European Convention on Human Rights has been violated. The European Convention on Human Rights prioritizes the best interests of individuals above all else. The decision of the German court to appoint a trustee will protect the legal interests of the person to whom the trustee is appointed in Germany, and the recognition of this decision by the Turkish courts will protect the interests of the restricted person in Turkey. The decision rendered by the German court, which does not conflict with Turkish national law and even in parallel, is not contrary to national law, exclusive jurisdiction or public order.
On the other hand, in Articles 3 and 7 of the “La Haye Convention on Restraint and Similar Measures” dated 1905, it is stipulated that although national law and national State courts are competent as a rule, the authorities of the place (Germany) where the person to be appointed a trustee is located (Germany) may also take a decision to appoint a trustee according to the national law (Turkish Law) or the law of the place (German Law) of the person concerned.
For all these reasons explained, the case is related to the request for recognition and enforcement of the decision of the foreign court to appoint a trustee, and since the conditions are met, the case should be decided to be accepted, but it is not correct to reject the case with grounds that are not appropriate.
Conclusion: In this respect, without taking into account the principles explained above, it is inappropriate to establish a judgment as written, and since the appellate objections are appropriate for these reasons, it was unanimously decided on 07.04.2014 that the judgment be reversed in accordance with Article 428 of the Code of Civil Procedure, and that the pre-appeal fee be refunded to the appellant upon request. (¤¤)