Request For Recognition And Enforcement Of The Decision On Appointment Of A Guardian
T.C. YARGITAY
18th Civil Chamber
Esas: 2015/5194
Decision: 2015/18432
Date of Decision: 14.12. 2015
REQUEST FOR RECOGNITION AND ENFORCEMENT OF THE DECISION ON THE APPOINTMENT OF A GUARDIAN – THE CLAIMANT LIVES IN GERMANY AND HIS WIFE, WHO IS ALSO A TURKISH CITIZEN, HAS BEEN RESTRICTED AND APPOINTED AS GUARDIAN – THE PARTIES MAY REQUEST RECOGNITION AND ENFORCEMENT EVEN IF THEY ARE NOT TURKISH CITIZENS
SUMMARY: In the concrete case, …, born in 1948, lives in Germany and was restricted by the Hamburg-Wandsbek District Courts of the German state ………. . date …………. numbered by the Hamburg-Wandsbek District Courts of the German State and his wife, who is also a Turkish citizen … was appointed as the guardian. It is understood from the content of the decision that the restricted person was restricted in accordance with the German Civil Code and the reason for restriction is in compliance with the article ………… of the Turkish Civil Code. Although the national law was not applied to the restricted person, the …………. article of the Law No. 2675 regulating this issue as an obstacle to enforcement and recognition is not included in the Law No. 5718. As of the date of the lawsuit, the applicable law is not Law No. 2675, but Law No. 5718. Because Law No. 2675 has been repealed.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.
(5718 S. K. art. 10, 40, 41, 54, 58) (4721 S. K. art. 404, 405, 406, 407, 408, 409, 410) (Art. 3 of Law No. 5490) (YİBK 10.02.2012 T. 2010/1 E. 2012/1 K.)
Case: In the petition, the recognition and enforcement of the decision on the appointment of a guardian taken abroad was requested. The court decided to dismiss the lawsuit and the judgment was appealed by the plaintiff’s attorney.
Supreme Court Decision
After it was understood that the appeal request was within the time limit, all the papers in the file were read and considered:
In his petition, the plaintiff claimed that his wife … was appointed as a guardian to his wife on 18.12.2013 by the Hamburg-Wandsbek Regional Courts of the German State due to her illness and that the court should decide on the recognition and enforcement of the decision of the appointment of the guardian so that he can do the works in the interests of his wife in Turkey, and the court decided to dismiss the case on the grounds that the matter falls within the exclusive jurisdiction of Turkish courts and that the recognition and enforcement of foreign court decisions cannot be decided on a matter 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 that in recognition, Article 54. subparagraph (a) of the first paragraph of Article 54 shall not apply to recognition, the recognition of undisputed judgments shall be subject to the same provision, and the same procedure shall apply to the execution of an administrative act in Turkey based on a foreign court judgment. Article 54/b, on the other hand, stipulates that the enforcement of a foreign court judgment is subject to the condition that it is issued in a matter that does not fall within the exclusive jurisdiction of the Turkish Courts, and Articles 10/1 and 3 clearly state that the reasons for the issuance or termination of a decision of guardianship or restriction are subject to the national law of the person against whom the decision of guardianship or restriction is requested to be issued or terminated, and that all matters related to restriction or guardianship and trusteeship other than the reasons for the issuance or termination of the decision of guardianship or restriction are subject to Turkish law.
Here, it is seen that a dual distinction is made in terms of the law to be applied in guardianship, and although the law determines the national law of the person concerned as the competent law for the decision of restriction or the lifting of the restriction decision, Turkish law is authorized for 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 the guardianship.
In the practices of the Court of Cassation; it is accepted that the decisions regarding the management of guardianship are administrative decisions and do not have a judicial nature and therefore cannot be appealed. Pursuant to Article 50 of the Law No. 5718, since the judgments rendered by foreign courts and finalized can be subject to enforcement or recognition, it is not possible to recognize the decisions on the management of guardianship due to their stated qualifications (since they do not qualify as a judgment).
In fact, while the General Assembly of Civil Chambers accepted that restriction decisions (decisions appointing 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. In order to prevent the possible drawbacks stated in the decision of the General Assembly of Civil Chambers, the legislator has authorized Turkish law in Article 10/3 of the Law No. 5718. In the event that the decision of the General Assembly of Civil Chambers is accepted to be applied 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 in accordance with the rules regarding their personal status. Pursuant to the authority granted to foreign courts in the matters described, it is not possible to not recognize their decisions.
This is because non-recognition of the judgments rendered by foreign courts may impose a burden on Turkish citizens and it will be more difficult for them to benefit from their own national law than foreign law. Forcing Turkish citizens living in foreign countries to file the same lawsuit in Turkish courts in case the guardianship decision issued by a foreign court is not recognized is contrary to the purpose of the Law No. 5718. Since it will be determined as a result of the trial whether the conditions of minority, mental illness or mental weakness, extravagance, alcohol or drug addiction, bad lifestyle, bad management, freedom-binding punishment, old age, disability, inexperience and severe illness, which are regulated between Articles 404 and 410 of the Turkish Civil Code, are grounds for restriction, 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 guardianship 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 their main basis 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 based on the principle of good faith in common and private law valid in the international arena, 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 according to which criteria it is applied. It should be concluded from the expression “the judgment is not clearly contrary to the public order” in the aforementioned article that the contradiction of the law applied to the basis of the foreign court judgment to the Turkish public order cannot be examined, and that 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 a foreign judgment cannot be rejected on the grounds that the applicable law is different from Turkish law or that it is contrary to the mandatory rules of Turkish law. (YİBGK.nin case law dated 10.02.2012 and numbered 2010/1 basis 2012/1 decision)
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 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 consideration the wording of the article, the purpose of the article and the characteristics of the cases with foreign elements.
Article 411 of the Turkish Civil Code reads as follows: “The jurisdiction in guardianship matters 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 residence.“ and in Article 19: ”The place of residence 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.” Article 3/e of the Population Services Law No. 5490 stipulates that the place of residence is the place where a person resides with the intention to stay permanently, and Article 50/2 of the same Law and Article 13/1 of the Address Registration System Regulation, which was enacted based on this Law and put into force on 15.08.2007, states that the written declaration of the persons will be taken as basis in keeping the residential addresses, and that the notifications in the address declaration form are valid until otherwise proven.
Considering the fact that the place of residence does not express certainty, and that it can be changed 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 and 412 of the Turkish Civil Code is final and related to public order. However, as stated above, not every jurisdictional rule that is definitive and of public order is exclusive jurisdiction in terms of international law. Although the principles of public order and absolute authority are adopted in guardianship in terms of domestic law, the purpose here is to protect those who are deprived of managing and protecting themselves and their assets (Articles 404, 405 of the Turkish Civil Code) and those who are deprived of managing and protecting themselves and their assets (Articles 406, 407, 408 of the Turkish Civil Code). These provisions have nothing to do with the sovereignty and sovereignty of the state.
The competent court for recognition requests will be determined according to Articles 40 and 41 of the Law No. 5718. Since the Turkish Civil Code imposes an obligation on persons and institutions who learn about the guardianship status to notify the guardianship authority, the guardianship authority will take action upon the notification of both the court issuing the recognition decision and the person concerned, and the guardianship will be registered in the name of the guardianship in accordance with Articles 9/r and 30 of the Code of Civil Procedure Regulation, and the guardianship authority will ensure follow-up and supervision. In other words, the decision rendered by the foreign court in this matter shall be treated as a decision rendered by the Turkish courts.
In the concrete case, …, born in 1948, lives in Germany and was restricted by the Hamburg-Wandsbek Regional Courts of the German state with the decision dated 18.12.2013 and numbered 707 XVII A 10115 and his wife, who is also a Turkish citizen, was appointed as the guardian. It is understood from the content of the decision that the restricted person was restricted in accordance with the German Civil Code and the reason for the restriction is in compliance with Article 405 of the Turkish Civil Code. Although the national 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 lawsuit, the applicable law is not Law No. 2675, but Law No. 5718. Because 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 capacity to exercise rights and acts and the grounds for the issuance of a guardianship or restriction order shall be governed by the national law of the person whose guardianship or restriction order is sought to be issued or terminated, should be interpreted as it can be issued by foreign courts, provided that it exists in the national law. Because the institution of guardianship and restriction exists 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. The criterion here is whether the European Convention on Human Rights has been violated.
The European Convention on Human Rights prioritizes the interests of individuals above all else. The guardianship decision rendered by the German court will protect the legal interests of the person under guardianship in Germany, and the recognition of this decision by the Turkish courts will protect his/her interests in Turkey. The decision rendered by the German court, which does not conflict with Turkish national law and even in parallel, has nothing to do with national law, nor with exclusive jurisdiction or public order. On the contrary, in other words, if the grounds put forward in the decisions of the local court or the General Assembly of Civil Chambers are accepted, it will result in the conviction of Turkey in the European Court of Human Rights, which is undoubtedly an undesirable situation. On the other hand, Articles 3 and 7 of the “La Haye Convention on Restraint and Similar Measures” dated 1905 stipulate that although national law and national state courts are competent as a rule, the authorities of the place where the person to be restrained is located (Germany) may also take a restraint decision according to the national law (Turkish law) or the law of the place of location (German law).
For all these reasons explained, while the lawsuit regarding the recognition of the restriction decision should be accepted, it was not deemed correct to reject it on grounds that were not appropriate.
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 14.12.2015 that the judgment shall be DISMISSED in accordance with Article 428 of the Code of Civil Procedure, and the pre-appeal fee shall be refunded to the appellant upon request. (¤¤)