Even If The Parties Are Not Turkish Citizens, They May Request The Enforcement Or Recognition Of A Foreign Judgment, Provided That They Have Legal Interests
T.C. JUDICIARY
18th Civil Chamber
Main: 2013/18352
Decision 2014/4459
Date of Decision: 11.03.2014
RECOGNITION AND ENFORCEMENT ACTION – EVEN IF THE PARTIES ARE NOT TURKISH CITIZENS, THEY MAY REQUEST THE ENFORCEMENT OR RECOGNITION OF A FOREIGN JUDGMENT, PROVIDED THAT THEY HAVE LEGAL INTERESTS – THE CASE FOR THE RECOGNITION OF THE RESTRICTION DECISION MUST BE ACCEPTED
SUMMARY: In the concrete case, T. A., born in 1989, who is a Turkish citizen and lives in Germany, was restricted by the decision of the Hamburg Magistrate Court dated 27.03.2008 and his mother, plaintiff Sultan Aldemir, who is also a Turkish citizen, was appointed as 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 was in accordance 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 Because Law No. 2675 has been repealed.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 a foreign judgment, provided that they have a legal interest.
(2675 Art. 8, 9, 38) (5718 Art. 10, 54) (4721 Art. 404, 405, 410, 411, 412) (5490 Art. 3) (Address Registration System Regulation Art. 13)
Case and Decision: In the petition, it was requested to decide on the recognition and enforcement of the guardianship decision issued abroad. The court decided to dismiss the lawsuit and the judgment was appealed by the plaintiff’s attorney.
JUDGMENT OF THE COURT
After it was understood that the request for appeal was in due time, all the papers in the file were read and considered:
In the petition, the plaintiff’s attorney requested the court to decide on the recognition and enforcement of the decision to appoint a guardian for his client’s daughter, who lives in Germany, to be placed under guardianship by the German Civil Court of Peace and to appoint him as the guardian so that he can carry out the works in Turkey in the interest of the guardianship. The court decided to dismiss the case on the grounds that the person under guardianship is a Turkish citizen, according to Articles 8/1 and 9/1 of the Law No. 2675, the capacity of right and action is subject to the national law of the person concerned, the decision to grant or terminate guardianship and sequestration belongs to the national law of the person requested, the decision to be taken under guardianship was made by the German court, the issue falls within the exclusive jurisdiction of the Turkish courts, and the recognition and enforcement of foreign court decisions cannot be decided on a matter falling 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(1) shall not apply, the recognition of non-disputed judgments shall be 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. 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 a 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 national law of the person concerned is determined as the competent law for the issuance of a restriction decision 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 on the appointment of 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 the 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 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 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 his/her national law is applied 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 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 international law 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.
Article 54/c of the Law No. 5718 on International Private and Procedural Law states that 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 results 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 expression “the judgment is not clearly contrary to public order” in the aforementioned article that the contradiction of the law applied to the basis of the foreign court decision to the Turkish public order cannot be examined, and the request for enforcement of the foreign court decision will be rejected only if the legal consequences arising as a result of the enforcement of the judgment are contrary to 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.nin case law dated 10.02.2012 and numbered 2010/1 main 2012/1 decision)
The criterion to be taken as basis here is the issues explained above, which constitute the basis of national law and 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 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 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 shall 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 over the case 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 will be treated as a decision rendered by the Turkish courts.
In the concrete case, Tuğba Aldemir, born in 1989, who is a Turkish citizen and lives in Germany, was restricted by the decision of the Hamburg Magistrate Court dated 27.03.2008 and her mother, plaintiff Sultan Aldemir, who is also a Turkish citizen, was appointed as 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 was in accordance 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 that such orders may be issued by foreign courts, provided that they exist 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 on 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. 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 (German Law) of the person concerned.
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 verdict in the written manner, and since the appellate objections are appropriate for these reasons, it was unanimously decided on 11.03.2014 that the verdict be DISMISSED in accordance with Article 428 of the Code of Civil Procedure, and the pre-appeal fee be refunded to the appellant upon request. (¤¤)
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