Recognition And Enforcement Of Foreign Court Judgments In A Matter Involving The Exclusive Jurisdiction Of Turkish Courts
T.C. JUDICIARY
General Assembly of Civil Chambers
Main: 2013/18-1628
Decision: 2015/894
Decision Date: 04.03.2015
RECOGNITION AND ENFORCEMENT ACTION – RECOGNITION AND ENFORCEMENT OF FOREIGN COURT JUDGMENTS IN A MATTER WITHIN THE EXCLUSIVE JURISDICTION OF TURKISH COURTS – DISMISSAL OF THE CASE – NECESSITY OF REVERSAL OF THE DECISION TO RESIST
SUMMARY: It has been 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.
(Art. 8, 9 of 2675 S. Code) (Art. 3, 9, 10, 50, 54, 58 of 5718 S. Code) (Art. 50 of 5490 S. Code)
Case and Decision: At the end of the trial held due to the “recognition and enforcement” lawsuit between the parties? Upon the request of the plaintiff’s attorney for examination of the decision dated 21.06.2012 and numbered 2012/10 E. 2012/32 K., which was given by the Imranlı Civil Court of First Instance on the dismissal of the lawsuit, with the decision of the 18th Civil Chamber of the Court of Cassation dated 17.01.2013 and numbered 2012/12365 E.-2013/483 K.?
(…) The plaintiff’s attorney, in his petition, claimed that his client’s father lives in Germany, that he was appointed guardian of his father by the German Civil Court of Peace, and that the court should recognize and enforce the decision of the court to appoint a guardian so that he can carry out the works in the interests of his father in Turkey, and that the person under guardianship is a Turkish citizen, according to Articles 8/1 and 9/1 of Law No. 2675? According to Articles 8/1 and 9/1 of Law No. 2675, the rights and capacity to act are subject to the relevant national law, the decision to grant or terminate guardianship and sequestration belongs to the national law of the person whose guardianship and sequestration is requested, the decision to be placed under guardianship was made by the German court by applying Articles 1896 and 1897 of the German Civil Code, the matter falls within the exclusive jurisdiction of Turkish courts, and 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 entered into force on 12.12.2007 after the repeal of the Code of Civil Procedure No. 2675, regarding the recognition of foreign court judgments, states: “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. Subparagraph (a) of the first paragraph of Article 54 shall not apply in recognition. Recognition of non-disputed judgments shall be subject to the same provision. The same procedure shall also be applied in the execution of an administrative act in Turkey based on a foreign court judgment.” Article 54/b stipulates that the enforcement of a foreign court judgment shall be subject to the condition that it is rendered in a matter that does not fall within the exclusive jurisdiction of the Turkish Courts.
Article 10/1 and 3 of the same law states that “The reasons for the issuance or termination of a decision of guardianship or restriction shall be subject to the national law of the person against whom the decision of guardianship or restriction is requested to be issued or terminated. Except for the reasons for making or terminating a decision of guardianship or restriction, all matters related to restriction or guardianship and trusteeship are subject to Turkish law.”
Here, it is seen that a dual distinction is made in terms of the applicable law in guardianship. Although the law determines the national law of the person concerned as the competent law for the issuance of a restriction decision or the lifting of the restriction decision, Turkish law is competent on the personality, care, health, education, representation, management of assets, duties, powers and responsibilities of the guardian, guardianship and supervision authority, which can be briefly expressed as the management of guardianship.
In the practices of the Court of Cassation, it is accepted that the decisions regarding the management of the 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, the justification explained is 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 regulated the provision of Article 10/3 of the Law No. 5718 and authorized Turkish law.
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 recognize in Turkey the restriction decision issued by the court of the state in which the foreign citizen is a citizen in accordance with his/her national law (Art. 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 the personal status of Turkish citizens in accordance with the prescribed rules. Pursuant to the authority granted to foreign courts in the matters described, it is not possible not to recognize their decisions. This is because non-recognition of the judgments rendered by foreign courts may become burdensome for Turkish citizens and it will be more difficult for them to benefit from their own national law than foreign law. It is contrary to the purpose of Law No. 5718 to force 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. 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, which is the application area of his/her national law, is a practice that will seriously hinder the right to a fair trial and the right to be heard in accordance with 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 set forth in order to ensure that the subject matter of the lawsuit is heard only in Turkish courts. The main basis of these 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 common principles valid in the international arena and the rules of private law based on the principle of good faith, the principles of law 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 is understood as the totality of the rules arising from public law 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. 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, rather than 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 on the merits of the foreign court decision to the Turkish public order cannot be examined, and the enforcement of the foreign court decision will be refused only if the legal consequences arising as a result of the enforcement of the judgment are contrary to the public order. The enforcement of the foreign judgment cannot be refused 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. (YİBGGK 10.02.2012 dated 2010/1 basis 2012/1) The criterion to be taken as basis here is the issues explained above, which constitute the basis of the public order of our national law. 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 account 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 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, the place of residence is defined as “The place where one resides with the intention to stay permanently.” and in Article 50/2 of the Population Services Law No. 5490 and Article 13/1 of the Address Registration System Regulation, which was enacted on 15.08.2007 based on this law, “The written declaration of the persons is taken as basis in keeping the residential addresses. The declarations in the address declaration form are valid until the contrary is proven.”
According to the criteria regarding the place of residence, it is clear that the place of residence is not definite, it may change with the change of conditions and the intention to stay permanently, it may change with the permission of the guardianship authority after the restriction decision is made, and it is clear that it is not unchangeable and absolute in this nature. In the practice of the Court of Cassation, it is accepted that the authorization in Articles 411 and 412 of the Turkish Civil Code is definitive 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. 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 or institutions who learn about the guardianship status to notify the guardianship authority, the guardianship authority will take action upon the notification of either the court issuing the recognition decision or 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 by the guardianship authority. In other words, it will be treated as a decision issued by the Turkish courts.
In the concrete case, H.A., born in 1934, who is a Turkish citizen, lives in Germany and was restricted by the decision of Düsburg-Hamborn Magistrate Court dated 01.06.2011 and his son İ.A., 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 (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 lawsuit, 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 in Articles 9 and 10 of the Civil Procedure Law, which states that the grounds for the issuance of a guardianship or restriction order and the capacity to act and the reasons for the issuance of a guardianship or restriction order are subject to the national law of the person whose guardianship or restriction order is requested to be issued or terminated, should be interpreted as that such orders may also 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. Therefore, there can be no mention of a decision given by the 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. Just as the guardianship decision rendered by the German court will protect the legal interests of the person under guardianship in Germany, the recognition of this decision by the Turkish courts will also protect the interests of the person under guardianship 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. According to Articles 3 and 7 of the 1905 “La Haye Convention on Restraint and Similar Measures”, although national law and national State courts are competent as a rule, the authorities of the place (Germany) 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, since the lawsuit is related to the recognition of the restriction decision, it was not deemed correct to reject the lawsuit with the written justification while the lawsuit should be accepted….)
The case was reversed and the file was returned to its place and at the end of the retrial, the court resisted the previous decision.
APPEALANT Counsel for the plaintiff
DECISION OF THE GENERAL ASSEMBLY OF LAW
The General Assembly of Civil Chambers examined the decision of the General Assembly of Civil Chambers and discussed the necessity after it was understood that the appeal was filed in due time and the papers in the file were read:
The lawsuit is related to the request for recognition and enforcement of the decision of a foreign court to appoint a guardian.
The plaintiff claimed that he and his father, who was too ill to do his own business, lived together in Germany and requested the recognition and enforcement of the guardianship order issued by the German Court regarding his father.
The court dismissed the case on the grounds that the appointment of a guardian is subject to the exclusive jurisdiction of the Turkish Courts.
Upon the appeal of the plaintiff’s attorney, the Special Chamber reversed the decision for the reasons explained in the title section above.
The plaintiff’s counsel appealed the judgment.
The dispute before the General Assembly of Civil Chambers centers on whether the Turkish Courts have exclusive jurisdiction to decide on guardianship.
Since the request subject to the case is related to the recognition and enforcement of the foreign court decision, it is useful to first examine the legal regulations, concepts and institutions related to this.
Recognition and enforcement of foreign court judgments are regulated in the Second Section of the Second Part of the Law No. 5718 on Private International Law and Procedural Law. Articles 50 to 57 of the Law are related to enforcement and Articles 58 to 59 are related to recognition.
Pursuant to paragraph 1 of Article 50 titled “Enforcement Decision” of the Law No. 5718
“The execution in Turkey of judgments rendered by foreign courts in civil cases and finalized in accordance with the laws of that state is subject to a decision of enforcement by the competent Turkish court.” According to the 1st sentence of the 1st paragraph of the 1st paragraph of the 52nd Article titled “Enforcement Request”: “Anyone who has a legal interest in the enforcement of the judgment may request enforcement.”
According to Article 54 of the aforementioned Law titled “Conditions for Enforcement”?
“(1) The competent court shall render the enforcement decision in accordance with the following conditions
a) The existence of an agreement based on reciprocity between the Republic of Turkey and the state where the judgment was rendered, or the existence of a provision of law or actual practice in that state enabling the enforcement of judgments rendered by Turkish courts.
b) The judgment has been rendered in a matter which does not fall within the exclusive jurisdiction of the Turkish courts, or, provided that the defendant objects, the judgment has not been rendered by a court of a state which recognizes its jurisdiction although it has no real relation with the subject matter of the case or the parties.
c) The judgment is not manifestly contrary to public order.
ç) The person against whom enforcement is sought has not been duly summoned to the court which rendered the judgment, or has not been represented therein, or a judgment has been rendered in his absence or in the absence of the person against whom enforcement is sought pursuant to the laws of that place, and such person has not objected to the Turkish court against the request for enforcement based on one of the foregoing matters.”
On the other hand, pursuant to Article 55 of Law No. 5718 entitled “Notification and Objection”?
(1) The petition for enforcement shall be served to the other party together with the date of the hearing. Recognition and enforcement of non-disputed judgments shall be subject to the same provision. The notification provision shall not apply to non-disputed judgments without an adversary. The request shall be examined and decided in accordance with the provisions of the simple procedure.
(2) The opposing party may object only on the grounds that the conditions for enforcement do not exist according to the provisions of this section or that the foreign court judgment has been partially or fully executed or that a reason has arisen preventing its execution.”
According to Article 56 titled “Decision”, “The court may decide to partially or fully enforce the judgment or to reject the request. This decision shall be written under the foreign judgment and shall be sealed and signed by the judge.” and Article 57 entitled ‘Enforcement and Appeal’,
“(1) Foreign judgments which are decided to be enforced shall be enforced as if they were judgments of Turkish courts.
(2) The appeal of the decisions on the acceptance or rejection of the request for enforcement shall be subject to general provisions. The appeal shall stay the execution.”
When the provisions of Law No. 5718 on recognition are examined, Article 58 titled “Recognition” reads as follows
“(1) The acceptance of a foreign judgment as conclusive evidence or final judgment depends on the court’s determination that the foreign judgment meets the conditions for enforcement. Subparagraph (a) of the first paragraph of Article 54 shall not apply in recognition.
(2) Recognition of non-disputed judgments shall be subject to the same provision.
(3) The same procedure shall be applied in the execution of an administrative act in Turkey based on a foreign court judgment.”
It should be noted that pursuant to Article 59 titled “Final Judgment and Effect of Final Evidence”,
“The final judgment or conclusive evidence effect of the foreign judgment shall take effect from the moment the foreign court decision becomes final.”
In Article 10/1 and 3 of the same Law?
“The reasons for making or terminating a decision on guardianship or restriction shall be subject to the national law of the person against whom the decision on guardianship or restriction is requested to be made or terminated. Except for the reasons for making or terminating a guardianship or restriction decision, all matters related to restriction or guardianship and trusteeship are subject to Turkish law.”
It should be noted immediately that the provisions on guardianship and restriction are regulated in Article 10 of the Law on Civil Procedure No. 5718, which entered into force on 12.12.2007, after the repeal of the Law No. 2675. Here, a dual distinction is made in terms of the applicable law in guardianship.
In the law, 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, whereas Turkish law is authorized for the personality, care, health, representation, management of the assets, duties, powers and responsibilities of the guardian, 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, do not have a judicial nature and therefore cannot be appealed, and therefore such decisions cannot be recognized due to their nature.
Exclusive jurisdiction rules are the rules that are introduced to ensure that the subject matter of the lawsuit is heard only in Turkish Courts. The main basis of these rules is public order. Public order is briefly understood as the totality of the rules arising from public and private law, which the parties are obliged to comply with, and which the parties cannot freely dispose of.
In Article 54/c of the Law No. 5718 (the Law on Civil Procedure), the fact that the judgment is not clearly contrary to public order is listed among the conditions for enforcement. Accordingly, it is necessary to investigate whether the consequences that will occur if the foreign court judgment is executed in Turkey will violate the Turkish Public Order, rather than the law applied in the issuance of the foreign court judgment and according to which criteria it is applied.
According to the 10.02.2012 dated and 2010/1 Esas 2012/1 Decision numbered Unification Decision of the Court of Cassation, the enforcement of a foreign court decision cannot be refused 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.
The rules of exclusive jurisdiction 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 State’s sovereignty and sovereignty rights.
What is important here is that not every rule of jurisdiction regarding public order in Turkish Law is an exclusive rule of jurisdiction. Whether or not a rule of authority is an exclusive rule of authority can be determined from the wording and purpose of the rule of authority.
In guardianship law, the provisions regarding the authority are regulated in Articles 411 and 412 of the Turkish Civil Code. Accordingly, the authority belongs to the guardianship office in the place of residence of the restricted person and the restricted person cannot change his/her place of residence without the permission of the guardianship authority.
In the practice of the Court of Cassation, it is accepted that the authority under Articles 411 and 412 of the Turkish Civil Code is definitive and related to public order. However, 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 have been adopted in guardianship in terms of domestic law, these provisions have nothing to do with the sovereignty and sovereignty of the State when the main purpose here is to protect those who are deprived of managing and protecting themselves and their assets (Article 405 of the TCC) and those who are deprived of managing and protecting themselves and their assets (Article 406 of the TCC).
In our concrete case, the restricted person lives in Germany and due to his mental illness and weakness, he was restricted by the German Court in accordance with the German Civil Code and his son, who is also a Turkish citizen, was appointed as his guardian. The reason for the restriction is in the same direction with the regulation in Article 405 of the Turkish Civil Code.
Although the national (Turkish) law has not been applied to the restricted person, the provision of Article 38/e of the Law No. 2675 regulating this issue as an obstacle to recognition and enforcement, “…the fact that the law authorized by the Turkish conflict of laws rules has not been applied in the foreign judgment regarding the personal status of the Turks and the defendant, who is a Turkish citizen, has not objected to the enforcement in this respect”, is not included in Article 54 of the Law No. 5718, which is regulated in parallel with the aforementioned article and regulates the conditions of enforcement.
When the concrete case is evaluated against these general explanations? Considering that Law No. 2675 has been repealed, the Law to be applied as of the date of the lawsuit is not Law No. 2675, but Law No. 5718, and the application in this way is in accordance with the principle of observing the interests of individuals and keeping them above all else, which is adopted by the European Convention on Human Rights, and also according to Articles 3 and 7 of the La Haye Convention of 1905 on restriction and similar measures. According to Articles 3 and 7 of the La Haye Convention of 1905 on restraint and similar measures, although the National Law and National State Courts are competent as a rule, it has been adopted that the authorities of the place where the person to be restrained is located (e.g. Germany) can also take a restraint decision according to the national law of the person concerned (e.g. Turkish Law) or the law of the place of residence (German Law).
On the other hand? The two separate decisions of the General Assembly of Civil Chambers of the Court of Cassation, which the Local Court based its decision to resist and included in its reasoning, do not have the feature of being a precedent decision in terms of the concrete case, since the examination was made according to the Law No. 2675, which was repealed long before the date of the case.
Although some members who were in the minority during the discussions stated that the local court’s decision to resist was appropriate by taking into account Articles 3, 9 and 10 of the Law No. 5718, this opinion was not adopted by the majority of the Board for the reasons stated above.
As such, it is contrary to the procedure and the law for the Local Court to resist the previous decision with the wrong reasoning, while the Special Chamber’s reversal decision, which was also adopted by the General Assembly of Civil Chambers, should be complied with.
Therefore, the decision of resistance should be reversed.
Conclusion With the acceptance of the appeals objections of the plaintiff’s attorney, it was decided by majority of votes on 04.03.2015 that the decision of resistance shall be DISMISSED for the reasons shown above and in the Special Chamber’s reversal decision, and the advance appeal fee shall be returned to the depositor, if requested. (¤¤)
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