Request For Restriction And Guardianship Decision
T.C. JUDICIARY
2nd Civil Chamber
Basis: 2011/13681
Decision: 2012/6879
Date of Decision: 22.03.2012
REQUEST FOR A GUARDIANSHIP DECISION WITH RESTRICTION – DETERMINATION OF THE NATIONAL LAW OF THE PERSON TO BE RESTRICTED WITH THE HELP OF THE PLAINTIFF – THE NEED TO INVESTIGATE WHETHER IT IS POSSIBLE TO APPOINT A GUARDIAN
SUMMARY: Since the reasons for the decision of restriction and guardianship are primarily subject to the national law of the person to be restricted, the court should determine the national law of the person to be restricted by making use of the assistance of the plaintiff and investigate whether it is possible to restrict the person and appoint a guardian for him/her, and in cases where it is not possible to restrict the foreigner according to the national law to which he/she is subject, the conditions for restriction according to Turkish Law should be investigated and a decision should be made according to the result.
(Article 2, 10 of 5718 S. Law)
Case: The judgment rendered by the local court at the end of the trial of the case was appealed, the documents were read and discussed accordingly.
Decision: With the lawsuit, it was requested to restrict H., who is a citizen of Azerbaijan and who is in Turkey with a residence permit, due to his disability, and the court decided to reject the request on the grounds that <H. cannot be restricted in accordance with the Turkish Civil Code since he is not a citizen of the Republic of Turkey>.
Article 10 of the Law No. 5718 on International Private and Procedural Law stipulates that the reasons for the decision of restriction or guardianship and its termination are subject to the national law of the person to be restricted, and if it is not possible to make a decision of guardianship or restriction according to the national law of the foreigner, if the person’s habitual residence is in Turkey, a decision can be made according to Turkish Law, and in cases where the person is compulsorily in Turkey, Turkish Law will be applied. There is no provision in Turkish Law that prevents the Turkish court, which is authorized to issue a restraint order, from issuing a restraint and guardianship order for foreign persons subject to foreign law.
Since the reasons for making a decision on restriction and guardianship are primarily subject to the national law of the person to be restricted, the court should determine the national law of the person to be restricted and investigate whether it is possible to restrict the person and appoint a guardian, and if it is not possible to restrict the foreigner according to the national law to which the foreigner is subject, the conditions of restriction according to Turkish Law should be investigated and a decision should be made according to the result, but it is contrary to the procedure and the law to make a written judgment with incomplete examination.
Conclusion: It was unanimously decided on 22.03.2012 that the appealed judgment be reversed for the reason shown. (¤¤)
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