Whether The Case Has A Foreign Element – The Need To Examine The Merits Of The Case According To Turkish Law
T.C. JUDICIARY
2nd Civil Chamber
Basis: 2015/13927
Decision: 2016/5499
Date of Decision: 21.03.2016
DIVORCE CASE – WHETHER THE CASE HAS A FOREIGN ELEMENT – THE NEED TO EXAMINE THE MERITS OF THE CASE ACCORDING TO TURKISH LAW – THE JUDGMENT SHOULD BE REVERSED
SUMMARY: Pursuant to Article (1.) of the Turkish Citizenship Law; “. “… those who are Turkish citizens by birth, but who have received permission to renounce citizenship and their minor children registered in the certificate of renunciation of citizenship, without prejudice to the provisions regarding the national security and public order of the Republic of Turkey, will continue to benefit from the rights granted to Turkish citizens, without prejudice to their acquired rights regarding social security, except for the obligation to perform military service and the right to elect and be elected, to enter public office and to import vehicles and household goods exemptly.”.
In this case, since the parties are Turkish citizens by birth, it is clear that they will benefit from the rights granted to Turkish citizens in accordance with the aforementioned amendment and will not be in the status of “foreigner” in the divorce case. In this case, since the case does not have a “foreign element”, the article of the Law on Private International Law and Procedural Law cannot be applied to this case. Therefore, it is not necessary to investigate the applicable competent law. Therefore, while the merits of the case should be examined according to Turkish Law, it is contrary to the procedure and the law to make a decision without considering this aspect.
(Art. 20 of 403 S. K.) (Art. 28 of 5901 S. K.) (Art. 14 of 5718 S. K.)
Case: At the end of the trial of the case between the parties, the judgment given by the local court and dated and numbered above was appealed by the plaintiff woman, and the documents were read and discussed:
The court, in the divorce case filed by the plaintiff woman, decided to divorce the parties by applying Austrian law on the grounds that both parties renounced their Turkish citizenship and resided in Austria. From the collected evidence, it is understood that the parties, who were Turkish citizens, lost their Turkish citizenship as of 2003 with the “exit permit” in accordance with Article 20 of the Law No. 403, and that they are Austrian nationals.
Pursuant to paragraph (1) of Article 28 of the Turkish Citizenship Law No. 5901; “. “… those who are Turkish citizens by birth and who have received permission to renounce citizenship and their minor children registered in the certificate of renunciation of citizenship, without prejudice to the provisions regarding the national security and public order of the Republic of Turkey, will continue to benefit from the rights granted to Turkish citizens, without prejudice to their acquired rights regarding social security, except for the obligation to perform military service and the right to elect and be elected, to enter public office and to import vehicles and household goods exemptly.”.
In this case, since the parties are Turkish citizens by birth, it is clear that they will benefit from the rights granted to Turkish citizens in accordance with the aforementioned amendment and will not be in the status of “foreigner” in the divorce case. In this case, since the case does not have a “foreign element”, Article 14/1 of the Law No. 5718 on International Private and Procedural Law cannot be applied to this case. Therefore, it is not necessary to investigate the applicable competent law. Therefore, while the merits of the case should be examined according to Turkish Law, it is contrary to the procedure and the law to make a written decision without considering this aspect.
Conclusion It was unanimously decided that the appealed judgment shall be DISMISSED for the reason shown above, other appellate objections shall not be examined for the time being according to the reason for the reversal, the pre-appeal fee shall be returned to the depositor upon request, and the way of decision correction shall be open within 15 days from the notification of this decision. 21.03.2016
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