T.C. SUPREME COURT
18.law office

Base on: 2013/18352
Decision: 2014/4459
Date of Decision: 11.03.2014

RECOGNITION AND ENFORCEMENT CASE – EVEN IF THE PARTIES ARE NOT TURKISH CITIZENS, THEY CAN REQUEST THE RECOGNITION OR RECOGNITION OF A FOREIGN NAME PROVIDED THAT THEY HAVE LEGAL INTERESTS – IN ACCORDANCE WITH THE ADOPTION OF A CASE ON THE RECOGNITION OF A RESTRICTION DECISION

ABSTRACT: In a concrete case, T., born in 1989, who is a Turkish citizen and lives in Germany. A., He was restricted by the decision of the Hamburg Magistrate’s Court dated 27.03.2008 and his mother, who is also a Turkish citizen, was appointed as the plaintiff Sultan Aldemir’s guardian. According to the content of the decision, the restricted person is restricted in accordance with the German Civil Code and the reason for the restriction is 405 of the Turkish Civil Code.it is understood that it is also suitable for its substance. Although national law has not been applied to the restricted, Article 38 / e of Law No. 2675, which regulates this issue as a barrier to enforcement and recognition, has not been included in Law No. 5718. The Law that will be applied as of the date of the case is Law No. 5718, not Law No. 2675. Because Law No. 2675 has been repealed. In order for a foreign court decision to be made on the recognition or enforcement of an ilam, it is not necessary that the parties to the ilam or at least one of them be Turkish citizens. Even if the parties are not Turkish citizens, they can request the enforcement or recognition of a foreign decision provided that they have legal interests.

(2675 P. K. m. 8, 9, 38) (5718 P. K. m. 10, 54) (4721 P. K. m. 404, 405, 410, 411, 412) (5490 P. K. m. 3) (Regulation on the Address Registration System m. 13)

Case and Decision: In the case petition, it was requested to decide on the recognition and enforcement of the guardianship decision made abroad. The court decided to dismiss the case, and the verdict was appealed by the deputy plaintiff.

THE DECISION OF THE SUPREME COURT

After it became clear that the appeal request was within the time limit, all the papers in the file were read and considered as necessary:

In his petition, the deputy plaintiff requested that the daughter of his client living in Germany be placed under the guardianship of the German Magistrate Court and that he be appointed a guardian and that the decision to appoint a guardian be recognized and enforced by the court so that he can do the work in Turkey that is in the best interests of being under the guardianship. According to the court, since the person under guardianship is a Turkish citizen, the provisions of Law No. 2675 are 8/1 and 9/1. according to the articles, where the National Law of the person concerned is subject to the rights and legal capacity, guardianship, and termination is requested hacir belongs to the National Law of the person or the issuance of a decision where the decision is made by a German court where the guardianship to the bottom of the subject in the scope of the exclusive jurisdiction of the Turkish courts, a matter of entering the exclusive jurisdiction of the Turkish courts on the recognition and enforcement of foreign court decisions in the case is dismissed on the grounds that it could not be decided.

Article 58 of the MÖHUK No. 5718, which repealed the MÖHUK No. 2675 and entered into force on 12.12.2007, on the recognition of decisions issued by a foreign court.article 54 in recognition that the fact that a foreign court decision can be considered final evidence or final judgment depends on the determination by the court that a foreign decision meets the conditions for enforcement. it is stipulated that paragraph (a) of the first paragraph of the article will not be applied, the recognition of non-disputed accident decisions is also subject to the same provision, and the same procedure will be applied when conducting an administrative procedure in Turkey based on a foreign court ruling. article 54 /b, on the other hand, stipulated that the decision of a foreign court should be made on an issue that does not fall under the exclusive jurisdiction of the Turkish Courts, 10/1 and 3. the decision of the substances or the reason for termination or limitation of guardianship, guardianship of the person or about the termination or limitation of the decision is requested if it is attached to the National Law, guardianship or custody, except all of limitation or limitation of the decision or the reasons for the termination and is subject to Turkish law has made clear that issues of kayyimlig.

Although the national law of the person concerned has been determined as the competent law, Turkish law has been authorized for the personality, care, health, education, representation, management of the restricted person’s assets, the duties, powers and responsibilities of the guardian and the guardianship and supervision authority, which can be briefly expressed as the management of guardianship.

In the applications of the Supreme Court; It is accepted that decisions on the management of guardianship are administrative decisions and do not have an accidental nature and therefore cannot be appealed. Article 50 of the Law No. 5718. in accordance with the article, decisions issued and finalized by foreign courts may be subject to enforcement or recognition, and decisions on the management of guardianship cannot be recognized by their specified qualities (since they do not have the qualification of an ilam).

In fact, while it is accepted that restriction decisions (guardian appointment decisions) cannot be recognized by the General Assembly of the Law, it is stated in the explained justification that it is aimed to eliminate possible inconveniences that may arise due to decisions on the management of guardianship. The legislator is also authorized by Article 10/3 of the Law No. 5718 in order to prevent possible inconveniences specified in the decision of the General Assembly of the Law. it has authorized Turkish law in its article. If the decision of the General Assembly of the Law is adopted to apply in all areas related to guardianship, the national law of a person who is a citizen of a foreign country in his own country (Law No. 5718 m.10/1) in accordance with and in accordance with the restriction decision issued by the court of the state in which he is a natural citizen, it will not be possible to decide on the recognition of the decision in Turkey.

In this case, the foreigner will have to re-file the case in Turkey and the Turkish Courts will also have to decide according to the national law of the person concerned. This practice, on the other hand, is an intervention in the jurisdiction of foreign courts to make judgments and make decisions on citizens of the state to which it belongs. Considering the purpose of the provisions of Law No. 5718, it is indisputable that foreign courts have the right to make judgments and make decisions according to the rules prescribed for the personal status of Turkish citizens. In accordance with the authority granted to foreign courts on the issues described, it is impossible not to recognize the decisions taken by them.
Because failure to recognize the decisions issued by a foreign court may impose a burden on Turkish citizens, and it will be even more difficult for them to benefit from their national law than from foreign law. Forcing Turkish citizens living in foreign countries to open the same case in Turkish courts, if the guardianship decision issued by a foreign court is not recognized, is contrary to the purpose of Law No. 5718. 404 to 410 of the Turkish Civil Code. items arranged between smallness, mental illness or mental incapacity, extravagance, alcohol or drug addiction, bad life-style, bad governance, freedom connector punishment, age, disability, inexperience severe disease with a case of whether this is due to the restriction of, to be made will be determined as a result of the judgment, since in this situation the area of application of the National Law of a person who was brought to the country, which has to be the release 6 of the European Convention on human rights. it is an application that will seriously impede the right to a fair trial and legal hearing contained in the article. In addition, the Law No. 5718 does not already contain a special and discrete provision related to guardianship.

The exclusive (final) authorization rules are the rules established to ensure that the case is heard only in Turkish jul-tals and ensure this, and the main basis is public order. The basic values of the Turkish law, Turkish general manners and morals, law and politics in general by a sense of justice that is based on fundamental, fundamental rights and freedoms in the Constitution, public and private international law in the area of the current rules based on the principle of benevolence, and Justice, which is the expression of moral principles jointly civilized communities that have adopted the norms of the Law Society, the level of civilization of the political and economic regime, human rights and freedoms, national law constitutes the basis of public order. Public order should be understood as a set of rules arising from public and private law, which the parties are obliged to comply with, and which the parties cannot freely save on.

article 54/c of the Law No. 5718 on International Private Law and Procedural Law stipulates that the provision is not clearly contrary to public order, and accordingly, it is necessary to investigate whether the results that will occur if the foreign decision is executed in Turkey will violate the Turkish public order, not the law applied to the issuance of a foreign court decision and what criteria it is applied according to. From the statement “The provision is not clearly contrary to public order” contained in the said article, it should be concluded that the violation of the law applied to the basis of a foreign court decision cannot be examined against the Turkish public order, only if the legal consequences arising as a result of the enforcement of the provision are contrary to public order, the request for the enforcement of a foreign court decision will be rejected. The request for enforcement of a foreign decision cannot be rejected for reasons such as the fact that the law applied to the merits is different from Turkish Law or is contrary to the mandatory rules of Turkish Law. (YIBGK.case law No. 10.02.2012 and No. 2010/1 (2012/1 decision)

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