T.C. SUPREME COURT
General Assembly of Law

Base: 2013/18-1628
Decision: 2015/894
Date of Decision: 04.03.2015

RECOGNITION AND ENFORCEMENT CASE – THE RECOGNITION AND ENFORCEMENT OF FOREIGN COURT DECISIONS ON AN ISSUE WITHIN THE EXCLUSIVE JURISDICTION OF TURKISH COURTS CANNOT BE DECIDED – THE REJECTION OF THE CASE – THE NEED TO OVERTURN THE DECISION TO RESIST

ABSTRACT: It has been decided to dismiss the case on the grounds that the recognition and enforcement of foreign court decisions cannot be decided on an issue within the scope of the exclusive jurisdiction of the Turkish courts and included in the exclusive jurisdiction of the Turkish courts.

(2675 P. K. m. 8, 9) (5718 P. K. m. 3, 9, 10, 50, 54, 58) (5490 P. K. m. 50)

Lawsuit and Decider: At the end of the trial for the case of “recognition and enforcement” between the parties? 21.06.2012 day and 2012/10 E, which were issued by the Imranli Court of First Instance regarding the rejection of the case. 2012/32 K. upon the request of the deputy plaintiff to examine the decision No. 18, the Court of Cassation. The day of 01/17/2013 and the date of 12365/2012 of the Legal Department.-2013/483 K. with a number of hymns?

(… The plaintiff’s attorney requested that the court recognize and enforce the decision to appoint a guardian in order for his client’s father to live in Germany, to be assigned as a guardian by the German Magistrate’s Court and to do things in his father’s interests in Turkey, and that the person under guardianship by the court be a Turkish citizen, Laws 8/1 and 9/1 of 2675. according to the clauses? 1896 and 1897 of the German Civil Code, 1896 by the German court of the decision to take custody of the person whose rights and actual driving license are subject to the relevant national law, the decision on guardianship and hajir belongs to the national law of the person who wants to be granted or terminated. ingredients made by applying the exclusive jurisdiction of the Turkish courts in the scope of the subject, including the exclusive jurisdiction of the Turkish courts in the matter of, on the recognition and enforcement of foreign court decisions could not be decided on the grounds that the case is dismissed.

Article 58 of the MÖHUK No. 5718, which entered into force on 12.12.2007 after the repeal of the MÖHUK No. 2675, on the recognition of decisions issued by a foreign court. article, “The fact that a foreign court decision can be considered as final evidence or final judgment depends on the determination by the court that a foreign decision carries the conditions of enforcement. 54 In Recognition. subparagraph (a) of the first paragraph of the article shall not be applied. Recognition of non-disputed accident decisions is also subject to the same provision. The same procedure is applied when conducting an administrative procedure in Turkey based on a foreign court decision.” it contains the provision that Article 54 / b stipulates that the decision of a foreign court should be made in a matter that does not fall under the exclusive jurisdiction of the Turkish Courts in the enforcement of the decision.

10/1 and 3 of the same law. in its article, “The reasons for granting or terminating a guardianship or restriction decision are subject to the national law of the person about whom the guardianship or restriction decision is requested to be granted or terminated. All matters related to restriction or guardianship and trusteeship other than the reasons for granting or terminating a guardianship or restriction decision are subject to Turkish law.” the provision is contained in the.

It is seen that there is a dual distinction in terms of the law to be applied in guardianship here. The granting of a restraining order or decision of the lifting of the restriction in law in the National Law of the person concerned, is determined as authoritative law, although briefly, which could be defined as the management of the limited personality custody, care, health, education, representation, Asset Management, Guardian, guardianship, and control of the authority, duties, powers and responsibilities are authorised to Turkish law.

It is accepted that decisions on the management of guardianship in the applications of the Supreme Court are decisions of an administrative nature, not of an accidental nature, and therefore cannot be appealed. Article 50 of the Law No. 5718. it is also not possible to recognize decisions on the management of guardianship in accordance with the specified qualifications (since they do not have the qualification of an ilam), since the ilams issued and finalized by foreign courts in accordance with the article may be the subject of enforcement or recognition. In fact, it is accepted that restriction decisions (guardian appointment decisions) cannot be recognized by the General Assembly of the Law, while the described justification is aimed at eliminating possible inconveniences that may arise due to decisions on the management of guardianship. The legislator has also regulated the provision of Article 10/3 of the Law No. 5718 in order to prevent possible drawbacks specified in the decision of the General Assembly of the Law, and has authorized Turkish law.

If the decision of the General Assembly of 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 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 judge and decide on the personal status of Turkish citizens in accordance with the prescribed rules. It is impossible not to recognize the decisions taken by them in accordance with the authority granted to foreign courts on the issues described. Because failure to recognize the decisions issued by a foreign court may become burdensome for Turkish citizens, and it will become even more difficult for them to take advantage of their own national law than 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. decency, mental illness or mental weakness, extravagance, alcohol or drug addiction, bad lifestyle, mismanagement, punishment binding on freedom, old age, disability, inexperience and severe illness will be determined as a result of the trial, as it will be determined whether the person who falls into this situation should be brought to the country that is the field of application of national law 6 of the European Convention on Human Rights. it is an application that will seriously impede the right to a fair trial and the right to a legal hearing contained in the article. In addition, the Law No. 5718 does not already contain a special and discrete provision related to guardianship.

Exclusive (final) authorization rules are the rules that are established to ensure that the subject of the case is only heard in Turkish courts and ensure this. jul. The main basis of these rules 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, the benevolence of private law in the international arena based on the principle of current common principles and rules of civilized communities that have adopted jointly by the principles of justice and moral principles of the law which is the expression, the level of civilization of society, political and economic regime of human rights and freedoms in the national law constitutes the basis of public order. Public order is understood as a set of rules arising from public law and private law, which the parties are obliged to comply with, and which the parties cannot freely save on.

In Article 54 / c of the Law No. 5718 on Private International Law and Procedural Law, the fact that the provision is not clearly contrary to public order is considered to be within the conditions of enforcement. Accordingly, it is necessary to investigate whether the law applied to the issuance of a foreign court decision and the results that will occur if the foreign decision is executed in Turkey, not the criteria by which it is applied, will violate the Turkish public order. From the statement “The provision is not clearly contrary to public order” contained in the aforementioned article, it should be concluded that the violation of the Turkish public order of the law applied on the basis of a foreign court decision cannot be examined, only if the legal consequences arising as a result of the enforcement of the provision are contrary to public order, the enforcement of a foreign court decision will be rejected. The enforcement of a foreign decision cannot be refused 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 10.02.2012 day 2010/1 basis 2012/1) The criteria that should be taken as a basis here are the issues that form the basis of the public order of our national law and are described above. In Turkish law, some of the authority rules related to public order are the exclusive authority provision. Exclusive authority rules are rules that express the absolute power and authority that the state has within its own country and borders, demonstrate and symbolize the exercise of the sovereign and sovereign rights of the state. The important thing here is that not every authority rule related to public order in Turkish Law is an exclusive authority rule. Whether the authorization rule has introduced an exclusive authorization provision can be determined based on the wording of the authorization rule and the purpose for which it was introduced. The exclusive jurisdiction rule is determined by taking into account the wording of this article, the purpose of the speech and the characteristics of cases with foreign elements.

411 of the Turkish Civil Code. in the article “The authority in guardianship affairs belongs to the guardianship offices in the settlement of a minor or a restricted person.” provision, 412. in the article “A person under guardianship cannot change his place of residence unless he has the permission of the guardianship authority. In case of change of the place of settlement, the authority passes to the new guardianship offices. In this case, the restriction will be announced at the new settlement.” provision, 19. in its article, it is stated that ”A settlement is a place where a person lives with the intention of staying permanently. A person cannot have more than one settlement at the same time.” the provision is regulated. In Article 3 /e of the Law No. 5490, the settlement ”Refers to the place of residence with the intention of staying permanently.” in the form of 50/2 of the Population Services Law No. 5490 and 13/1 of the Address Registration System Regulation enacted on 15.08.2007, which was adopted on the basis of this law. in the article “On the retention of residential addresses, the written statement of persons is taken as the basis. Notifications on the address declaration form are valid until otherwise fixed. it is indicated as “.

According to the criteria imposed on the place of residence, it is clear that the place of residence does not express certainty, the conditions may change with a change in the intention to stay permanently, they may change again with the permission of the guardianship authority after the decision to restrict is made, and as such, they are unchanged and not absolute. 411 and 412 of the Turkish Civil Code in the application of the Supreme Court. it is accepted that the authority in its articles is final and related to public order. However, as stated above, not every authority rule related to final and public order is an exclusive authority in terms of international law. Although the principles of public order and strict authority have been adopted in guardianship from the point of view of domestic law, the purpose here is to protect oneself and one’s assets from those who are deprived of management and protection (404, 405 of the Turkish Civil Code. articles), those who are deprived of the right to manage and protect themselves and their assets (406, 407, 408 of the Turkish Civil Code. 1) protection. These provisions have nothing to do with the right of the state to sovereignty and sovereignty.

When requesting recognition, the competent court provides that Law No. 5718 40 and 41. it will be determined by their substance. In the Turkish Civil Code, the person or institutions that have learned about the guardianship situation are obliged to inform the guardianship authority of the situation, so the guardianship authority will confiscate the incident with the notification of both the court that has decided to recognize it and the relevant person, 9 / r and 30 of the Civil Procedure Code Regulation. in accordance with the article, guardianship name registration will be made and follow-up and supervision will be provided by the guardianship authority. In other words, it will be processed like a decision issued by Turkish courts.

The subject of the lawsuit is H., born in 1934, who is a Turkish citizen in the concrete case.A., He lives in Germany and is restricted by the decision of the Duisburg-Hamborn Magistrate’s Court dated 01.06.2011, and his son, I, who is also a Turkish citizen.A. he has been appointed as a 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 also complies with its substance. Although national (Turkish) law has not been applied to the restricted, Article 38 / e of the Law No. 2675, which regulates this issue as a barrier to enforcement and recognition, is not included in the 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. As detailed above, it is clear that this issue alone will not constitute a violation of public order. 9th of MÖHUK. and 10. it is necessary to interpret the rights and acts contained in the articles, as well as the reasons for granting a guardianship or restriction decision, that the guardianship and restriction decision is subject to the national law of the person who wants to be granted or terminated, the provision may also be granted by foreign courts, provided that it is available in national law. Because the guardianship and restriction institution exists in both German and Turkish law. In that case, there can be no mention of a decision made by the German courts on an institution that does not exist in Turkish law. The measure here is whether the European Convention on Human Rights has been violated. The European Convention on Human Rights considers the observance of the interests of persons above all else. The recognition of the guardianship decision issued by the German court by the Turkish courts will protect the legal interests of the person under guardianship in Germany, as well as the recognition of this decision by the Turkish courts will also protect the interests of the person under guardianship in Turkey. The decision made by the German court, which will not conflict with Turkish national law and even in the same parallel, has nothing to do with national law and no exclusive authority or public order. Contrary behavior, in other words, if the grounds put forward in the decisions of the local court or the General Assembly of Law are accepted, leads to the conviction of Turkey in the European Court of Human Rights, which there is no doubt that this is an undesirable situation. 3 of the “La Haye Convention on Restriction and Similar Measures” of 1905. And 7. according to the clauses? as a rule, although the national law and national State courts are authorized, the authorities of the place (Germany) where the person to be hajj is located can also make a hajj decision in accordance with the national law (Turkish Law) or the law of the place of residence (German Law) of the person concerned. For all these reasons described, since the case is related to the recognition of the restraining order, while the case should be accepted, its rejection on written grounds was not considered correct….)

at the end of the retrial, the grounds were overturned and the file was turned down instead of being reversed? the previous decision was resisted by the court.

APPELLANT: Acting plaintiff

DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE

After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, the requirement was discussed:

The case is related to the request for recognition and enforcement of the decision on the appointment of a guardian issued by a foreign court.

The plaintiff requested recognition and enforcement of the decision on guardianship granted by the German Court about her father, that she and her father, who was too ill to do his own job, were living together in Germany.

The court decided to dismiss 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 decision was overturned by the Special Department for the reasons described in the title section above? the previous decision was resisted by the court.

The decision was appealed by the acting plaintiff.

The dispute that came before the General Assembly of the Law? it is collected at the point of whether it is within the exclusive jurisdiction of the Turkish Courts to make a decision on guardianship.

Although the claim subject to the lawsuit is related to the recognition and enforcement of a foreign court decision, it is primarily useful to examine the legal regulations and concepts and institutions related to it.

The recognition and enforcement of foreign court decisions is regulated in the Second Part of the Second Part of the Law No. 5718 on Private International Law and Procedural Law (MÖHUK). 50 to 57 of the Act. approve articles 58 to 59. it is about recognizing substances.

Law No. 5718? 50, entitled “Enforcement Decision”. article 1. pursuant to paragraph:

“The enforcement in Turkey of orders issued by foreign courts in respect of civil cases and finalized in accordance with the laws of that state depends on the decision on enforcement by the competent Turkish court.” 52, entitled “Tenfiz Prompt”. article 1. paragraph 1 of the according to the sentence? “Anyone who has a legal interest in enforcing the decision can request for enforcement.”

54 Of the aforementioned Law entitled “Conditions of Enforcement”. according to the clause?

“(1) The competent court makes the enforcement decision within the following conditions:

a) An agreement between the Republic of Turkey and the state in which the ilam was issued on the basis of reciprocity, or the existence of a provision of law or actual practice in that state that makes it possible to decriminalize the ilams issued by Turkish courts.

b) The medicine was given in a matter that is not under the exclusive jurisdiction of the Turkish courts, or the medicine was not given by a state court that grants it authority, even if the defendant has no real relationship with the subject of the case or the parties, provided that the defendant objects.

c) The provision is not clearly contrary to public order.

C) in accordance with the laws of the place itself, the sentencing court is requested enforcement against the person has not been represented in any such court or that have not been duly called or absence or the absence of laws in violation of the above and this person been judged based on one prompt against enforcement of the Turkish court did not appeal to.”

On the other hand, Article 55 of the Law No. 5718 entitled “Notification and Appeal”. according to the article?

(1) The petition regarding the enforcement request shall be notified to the other party together with the day of the hearing. Recognition and enforcement of non-disputed accident decisions are also subject to the same provision. The provisions of the communiqué shall not be applied in non-adversarial dispute-free accident decisions. The request is examined and decided according to the provisions of the simple procedure of trial.

(2) The counterparty may object only by asserting that there are no enforcement requirements in accordance with the provisions of this section or that the foreign court’s decision has been partially or completely fulfilled or that there has been a reason preventing it from being fulfilled.”

56, entitled “The Verdict.” according to its article, “The court may decide on partial or complete enforcement of the decision or rejection of the request. This decision is written under the foreign court notice and sealed and signed by the judge. 57, entitled ”and “The Path of Fulfillment and Appeal”. according to the article,

“(1) Foreign ilams, the enforcement of which has been decided, are executed in the same way as those issued by Turkish courts.

(2) The appeal of the decisions made on the acceptance or rejection of the enforcement request is subject to the general provisions. The appeal ceases to be fulfilled.”

When the provisions of Law No. 5718 on recognition are examined, 58 entitled “Recognition”. in the article:

“(1) The fact that a foreign court decision can be considered as final evidence or final judgment depends on the determination by the court that a foreign decision has the conditions for enforcement. Subparagraph (a) of the first paragraph of Article 54 shall not be applied in recognition.

(2) Recognition of non-disputed accident decisions is also subject to the same provision.

(3) The same procedure is applied in conducting an administrative procedure in Turkey based on the decision of a foreign court.” it is understood that the arrangement takes place.

It should be noted that Article 59 entitled “Final Judgment and Final Evidence Effect”. in accordance with the article,

“The final judgment or the final evidence effect of a foreign decision is valid from the moment the decision of a foreign court is final.”

10/1 and 3 of the same Law. is it in the article?

”The reasons for granting or terminating a guardianship or restriction decision are subject to the national law of the person about whom the guardianship or restriction decision is requested to be granted or terminated. All matters related to restriction or guardianship and trusteeship other than the reasons for granting or terminating a guardianship or restriction decision are subject to Turkish law.” its provisions are contained in.

 

It should immediately be noted that the provisions on guardianship and restriction are part of Article 10 of the Law No. 5718, which entered into force on 12.12.2007, after the repeal of Law No. 2675. it is regulated in the article. Here, a dual distinction is made in terms of the law to be applied in guardianship.

The granting of a restraining order or decision of the lifting of the restriction in law in the National Law of the person concerned, is determined as authoritative law, although briefly, which could be defined as the management of the limited personality custody, care, health, representation, Asset Management, Guardian, guardianship, and control of the authority, duties, powers and responsibilities are authorised to Turkish law.

In the applications of the Supreme Court, it has been accepted that decisions on the management of guardianship are administrative decisions, they are not accidental and therefore cannot be appealed, so they cannot be recognized due to the nature of such decisions.

Exclusive authority boards? these are the rules that are established to ensure that the subject of the case is only heard in Turkish Courts and ensure this. jul. The main basis of these rules is public order. Is it public order? in short, it is understood as the totality of the rules that the parties are obliged to comply with, arising from public law and private law, and which the parties cannot freely save on.

In Article 54 /c of Law No. 5718 (MÖHUK), if the provision is not clearly contrary to public order, it is considered within the conditions of enforcement. Accordingly, it is necessary to investigate whether the consequences that would occur if a foreign court decision was executed in Turkey would violate Turkish public order, not the law applied to the issuance of a foreign court decision and the criteria by which it is applied.

according to the Decision No. 2012/1 of 10.02.2012 and Decision No. 2010/1 of the Supreme Court of Cassation to Merge the Case Law, the enforcement of a foreign court decision cannot be denied 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.

Exclusive authority rules are rules that express the absolute power and authority that the State has within its own country and borders, demonstrate and symbolize the exercise of the sovereign and sovereign rights of the State.

The important thing here is that not every authority rule related to public order in Turkish Law is an exclusive authority rule. Whether the authorization rule has introduced an exclusive authorization provision can be determined based on the wording of the authorization rule and the purpose for which it was introduced.

In guardianship law, the provisions on authority are 411 and 412 of the Turkish Civil Code. it is regulated in the article. Accordingly, the authority belongs to the guardianship office in the restricted’s settlement and cannot change the restricted place of residence unless the permission of the guardianship authority is obtained.

411 and 412 of the Turkish Civil Code in the application of the Supreme Court. it is accepted that the authority in its articles is final and related to public order. However, not every authority rule regarding decisiveness and public order is the exclusive authority in terms of international law. Although the principles of public order and strict authority have been adopted in guardianship from the point of view of domestic law, the main goal here is to work with those who lack the ability to manage and protect themselves and their assets (TMK. 405.md ) of those who are deprived of the right to manage and protect themselves and their assets (TMK. 406.md .) when it is protected, these provisions have nothing to do with the right of the State to sovereignty and rule.

In our concrete case? he lives in Germany with restrictions, 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 guardian. The reason for the restriction is Article 405 of the Turkish Civil Code. it is in the same direction as the regulation contained in the article.

Limited to national (Turkish), the law is not applied if recognition and enforcement of Article 38 of law regulating these matters as obstacles 2675/e item is included in “…the Turks ref to the people of foreign law which has been authorized in accordance with the rules of Turkish conflict of laws and the enforcement of the implementation of this aspect of the defendant who is a Turkish citizen did not appeal though” the provision in the articles above mentioned Law No. 5718 laid out the conditions for enforcement and arranged in parallel to 54. it is not included in the article.

Considering the concrete event in the face of these general explanations? considering that the Law No. 2675 has been repealed? as of the date of the case, the Law to be applied is not Law No. 2675, but Law No. 5718? 3 and 7 of the La Haye Convention on restriction and similar measures of 1905, in which the practice in this way is also in accordance with the principle adopted by the European Convention on Human Rights that the benefit of people is respected and above all taken into account. according to its articles, as a rule, National Law and National State Courts are authorized, but it is assumed that the authorities of the place where the person to be restricted is located (Germany in our example) can also make a decision to restrict the person in accordance with national law (Turkish Law in our example) or place of residence law (German Law).

On the other hand? Since two separate Supreme Court Decisions of the General Assembly of Jurisprudence, which the Local Court based on and justified the decision to resist, were reviewed in accordance with Law No. 2675, which was repealed long before the date of the case, there is no precedent decision in terms of a concrete event.

3 of Law No. 5718 by some members who remained in the minority during the negotiations., 9., 10. although the local court stated that the decision to resist was in place by considering the articles, this opinion was not adopted by the majority of the Board for the reasons mentioned above.

When it is like this? While it is necessary to comply with the decision of the Local Court to overturn the Special Chamber adopted by the General Assembly of the Law, it is contrary to the procedure and the law to resist the previous decision on the grounds of error.

Therefore, the decision to resist must be overturned.

Conclusion: With the acceptance of the appeals of the plaintiff’s deputy, it was decided that the decision to resist would be OVERTURNED for the reasons shown above and in the decision to overturn the Special Chamber, and if requested, the advance fee for the appeal would be returned to the depositor, by a majority vote on 04.03.2015. (¤¤)

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