T.C. SUPREME COURT
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Base on: 2011/13681
Decision: 2012/6879
Date of Decision: 22.03.2012

REQUEST TO ISSUE A GUARDIANSHIP DECISION WITH RESTRICTION – DETERMINATION OF THE NATIONAL LAW OF THE ONE WHO WANTS TO BE RESTRICTED BY USING THE PLAINTIFF’S ASSISTANCE – THE NEED TO INVESTIGATE WHETHER IT IS POSSIBLE TO APPOINT A GUARDIAN

Summary: reasons for granting the National Law of the requested restriction, constraint, custody, subject to the decision primarily held for court; plaintiff’s help by making use of the National Law of the requested restriction is discovered and the person himself and to investigate whether it is possible to appoint a guardian for the restriction of strangers, that is the subject of national law, in cases where a restriction is not possible, according to Turkish law, the restriction must be decided in accordance with the result of conditions investigated.

(5718 P. K. m. 2, 10)

Case: At the end of the trial, the verdict given by the local court was appealed, the documents were read and discussed as necessary and considered.

Decision: H., who is a citizen of Azerbaijan and is located in Turkey with a residence permit, was charged with the case.H., who was requested to be restrained due to his disability, was asked to be restrained by the court <.it has been decided to reject the request on the grounds that the application cannot be restricted in accordance with the Turkish Civil Code due to the fact that the applicant is not a citizen of the Republic of Turkey.

article 10 of the Law No. 5718 on Private International Law and Procedural Law. in the article, it is stipulated that the person who wants to be restricted is subject to the national law, if it is not possible to make a decision on guardianship or restriction in accordance with the national law of a foreigner, the person’s habitual residence may be decided in accordance with Turkish Law if the person is in Turkey, and Turkish Law will also apply if the person is necessarily in Turkey. There is no provision in Turkish Law preventing the Turkish court authorized to issue a restraining order from making a decision on the appointment of a guardian with a restriction subject to foreign law on foreign persons.

Since the reasons for granting a guardianship decision with restriction are primarily subject to the national law of the one who wants to be restricted, the court also uses the plaintiff’s assistance (5718 p.K. m. 2) The National Law of the requested restriction is discovered and the person himself and to investigate whether it is possible to appoint a guardian for the restriction of strangers, that is the subject of national law, in cases where a restriction is not possible, according to Turkish law, the restriction should be decided in accordance with the conditions investigated, the result of a review is missing when it is against the law for the establishment of procedures and terms in writing.

Conclusion: It was decided unanimously on 22.03.2012 that the appealed decision should be overturned for the reason shown. (¤¤)

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