Lara Candoğan

Attorney

20.02.2024

Recognition and Implementation of Guardianship Decisions Given Abroad in Turkey

Recognition and enforcement of guardianship decisions made abroad in Turkey takes place within the framework of the International Private and Civil Procedure Law (IPCPL) No. 5718. This process aims to ensure the validity and applicability of guardianship decisions that were given abroad in Turkey while ensuring the compliance of the Turkish legal system with international standards.

Law No. 5718 made it possible to recognize and enforce guardianship decisions made abroad in Turkey. Previously, according to the decisions of the Supreme Court, it was thought that there was no possibility of recognizing the restriction decisions that were given in foreign countries in Turkey. However, with the entry into force of the Law No. 5718, it has been concluded that it is possible to recognize and implement these decisions in Turkey by referring to international conventions.

The validity of the decision regarding the custody taken from the court of a foreign country in Turkey depends on the enforcement of this decision in Turkey. In order for a foreign custody decision to be enforced in Turkey, the conditions in Article 50 and 54 of the International Private and Civil Procedure Law must be fulfilled. Pursuant to Article 50 of the Law, there should be a final decision given by foreign courts regarding civil cases. In accordance with the conditions in Article 54 of the Law, the condition of reciprocity must have been fulfilled, it must have been given to a subject that does not fall under the exclusive jurisdiction of the Turkish courts, or the court that issued the verdict must not have exercised excessive authority, the provision must not be clearly contrary to public order, and the right of defense must have been complied with.

Law No. 5718 only allows the enforcement of decisions taken from foreign courts. For this reason, the enforcement of custody decisions taken by any out-of-court administrative authority in Turkey is not possible in accordance with Article 50 of the IPCPL. However, it is possible to enforce the custody decisions made by the administrative authorities within the scope of the "European Convention on the Enforcement of Decisions and the Reestablishment of Custody of Children", also referred to as the Luxembourg Convention, to which Turkey is a party. Within the scope of the Convention, custody decisions taken by the administrative authorities from the states parties to which this Convention is applied can be enforced in Turkey.

As we mentioned above, in accordance with Article 50 of the Law No. 5718, the court decision to be subject to enforcement must be finalized according to the laws of the country where the decision was given. The final judgment effect of the foreign court decision shall take effect from the moment the foreign court decision is finalized (Article 59 of IPCPL). Since the procedural rules of the country where the final judgment was taken will be the deciding force. The party requesting the recognition and enforcement of this decision shall provide the document showing that the foreign judgment in question has been finalized in accordance with Article 53 1/b of the IPCPL.

As a result of the decisions of the Foreign Courts, the following documents must be kept available for validity in Turkey:


●      The original of the decision taken by the foreign court,
●      Finalization Statement
●      Apostille
●      Translation of all documents by a notary certified translator

If you send all of these documents to the attorneys you have given proxy, an enforcement lawsuit can be filed without the need to come to Turkey.

According to Article 51 of the International Private and Civil Procedure Law, the court in charge of recognition and enforcement cases is the Court of First Instance. Depending on the subject of the court decision given abroad, it will need to be filed in specially authorized Courts of First Instance (Family Court, Commercial Court, etc.). In the event of the existence of decisions such as divorce decision, custody decision, alimony decision, property sharing decision issued by the courts abroad, the recognition and enforcement lawsuit should be filed in the Family Court, which is the specially authorized Court of First Instance.

The case must be filed in the limited person's residence in Turkey, and can also be filed in one of the courts in major cities such as Istanbul, Ankara and İzmir. For overseas restriction decisions that are considered as non-hostile, recognition cases will be opened in Turkey as uncontested.

With the recognition of guardianship decisions in Turkey, a file is opened for the follow-up of the guardianship at the competent civil court of peace with the notification of the court that made the recognition decision or someone authorized. It is ensured that the guardianship is followed up and the necessary procedures are carried out through this file.

The guardian appointed under Turkish law may manage the assets of the person under guardianship. A guardian appointed abroad is also recognized in Turkey and can manage assets located in Turkey. However, the guardian must obtain the permission of the guardianship authority when performing certain transactions. These transactions include the purchase and sale of immovable properties, lease agreements, and debt payments. This issue will be explained later in the article. 

However, we should also mention the following; In Turkish Law, custody can only be given to the mother or father in accordance with the Turkish Civil Code art.336/2. In other circumstances, in cases where custody cannot be given to both parents, guardianship will be taken into account. Everyone other than the mother or father can only be appointed as a guardian for the child. As a result, a child in Turkey cannot be given to anyone other than their mother or father with custody.

In other legal systems, and especially in German Law, there are different considerations from the aforementioned practice. Especially in Germany, where Turkish citizens mostly live, custody can be given to the parents after the divorce. In addition, in the event that custody cannot be given to the mother or father, custody may be given to one or someone of his/her blood relatives. In such cases, problems are encountered when the enforcement and recognition of custody decisions issued by foreign courts in Turkey is requested.

The recognition or enforcement decision can only be given if the foreign court decision is in accordance with our country's laws and public order. In Turkish Law, since custody can only be given to the mother or father, the enforcement of joint custody or close custody will not be valid for Turkey. This is clearly stated in Supreme Court decisions. In cases where recognition or enforcement cannot be made in this way, this problem can only be solved by opening a new custody or guardianship case.

As a result, the process of recognition and enforcement of guardianship decisions given abroad in Turkey takes place within the framework of the rules determined by international law and Turkish law. In this process, it is important to follow the determined procedures meticulously and to provide the necessary documents. In this way, the validity and applicability of the guardianship decisions made abroad will be ensured in Turkey.

 

THE GUARDIAN AND THEIR DUTIES

            A Guardian usually refers to an official who -where a person is not legally competent- can make decisions on another persons behalf, manage and represent their financial affairs. A guardian is usually appointed when a person is unable to run their own affairs due to circumstances such as old age, mental or physical disability.

The duties of a guardian are quite extensive. In this context, their most important task is to protect all interests related to the property and personality of the minor or restricted individual under guardianship and to represent them in legal proceedings. The guardian must carefully manage the property of the person under guardianship. In this context, they need to keep a ledger and hold valuable things. Guardians can carry out some actions themselves, and some with the permission of the relevant authority.


Below are some of the actions that requires the guardian to obtain the permission of the guardianship authority;

–      Purchase and sale of immovable properties, pledge and establishment of another real right on them

–      Purchase, sale, transfer and pledge of movable or other rights and values other than ordinary management and operating needs

–      Lending and borrowing

–      Entering into a foreign exchange commitment

–      Making product lease contracts for one year or longer and immovable property lease contracts for three years or longer

–      If the person under guardianship is engaged in an art or profession,

–      Filing a lawsuit on his behalf, settlement, arbitration and concordatum

–      Declaration of insolvency without debt payment

–      Placement of the person under guardianship in a training, care or health institution

The property of persons under guardianship can be sold by auction by their guardian. However, the guardian cannot decide this situation by themselves. The guardian is obliged to obtain permission from the guardianship authority to sell the said goods. Such property may only be sold by decision of the guardianship authority. The guardianship authority will also decide whether the sale will be sold by auction or bargaining. 


It should be noted that the guardian cannot sell all the goods. In particular, the legislator has stipulated that things that have a special value for the person under guardianship cannot be sold unless there is an obligation. As a rule, this unauthorized transaction is just like the transaction of the person under guardianship without the permission of anyone. In this context, the sale of goods without permission will not, as a rule, create a debt for the person under guardianship. The 3rd person will be bound by this process. The person under guardianship shall return the rights and receivables they have earned.


Just as with movable property, immovable property can only be sold with the permission of the guardianship authority. Additionally, this sale must be made in the interest of the person under guardianship. For example, it should be necessary to sell this immovable property for the education, health expenditure, or the care of the person. The property of the person under guardianship cannot be sold for the personal needs of the guardian. And it must be done by an auction. The guardianship authority appoints one person for this purpose. An auction is held in the presence of the appointed person and the guardian. The result of the bidding shall be approved by the guardianship authority. As a rule, this approval decision is given within ten days starting from the day of the bidding and the sale will be completed.

LAWSUITS ON PERMISSION TO SELL 

We have stated that it is essential for the guardian to obtain permission from the guardianship authority in order to sell the movable and immovable properties in question. The guardian must present the court with evidence of which goods they want to sell for what reason. The Civil Court of Peace will consider this request. The court will consider whether this sale is appropriate and that the sale does not harm the person under guardianship. 


If the court deems the sale appropriate according to the nature of the concrete event, it may allow the sale of the goods in whole or in parts. In case of partial permission, the goods in question are sold in the amount needed, while in case of full sale, all of the goods are disposed.


As a rule, the lawsuit should be filed in the Civil Court of Peace of the residence of the person to be taken under guardianship. Otherwise, the legal process will be prolonged.

 

                                                                                              Atty. LARA CANDOĞAN