Foreigners and Guarantee Requirements for Legal Proceedings in Turkey

Foreigners and Guarantee Requirements for Legal Proceedings in Turkey

In Turkish law, the requirement for providing a guarantee has been established in accordance with the Turkish Code of Civil Procedure (HMK) and the International Private and Procedural Law (MÖHUK).

Under Article 84 of the HMK, Turkish citizens without a residence in Turkey are required to provide a guarantee when initiating legal proceedings, intervening in a case, or commencing an execution process. It’s worth noting that the HMK does not impose any such obligation on foreigners.

However, for foreigners seeking to open legal proceedings, intervene in a case, or initiate an execution process in Turkish courts, the MÖHUK, under Article 48, mandates the provision of a guarantee. The amount of this guarantee is not specified in the law. Instead, Article 48 of the MÖHUK grants discretion to the judge to determine the guarantee amount. The judge takes into consideration the litigation and enforcement costs, as well as the potential damages and losses to the opposing party when setting the guarantee amount. Importantly, the guarantee amount should not be set so high as to obstruct access to justice, as this may lead to a ruling of non-compliance by the Court of Cassation.

Consequences of Not Providing the Guarantee

In Turkish law, providing a guarantee is a prerequisite for initiating legal proceedings. Failure to provide the required guarantee will result in the court dismissing the case without further examination.

Exemptions from Providing Guarantee

The primary legal basis for foreigners seeking legal redress in Turkey to provide a guarantee lies in Article 48 of the MÖHUK. However, Article 48/2 of the MÖHUK specifies circumstances under which individuals may be exempt from providing a guarantee. If a foreign individual’s home country maintains a principle of reciprocity with Turkey, they may be exempt from providing a guarantee. Turkey is a party to several international agreements that uphold the principle of reciprocity:

1. The Hague Convention on Civil Procedure (1954): Under Article 17 of this convention, citizens and legal entities of signatory countries are exempt from providing a guarantee. Currently, 48 countries are signatories to this convention.
2. European Convention on Residence (ECR): According to Article 9 of this convention, individuals who are citizens of one contracting party and have their residence in the territory of another contracting party are exempt from the obligation to provide a guarantee.
3. Convention concerning International Carriage by Rail (COTIF): Pursuant to Article 18 of COTIF, no guarantees are required in legal proceedings based on the convention.
4. Convention on the Contract for the International Carriage of Goods by Road (CMR): In cases arising from international carriage, guarantees cannot be demanded under Article 31 of
5. European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children: According to Article 5 of the convention, guarantees shall not be required for measures taken, including court costs and attorney fees, by the state.

In summary, while Turkish citizens without residence in Turkey are required to provide a guarantee under Article 84 of the Turkish Code of Civil Procedure, foreigners seeking legal redress in Turkey are subject to the provisions of the International Private and Procedural Law (MÖHUK), specifically Article 48, which mandates the provision of a guarantee.

However, exemptions exist based on reciprocity agreements with Turkey, such as those outlined in international conventions like The Hague Convention on Civil Procedure, the European Convention on Residence, COTIF, CMR, and the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children. Understanding these requirements and exemptions is crucial for foreigners navigating the legal landscape in Turkey.

For tailored legal guidance and support, reach out to Bayraktar Attorneys, where our experienced team can assist you every step of the way.