Under Article 48 of Turkey's International Private and Procedural Law (MÖHUK), foreign nationals starting a lawsuit or enforcement proceeding in Turkish courts must provide a guarantee, its amount set at the judge's discretion based on litigation costs and potential damages: failing to post it means dismissal without examination. Foreign nationals may be exempt if their home country has a reciprocity arrangement, including under the 1954 Hague Convention on Civil Procedure. The amount cannot be set so high it blocks access to justice.
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.
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. Where the proceedings concern recovering money, this requirement interacts with the broader debt collection and legal enforcement procedure in Turkey.
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:
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. It can also help to know related procedural concepts, such as a decision of non-jurisdiction (Görevsizlik Kararı) and how evidence such as WhatsApp messages is treated in Turkish courts.
For tailored legal guidance and support, reach out to Bayraktar Attorneys, where our experienced team can assist you every step of the way.
Article 17 of the Convention states:
"When a national of one of the Contracting States, residing in the territory of another Contracting State, acts as a plaintiff or intervenor before the latter's courts, whether due to foreign nationality or lack of domicile or habitual residence in that State, no security for costs or expenses, regardless of nomenclature, shall be demanded.
The same principle applies to any amount claimed from said plaintiff or intervenor to cover court expenses. Conventions between Contracting States, exempting their nationals from security requirements or contributions towards court expenses in the State of residence, shall remain effective."
Article 9 of the Convention states:
"Where a national of one of the Contracting Parties acts as plaintiff or intervenor before the courts of another Contracting Party and is sued for costs due to foreign nationality or absence of domicile or habitual residence in the territory of that Party, he/she shall not be required, under any circumstances, to provide security for costs.
This provision also applies to payments demanded from such plaintiff or intervenor to ensure expense coverage. Decisions wherein security, deposit, or payment is waived, pursuant to this Article or the host State's law where the proceedings are underway, regarding costs and other expenses charged against the plaintiff or intervenor, may be executed in the territory of another Contracting Party upon application through diplomatic channels by the competent authority in the rendering State, without any fees."
You can access the texts of bilateral agreements from this link: Bilateral Agreements Texts
In conclusion, understanding the intricacies of the obligation to provide security due to foreignness is paramount for efficient legal representation and compliance with international agreements. Where reciprocity does not apply, foreigners should be prepared for these guarantee requirements when planning litigation.
At Bayraktar Attorneys, we remain committed to navigating the complexities of international law to best serve our clients' needs. Contact us today for expert legal counsel tailored to your specific requirements.
