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Foreıgners’ Oblıgatıon Of Provıdıng A Guarantee (cautıo Judıcatum Solvı) To Fıle A Lawsuıt, Inıtıate An Executıon Proceedıng Or Intervene In A Lawsuıt In Turkey

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Under Turkish Law, there is an obligation of providing a guarantee when a foreigner files a lawsuit, initiates an execution proceeding or intervenes in a lawsuit. Since it is hard to reach a person who does not reside in Turkey or have a connection with Turkey, this obligation aims to protect the defendant to receive its rights from the plaintiff in case the defendant wins the lawsuit.

Obligation of providing a guarantee is defined in both Turkish Civil Procedure Code numbered 6100 and Turkish International Private and Procedural Law numbered 5718. According to Article 84 para 1 of Turkish Civil Procedure Code, “ guarantee in an adequate amount should be provided to prevent any possible loss of the defendant, in case; (a) a Turkish citizen who is not residing in Turkey initiates a lawsuit, intervenes a lawsuit or initiates an execution proceedings, (b) an adjudication in bankruptcy to the plaintiff, arrangement of bankruptcy or debt restructuring on the basis of reconciliation in relation with the plaintiff has been started or the plaintiff has certificate of insolvency or the plaintiff has difficulty in debt repayment proven with documents.” As is seen, this article only applies to real persons who have Turkish citizenship but not residing in Turkey.

On the other hand, Turkish International Private and Procedural Law numbered 5718 defines providing guarantee obligation of real persons who are not Turkish citizens as well as legal persons that have their headquarters outside Turkey. According to Article 48/1 of the Turkish International Private and Procedural Law numbered 5718, “foreign individuals or legal persons who file a lawsuit, intervene in a lawsuit, or initiate execution proceedings before a Turkish court shall be required to provide a security whose amount shall be determined by the court to cover the expenses of the legal procedures and proceedings as well as losses or damages of the other party.” In this context, term of guarantee means an assurance provided by plaintiff to cover possible losses and damages of defendant, litigation expenses and court costs.

Application of article 48/1 of the Turkish International Private and Procedural Law numbered 5718 depends on “element of foreignness”. Element of foreignness comprehends stateless persons and refugees as well as real persons who are not Turkish citizen as well as legal persons that have their headquarters outside Turkey.

Since providing a guarantee is a procedural requirement under Turkish Law, in case a plaintiff meets the requirements stipulated in the above-mentioned article, the court gives a peremptory term to the plaintiff and if the plaintiff does not fulfill its obligation of providing a guarantee within the peremptory term, then the lawsuit shall be dismissed without prejudice.

Nevertheless, there are some exceptions from foreigners’ obligation of providing a guarantee in Turkish Law such as reciprocity and legal assistance program. Reciprocity may be in three forms as contractual, statutory and actional. For contractual reciprocity, international contracts/conventions should be evaluated. Provided that the laws (statutory reciprocity) or de facto applications (actional reciprocity) of the foreigner’s government does not stipulate an obligation of providing a guarantee when a Turkish citizen files a lawsuit, initiate an execution proceedings or intervene in a lawsuit in such foreign country, the foreigner‘s obligation of providing a guarantee shall be also removed.

On the other hand, foreigners may benefit legal assistance programs. If there is reciprocity between country of foreigner and Turkey and the foreigner meets the criteria for legal assistance program, then foreigner’s obligation of providing a guarantee shall be removed.

Consequentially, foreigners are obliged to provide a guarantee while filing a lawsuit, intervening in a lawsuit and initiating execution proceedings in Turkey. Save for the exceptions stipulated in Turkish laws, provided that a foreigner does not fulfill this obligation within the peremptory term given by the court, then the lawsuit shall be dismissed without prejudice.

For more information and questions:

Att. Fulden Melis Şenocak – [email protected]

www.hansu.av.tr | +90 216 464 12 12

-© Hansu Law Office

-Hansu Law Office is a law firm serving domestic and foreign clients especially in the field of real estate, corporations, tax, energy, and intellectual property law. This bulletin has been prepared to share developments in the field of law in Turkey. The bulletin should not be considered as a legal opinion or guidance. The opinion of legal counsel should be sought with respect to specific questions and issues.

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