- Introduction
Foreign natural and legal persons have been subject to an obligation to furnish security if they wish to file a lawsuit or initiate enforcement proceedings in Turkey. This obligation is regulated under Article 48 of the Code on Private International Law and Procedural Law (“PILPL“) as follows:
“Foreign natural and legal persons who file a lawsuit, intervene in a lawsuit or initiate enforcement proceedings before a Turkish court are obliged to provide the security determined by the court to cover the litigation and enforcement costs and the damages and losses of the opposing party.”
The exception to this security obligation for foreigners is also set out in paragraph 2 of Article 48. Accordingly: “The court shall exempt the person filing the lawsuit, intervening in the lawsuit or initiating enforcement proceedings from security on the basis of reciprocity.” Under this provision, foreigners may be exempted from the obligation to provide security on the basis of the “principle of reciprocity”.
To briefly explain the terms “foreigner“, “security” and “principle of reciprocity” appearing in the relevant articles:
Foreigner | In doctrine, many authors use the following definition for foreigner, which was adopted by the Institute of International Law at its Geneva meeting in 1892: “A foreigner is a person who is in the territory of a state but does not have the right to claim citizenship of that state.” In short, the term foreigner is used for a person who does not possess the citizenship of the country in which they are located.[1]
Security | The reason for imposing the requirement for foreigners to provide security in lawsuits filed and enforcement proceedings initiated by foreigners pursuant to the PILPL is the necessity of obtaining a guarantee to cover damages that may arise for the defendant or the party against whom enforcement proceedings have been initiated in the event that the defendant or such party is found to be in the right at the conclusion of the proceedings.
Principle of Reciprocity | The principle of reciprocity may be ensured by a treaty signed between two states or by a multilateral international treaty to which these two states are parties. Furthermore, legal or de facto reciprocity[2] may also be in question.
- Persons Obliged to Provide Security
In our legislation, the security obligation is regulated not only in PILPL but also in the Code of Civil Procedure No. 6100 (“CCP“). The security obligation envisaged under the CCP is not limited to foreigners. Under the CCP, an obligation to provide security has also been introduced for Turkish citizens who do not have a habitual residence in Turkey and for claimants who are found to be in financial difficulty. For this reason, the security obligation under the CCP has not been addressed in our article; only the security obligation imposed on foreigners pursuant to PILPL has been examined.
Under PILPL, it is regulated that in cases where the principle of reciprocity is not ensured, it is mandatory for a foreign natural person or legal person to provide security when filing a lawsuit or initiating enforcement proceedings. At this point, it should be emphasised that there is no requirement that the party against whom a lawsuit is filed, or enforcement proceedings are initiated be a Turkish citizen. Therefore, it is sufficient for the party filing the lawsuit or initiating proceedings to be a foreigner for the obligation to furnish security to arise.
- Exemption of Foreigners from Security
As briefly stated above, the security obligation envisaged under PILPL may be eliminated by the principle of reciprocity. The reciprocity referred to here is based on bilateral or multilateral international treaties to which the Republic of Turkey is a party. Under such treaties, states may exempt each other’s nationals from security obligations. One of the most important international treaties providing for exemption from security is the 1954 Hague Convention on Civil Procedure.
Article 17 of the 1954 Hague Convention on Civil Procedure provides as follows:
“No security or deposit, however described, shall be required, by reason of their foreign nationality, or of lack of domicile or residence in the country, from nationals of one of the Contracting States, having their domicile or residence in one of these States, who are claimants or parties intervening before the courts of another of those States”
The use of only the term “nationals” in the text of the article has caused debate as to whether the provision in question can be applied to legal persons. Although there are authors in doctrine who argue that the term “nationals” also covers legal persons, there are older decisions of the 12th Civil Chamber of the Court of Cassation to the contrary.[3] However, in more recent decisions of the 12th Civil Chamber of the Court of Cassation, it has been accepted that the article also covers legal persons, stating that there is no distinction between natural and legal persons in the application of Article 17 of the convention.[4]
- Waiver of Providing Security
If a foreign person filing a lawsuit or initiating enforcement proceedings cannot be exempted from security within the framework of the principle of reciprocity, can the defendant or the party against whom enforcement proceedings have been initiated waive security? In order to answer this question, it is necessary to evaluate whom the security is intended to protect.
The obligation of foreigners to furnish security is a regulation introduced not only to protect the defendant or the person against whom enforcement proceedings have been initiated, but also to constitute a guarantee for expenses to be incurred by the court or enforcement office. For this reason, in the settled case law of the Court of Cassation, the obligation of a foreigner to furnish security has been evaluated as a matter to be considered ex officio by the court, and it has been stated that waiver of security is not possible.
For example, in the decision of the 11th Civil Chamber of the Court of Cassation dated 18.04.2006 and numbered E. 2005/4947 K. 2006/4639, this matter was expressed as follows: “Because security based on foreign nationality aims to cover not only the damages that may be suffered by the defendant, but also the expenses that may be incurred by the court.”
- Conclusion
Foreigners wishing to file a lawsuit or initiate enforcement proceedings in Turkey are obliged to provide security pursuant to Article 48 of the PILPL. The obligation to provide security will continue even if the opposing party waives security, as it does not concern only the opposing party and also constitutes a guarantee in respect of expenses to be incurred by the judicial authorities. For this reason, the principle of reciprocity, which is the only exception to the obligation to provide security, must be separately considered in each case.
Kind regards,
[1] Ergül, Ergin, The Concept and Types of Foreigners in International Law and Turkish Legislation, Turkish Administration Journal, Issue: 475, December 2012, pp. 214-215.
[2] Court of Cassation 12th C.D.: E. 2024/5977, K. 2024/10414, T. 10.12.2024.
[3] Court of Cassation 12th C.D.: E. 2013/17436, K. 2013/24686, T. 02.07.2013; E. 2015/26555, K. 2016/3489, T. 11.02.2016.
[4] Court of Cassation 12th C.D.: E. 2017/8463, K. 2017/15601, T. 14.12.2017; E. 2020/1432, K. 2020/9126, T. 02.11.2020.
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