NEWS & INSIGHTS

The Obligation Of Depositing Guarantee for Foreigners And Turkish Citizens Who Has Not Any Habitual Residence In Turkey (Cautio Judicatum Solvi)

According to the International Private and Procedure Law No.5718, foreign real and legal persons must deposit a guarantee that the court will determine, in the case they file a lawsuit. In addition, according to the Code of Civil Procedure Law no.6100 Turkish citizen who has not any habitual residence in Turkey must also deposit a guarantee if they want to file a lawsuit.
International Private and Procedure Law Article 48 regulates the guarantee for the lawsuits that are filed by foreigners;

(1) Foreign real and legal persons who files a lawsuit or participates to an ongoing case or commence an execution procedure in the Turkish courts must deposit a guarantee that the court will determine.
(2) The court exempts the claimant or the participator or the person who commence an execution procedure on the basis of reciprocity principle.

The Code of Civil Procedure art.84 regulates the guarantee for the lawsuits that are filed by a Turkish citizen who has not any habitual residence in Turkey. Accordingly, a Turkish citizen who has not any habitual residence in Turkey files a lawsuit or participates an ongoing lawsuit or commences an execution procedure a guarantee which can compensate the probable trial costs must be deposited.

Turkish Citizenship Law defines the term of "Foreigner" for real persons. According to this definition, A Foreigner refers to “the person who does not have a citizenship bond with the Republic of Turkey”. By this definition, citizens of foreign states who are not Turkish citizen and stateless persons or refugees are obliged to deposit guarantees when they are file a lawsuit in Turkey.

According to the International Private and Procedure Law Article 9, be a foreigner or not for legal persons is determined according to the administrative center which is stated in the statute of that legal person. Accordingly, a legal person is considered “Foreigner” if the administrative center of legal person is in a foreign state.

The Code of Civil Procedure art.87 states that the amount of the guarantee is freely determined by the court or executive office, according to the conditions and circumstances of the case.

International Private and Procedure Law Article 48(2) indicates that in the case of reciprocity foreign real and legal persons who files a lawsuit, participates to an ongoing case or commences an enforcement proceedings in Turkish courts should be exempted from deposit. The Reciprocity can be contractual, legal or factual.

Turkey is a party to various international agreements that determines exemption from guarantee;

Under The La Haye Agreement on the Law of Procedure article 17, no guarantee or deposit shall be required from any person who has a residence in one of the Contracting States and file a lawsuit in a court of the other Contracting State,

The European residence agreement article 9 states that no guarantees or deposits shall be requested by the Contracting States from a person who is a citizen of another Contracting States,

According to the Convention on the Contract for the International Carriage of Goods by Road (CMR) article 31(5), guarantees or deposits shall not be requested from the plaintiffs because of the cases based on the agreement,

Convention on the Alimony Collecting in Foreign Countries art.no.9 ,

Convention on the Recognition and Enforcement of Decisions on Child Support art.no.9 Agreement on Recognition and Enforcement of Decisions on the Claims of Alimony art.no.15-16,

Convention on the Legal Aspects of International Child Abductions art.no.22,

For more information, you may contact us at info@guzeloglu.legal
Author: Abdülkadir Güzeloğlu & Tarık Kurban
Relevant Fields: International Family Law, International Trade, Litigation, Citizenship and Foreigners Law,
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