Under Turkish Law, it is mandatory for a foreigner to provide security when filing, intervening, or initiating execution proceedings before Turkish courts. The obligation to provide security is regulated under the International Private and Civil Procedure Law numbered 5718, and the Turkish Code of Civil Procedure numbered 6100.
The plaintiff could be living abroad or has weak relations with Turkey. With the provisions regarding the obligation to provide security, the difficulties that the defendant will face while claiming and executing his/her possible loss and damage if he/she wins the case, are taken into consideration. To that end, the obligation aims to ensure the rights of the defendant by requesting the expenses in advance.
Pursuant to Article 48 of the International Private and Civil Procedure 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 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.
The obligation to provide security is regulated under the Turkish Code of Civil Procedure numbered 6100 as well. According to Article 84, security in an adequate amount should be provided to prevent any possible loss of the defendant, in case a Turkish citizen who is not residing in Turkey files a lawsuit, intervenes a lawsuit, or initiates an execution proceeding.
In this regard, the article provided under the law numbered 5718 applies to all foreigners (natural and legal persons) who would file a lawsuit in Turkey, while the article provided under the law numbered 6100 applies to Turkish citizens who have Turkish citizenship but not residing in Turkey. Hence, it can be inferred that the approach about security payment provided under the law numbered 5718 is more comprehensive than the law numbered 6100.
According to Article 48 of the law numbered 5718, the court may exempt the plaintiff, intervener, or applicant for execution from providing security, on a reciprocity basis. The reciprocity principle can be explained as the mutual exchange of privileges between states which may be contractual, statutory, and de facto. If the foreign plaintiff satisfies the reciprocity criterion, the Turkish judge will exempt the plaintiff from providing security.
To conclude, under Turkish law, a foreign plaintiff must provide security for costs and damages unless there is a contractual, de facto, or statutory reciprocity that enables Turkish plaintiffs to file lawsuits without providing security. As per article 144 of the law numbered 6100, the obligation to provide security is a cause of action. Causes of action are conditions that are required for the court to evaluate the merits of the case. Thereby, security must be provided within the definite period specified by the judge. Otherwise, the case would be dismissed without prejudice.
KAYNAKÇA
TÜTÜNCÜBAŞI, Uğur; Milletlerarası Usul Hukukunda Teminat Gösterme Yükümlülüğü, Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, C. 12, Sayı: 2, Yıl: 2010.
ACUN-MEKENGEÇ, Merve; Türk Hukuku’nda Teminat Gösterme Yükümlülüğü, MHB, C.37 Sayı: 2, Yıl: 2017.
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