Is Providing A Security Payment A Liability For Foreigners Who File A Lawsuit In Turkey? 9 September 2016
I. What is Security Payment?
Security payment is a financial assurance which is provided by plaintiff in order to cover potential losses of the defendant which may occur at the end of jurisdiction. Security payment is regulated in both Civil Procedure Code numbered 6100 and Turkish International Private and Procedural Law numbered 5718.
II. Who is Liable for Providing a Security Payment?
Pursuant to Article 84 of the Code no. 6100, Turkish citizens who do not have habitual residence in Turkey is obliged to provide security payment while filing a lawsuit, intervening in a lawsuit or initiating execution proceedings. In addition to this, plaintiff whose difficulty in repayment has been proven with documents is also obliged to provide security payment.
It can be stated that the regulation about security payment provided under the Code no. 5718 is more comprehensive than the provision provided under the Code no.6100. According to Article 48 of the Code no. 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 payment. As is seen from abovementioned articles, while security payment in Code no. 6100 is only applicable for Turkish citizens under certain circumstances, related provision of Code no. 5718 is applied to all foreigners who file a case in Turkey.
III. Reciprocity Principle
Although providing a security payment is an obligation for foreign individuals or legal persons who file a lawsuit, intervene in a lawsuit or initiate execution proceedings before a Turkish court, the Article 48 Paragraph 2 of the Code no. 5718 states that;
“The court may exempt the plaintiff, intervener, or applicant for execution from providing a security, on a reciprocity basis.”
Under Turkish law, Reciprocity principle may be provided by conventions, laws or actions. According to abovementioned Paragraph, liability of providing a security payment is subjected to reciprocity principle and the court shall not ask foreign plaintiff to provide a security payment if this condition occurs[1]. Power of discretion about exemption from providing a security, which was ensured by the abolished Turkish International Private and Procedural Law numbered 2675, is not provided to the courts in abovementioned Paragraph.
IV. Is It Possible to Renounce From Providing a Security Payment?
While the liability of providing a security payment is regulated as preliminary objection in the Code no. 6100, the court must consider the liability of providing a security payment ex officio in case the plaintiff is foreigner.
According to the decision of 11th Civil Chamber of Supreme Court numbered E.2005/4947 K. 2006/4639 and dated 18.04.2006, security payment which shall be provided by foreigners does not only aim to cover the potential damages of the defendant but also to compensate the potential damages which the court may bear.
Additionally, according to the some other decisions of Supreme Court, the liability of the foreigners about providing security payment is related with public order. Pursuant to the decision of 11th Civil Chamber of Supreme Court numbered E. 1988/2749 K. 1988/5770 and dated 11.10.1988, liability of providing a security payment that must be paid by foreign plaintiffs also covers the amount of litigation expenses and other legal fees, therefore, it is related with public order.
In the framework of the explanation above; even if the renouncement from submitting security payment is provided by a contract or declared by the defendant during the litigation process, such renouncement shall not be considered as valid by the court. Pursuant to the case-law of Supreme Court, in case of not having the reciprocity principle, the court shall not investigate the merits of the case as long as the security payment is provided. If the court considers such renouncement as valid and gives a decision about the case, Supreme Court shall reverse the decision of first instance court.
[1] Yrd. Doç. Dr. Ahmet Cemal Ruhi, 27.11.2007 Tarihli ve 5718 Sayılı Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun Gerekçeli-Açıklamalı-İçtihatlı, Seçkin Yayınları, Ankara 2009, p. 356
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