WHETHER THE CASE CARRIES AN ELEMENT OF FOREIGNESS– THE NEED TO EXAMINE THE MERITS OF THE WORK IN ACCORDANCE WITH TURKISH LAW

T.C. THE DECISION OF THE SUPREME COURT

 

2.law office
Base: 2015/13927
Decision: 2016/5499
Date of Decision: 21.03.2016

DIVORCE CASE – WHETHER THE CASE CARRIES AN ELEMENT OF ALIENATION – THE NEED TO EXAMINE THE MERITS OF THE WORK IN ACCORDANCE WITH TURKISH LAW – THE NEED TO OVERTURN THE PROVISION

ABSTRACT: The article of the Turkish Citizenship Law (1.) in accordance with paragraph; “..a Turkish citizen by birth is granted permission in their fields and deprived of citizenship of the minor children out of the registered document without prejudice to the provisions of the national security and Public Order of the Republic of Turkey, shall be obligated to perform military service vote and be elected to public office and household goods vehicles entering and legal questions related to import the rights relating to social security, without prejudice to the acquired rights of Turkish citizens will continue to take advantage provided the same rights..” it has been decided. In this case, since the parties are Turkish citizens by birth, it is clear that they will enjoy the rights granted to Turkish citizens in accordance with the aforementioned amendment and will not have the status of “foreigner” in the divorce case. In this case, since the case does not carry an ‘element of alienation”, the application of the article of the Law on Private International Law and Procedural Law to this case is not possible. Therefore, it is not necessary to investigate the competent law to be applied. In that case, while the merits of the work should be examined according to Turkish Law, it is against the procedure and the law to make a decision without observing this aspect.

(403 Pp. K. m. 20) (5901 p. K. m. 28) (5718 P. K. m. 14)

Case: At the end of the trial between the parties, the decision given by the local court, the date and number shown above, was appealed by the plaintiff woman, the documents were read and discussed as dec:

The court; In the divorce case filed by the plaintiff woman, it was decided that the parties should divorce by applying Austrian law on the grounds that both of them had renounced their Turkish citizenship and were residing in Austria. 20 Of Law No. 403, when the parties to the evidence collected are Turkish citizens. according to the article “with permission to exit”, it is understood that they have lost their Turkish citizenship since 2003 and are Austrian citizens.

article 28 of the Turkish Citizenship Law No. 5901 (1.) in accordance with paragraph; “..a Turkish citizen by birth is granted permission in their fields and deprived of citizenship of the minor children out of the registered document without prejudice to the provisions of the national security and Public Order of the Republic of Turkey, shall be obligated to perform military service vote and be elected to public office and household goods vehicles entering and legal questions related to import the rights relating to social security, without prejudice to the acquired rights of Turkish citizens will continue to take advantage provided the same rights..” it has been decided. In this case, since the parties are Turkish citizens by birth, it is clear that they will enjoy the rights granted to Turkish citizens in accordance with the aforementioned amendment and will not have the status of “foreigner” in the divorce case. In this case, Article 14/1 of the Law No. 5718 on Private International Law and Procedural Law cannot be applied to this case, since the case does not carry an ‘element of alienation”. Therefore, it is not necessary to investigate the competent law to be applied. In that case, while the merits of the work should be examined according to Turkish Law, it is against the procedure and the law to make a decision in writing without observing this aspect.

Conclusion: It was unanimously decided that the appealed decision should be OVERTURNED for the reason shown above, that there is no place for examining other appeals for the time being, according to the reason for the violation, that the advance fee for the appeal should be returned to the depositor on request, within 15 days from the notification of this decision, the way to correct the decision is open. 21.03.2016