Tag Archives: Turkish Law

Compensation of Damages for Foreign Victims due to Terror under Turkish Law

Within the scope of the Law No. 5233 on the Compensation of Damages Resulting from Terrorism and the Fight against Terrorism, the damages of our citizens who are victims of terrorism are compensated. Under Law No. 6353 and Law No. 6495, employment rights in the public services and salaries are provided for our citizens (including foreigners) who are victims of terrorism. Procedures for the allocation of salaries and the compensation of damages are conducted by the Governors’ Offices and by the Organization of Social Security. Procedures for employment are conducted by the Ministry of Family and Social Policies and by the State Personnel Administration.

Training was provided by the Department of Veterans and Relatives of Martyrs for the personnel assigned at the Provincial Directorates of the Ministry of Family and Social Policies for the relatives of martyrs, veterans and citizens who are victims of terrorism on 24-28 February 2014.

It must be boren in mind that there are exceptions regarding the scope of the law.

This law does not apply to:
a) The damages compensated by the state by way of awarding land or houses or in any other
way.
b) The damages compensated due to a court decision or in accordance with Articles 30-31 of
the Code no 4353, Concerning The Service of Finance Proxy Head Law Counselor and Cases
l Public Directorate, Prosecution of GovernmentTrials Procedures and Changes on Central and Town Staff,
c) The damages compensated in accordance with the final judgment of the ECHR taken in line with Article 41 of the Convention for the Protection of Human Rights and Fundamental Freedoms for violation of the articles of the convention or its additional protocols or the damages paid in accordance with the provisions of the Convention by way of friendly settlement.
d) The damages which occurred due to reasons other than terrorism, such as economic and social reasons, and the damages which occurred due to displacement of persons on their own
will.
e) The damages occurred due to deliberate acts of the persons themselves.
f) The damages suffered by persons on account of their act of aiding and abetting in terror incidents or due to crimes falling under Articles 1, 3 and 4 of the Anti Terror Law provided
that they have been convicted of such crimes
Under article 7, damages which must be compensate is stated as below:

 The damages to be compensated by this Law through peaceful settlement are as follows:

a) All damages given to the animals, trees, – products and other movable and immovable properties.
b) Damages resulting from injury, physical disability and death and the expenses made for medical treatment and funerals.
c) Material damages due to the reason that people could not reach their assets because of the activities carried out under the fight against terrorism.

Gökhan Cindemir , Attorney At Law

After he completed his high school degree in Turkey, he went to Belgium with AFSintercultural exchange program and completed his high school degree in Belgium. Upon his return to Turkey, he obtained his law licence degree from Marmara University of Law Faculty of Istanbul, Turkey. During his university education, he had participated in Philip C.Jessup International Law Moot Court Competition on behalf of Marmara University, Istanbul. He became member of Istanbul Bar Association, then after he had been granted to a master’s degree, LL.M by Gent University of Belgium in the field of European and Comparative law. He completed his one year millitary duty at Legal Affairs Department of Central Command Headquartes in Ankara with Lieutenant Rank. He is specialized in all matters concerning International Private Law, European Law, Family Law, Employement Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister.

gokhan@cindemir.av.tr

mobile 00905325680647

Enforcement and Recognition of Foreign Arbitral Awards in Turkey

This article is aimed at explaining current provision and practice of enforcement and Recognition of Foreign Arbitral Awards in Turkey. New York Convention and Turkish Private Law and Procedure Act (Called MÖHUK in Turkey, International Private Law and Procedure Act) related to enforcement of foreign arbitral awards are the main provisions governing terms of subject concerned. It is also noteworthy to mention that according to Turkish Constitution, international treaties have direct effect in Turkish Law based on article 90. Article concerned states that:

“International agreements duly put into effect have the force of law. No appeal to the Constitutional Court shall be made with regard to these agreements, on the grounds that they are unconstitutional. (Sentence added on May 7, 2004; Act No. 5170) In the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”

As can be understood from the provision above, in case of a contradiction between provisions of national legislation and international treaty, provisions of international agreements shall prevail. In consideration of enforcement of foreign arbitration awards under Turkish Law, provisions of New York Convention have priority in relation to implementation of foreign awards rather than Turkish National Legislation. Thus, if New York Convention’s provisions contradict with Turkish Legislation, New York Convention shall be taken into account as a law which has priority effect. Previously, prior to New York Convention’s entry into force Turkish International Private Law had played so much important role for foreign awards. (The New York Convention came into force in Turkey on 30th September 1992)

Therefore, enforcement of foreign arbitral awards will be governed by New York Convention as a priority rather than Turkish International Private Law. And in that regard, Article 3 of the New York Convention provides that “each contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles.”

Determination of Competent Court and Jurisdiction of the court for Law Suits in the field of enforcement of foreign arbitral awards

Enforcement of Foreign Arbitral Awards

Article 60- (1) Final and executable or binding upon the parties foreign arbitral awards may be subject to enforcement.

(2) The enforcement of a foreign arbitral award shall be requested by a petition from the Court of First Instance mutually designated by the parties in writing. In the absence of such agreement, the competent court shall be the court at the domicile of the person in Turkey against whom the award is rendered, or in the absence of domicile, the person’s place of habitual residence, and in the absence thereof, the court at the location of the property that may be subject to execution.

According to article 60/2 International Private Law of Turkey, component court is Asliye Hukuk Mahkemesi (First Instance Court). Additionally, the court must consider this fact as ex officio under Article 1 of Turkish Civil Procedure Law. In case, lawsuit is filed in the court which does not fall into context of this provision, then the court must reject the lawsuit based on the provision concerned.

The court is only obliged to detect the criteria’s of arbitral award’s enforcement. Accordingly, the subject of these types of lawsuits cannot be regarded as “commercial cases” in doctrine. Unless the case is not totally dealing with copyright and maritime law.

As can be seen from the article 60/2, jurisdiction of the court will be determined based on the presence of an agreement related to the jurisdiction of the court. And “In the absence of such agreement, the competent court shall be the court at the domicile of the person in Turkey against whom the award is rendered, or in the absence of domicile, the person’s place of habitual residence, and in the absence thereof, the court at the location of the property that may be subject to execution.

Court Fees Under the Terms of Enforcement of Foreign Arbitral Awards in Turkey

The court charges comprise four type of levies4: application charge, charge for sittings(charged from the party caused the adjournment of the sittings)  , charge for decision and also for copies of decision and appeal charges . The charges for judgment and writ can be assessed either in fixed terms-as lump sum for non-monetary disputes , or based on certain rates calculated over the nominal value of the dispute.

In arbitral award enforcement cases, court fee will be %0.68,32 of disputed amount. In other words, claim for 1000 Turkish Lira will be subjected to 6,83 lira will be the court fee of the case. It is also important to note that, there will be also extra court fees which will be requested from the court as mentioned above such as application charge, postal and expert (if it is requested) expenses.

Cautio Judicatum Solvi- Security Payment

Article 48 of Turkish International Private Law Act;

(1) 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 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.

(2) The court may exempt the plaintiff, intervener, or applicant for execution from providing a security, on a reciprocity basis

As can be understood from the provision mentioned above, foreigners who are seeking to enforce arbitral awards in favor of them are subjected to remit security payment to Turkish Court in case of lack of reciprocity.

 In case that judicial assistance agreement or relevant convention’s ratifications lacks between Turkey and third countries, there is a security deposit obligation (Cautio Judicatum Solvi) for foreign legal entities or real persons who intends to initiate a lawsuit or enforcement procedure in Turkey. (Article 97 of the Turkish Code of Civil Procedure and Article 48 of the Code of Private International Law and International Civil Procedure). There is no certain provision laying down the percentage of amount related to deposit, however in practice courts determines %15 of disputed amount as a security deposit.
A Judicial Assistance Agreement Exists between Turkey and the Countries Mentioned Below
Germany, N. Cyprus, Albania, Kuwait, Austria, Lithuania, Azerbaijan, Hungary Bulgaria, Macedonia, Czech Republic, Algeria ,Moldova, China, Mongolia, Morocco, Uzbekistan, Georgia, Poland, India, Romania, Croatia, Tajikistan, Iraq, Tunisia, Jordan, Yugoslavia, United Kingdom, Ukraine, Switzerland, Italy,Kazakhstan.
There are also countries exempt from security deposit due to reciprocity principle in Turkish Private State Law Act. These countries do not apply any security deposit to Turkish citizens and legal entities in case of debt recovery proceeding, accordingly Turkey does not seek any security deposit obligation for mentioned below countries: Russia, Egypt, Chile, Finland, Peru, Libya, Syria.

Also it needed to be born in mind that member states of De Hague Convention on Civil Procedure is also entitled to reciprocity.

Remittance of Security deposit can be provided with several ways such as remittance of the amount to Turkish central bank account in foreign currency, guarantee letter from a bank, pledge on a real state, guarantee letter approved by a Turkish notary and bill of exchange. In the end of case or enforcement procedure, security deposit must be refund to creditor by the court. Real reason behind security deposit is to protect Turkish debtor for possible damages by foreign entities during procedure.

The Law Applying to the Procedure of Arbitral Award Enforcement Cases in Turkey

“Petition and Review Procedure

Article 61-

(1) A party requesting enforcement of a foreign award shall attach the copies of the following documents depending on the number of the other parties:

  1. a) The original or duly certified copy of the arbitration agreement or arbitration clause,
  2. b) The original or duly certified copy of the final and executable or binding upon the parties arbitral award,
  3. c) Translations and duly certified copies of the documents listed in (a) and (b), above.

(2) The court shall apply Articles 55, 56 and 57 of this Chapter by analogy with regard to the recognition of arbitral awards. “

As it is indicated in first paragraph of a, b, c section of article 61, and relevant documents must be submitted to the court along with the lawsuit petition. In the enforcement procedure, preparation of the case sources requires written documents. It is noteworthy to mention that the court is also obliged to review oral proceedings. Therefore, judicial case procedure consists of written proceedings (submission of petitions, response petitions) and oral proceedings (hearings, interrogation)

Lawsuit petition is required for filing a case at Turkish Courts. The petition must contain following information to be approved by the court for the continuation of the case.

  1. A) Name of the Court
  2. B) First and Surnames of Applicants/ and Defendants and addresses
  3. C) ID number of Applicant (If applicant is a Turkish citizen)
  4. D) The name and address of the attorney at law
  5. E) Disputed amount and subject of the case
  6. F) Summary of cases with numbered paragraph
  7. G) Evidences and other proof methods
  8. H) Legal Reasons

İ) Demand from the court

  1. J) Signature of applicant

It is important to bear in mind that the interest stemming from debt must be explicitly mentioned in the lawsuit petition.

Under Article 325 of the Turkish Code of Civil Procedure, all documents submitted to the court have to be translated. According to the Turkish of Civil Procedure the translation has to be made by a sworn translator and certified by a public notary. Turkish Consulate abroad are also authorized to certify translations. [1]

  1. Submission of Lawsuit Petition

Two original copy of lawsuit petition must be submitted to the court. One of the copy must be preserved in the case file and the other must be submitted to the defendant.

The applicant must remit the court fee and postal cost along with the lawsuit petition.

The case can be filed anytime, even during judicial vacation it is possible to take a lawsuit action.

  1. The law which applies to the procedure

“The court shall apply Articles 55, 56 and 57 of this Chapter by analogy with regard to the recognition of arbitral awards. “.

In second paragraph of the article, procedure that the court must follow is stipulated. It is important to note that Articles 55, 56 and 57 of Turkish Civil Procedure Code does not exist anymore due to new code which is entered into force in 2011. According to New Turkish Civil Procedure Code numbered 6100, relevant provisions are stipulated under the articles between 316 – 322.

Under these provisions, procedure which applies to foreign arbitral award enforcement is determined as “simple proceeding”.  Simple court proceeding method in litigation is limited only with two petition exchange period among the applicant and the respondent instead of 4. It is noteworthy to stress the Constitution Court’s Decision on this matter. Bakırköy 13. İş Mahkemesi (13th Tribunal of Labor First Instance Court) decided not to consider the 3rd and 4th replies of the parties due to the feature of simple court proceeding method. Upon the decision of first instance court, applicant applied to Turkish Constitution Court based on violation of right of his fair trial due to disregard of replication. Constitution Court’s Decision numbered 2011/125 Esas , Karar 2012/46 date on 22.3.2012 gave a judgment by refusing the applicant claim. Accordingly, the court decided that “simple proceeding” method which applies to the cases cannot be regarded as violation of right of fair trial due to the fact that method’s purpose is to speed up the judicial process.

Prof. Şanlı stated that in Turkish Law, the prohibition of reviewing the merits in recognition is unanimously accepted. In Turkish law there is a prohibition of reviewing the merits”. [2]

Additionally Prof Nomer also stated that “as well as recognition of the foreign court decisions, the foreign substantive correctness of the arbitral awards cannot be reviewed. The principle to prohibit “revision au fond also applies to enforcement of the arbitral award. The exception of that principle occurs when there is a contradiction to public order in the arbitrator award as well as recognizing enforcement of foreign court decision. [3]

As can be understood from these statements, revision au fond principle constitutes as an important factor in enforcement of foreign awards in Turkey.

Grounds for Dismissal of Enforcement of Foreign Arbitral Award

 “Article 62-

(1) The court shall dismiss the enforcement request of a foreign arbitral award, if,

  1. a) An arbitration agreement is not executed or arbitration clause does not exist in the main agreement,
  2. b) The arbitral award is contrary to public morality or public order,
  3. c) It is not possible to settle the dispute subject to the arbitral award by way of arbitration under Turkish law,

ç) One of the parties has not been duly represented before the arbitrators and has not expressly accepted the acts concluded thereafter,

  1. d) The party against whom the enforcement of the arbitral award is requested has not been duly notified of the appointment of arbitrators or has been deprived of his/her right to make claim and defense,
  2. e) The arbitration agreement or clause is invalid pursuant to the governing law designated by the parties, or in the absence thereof, pursuant to the law of the place where the arbitral award is rendered,
  3. f) The appointment of the arbitrators or the procedure applied by the arbitrators violates the agreement of the parties, or in the absence thereof, the law of state where the arbitral award is rendered,
  4. g) The arbitral award has been rendered on an issue that is not included in the arbitration agreement or arbitration clause or exceeds the limits of the agreement or the clause (only the exceeding part),
  5. h) The arbitral award is not final, enforceable, or binding under the governing law or the governing procedure or the law of state where it was rendered or it is annulled by the competent authority in the place where the award is rendered.

(2) The burden of proof regarding issues addressed in the paragraphs (ç), (d), (e), (f), (g), and (h) above, lies on the party against whom enforcement is requested. “

As can be seen in article 62 of Turkish International Private Law, grounds for dismissal for enforcement of the awards is stipulated. This provision is one of the most crucial part for foreign award enforcement.

If the Turkish Courts rejects the enforcement of the foreign award, this award cannot be enforced in Turkey any longer. Recognition of such an award cannot be asked for either since recognition and enforcement of awards are subject to the same conditions and rules. This having been noted, in the case where a foreign award is not enforceable in Turkey, there may still be some remedies available under Turkish Law. The Claimant may ask the Turkish Courts to decide on the merits of the dispute. In such circumstances, the Claimant may rely on Article on 1.1 of the New York Convention which provides that the arbitration agreement became inoperative and therefore subject to the jurisdiction of the national court. [4]

Reciprocity matter must be taken into account for enforcement in case that award is given by a tribunal which is not member state of New York Convention. In that case, it is important to note that most of the countries of the world has ratified the convention. On the other hand, Turkey has also ratified judicial assistance treaties with some specific countries. These treaties not only encompass reciprocity matter with states concerned and also enforcement procedure which shall be applied to arbitral awards are stipulated in these mutual treaties. Austria (Articles 20-21) , Poland (Articles 19-24), Algeria (Articles 20-27) ,Iraq (79-85), Azerbaijan (19-24), China (21-26), Georgia (19-24), Albania (19-24) Kazakhstan (Articles 21-26) , Mongolia (Articles 19-24) Lithuania (Articles  19-23) have mutual agreement covering procedure of arbitral award enforcement with Turkey.

  1. Violation of Public Order

In consideration of this article’s purpose, it is aimed to be touched on subjects of foreign award enforcement roughly. On the other hand, violation of public order subject is a broad concept to be explained due to Turkey’s rich precedent related to this subject.

As in other legal systems, public policy is considered as an undefined area of Turkish law. A great number of legal context in foreign awards can be found to be against Turkish public policy and, as such, would preclude successful enforcement of a foreign arbitration award. The most significant example for present purposes is that of completion of service of proceedings to the defendant party.

Pursuant to Article V (2) (a) of the New York Convention, the Turkish Courts may refuse to recognize or enforce a foreign award if the recognition or enforcement of the award would be contrary to Turkish Public Policy. Article V provides that the application for enforcement may be refused on the ground that the “recognition or enforcement of the award would be contrary to the public policy of the country where recognition and enforcement is sought.” This basis of rejection has generated the most discussion and litigation, and often overlaps with other grounds such article V(1)(b) (due process, Article V(1)(d) (improper procedure or composition of tribunal), and Article V(2)(a)(non-arbitrability.) [5]

Foreign Award Enforcement Judgment and Its Effects

A final judgment cannot be retried. The plaintiff cannot sue again on the same claim. This is called res judicata effect of a judgment. Exceptionally, however, the losing party may demand the reopening of the proceedings under C.C.Pr ( Yargılamanın İadesi) . [6]

Appeal

A party wishing to appeal must file a petition of appeal within fifteen days after service of the judgment. The members of the chamber and the rapporteur examine the file.

 

Summary

New York Convention has a main role in foreign award enforcement in Turkey. Its principles and provisions must be taken into account by a Turkish Judge elementarily. Accordingly, all internal legislation of Turkey related to foreign award enforcement must be convenient to the provisions of the convention basis on the direct effect of international agreements in Turkey under Turkish Constitution. Therefore, this situation gives predictability regarding enforcement of an award for foreign parties.

Av. Gökhan Cindemir

He graduated from Anatolian High School of Karadeniz Eregli, after his graduation he studied in Belgium with AFS intercultural exchange program. He obtained his law licence degree from Marmara University of Law Faculty. During his university education, he participated in Philip C. Jessup International Law Moot Court Competition on behalf of the Marmara University. After his admission to Istanbul Bar Association in 2009, he obtained master degree (LL.M) from Gent University / Belgium in the field of European and Comparative law. His master research was about Freedom of Establishment In Relation With Turkey and EEC in the frame of Ankara Agreement.He is specialized in International Private Law, European Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister, CIArb Associate (ACIArb).

[1] Arbitration Law of Turkey : Practice and Procedure , Author : Ziya Akinci , page 74, Paragraph 4

[2] Şanlı, C. Uluslararası Ticari Akitlerin Hazırlanması ve Uyuşmazlıkların Çözüm Yolları , 3rd ed. Beta, Istanbul 2005 P. 181.

[3] See Normer, P. 422

[4] Ziya akinci – 178 , 179

[5] Ziya Akınci

[6] Tuğrul Ansay & Don Wallace JR, 6th Ed, Wolters Kluwer Law and Business ,Pages 228 – 229

Wrongful Death Claim in Turkey under Turkish Law

 As in common law countries, Turkish Law also covers damages stemming from death involved incidents by third parties. Traffic Accidents, Construction Accidents and other death involved accidents caused by third parties are subjected to Turkish Tort Law and also Criminal Law. Wrongful Death is also stipulated under Turkish Penal Law under the section of “intentional murder” or “murder with negligence”. In Turkish Criminal Law, there are levels of negligence and penalty of the perpetrators are depending on this negligence level. In case of death caused by third person, deceased relatives (official inheritors of deceased) can claim compensation with a civil case and also request punishment from the criminal court at the same time. Under Turkish Law, prosecutor must start prosecution against third party in order to find out liability of offender. It is important to note that negligence level which is decided in Criminal Court does not have to be same as in Civil Court. Civil and Criminal courts have technically different concept of negligence level. In that case, if criminal court finds perpetrator 100 percent mistaken, it does not mean that Turkish Civil Court will take that ratio completely into consideration. Because determination of negligence level process and conditions in both law field is different.

 Criminal Case

 Under Turkish Law, Offenses against life is stipulated under article 81. :

Offenses against Life

Voluntary manslaughter (Felonious Homicide)

ARTICLE 81-(1) Any person who unlawfully kills a person is sentenced to life imprisonment.”

 “Life imprisonment” is envisaged for intentional murder situations. Death by negligent conduct is stipulated under article 85 as below:

 ARTICLE 85-(1) Any person who causes death of a person by negligent conduct is punished with imprisonment from three years to six years.

(2) If the act executed results with death or injury of more than one person, the offender is punished with imprisonment from three years to fifteen years.

It must be noted that Turkish Prosecutor must start and follow the case with or without consent of the decease’s relatives. Accordingly, criminal case’s procedure is not depending on the will of the decease’s family. Under Turkish Law, killing is dealing with public policy matter and prosecutor and Turkish Courts are responsible to punish the perpetrator who violates the public order.

Civil Case

Evidences from criminal case is very crucial for civil case. In litigation, facts and evidences from the criminal case must be requested for civil case to be examined in litigation. In civil case, moral and material compensation can be demanded from the third party which caused the death (or from the insurance company of a third party). Loss of support for relatives of deceased, compensation for funeral, hospital expenses, and etc. can be demanded under title of material compensation. Defendants who are financially affected from the death of deceased must prove their loss of support and their financial dependency to deceased. Dependents are those survivors who have received or would have received support payments from the victim. They are usually the relatives of the deceased person. In Turkish Law, finance may be considered as dependents. Family members of the deceased person may additionally demand equitable compensation for their emotional suffering.

Compensation

If the conditions of a tort exist (act against law, damage, casual relation, negligence), then injured party may claim compensation. The amount of compensation shall be decided by the judge in the two stages. The judge determines first the amount of the injury that the damaged person has actually suffered. The person claiming compensation has to prove the damage. The judge subsequently determines the amount of compensation after taking into account the circumstances and the degree of fault. The judge may reduce or completely deny any compensation if the damaged person has consented to the tortious act, or if circumstances for which is responsible have caused or aggravated the damage, or have otherwise adversely affected the position of the party liable.[1]

The claims of compensation because of tortious act cease after a certain period of time normally the term is two years running from the date on which damaged person received knowledge of damage and of the person who had caused the damage. This may not be longer than 10 years from the date when the act causing the damage occurred.

But if criminal case is started along with civil case then criminal cases’ statute of limitations will apply to the matter.

Turkish Criminal Act, Article 66 states statute of limitations as below:

(1) Unless otherwise is provided in the law, public action is dismissed upon lapse of ;

  1. a) Thirty years in offenses requiring punishment of heavy life imprisonment,
  2. b) Twenty-five years in offenses requiring punishment of life imprisonment,
  3. c) Twenty years in offenses requiring punishment of imprisonment not less than twenty years,
  4. d) Fifteen years in offenses requiring punishment of imprisonment more than five years and less than twenty years,
  5. e) Eight years in offenses requiring punishment of imprisonment or punitive fine not more than five years

In that case, Turkish Lawyer shall determine the statute of limitation applying to a specific issue.

[1] Introduction To Turkish Law, Tuğrul Ansay, Kluwer Law International, Page 170

Attorney Gökhan Cindemir

After he completed his high school degree in Turkey, he went to Belgium with AFSintercultural exchange program and completed his high school degree in Belgium. Upon his return to Turkey, he obtained his law licence degree from Marmara University of Law Faculty of Istanbul, Turkey. During his university education, he had participated in Philip C.Jessup International Law Moot Court Competition on behalf of Marmara University, Istanbul. He became member of Istanbul Bar Association, then after he had been granted to a master’s degree, LL.M by Gent University of Belgium in the field of European and Comparative law. He completed his one year millitary duty at Legal Affairs Department of Central Command Headquartes in Ankara with Lieutenant Rank. He is specialized in all matters concerning International Private Law, European Law, Family Law, Employement Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister.

gokhan@cindemir.av.tr

mobile 00905325680647

Notice of Termination for Employment Contracts in Turkish Labor Law

The employment contract may be terminated in several way;

  1. By the consent of the parties about terminating the contractual relation.
  2. By the death of the employee (Code of Obligation)
  3. Due to Deadline of the Contract
  4. Termination of Labor Contract with notification

In case of termination of the labor contract, Employer or Employee must notify  the contract’s termination prior to certain time periods which are determined by the law. These periods are depending on the employment duration of employee. If termination is done without notification, then employer must pay the salary which amounts to the period determined by the law.

 “Article 17. Before terminating a continual employment contract made for an indefinite period, a notice to the other party must be served by the terminating party.

The contract shall then terminate:

  1. in the case of an employee whose employment has lasted less than six months, at the end of the second week following the serving of notice to the other party;
  2. in the case of an employee whose employment has lasted for six months or more but for less than one-and-a-half years, at the end of the fourth week following the serving of notice to the other party;
  3. in the case of an employee whose employment has lasted for one-and-a-half years or more but for less than three years, at the end of the sixth week following the serving of notice to the other party;
  4. in the case of an employee whose employment has lasted for more than three years, at the end of the eighth week following the serving of notice to the other party.

These are minimum periods and may be increased by contracts between the parties.

UP TO 6 MONTHS EMPLOYMENT                       2 WEEKS  NOTIFICATION PRIOR TO TERMINATION                                                                                   OF CONTRACT

UP TO 6 MONTHS TO 12 MONTHS                    4 WEEKS NOTIFICATION PRIOR TO TERMINATION                                                                                      OF CONTRACT

1,5 YEAR TO 3 YEARS                                          6 WEEKS  NOTIFICATON PRIOR TO  TERMINATION                                                                                    OF CONTRACT

MORE THAN 3 YEARS                                          8 WEEKS  NOTIFICATION PRIOR TO TERMINATION OF                                                                             CONTRACT

These periods cannot be lessen by employer with provision stipulated in the employment contract.

Gökhan Cindemir , Attorney At Law

After he completed his high school degree in Turkey, he went to Belgium with AFSintercultural exchange program and completed his high school degree in Belgium. Upon his return to Turkey, he obtained his law licence degree from Marmara University of Law Faculty of Istanbul, Turkey. During his university education, he had participated in Philip C.Jessup International Law Moot Court Competition on behalf of Marmara University, Istanbul. He became member of Istanbul Bar Association, then after he had been granted to a master’s degree, LL.M by Gent University of Belgium in the field of European and Comparative law. He completed his one year millitary duty at Legal Affairs Department of Central Command Headquartes in Ankara with Lieutenant Rank. He is specialized in all matters concerning International Private Law, European Law, Family Law, Employement Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister.

gokhan@cindemir.av.tr

mobile 00905325680647

Consensual Divorce in Turkey ( Uncontested Divorce )

Attorney Gokhan Cindemir

Contact : cindemir@cindemir.av.tr

Article 166/3 of Turkish Civil Code permits a divorce by mutual consent under specific conditions. Accordingly, spouses can divorce based on a mutual agreement concluded by themselves. In case of a contract in contemplation of divorce, the judge must divorce the parties.

Consensual divorce in Turkey is the most cost effective and quick procedure for separations. It also benefits to spouses in moral way due to lack of long and stressful duration.

The component court for divorce is in Turkey are family courts “Aile mahkemeleri). In case that family courts are lacking in the place of spouses, then the case must be filed in “Asliye Mahkemeleri” (court of first instance).

There are conditions for consensual divorce. If the conditions don’t fit your situation, you need to follow contested way of divorce instead of uncontested divorce procedure.

  • At least 1 year marriage is required for mutual consent (consensual) divorce.
  • Application to the court by together. Or acceptance of the divorce by defendant spouse upon one of spouse’s application to the court.
  • Hearing participation by the spouses themselves. In other words, judge must hear spouses directly about the settlement protocol’s approval. The purpose of this rule is to comprehend the wife’s consent is real or it is given under pressure of the husband or her family. Accordingly, judge must hear consent of spouses’ will related to consensual divorce / separation. Therefore, participation of spouses to hearing is crucial and obligatory. In case of lack of presence of the spouses, the judge will reject the case. (In case that the spouses or one of spouse is not able to speak and understand Turkish Language, then simultaneous translator certified by authorizes must provide translation service in the court.
  • Lastly, judge’s reviews regarding the provisions of settlement protocol is important. The provisions concerning guardianship, children, financial issues in the settlement agreement will be also reviewed by Turkish Judge for approval of agreement’s fairness.

The settlement agreement must be convenient with Turkish Contract Law (Turkish Obligations Act). Accordingly, there must not be any provision in the agreement which is against public policy, general moral values. In agreement, there must be will of divorce from the spouses. In case that children exists from the marriage, provision related to guardianship, visiting schedule, alimony and compensation requests must be reflected to the agreement. Personal assets (movable such as car, personal belongings and immovable such as apartment, building, field) , expenses of the court and attorney fee must be also obligatory elements which must be reflected to the settlement agreement. Lastly and certainly, spouse’s signatures are very important in the document.

As can be understood, divorce with uncontested procedure without legal help is difficult choice. Therefore, we strongly suggest a lawyer assistance to your situation, especially in the course of conclusion of a settlement agreement it is very important.

In case that court will reject the divorce case, spouses must wait for 3 years due to the Turkish Civil Code’s stipulation. After 3 years later of rejection, spouses can apply for divorce again.

Uncontested divorce procedure is very quick because 95 percent of the cases finish in first hearing. The first hearing is determined upon application to the court with divorce petition (including settlement agreement) based on settlement separation. And courts generally set an hearing 2-3 months after the application via petition (in big cities).  Accordingly, we can say with 3 months, spouses can divorce.

Court fees for this procedure is approximately 200 USD. And also if one of spouse or spouses are foreigner, translation expenses for protocol will be another expense. Certified translator’s hearing participation is approximately 100 USD.  According to Tariffs of Istanbul Bar Association on Attorney’s Services Fee dated 2015, 1900 USD is recommended fee for lawyers as their attorney fee.

divorce in turkey, divorce turkey

divorce in turkey

Gökhan Cindemir , Attorney At Law

After he completed his high school degree in Turkey, he went to Belgium with AFSintercultural exchange program and completed his high school degree in Belgium. Upon his return to Turkey, he obtained his law licence degree from Marmara University of Law Faculty of Istanbul, Turkey. During his university education, he had participated in Philip C.Jessup International Law Moot Court Competition on behalf of Marmara University, Istanbul. He became member of Istanbul Bar Association, then after he had been granted to a master’s degree, LL.M by Gent University of Belgium in the field of European and Comparative law. He completed his one year millitary duty at Legal Affairs Department of Central Command Headquartes in Ankara with Lieutenant Rank. He is specialized in all matters concerning International Private Law, European Law, Family Law, Employement Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister.

gokhan@cindemir.av.tr

mobile 00905325680647

Tags of the article : Divorce in Turkey

Provisions of Custody under Turkish Civil Code

CUSTODY

A. IN GENERAL

I. Conditions

ARTICLE 335. – Minor is under the custody of his/her parents. Custody shall not be taken from the parents unless there is a legal reason. Unless the judge requires to appoint a guardian, disabled majors shall also stay under the custody of their parents.

II.If parents are married

ARTICLE 336. – Parents shall use the custody together as long as marriage lasts. If the common life is terminated or separation is realised, the judge may entrust the custody to one of the spouses. Custody shall be entrusted to the party who is alive in the case where one of the parents dies, and to the party with custody in the case of divorce.

III. If parents are not married

ARTICLE 337. – If parents are not married, custody belongs to the mother. The judge, in accordance with the child’s interest, appoints a guardian or entrusts the custody to the father in the cases where the mother is minor, disabled or dead or the custody is taken from her.

IV. Stepchildren

ARTICLE 338. – Spouses are also obliged to care and show attention to their minor stepchildren. The other spouse helps the spouse who holds the custody of his/her own child as appropriate, and represents the child for his/her needs to the extend situations and conditions require.

B. Scope of the custody

I. In General

ARTICLE 339. – Parents shall make and apply the necessary decisions about the child’s care and education by considering his/her benefit. The child is obliged to obey his/her parents. Parents shall allow the child to set his/her life the extend of his/her maturity; they shall take his/her opinions on important matters into consideration as much as possible.

The child cannot leave the house without taking his/her parents’ consent and he/she cannot betaken away without a legal reason.

Parents shall name the child.

II. Education

ARTICLE 340. – Parents shall educate the child according to their resources, and provide and protect him/her physical, mental, psychological, ethical and social development.

Parents shall provide the child, especially physically and mentally disabled one, with general and professional education appropriate to his/her skills and tendency.

III.Religious Education

ARTICLE 341. – Parents shall have the right to decide on the child’s religious education. Any agreement restricting this right of the parents shall be invalid. A major shall be free to choose his/her religion.

IV.Representation of the child

ARTICLE 342. – Parents are the legal representatives of the child against third persons within the framework of the custody. Bonafide third persons may assume that each of the spouses act with the consent of the other. Except the issues depending on the permission of the probation authorities, provisions regarding the representation of disabled shall apply on the representation of custody.

V. Acting capacity of the child

ARTICLE 343. – Acting capacity of the child who is under custody is similar to the capacity of the person under probation. The child shall be responsible of his/her dept with his/her own property regardless of rights of the parents on the property of the child.

VI. Representation of family by the child

ARTICLE 344. – Child under custody may carry out legal transactions on behalf of the parents with their consent, if he/she has the sensibility; parents shall incur debt on account of these transactions.

VII.Legal transactions between the child and parents

ARTICLE 345. – A child incurring a debt due to a legal transaction carried out between the child and mother or father, or between the child and a third person for the benefit of the parents shall depend on a judge’s approval or participation of a guardian.

C. Protection of the Child

I. Protection measure

ARTICLE 346. – In the case where the benefit and development of the child are in danger, and if the parents cannot find a remedy for or are not able to cope with the situation, the judge shall take necessary measures for the protection of the child.

II. Placement of Children

ARTICLE 347. – If physical and psychological development of the child is found to be in danger or the child is abandoned adoptively, the judge may place the child with another family or in an institution by taking him/her from the parents. If remaining of the child within the family disturbs the peace of the family to a degree that cannot be expected from the family or there is no other way under the circumstances, the judge may take the same measures upon the request of the parents or the child.

If the parents or the child cannot afford to pay the expenditures rising from these measures, they shall be born by the State.

Provisions regarding alimony are reserved.

III. Abolishment of Custody

1. In General

ARTICLE 348. – If no result from the other measures regarding the protection of the child is accomplished or these measures are predicted to be insufficient, the judge may decide to abolish the custody in the case where:

1. the parents cannot fulfill their custody duty as required due to one of the reasons of inexperience, illness, disability, being in another place or such.

2. the parents do not give the child sufficient care or neglect their responsibilities for him/her. If custody of both the mother and father is abolished, a guardian shall be appointed to the child. Unless stated otherwise in the decision, abolishment of custody shall include all existing children and children to be born.

2. In the case of remarriage of mother or father

ARTICLE 349. – Remarriage of the mother or father who has the custody does not require the abolishment of custody. However, as well as the custody owner may be changed for the benefit of child when necessary, a guardian may be appointed to the child by abolishing the custody according to the situation and conditions.

3. Liabilities of parents where custody is abolished

ARTICLE 350. – Where custody is abolished, liabilities of the parents to meet the children’s care and education expenses shall continue. If the parents or the child cannot afford to pay these expenses, they shall be born by the State.

Provisions regarding maintenance are reserved.

IV. Change in condition

ARTICLE 351. – Where there is a change in condition, measures regarding the protection of the child shall be adjusted to the new conditions. If the reason necessitating the abolishment of custody is ceased, the judge shall give the custody back upon the request of mother or father or ex-officio.

Paternity in Turkish Law

Contact : cindemir@cindemir.av.tr

In this article I tried to explained the new development in Turkish Law upon Turkish Constitution Court Decision related to rejection of 1 year statute of limitation for paternity suits in Turkish Civil Code.

Creation of Parent between Child Relation can be only possible :

  1. Biological Relationship
  2. Adoption

 Biological Relationship: It is so obvious to determine the relation between the child and the mother. Accordingly, the fact of the birth will determine the mother. The parent-child relationship is formed between child and mother on the birth of the child. It is formed between child and father by virtue of the latter being married to the mother, by recognition or by court declaration.

From husband aspect; Where a child is born in wedlock, the husband is deemed to be the

Father. If the husband dies, he is deemed to be the father provided the child is born within 300 days of his death or, if born thereafter, if it is shown that the child was conceived before the husband’s death. If the husband has been declared presumed dead, he is deemed to have been the father provided the child is born within 300 days of the life-threatening event or the last sign of life.

 A child who was born outside of marriage because of a defect in the maritial status of the parents may be legitized subsequently. One of the methods of such a correction is the marriage of the parents after the birt of acknowledgement (consent) of the father and mother. Certain amnesty laws in Turkey made the correction of the status of children possible in the past. These laws were expecialy enacted to legitimize the status of 10,000 children who were born of imam marriages.

There are two ways to establish relationship with father. Acknowledgment, father’s application to the court as wel as to the birth registration officer. This application can be challanged by mother or third person who has interest in that relation (such as inheritors). Prior to Turkish Constitution Court’s decision, there was one year limitation to challange to this application. One year limitation is found against fundemental individual rights by Turkish Constitution Court.

Another menas of establishing the affiliation of a child to the natural father is getting a court decision (babalığa hüküm) In order to establish the blood relation between the father and the child, scientific tests are being used, but there is also a strong presumption that the child is from that man who had sexual relations with the mother between 300 and 180 days prior to birth (C.C., Article 302,I). This suit may primarily be brought by the child and mother.  As mentioned “Within one year after the birth” limitaion is annuled by Constitution Court. Accordingly, a person who suffers previously because of that limitation is able to open a new case against father to establish paternity relation. (21.7.2012 gün ve 28360 sayılı Resmi Gazetede yayımlanan 15.3.2012 gün ve 2011/116 E. 2012/39 K.)

References: Turkish Civil Code and Introduction to Turkish Law edited by Tuğrul Ansay  Don Wallace Jr

 Gökhan Cindemir , Attorney At Law

After he completed his high school degree in Turkey, he went to Belgium with AFSintercultural exchange program and completed his high school degree in Belgium. Upon his return to Turkey, he obtained his law licence degree from Marmara University of Law Faculty of Istanbul, Turkey. During his university education, he had participated in Philip C.Jessup International Law Moot Court Competition on behalf of Marmara University, Istanbul. He became member of Istanbul Bar Association, then after he had been granted to a master’s degree, LL.M by Gent University of Belgium in the field of European and Comparative law. He completed his one year millitary duty at Legal Affairs Department of Central Command Headquartes in Ankara with Lieutenant Rank. He is specialized in all matters concerning International Private Law, European Law, Family Law, Employement Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister.

 gokhan@cindemir.av.tr

mobile 00905325680647

Enforcement of UK judgments in Turkey

Contact: cindemir@cindemir.av.tr

 High Court 11st Council of Law Case number: 2007/1335 decision number: 2007/3808

Decision date: 02.03.2007 Subject : Enforcement of Foreign Judgment, this decision of high court states that there is reciprocity between UK and Turkey. Accordingly, this high court decision confirms in case of a UK judgement will come to an issue, Turkish Court is obliged to follow the high court decision. Thus, enforcement of an UK judgment based on this high court decision is possible. Ofcourse every decision obtained from UK has its own specific conditions. Due to this reason, Turkish First instance court will examine other conditions satify criterias of Turkish Law or not. But as can be understood from the high court decision which is in favor of enforcement of UK judgments, general rule became like acceptence of the cases based on UK judgments. Despite of this general opinon stemming from the high court decision, there are other conditions that UK applicants must also consider in Turkish international private law of artice 38:

  1. a) The presence of an agreement, which rests on the principle of reciprocity, between the Turkish Republic and the State where the judgment has been rendered, or a provision of law or an application de facto enabling the execution in that state of judgments rendered by the Turkish courts,
  2. b) The judgment shall have been rendered on a subject, which does not come under the exclusive jurisdiction of the Turkish courts,
  3. c) The judgment shall not have been expressly contrary to the public policy,
  4. d) Pursuant to the laws of that place, the person against whom execution is requested shall have not been duly cited to the court that rendered the judgment or represented before that court, or a judgment by default shall have been rendered as contrary to these laws and this person shall have not objected to the Turkish court against the request for execution through basing on one of the matters above,
  5. e) The law, which is authorized in accordance with the Turkish rules of conflict of laws,shall have not been applied in the foreign judgment concerning the civil status of the Turcs and the defendant, who is a Turkish citizen, shall have not objected in this respect against the execution.

Under these conditions, it is noteworthy to stress that reciprocity matter with UK does not constitute any problem any more due to Turkish High Court Decision. In regards to relavant high court decision, Turkish Justice Ministry of Internataional General Directorate opinon about reciprocity with UK is positive. Other conditions such as public security policy is totally different subject which requires to be examined in different article with Turkish High Court Decisions concerned. Forinstance, UK court decrees which is given concerning with real estates in Turkey will constitute violation of Turkish Public Security Policy. The examples can be expanded with more specific cases uniquely related with content of the case matter.

As a summary, UK legal entities’ or citizens  has big chances to enforce their judgments given against a Turkish Citizen or  a company. Note that, there is also “caution judicatum solvi” pricinple stemming from Turkish Law for foreigners. It means foreigners are subjected to remit security deposit which amounts to 15 percent disputed amount of the case for starting court procedure. On the other hand, based on UK – Turkey Judicial Assistance agreement entered into force in 1933, UK nationals and Uk companies are exempted from this requirement.

Attorney Gökhan Cindemir
After he completed his high school degree in Turkey, he went to Belgium with AFSintercultural exchange program and completed his high school degree in Belgium. Upon his return to Turkey, he obtained his law licence degree from Marmara University of Law Faculty of Istanbul, Turkey. During his university education, he had participated in Philip C.Jessup International Law Moot Court Competition on behalf of Marmara University, Istanbul. He became member of Istanbul Bar Association, then after he had been granted to a master’s degree, LL.M by Gent University of Belgium in the field of European and Comparative law. He completed his one year millitary duty at Legal Affairs Department of Central Command Headquartes in Ankara with Lieutenant Rank. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister.

Enforcement of US Judgments in Turkey

Contact : gokhan@cindemir.av.tr

As a civil based law country (continental European Law) in Turkey, enforcement of foreign judgments are entitled to specific provision in International Private Act (MOHUK). It is noteworthy to mention that Turkey is not part of European Union and accordingly Brussels Convention and other relevant legislation which deal with judgement enforcement does not have any effect in Turkish Law.

The Conditions of Exequatur (Enforcement ) Article 38 of MOHUK (Turkish International Private Law Act)

The court of competent jurisdiction shall render the exequatur under the following conditions:

  1. a) The presence of an agreement, which rests on the principle of reciprocity, between the Turkish Republic and the State where the judgment has been rendered, or a provision of law or an application de facto enabling the execution in that state of judgments rendered by the Turkish courts,
  2. b) The judgment shall have been rendered on a subject, which does not come under the exclusive jurisdiction of the Turkish courts,
  3. c) The judgment shall not have been expressly contrary to the public policy,
  4. d) Pursuant to the laws of that place, the person against whom execution is requested shall have not been duly cited to the court that rendered the judgment or represented before that court, or a judgment by default shall have been rendered as contrary to these laws and this person shall have not objected to the Turkish court against the request for execution through basing on one of the matters above,
  5. e) The law, which is authorized in accordance with the Turkish rules of conflict of laws,shall have not been applied in the foreign judgment concerning the civil status of the Turcs and the defendant, who is a Turkish citizen, shall have not objected in this respect against the execution.

In consideration of these information, what is the final situation with US court decrees in Turkey?

As can be seen above, the first condition is presence of a mutual agreement with the country whose judgements will be enforced in Turkey. There is no specific agreement between USA and Turkey related to this issue. Accordingly, other conditions will come to an issue such as reciprocity.

Mostly, it is very difficult to prove reciprocity between USA in regards of legislation due to common law structure of the USA law (except State of Lousiana which has uniquely continental law background) . In this regard, generally Turkish Courts reject USA decrees based on the fact that there is no proof of a reciprocity between USA and Turkey. Please also note that, according to Turkish High Court decisions state that the first time enforcement of a foreign court decision does not constitute an obstacle for enforcement.

 Considering all these facts, in general we can say that USA decisions against Turkish defendants are not enforceable in Turkey. There is one exception for this general precedent.

One of a Turkish High Court decision related to enforcement matter states that in general it can be said that there is no reciprocity between USA and Turkey, on the other hand, every state of USA has different practice to enforce Turkish Decisions in its jurisdiction. For instance, one of Turkish High Court decision states that, Turkish first instance Courts must consider the law of USA’s specific state which judgement is given, and reciprocity must be determined based on that state’s attitude to Turkish judgements. Thus, if i Turkish Courts decisions are enforceable in the jurisdiction of judgement given state then first instance court must have accepted the enforceability of judgment.

Let me to exemplify it with an example, in case that Turkish Court decrees are accepted to be enforced in state of Florida, and if it can be proved by the applicant then US decree must be enforceable in Turkey based on reciprocity principle. Accordingly, proof of reciprocity in certain state of USA related to Turkish Decrees are priority to start a enforcement procedure in Turkey.

Lastly, there is also one more obstacle regarding Turkish Law for US applicants under “caution judicatum solvi” of Turkey. There is no any specific agreement between Turkey and United States stating that Turkish citizens must not pay any additional deposit fee to open a case in USA as foreigner. In that regard, based on reciprocity Turkish Courts seek for security deposit (generally 15 percent of disputed amount) from US applicants to start a case in Turkey.

Therefore, there are two obstacles which US citizens or US legal entities can confront with :

  1. Reciprocity of Enforcement of US Judgements
  2. Security Deposit Requirement for filing a case based on lack of agreement between Turkey and USA which regulates exemption of security deposit for Turkish Citizens in case of filing a case in USA.

 Accordingly, there are two critical points that US applicant must prove in Turkish Courts to enforce US Court decision. Firstly, applicant must prove that the judgement which is given from relevant state accepts also Turkish Courts Decrees in its jurisdiction. This can be proved by court decree examples obtained from local state courts stating Turkish Court’s decision is enforced. And also if there is specific law in that state which stating liberal provision for enforcement of  Foreign Court Decree.

Secondly, in case that applicant is not willing to remit security deposit to Turkish Court as 15 percent of disputed amount for filing a suit, then US applicant must also prove that Turkish Citizens are not subject to this requirement in their state.

As can be understood from this article, enforcement of US decisions in Turkey requires legal struggle which can be only achieved by US attorney and Turkish Attorney cooperation by submitting evidences proving reciprocity between the court practices.

Attorney Gökhan Cindemir
After he completed his high school degree in Turkey, he went to Belgium with AFSintercultural exchange program and completed his high school degree in Belgium. Upon his return to Turkey, he obtained his law licence degree from Marmara University of Law Faculty of Istanbul, Turkey. During his university education, he had participated in Philip C.Jessup International Law Moot Court Competition on behalf of Marmara University, Istanbul. He became member of Istanbul Bar Association, then after he had been granted to a master’s degree, LL.M by Gent University of Belgium in the field of European and Comparative law. He completed his one year millitary duty at Legal Affairs Department of Central Command Headquartes in Ankara with Lieutenant Rank. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister.

Paternity Suit In Turkey under Turkish Family Law

This article explains about the case related to Paternity Suits in Turkey under Turkish Family Law. Results of Paternity suits will enable the mother to request financial support from the father.

The current Turkish Civil Code, has regulated the paternity suit, as a legal mean having the purpose to determine the father of the child born out of the wedlock. The Turkish Civil Code provides two types of paternity suit: the paternity suit with pecuniary effects, which does not create a legal filiation link between the father and the child; the paternity suit with personal effects which creates a legal filiation link between the father and the child.

The paternity claim is often complicated to prove in the beginning of the paternity suits due to lack of direct evidence. Thus, Turkish Civil Code related to Family Law section created a concept to ease proof of the paternity. This concept called as “Presumption of Paternity”. According to this presumption, in case defendant has had a sexual relation with the mother prior to 300 days of birth, he must be considered as a father of child.

Accordingly, in case of paternity of father will be linked with a child, the mother will have right to ask material support for child from the father.  The defendant can reverse this presumption by proving that the birth is not linked to his sexual relation. In case, the proofs with scientific evidence that he cannot be the father of the child, he can avoid the effects of the presumption. The defendant can also reverse the presumption by proving that serious doubts exist in regard of his paternity. For example, the defendant can defend himself by the exceptio plurhun, i.e. by proving that the mother has had sexual relation with many men, during the critical period.

Final Solution DNA TEST

Paternity suits started to be completed quickly via request DNA test from the father. DNA request is also regarded as presumption concept (Presumption of Paternity). Previously the time DNA tests were so much expensive and rare, look of a child, color of the child’s eyes, physical characteristic of the child were so important in order to understand father’s paternity.

Now, mother of a child can file a paternity suit with petition containing story of relation. The story can be also proved by emails, photographs and witnesses. Nowadays, in paternity presumption concept, request of DNA test from father is main factor. If mother by the court will request DNA test from the father for her child in paternity suit, father must response this call. Otherwise, rejection of father regarding DNA test will be regarded as paternity presumption.

During the suit, in case the father will reject going to forensic hospital for DNA test, presumption of paternity of father will come to an issue. DNA test results will play main role for determination of paternity and link with the child. Blood or salivary must be given to forensic institution to be enabled to learn paternity from laboratory.

As mentioned above, paternity connection with child and father will give a right to a mother for request material support for child such as an alimony. This support will be determined by the court based on income of the father and other financial fact.

Gökhan Cindemir , Attorney At Law

After he completed his high school degree in Turkey, he went to Belgium with AFSintercultural exchange program and completed his high school degree in Belgium. Upon his return to Turkey, he obtained his law licence degree from Marmara University of Law Faculty of Istanbul, Turkey. During his university education, he had participated in Philip C.Jessup International Law Moot Court Competition on behalf of Marmara University, Istanbul. He became member of Istanbul Bar Association, then after he had been granted to a master’s degree, LL.M by Gent University of Belgium in the field of European and Comparative law. He completed his one year millitary duty at Legal Affairs Department of Central Command Headquartes in Ankara with Lieutenant Rank. He is specialized in all matters concerning International Private Law, European Law, Family Law, Employement Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicator, barrister.

gokhan@cindemir.av.tr

mobile 00905325680647

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