International Jurisdiction of Turkish Courts in Adoption Cases
Melis AvşarWithin the scope of this study, the issue of international jurisdiction of Turkish courts in adoption cases with foreign elements was examined. In these cases, the international jurisdiction of Turkish courts is determined within the framework of the jurisdiction rules of article 40 of Turkish Private International Law Act (PILA) and subsequent articles. In this direction, the jurisdiction rules regulated in article 40 of the PILA and article 41 of the PILA, which can find application areas in terms of adoption cases, were first examined. According to article 40 of the PIL, the international jurisdiction of Turkish courts will be determined by the jurisdiction rules of the domestic law. In terms of adoption cases, the rule that shows the jurisdiction in terms of place in domestic law is included in article 315 of the Civil Code. In article 41 of the PILA, on the other hand, a special jurisdiction rule is stipulated in terms of cases related to the personal status of Turkish citizens. Adoption lawsuits are accepted from cases related to the personal status of Turkish citizens. For this reason, if one of the parties is a Turkish citizen, article 41 of the PILA may find application area. Secondly, the adoption system of the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (Turkey is a party to it) was examined. And the effects that this system could have on the international jurisdiction of Turkish courts were examined.
Evlat Edinme Davalarında Türk Mahkemelerinin Milletlerarası Yetkisi
Melis AvşarÇalışma kapsamında yabancılık unsuru taşıyan evlat edinme davalarında Türk mahkemelerinin milletlerarası yetkisi konusu incelenmiştir. Bu davalarda, Türk mahkemelerinin milletlerarası yetkisi MÖHUK’un 40. ve devamında yer alan yetki kuralları çerçevesinde tespit edilmektedir. Bu doğrultuda evlat edinme davaları bakımından uygulama alanı bulabilecek MÖHUK m. 40 ve MÖHUK m. 41’de düzenlenen yetki kuralları ilk olarak incelenmiştir. MÖHUK m. 40’a göre Türk mahkemelerinin milletlerarası yetkisi iç hukukun yer itibariyle yetki kuralları vasıtasıyla belirlenecektir. Evlat edinme davaları bakımından iç hukukta yer itibariyle yetkiyi gösteren kural Medeni Kanun’un 315. maddesinde yer almaktadır. MÖHUK m. 41’de ise Türklerin kişi hâllerine ilişkin davalar bakımından özel bir yetki kuralı öngörülmüştür. Evlat edinme davaları Türklerin kişi hâllerine ilişkin davalardan kabul edilmektedir. Bu sebeple taraflardan birinin Türk vatandaşı olması hâlinde bu madde de uygulama alanı bulabilecektir. İkinci olarak, evlat edinmeye ilişkin uyuşmazlıklarla ilgili Türkiye’nin taraf olduğu 1993 tarihli Çocukların Korunması ve Ülkelerarası Evlat Edinme Konusunda İşbirliğine Dair La Haye Sözleşmesi’nin öngördüğü evlat edinme sistemi ve bu sistemin Türk mahkemelerinin milletlerarası yetkisi üzerinde sahip olabileceği etkiler incelenmiştir.
In Turkish law, adoption is considered as a civil law procedure that requires a court decision. Thus, in this study the international jurisdiction of Turkish courts will be examined in adoption cases with a foreign element. There is no special jurisdiction rule in terms of adoption cases in Turkish Private International Law Act (PILA). Therefore, it’s necessary to determine the international jurisdiction of the Turkish courts by applying the general jurisdiction rule (PILA art. 40) or the special jurisdiction rule (PILA art. 41) related to the personal status of Turkish citizens if it falls within the scope of the PILA.
According to article 40 of the PILA, the international jurisdiction of Turkish courts will be determined by the jurisdiction rules of the domestic law. According to article 315 of the Turkish Civil Code (CC), the competent court in adoption cases is the court of residence of the adopter. (the term of residence here is not used in a technical sense, it’s sufficient for the adopter to have a seat in the forum.) If there is a joint adoption, the court of residence of one of the spouses will also be competent. Foreigners who want to adopt in Turkey do not have to have a place of residence or habitual residence is in Turkey. However, it is difficult to say when the parties will have a seat in Turkey. The conditions here can be said to be less stringent compared to residence.
With the establishment of the adoption relationship, there will be a change in the personal status of the persons, since a family relationship will be established between the adopted and the adopter. Therefore, the adoption relationship is a subject to PILA art. 41 related to the personal status of Turkish citizens. According to art. 41; If lawsuits concerning the personal status of Turkish citizens who do not have a domicile in Turkey are not or cannot be filed in the foreign state where they have their domicile and if there is no competent court in Turkey, the lawsuit shall be filed at the place of such citizen’s habitual residence; or if the person does not have a habitual residence in Turkey, it shall be filed at his/her last domicile in Turkey. In the absence of a last domicile in Turkey, it shall be filed with the courts of Istanbul, Ankara, or Izmir.
In adoption cases, if one of the persons concerned is a Turkish citizen, art. 41 of PILA will be determined whether the Turkish courts are competent or not. In order for Article 41 to be implemented, it is sufficient for one of the concerned to be a Turkish citizen. Considering that the article does not have a complementary jurisdiction rule besides the general jurisdiction rule, the international jurisdiction of Turkish courts in terms of adoption cases in which one of the concerned persons is a Turkish citizen will arise on the condition that the case has not been or could not be opened in a foreign state court.
According to Article 1(2) of the PILA; provisions of international conventions to which the Republic of Turkey is a signatory are reserved. Turkey is a party to the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption since 2004. Therefore, to the extent that its scope coincides, this Convention will also find its application. According to Article 2 of the Convention, The Convention shall apply where a child whose habitual residence is in a Contracting State (the State of origin) was taken to the receiving State after adoption in the country of origin by spouses or a person whose habitual residence is in another Contracting State (the receiving State) either after his or her adoption in the State of origin by spouses or a person who has habitual residence in the receiving State, or for the purposes of such an adoption in the receiving State or the State of origin. An adoption within the scope of the convention includes the rule that the decision to adopt will be made by the competent authority of the country of origin or the receiving state, but there is no rule regarding which authority in the country of origin or receiving state will be authorized. If this authority is a court as in Turkish law, there is no regulation regarding the jurisdiction of the courts. Therefore, whether the Turkish courts have international jurisdiction will be determined by the provisions of PILA.
