Obligation of Cautio Judicatum Solvi of Asylum Seekers
Musa Aygül, Elif Hande AltıntaşIn principle, no security is required for anyone who files a lawsuit, intervenes in a lawsuit, or initiates execution proceedings before a Turkish court. However, in some exceptional cases stated in legal regulations the person who files a lawsuit, intervenes in a lawsuit, or initiates execution proceedings could be required to provide security. One example in this regard is the situation, as regulated under Article 48 of the Act on Private International Law and International Civil Procedure (IPPL), that the person filing or intervening in a lawsuit or initiating execution proceedings before a Turkish court is a foreign national. This is, however, an issue related with the right to a fair trial within the scope of the right to access to the court (Art. 6 of the ECHR and Art. 36 of the Turkish Constitution). Unless the contrary is provided as in Art. 16 of the 1951 Geneva Convention, foreign nationals residing in Turkey could be regarded as persons falling within the scope of application of Art. 46 of the IPPL. There is no special regulation in Turkish law regarding the liability of cautio judicatum solvi of conditional refugees, holders of subsidiary protection status owners, holders of temporary protection and international protection applicants, who came to Turkey for international protection but could not acquire the status of refugees due to the geographical reservation of Turkey to the 1951 Geneva Convention. In this paper, the liability of cautio judicatum solvi of these individuals, who are considered under international protection, is evaluated in the light of the right to access to the court and fair trial, and the question of whether they are under the obligation of exe cautio judicatum solvi under Art. 48 of the IPPL or Art. 84 of the Turkish Code of Civil Procedure is examined.
Sığınmacıların Teminat Yatırma Yükümlülüğü
Musa Aygül, Elif Hande AltıntaşKural olarak, bir kimsenin dava açması, davaya katılması ya da icra takibinde bulunmasında teminat aranmaz. Ancak kanunun öngördüğü bazı istisnaî durumlarda dava açmak ya da takip talebinde bulunmak için teminat şartı aranabilir. Teminatın arandığı hâllerden birisi de, MÖHUK m. 48’de düzenlenen, dava açanın, davaya katılanın ya da icra takibi yapan kimsenin yabancı olmasıdır. Davacıdan ya da icra takibi yapandan teminat istenmesi, mahkemeye erişim hakkı kapsamında adil yargılanma hakkı (AİHS m. 6 ve Anayasa m. 36) ile de ilgili bir konudur. Türkiye’de bulunan yabancılar da, 1951 tarihli Cenevre Sözleşmesinde olduğu gibi aksine bir düzenleme olmadığı müddetçe MÖHUK m. 48’in uygulama alanı içinde kalabilecek kişiler olarak değerlendirilebilir. Türkiye’nin 1951 tarihli Cenevre Sözleşmesine koymuş olduğu coğrafî sınırlama sebebi ile özellikle mülteci statüsüne sahip olamamış ve ülkemize uluslararası koruma amacıyla gelen şartlı mülteci, ikincil koruma statü sahipleri ile geçici koruma sahipleri ve uluslararası koruma başvuru sahiplerinin teminat yükümlülüğüne ilişkin ise hukukumuzda özel bir düzenleme mevcut değildir. Çalışmada, uluslararası koruma altında kabul edilen bu kişilerin teminat yükümlülükleri, mahkemeye erişim ve adil yargılanma hakkı çerçevesinde değerlendirilmiş ve bu kişilerin MÖHUK m. 48 ya da HMK m. 84 kapsamında teminat yükümlülüklerin bulunup bulunmadığı incelenmiştir.
It is guaranteed in both the European Convention on Human Rights (ECHR) and the Turkish Constitution that everyone, including foreigners, has the right to access the courts. However, the rights guaranteed in the Constitution, as prescribed by the Constitution, could be restricted for citizens (Constitution Article 13) and foreigners (Constitution Article 16).
In the light of the right to access the courts, no security, in principle, is required for a person who files a lawsuit, intervenes in a lawsuit, or initiates execution proceedings before a Turkish court. Nevertheless, exceptions to this are provided by the legislature within the scope of the power of restriction granted by the Constitution.
Article 84/1-a of the Turkish Code of Civil Procedure presents the first exception to this effect. Pursuant to this provision, Turkish citizens who are not habitually resident in Turkey are stipulated to provide security when filing a lawsuit, intervening in a lawsuit alongside the plaintiff or initiating execution proceedings before a Turkish court.
Furthermore, according to Article 48 of the Turkish International Private and Procedural Law (MÖHUK - IPPL), foreign natural or juridical persons filing or intervening in a lawsuit or initiating execution proceedings before a Turkish court are also required to provide security. Since this includes all foreigners, asylum seekers coming to Turkey for the purpose of international protection are also under the obligation to provide security in such instances.
Article 16 of the 1951 Geneva Convention, to which Turkey is a contracting party, however, states that refugees are exempted from the cautio judicatum solvi. With a restrictive interpretation of the term ‘refugee’ in this provision, only individuals who have the status of refugee under the Law on Foreigners and International Protection (YUKK) are exempted from the cautio judicatum solvi.
There are, yet, other groups of people who have a different status from the refugees but could be considered as asylum seekers under the YUKK. These are conditional refugees, holders of subsidiary protection status, holders of temporary protection status and international protection applicants.
None of these group of individuals acquire the status of refugees based on different reasons. The first group is conditional refugees and holders of subsidiary protection status who could not acquire the status of refugees merely by virtue of the geographical reservation made by Turkey to the Geneva Convention. Holders of temporary protection status cannot acquire the status of refugees either, as they came to Turkey massively. Lastly, international protection applicants are not yet holders of international protection but they are granted with same rights as conditional refugees until a final decision is made on their applications. Albeit that they do not have the status of refugees, all these asylum seekers should be treated as refugees and exempted from the cautio judicatum solvi in the light of the Geneva Convention and, more generally, of the right to access to the courts. There seems to be different reasons underlying this.
In the first place, the European Court of Human Rights described these people as “vulnerable” groups. Accordingly, the reasons that justify the exemption of refugees from the cautio judicatum solvi are also applicable for all asylum seekers (conditional refugees, holders of subsidiary protection status, holders of temporary protection and international protection applicants). Reasons which mark these people as “vulnerable” are, for example, the lack of awareness of these people on their rights, complex and formalistic court systems in the countries which they are present, expensive court and attorney fees, cultural conflicts in the pursuit of justice, legal discrimination, linguistic barriers, societal discrimination, political indifference and encampment.
Moreover, the Geneva Convention has a similar motive to provide an exemption for refugees from the cautio judicatum solvi. The same is actually applicable for conditional refugees, holders of subsidiary protection status, holders of temporary protection and international protection applicants who came to Turkey for international protection. Therefore, the term “refugee” under Article 16 of the Geneva Convention needs a broad interpretation to include all asylum seekers (conditional refugees, holders of subsidiary protection status, holders of temporary protection and international protection applicants). This interpretation appears to be more in line with the purposes of this provision and, in general, the Convention. The purpose of such an exemption is to acknowledge that refugees face many difficulties in practice when they wish to use their right to access the courts. All of these problems which refugees are facing are also present for conditional refugees, holders of subsidiary protection status, holders of temporary protection and international protection applicants. They also have the lack of awareness of their rights, linguistic and economic barriers, and they are faced with problems and complex and formalistic court systems in their new country of residence. Requiring these people with poor economic and social conditions to provide security may amount to a disproportionate restriction of the right to access the courts.
Last but not least, Article 4/1-a of the IPPL provides that the term “refugee” should be considered to cover all asylum seekers coming to Turkey for international protection. Thus, treating conditional refugees, holders of subsidiary protection status, holders of temporary protection status and international protection applicants as refugees and exempting them from the cautio judicatum solvi would also be in accordance with this provision of the IPPL.
