Sığınmacıların Teminat Yatırma Yükümlülüğü

Abstract

In 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.