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Abstract
The extended stay of Syrian nationals under temporary protection in Türkiye for more than a decade has caused an increase in their involvement in private law actions before the Turkish courts. Even though their substantive rights have mostly been regulated following their arrival, the private international law legislation has not yet been reviewed. This research, focusing on the most recent judgments of Turkish courts in divorce actions of Syrian migrants identifies important issues of private international law. These include questions on determination of international jurisdiction of Turkish courts, their access to legal aid and the obligation to provide security, questions of applicable law concerning marriage (including the recognition of the marriages validly celebrated in Syria), determination of the law applicable to divorce and the content of Syrian law. The study demonstrates that some of these questions arise because of the ongoing unfamiliarity of Turkish courts with “temporary protection status” as a relatively new concept in Turkish law, whereas others are related to application of general provisions to temporary protection beneficiaries and highlights the urgent need to review the Turkish private international law legislation considering the status of these persons to provide uniformity in court decisions and to ensure predictability.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Due to its geographical location, Türkiye has always been a country of destination for migration flows arising from political disturbances in the neighbouring countries. Türkiye hosted around 350,000 migrants from Bulgaria in 1989, around 1,000,000 migrants from Iran in 1979, 500,000 migrants from Iraq in 1988 and around 500,000 migrants from Iraq in 1991 and the duration of their stay varied between a couple of months to one year at most. Thus, previous experiences of mass migration differ as regards both the number of migrants and the duration of their stay in Türkiye when compared with migration of Syrian migrants in the last decade. Regarding the previous experiences of mass influx in Turkish history see A Atlı, “Mülteciler/Misafirlerimiz: Tanıdıklarımız ve Bu Seferki Farklılıkları”, in G Bayraktaroğlu Özçelik and E Aktan (eds), Avrupa ve Uluslararası Göç Hukuku/European and International Migration Law (Yetkin Publishing, 2023), 55, 61.
2 According to the data provided by the Turkish Ministry of Interior Presidency of Migration Management, as of May 2023 Türkiye hosts 3,388,698 Syrian nationals under temporary protection: “https://www.goc.gov.tr/gecici-koruma5638 accessed on 16 May 2023”.
3 Official Gazette (OG), dated 12.12.2007, numbered 26728.
4 OG, dated 11.04.2013, numbered 28615.
5 Prior to the adoption of the LFIP, the main instruments on regular migration in Türkiye were the Law on the Residence and Travel of Foreigners in Türkiye and the Passport Law both of which were adopted in 1950. The LFIP repealed the Law on the Residence and Travel of Foreigners in Türkiye and certain provisions of Passport Law (Art 124 LFIP).
6 The LFIP replaced the Regulation No 1994/6169 on the Procedures and Principles related to Possible Population Movements and Aliens Arriving in Turkey either as Individuals or in Groups Wishing to Seek Asylum either from Turkey or Requesting Residence Permission in order to Seek Asylum from Another Country which previously regulated international and temporary protection in Türkiye (Provisional Art 1(7) LFIP).
7 See the general rationale of the LFIP, “https://www.goc.gov.tr/genel-gerekce18 accessed on 6 September 2023”.
8 For the text of the Geneva Convention as amended by the 1967 Protocol see “https://www.unhcr.org/media/28185 accessed on 17 May 2023”.
9 It can be understood neither from the LFIP nor its rationale that excluding temporary protection from the definition of migration is based on a good reason. Also considering the fact that the LFIP includes a general definition of migration, there is no reason not to interpret the concept of migration as also including temporary protection. Accordingly, “migrant” -a term not defined in the LFIP itself- should be understood as an umbrella term including regular and irregular migrants as well as persons under international and temporary protection in the implementation of this Act, without indicating the specific status of the migrant concerned. The same approach is adopted throughout this paper in the use of the term “migrant”.
10 OG, dated 22.10.2014, numbered 29153.
11 Art 91(2) LFIP provides that actions to be carried out for the reception of such foreigners into Türkiye; their stay in Türkiye and rights and obligations; their exit from Türkiye; measures to be taken to prevent mass influxes; cooperation and coordination among national and international institutions and organisations; determination of the duties and mandate of the central and provincial institutions and organisations shall be stipulated in a regulation to be issued by the Turkish President.
12 However, under Art 14(3) TPR, only those who have participated in armed conflict in their country but have permanently ceased these activities are granted international protection status. Due to the fact that Türkiye grants “refugee status” for persons asking protection due to events occurring in European countries, the Syrian nationals benefiting from Art 14(3) TPR cannot be granted refugee status, but “conditional refugee status” or “subsidiary protection”. Also see N Ekşi, Yabancılar ve Uluslararası Koruma Hukuku (Beta Publishing, 2016), 169.
13 [2001] OJ L212/12.
14 OG, dated 15.01.2016, numbered 29594. Regarding the temporary protection status and rights of temporary protection beneficiaries see G Bayraktaroğlu Özçelik, “Legal Status and Rights of Syrian Nationals in Türkiye”, in Legal Issues in Türkiye- European Union Relations: Conference Proceedings Book of the International Conferences held on 5 March 2021 and 17 March 2022 (Ankara University Press, 2022), 111.
15 Nevertheless, one can still come across a number of decisions where Syrian nationals were considered as “refugees” and the Geneva Convention was applied. See eg Adana Regional Court of Justice (3rd Civil Chamber), Registration No 2022/2567, Decision No 2022/1850, Dated 04.10.2022 “lexpera.com.tr accessed on 17 May 2023”.
16 N Ekşi, Türkiye’ye Sığınan Yabancıların Aile ve Şahsın Hukuku Davaları (Beta Publishing, 2021), 11. Independent from the mass influx situation, some Syrian nationals may be in a status of regular or irregular migrant or may have been granted international protection (as conditional refugees or subsidiary protection) in Türkiye. However, since this paper only concerns Syrian nationals under temporary protection, explanations provided under the subsequent paragraphs may not be relevant to Syrian nationals who are under a different status in Türkiye.
17 Nevertheless, it has to be noted that the objection as to the international jurisdiction of Turkish courts could only be made by the parties and cannot be taken by the court on its own motion (Art 116(1)(a) TCCP). Thus, if the objection is not raised by the defendant within two weeks from the date of receiving the petition, then the court shall establish its jurisdiction and proceed with the case. However, as provided under Art 127 TCCP, in cases where, depending on the facts and circumstances, it is very difficult or impossible to prepare the reply petition within two weeks, the respondent who applies to the court within this period may be given an additional period of time to start processing from the end of the reply period, for one time and not exceeding one month. The parties are notified immediately of the decision made on the request for additional response time.
18 R Erten, Türklerin Kişi hâllerine İlişkin Davalarda Türk Mahkemelerinin Milletlerarası Yetkisi (MÖHUK m. 41) (Yetkin Publishing, 2017), 142.
19 One very disputable aspect of Art 41 is the procedural tool to bar the action before the Turkish court if the same action is already pending before a foreign court. As regards different doctrinal views and implementation of the said provision by Turkish courts see G Bayraktaroğlu Özçelik, “International Lis Pendens as a Contemporary Problem of Turkish International Civil Procedure” (2016/2017) 18 Yearbook of Private International Law 393.
20 OG, dated 8.12.2001, numbered 24607.
21 OG, dated 4.2.2011, numbered 27836.
22 Art 19(1) LFIP requires that foreigners who would stay in Türkiye beyond the duration of a visa or a visa exemption or, [in any case] longer than ninety days obtain a residence permit.
23 As regards differences between the concepts of “domicile” and “residence” in Türkiye with a residence permit see V Doğan, Milletlerarası Özel Hukuk (Savaş Publishing, 8th edn, 2022), 56. Under the LFIP some foreigners are exempted from the requirement to obtain a residence permit (Art 20(1)). These include inter alia the applicants for international protection (Art 76 LFIP) and the persons under the international protection status (Art 83 LFIP). The identification document given to the said persons substitutes a residence permit (Art 76(4) LFIP and Art 83(2) LFIP).
24 See eg Court of Cassation (2nd Civil Chamber), Registration No 2010/4537, Decision No 2011/8105, Dated 10.5.2011 “www.kazanci.com.tr accessed on 17 May 2023”.
25 M Dural, Türk Özel Hukuku- Cilt III- Aile Hukuku (Filiz Publishing 2022), 130.
26 S Çörtoğlu Koca, “Boşanma, Ayrılık ve Evliliğin Butlanı Davaları ile Velâyete İlişkin Davalarda Milletlerarası Yetki Sorunu” (2016) 20(2) Gazi Üniversitesi Hukuk Fakültesi Dergisi 240.
27 Dural, supra n 25, 130.
28 Ekşi, supra n 16, 48.
29 Ibid, 49.
30 This observation is based on the interviews conducted with officials of the Presidency of Migration Management of the Turkish Ministry of Interior.
31 According to one view Art 9 TCCP can be applied if the defendant has his/her domicile abroad, however, has his/her habitual residence in Türkiye. If, however, he/she was formerly resident abroad and has not yet established a domicile in Türkiye, then his/her domicile shall be deemed to be the place in which he/she has his/her residence in Türkiye under Art 20(2) TCC: C Şanlı and E Esen and İ Ataman-Figanmeşe, Milletlerararası Özel Hukuk (Beta Publishing, 10th edn, 2023), 474, fn. 114; N Ekşi, Türk Mahkemelerinin Milletlerarası Yetkisi (Beta Publishing, 2nd edn, 2000), 86. According to another view in cases where no previously established domicile may be proven or if he or she was formerly resident abroad and has not yet established a domicile in Türkiye, Art 20(2) TCC should apply in ignorance of Art 9 TCCP: S Özel, M Erkan, HS Pürselim and HA Karaca, Milletlerarası Özel Hukuk (On İki Levha Publishing, 2022), 583. In practice however the jurisdiction of Turkish courts is established according to Art 9 TCCP if the defendant’s domicile is not in Türkiye, without further considering the applicability of Art 20(2) TCC: See eg Court of Cassation (11th Civil Chamber), Registration No 2020/2160, Decision No 2022/202, Dated 13.01.2022; İstanbul Regional Court of Justice (13th Civil Chamber), Registration No 2020/750, Decision No 2020/870, Dated 17.09.2020 “www.lexpera.com.tr accessed on 17 May 2023”. According to the present author’s view one of the main reasons for divergent views on the scope of Art 9 TCCP and Art 20(2) TCC is that there is no provision in Turkish law like the Swiss Code of Civil Procedure which clearly provides that Art 24 of the Swiss Civil Code (on change of domicile and temporary residence which substantially includes the same provision as Art 20 TCC) shall not apply in determination of domicile (Swiss Code of Civil Procedure Art 10(2), second sentence).
32 Erten, supra n 18, 157.
33 The place where the Turkish citizen living abroad stays during her visits to Türkiye and provided in the power of attorney is accepted as her place of residence in Türkiye: Court of Cassation (20th Civil Chamber), Registration No 2015/4836, Decision No 2015/9864, Dated 22.10.2015 “www.yargitay.gov.tr accessed on 17 May 2023”.
34 For an official English translation of the Turkish Constitution see “https://www.anayasa.gov.tr/media/7258/anayasa_eng.pdf accessed on 20 May 2023”.
35 For different principles adopted for rights of foreigners under Turkish law see A Çelikel and G Öztekin Gelgel, Yabancılar Hukuku (Beta Publishing, 2017), 64.
36 Regarding the assessment of practice in considering reciprocity see Y Yılmaz, “Milletlerarası Özel Hukuk Açısından Mütekabiliyetin Tespitinde Adalet Bakanlığının Görüşünün Niteliği” (October 2017) Uluslararası Hukuk Bülteni 7.
37 In determining whether reciprocity exists, the Turkish judicial authorities seek the opinion of the General Directorate of Foreign Relations and European Union of the Turkish Ministry of Justice which makes the investigation as to reciprocity. The General Directorate may gather the information by taking the help of foreign authorities through the Turkish Ministry of Foreign Affairs where it is needed, especially in determining whether a right is provided for Turkish nationals in that country in practice or not: Yılmaz, supra n 36, 7.
38 See eg, Court of Cassation (11th Civil Chamber), Registration No 2015/4033, Decision No 2015/11495, Dated 2015; Court of Cassation (11th Civil Chamber), Registration No 2008/1284, Decision No 2009/980, Dated 30.01.2009 “www.kazanci.com.tr accessed on 15 April 2023”.
39 As regards the reciprocity requirement as to international protection beneficiaries see B Vural Çelenk, “Yabancılara Hak Tanımada Karşılıklılık İlkesinin Uluslararası Koruma Hukuku Açısından Yeniden Değerlendirilmesi”, in Çankaya Üniversitesi Hukuk Fakültesi Ceren Damar Şenel II. Genç Bilim İnsanları Sempozyumu Bildiri Kitabı (Yetkin Publishing, 2022), 95.
40 G Güngör, Türk Milletlerarası Özel Hukuku- Kanunlar İhtilafı Hukuku ve Milletlerarası Usul Hukuku (Yetkin Publishing 2021), 266.
41 E Nomer, Devletler Hususi Hukuku (Beta Publishing, 22nd edn, 2017), 502; Z Çalışkan, Milletlerarası Usul Hukukunda Teminat (Vedat Publishing, 2013), 99; G Bayraktaroğlu Özçelik, “MÖHUK m. 48 uyarınca Yabancıların Teminat Gösterme Yükümlülüğü”, in Feriha Bilge Tanrıbilir and Gülce Gümüşlü Tunçağıl (eds), 10. Yılında Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun (Adalet Publishing, 2018), 434.
42 OG, dated 19.3.1969, numbered 13168. The said Act defines legal aid as provision of advocacy services to the ones who do not have financial resources to cover the advocacy fees and other court costs (Art. 176). The provisions of the Advocacy Act as regards legal aid are implemented according to the provisions of the Legal Aid Regulation of the Union of Turkish Bar Associations.
43 See eg, Turkish Constitutional Court, Application of B.A., Application No 2016/29879, 22.02.2017, para 17.
44 Regarding non-existence of a general scheme of legal aid in Uganda see I Özkan, Göç- İltica ve Sığınma Hukuku (Seçkin Publishing, 3rd edn, 2018), 353. It is also evident from the report of 2016 prepared by UNDP and UNODC that there is still an important number of countries where legal aid is not provided as regards the attorney services in civil actions: United Nations Development Programme (UNDP)/ United Nations Office on Drugs and Crime: Global Study on Legal Aid- Global Report, (2016), 119, “https://www.unodc.org/documents/justice-and-prison-reform/LegalAid/Global_Study_on_Legal_Aid_-_FINAL.pdf accessed on 16 May 2023”.
45 A Dutta, “Reciprocity”, in Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro De Miguel Asensio (eds), Encyclopedia of Private International Law, vol 2 (Edward Elgar Publishing, 2017), 1470.
46 İ Sarıöz Büyükalp, AİHS ve AİHM Kararlarının da İncelenmesi Suretiyle Adil Yargılanma Hakkının Türk Milletlerarası Usul Hukuku Üzerindeki Etkileri (On İki Levha Publishing, 2018), 206.
47 Convention on Civil Procedure, concluded on 1 March 1954, “https://assets.hcch.net/docs/30f6092f-2a79-45f6-85a9-4f13c7c783c2.pdf accessed on 17 May 2023”.
48 According to Art 20 of the Convention in civil and commercial matters nationals of the Contracting States shall be granted free legal aid in all the other Contracting States, on the same basis as nationals of these States, upon compliance with the legislation of the State where the free legal aid is sought (Art 20(1)).
49 Under Art 14 of the Bilateral Agreement on Mutual Assistance in Civil and Commercial Matters between Türkiye and Syria it is provided that the nationals of a contracting state shall benefit from legal aid as regards the court costs in the other contracting state under the same conditions as the nationals of the latter.
50 Although the Bilateral Agreement on Mutual Assistance in Civil and Commercial Matters was approved by the Turkish Council of Ministers on 21.04.2011 and published in the OG on 15.06.2011, since the Presidency Decree determining the date of coming into force of the Agreement is not yet adopted, the said Agreement is deemed to be not yet in force thus it is not taken into consideration by the Turkish courts: See eg Court of Cassation (12th Civil Chamber), Registration No 2015/10721, Decision No 2015/13622, Dated 14.05.2015; İstanbul Commercial Court of First Instance (13th Civil Chamber), Registration No 2021/17, Decision No 2022/139, Dated 23.02.2022 “www.lexpera.com.tr accessed on 17 May 2023”. See also decision of the Midyat Civil Court of First Instance rejecting the request of the Syrian plaintiff for legal aid in a custody case on the ground that reciprocity does not exist: Midyat Civil Court of First Instance (1st Chamber), Registration No 2022/22, Decision No 2022/21, Dated 15.03.2022.
51 In practice, for instance, it is observed that in some domestic violence cases the Syrian women were served with court documents in Turkish, were not assisted with translators and could not have access to the necessary information on legal aid: “https://asylumineurope.org/reports/country/turkiye/content-temporary-protection/guarantees-vulnerable-groups/ accessed on 18 May 2023”.
52 As regards the case law of the European Court of Human Rights (ECtHR) on legal aid see European Court of Human Rights: Guide on Article 6 of the European Convention on Human Rights- Right to a fair trial (civil limb), updated to 31 August 2022, 44, “https://www.echr.coe.int/documents/guide_art_6_eng.pdf accessed on 12 May 2023”; LR Kiestra, The Impact of the European Convention on Human Rights on Private International Law (Springer, 2014), 108.
53 For a similar view see M Aygül and E Altıntaş, “Sığınmacıların Teminat Yatırma Yükümlülüğü” (2020) 40 Public and Private International Law Bulletin, 720.
54 Research shows that the Syrian nationals who are under temporary protection in Türkiye are generally not high skilled workers and are usually employed by the small and medium size enterprises as unqualified workers: MM Erdoğan, Syrians Barometer-2019, A Framework for Achieving Social Cohesion with Syrians in Turkey (Orion Publishing, 2020) 138. They also have a disadvantage at the Turkish labour market because of not being competent in Turkish and having a different working culture. A very important issue as regards the Syrian workers is informal employment which leaves them unprotected against social risks such as accidents at work, diseases, illnesses, unemployment, disability, and old age. Although the number of Syrian nationals working with a permit have increased over the years, their informal employment in some sectors (including textile, construction, industry, food, auto repair-washing sector) continue to be an issue requiring effective employment policies. For the mentioned facts and figures on the situation of Syrian temporary protection beneficiaries in the Turkish labour market see International Labour Organization, Social Security Status of Syrians under Temporary Protection in the Turkish Labour Market and Recommendations for Transition to Formality, 2023, “https://www.ilo.org/wcmsp5/groups/public/---europe/---ro-geneva/---ilo-ankara/documents/publication/wcms_874228.pdf accessed on 10 September 2023”.
55 Regarding the view that the temporary protection beneficiaries should be exempted from the reciprocity requirement under Art 48(1) since the main difference between the said group and the persons under the international protection is as regards the assessment of their application for protection, and not as to protection of human dignity see Aygül and Altıntaş, supra n 53, 716; M Acun-Mekengeç, “Türk Hukukunda Teminat Gösterme Yükümlülüğü” (2017) 37 Public and Private International Law Bulletin 22.
56 Gaygusuz v. Austria, 16 September 1996, Application no 17371/90, 16 September 1996, para 42.
57 Gaygusuz v. Austria, para 42. Regarding the view that difference in treatment in respect to nationals and foreigners on provision of legal aid may be considered as a breach of Art 14 ECHR see Kiestra, supra n 52, 125.
58 Adana Family Court (5th Chamber), Registration No 2018/80, Decision No 2018/994, Dated 27.11.2018 (not published).
59 Bursa Regional Court of Justice (2nd Civil Chamber), Registration No 2019/2190, Decision No 2020/175, Dated 06.02.2020 “www.lexpera.com.tr accessed on 17 May 2023”. For a decision of Adana Family Court rejecting the request for legal aid of the Syrian plaintiff in the divorce action on the ground that he could not prove that he is incapable of covering the court expenses, see Adana Family Court (9th Chamber), Registration No 2022/724, Dated 13/09/2022. Regarding the practice of Turkish courts in actions for damages arising from traffic accidents where the request of the Syrian temporary protection beneficiaries for legal aid are accepted on the ground that they do not have the financial resources, see İzmir Court of First Instance (5th Chamber), Registration No 2019/487, Decision No 2021/562, Dated 06.07.2021; Antalya Commercial Court of First Instance (1st Chamber), Registration No 2021/82, Decision No 2021/911, Dated 27.12.2021 “www.lexpera.com.tr accessed on 17 May 2023”.
60 See eg, Court of Cassation (12th Civil Chamber), Registration No 2015/28626, Decision No 2015/30779, Dated 08.12.2015; Court of Cassation (4th Civil Chamber), Registration No 2021/13803, Decision No 2022/7689, Court of Cassation (4th Civil Chamber), Registration No 2021/11030, Decision No 2022/9527, Dated 28.06.2022 “www.lexpera.com.tr accessed on 20 May 2023”.
61 See eg, Court of Cassation (12th Civil Chamber), Registration No 2015/10721, Decision No 2015/13622, Dated 14.5.2015; Court of Cassation (19th Civil Chamber), Registration No 2012/14866, Decision No 2013/11939, Dated 26.06.2013; İstanbul Commercial Court of First Instance (13th Civil Chamber), Registration No 2021/17, Decision No 2022/139, Dated 23.02.2022; Adana Regional Court of Justice (3rd Civil Chamber), Registration No 2021/571, Decision No 2022/703, Dated 28.03.2022; Adana Regional Court of Justice (3rd Civil Chamber), Registration No 2020/5, Decision No 2020/206, Dated 4.2.2020 “www.lexpera.com.tr accessed on 18 May 2023”.
62 See eg, Court of Cassation (19th Civil Chamber), Registration No 2012/14866, Decision No 2013/11989, Dated 26.06.2013 “www.lexpera.com.tr accessed on 18 May 2023”. In a judgment of the Court of Cassation it is understood from the dissenting vote that the plaintiffs were under temporary protection in Türkiye: Court of Cassation (4th Civil Chamber), Registration No 36/2021, Decision No 10078/2022, Dated 13.09.2022 “www.legalbank.net accessed on 5 April 2023”. However, in its decision of 18.04.2022 İstanbul Regional Court of Justice reversed the judgment of the first instance court on the ground that the judgment was made without determining the status of the foreigner despite the existence of the temporary protection identity document submitted to the court: İstanbul Regional Court of Justice (9th Civil Chamber), Registration No 2020/739, Decision No 2022/752, Dated 18.04.2022 2013 “www.lexpera.com.tr accessed on 18 May 2023”.
63 Kayseri Regional Court of Justice (3rd Chamber), Registration No 2021/1117, Decision No 2022/308, Dated 17.02.2022 “www.lexpera.com.tr accessed on 16 May 2023”.
64 For a similar judgment where the Court ruled that Art 88 LFIP cannot apply to the Syrian plaintiff based on the fact that he is not under international protection see İzmir Commercial Court of First Instance (4th Chamber), Registration No 2020/647, Decision No 2022/106, Dated 15.02.2022 “www.lexpera.com.tr accessed on 2 May 2023”. However, it is also possible to come across decisions where it was held that the Syrian plaintiff was exempted from the obligation to provide security under Art 16 of the Geneva Convention, as he was recognised as a “refugee” whereas in others it was ruled that the Syrian plaintiff was obliged to provide security on the ground that he was not under “subsidiary protection” in Türkiye: See respectively, Adana Regional Court of Justice (3rd Civil Chamber), Registration No 2022/2567, Decision No 2022/1850, Dated 4.10.2022; İzmir Commercial Court of First Instance (7th Chamber), Registration No 2021/35, Decision No 2021/528, Dated 1.7.2021 “www.lexpera.com.tr accessed on 4 May 2023”.
65 Doğan, supra n 23, 87; Bayraktaroğlu Özçelik, supra n 41, 450.
66 Regarding the legal effect of official documents issued by foreign authorities in Turkish law see Şanlı, Esen and Ataman-Figanmeşe, supra n 31, 588.
67 For the text of the Convention see “https://assets.hcch.net/docs/b12ad529-5f75-411b-b523-8eebe86613c0.pdf accessed on 1 June 2023”.
68 For the text of the Convention see “https://www.dfae.admin.ch/eda/fr/dfae/politique-exterieure/droit-international-public/traites-internationaux/depositaire/etat-civil/convention-portant-dispense-de-legalisation-pour-certains-actes-et-documents.html accessed on 19 May 2023”.
69 For alternative methods accepted in the EU member states where the official documents proving the personal status of persons do not exist, see S Corneloup, B Heiderhoff, C Honorati, F Jault-Seseke, T Kruger, C Rupp, H van Loon and J Verhellen, Private International Law in a Context of Increasing International Mobility: Challenges and Potential (European Parliament Policy Department for Citizens” Rights and Constitutional Affairs) (2017), 14. For an analysis of the issues regarding presentation of documentary evidence proving the personal and family status of refugees see J Verhellen, “Cross-border Portability of Refugees’ Personal Status” (2017) 31 Journal of Refugee Studies 427, 429.
70 This observation is based on the interviews conducted with officials of the Presidency of Migration Management of the Turkish Ministry of Interior.
71 HN Sarıhan, “Türkiye- Suriye Perspektifinde Evlilik Hukukuna Dair İnceleme”, (2018), 9, “https://humanistburo.org/dosyalar/humdosya/Turkiye%20Suriye%20Perspektifinde%20Evlilik%20Hukukuna%20Dair%20Inceleme%20(H.N.Sarihan).pdf accessed on 13 April 2023”.
72 According to Art 13(1) TAPIL capacity to marry and the conditions thereof shall be governed by the respective national laws of the parties at the time of marriage. In disputes of law of persons and family law conflict of laws rules of the applicable foreign law referring to another law (renvoi) is taken into consideration and substantive provisions of that law are applied (Art 2(3) TAPIL).
73 Court of Cassation General Assembly on the Unification of Judgments, Registration No 2010/1, Decision No 2012/1, Dated 10.02.2012: O.G. 20.09.2012, numbered 28417.
74 Şanlı et al, supra n 31, 88.
75 Ibid.
76 This observation is based on the interviews conducted with officials of the Presidency of Migration Management of the Turkish Ministry of Interior.
77 A Çelikel and BB Erdem, Milletlerarası Özel Hukuk (Beta Publishing, 15th edn, 2017), 130; Özel et al., supra n 31, 114.
78 Regarding criticisms against a priori rejection of recognition of a marriage celebrated validly under foreign law see G Bayraktaroğlu Özçelik, “SDG 5: Gender Equality”, in R Michaels, V Ruiz-Abou Nigm and H van Loon (eds), The Private Side of Transforming our World- UN Sustainable Development Goals 2030 and the Role of Private International Law (Intersentia, 2021), 159, 186; Corneloup et al., supra n 69, 21. As regards recognition of child marriages celebrated validly abroad see M Bogdan, “Some Critical Comments on the New Swedish Rules on Non-Recognition of Foreign Child Marriages” (2019) 15 Journal of Private International Law 247, 252.
79 The Syrian nationals who are under temporary protection in Türkiye were given a leave to visit their country during religious holidays between 2017 and 2021. However, by the decision of the Turkish Ministry of Interior of April 2022 this leave was abolished and since then they are only allowed to visit Syria in very limited circumstances for humanitarian reasons, such as attending a funeral. For the press release made by the Turkish Ministry of Interior Presidency of Migration Management on the visits of Syrian temporary protection beneficiaries to Syria, see “Bayram izni kaldırılan Suriyeliler, gönüllü geri dönüşe teşvik edilecek”, Anadolu Ajansı, 29.04.2022 “https://archive.is/itS1x accessed on 5 September 2023”.
80 Court of Cassation (2nd Civil Chamber), Registration No 2021/10953, Decision No 2022/3995, Dated 26.04.2022 (not published).
81 Bakırköy Family Court (10th Chamber), Registration No 2020/726, Decision No 2021/211, Dated 26.03.2021 (not published).
82 İstanbul Regional Court of Justice (38th Civil Chamber), Registration No 2021/845, Decision No 2021/1494, Dated 11.10.2021 (not published).
83 Under TAPIL nationality is accepted as a connecting factor as regards capacity of natural persons (Art 9(1)); grounds for appointment and termination of guardianship and incapacity (Art 10(1)); declaration of absence and death pronouncement decisions (Art 11); capacity and requirements for engagement (Art 12 (1)); capacity and requirements for marriage (Art 13(1)); establishment and consequences of lineage (Arts 16 and 17); adoption (Art 18) and inheritance (Art 20). TAPIL also provides for the application of the law of common nationality of the spouses as regards consequences of engagement (Art 12(2)), consequences of marriage (Art 13(3)), grounds and consequences of divorce and legal separation (Art 14(1)), maintenance obligations between the divorced spouses (Art 14(2)), questions of custody in divorce (Art 14(3)), -where there is no choice of law- matrimonial property (Art 15(1)); -where the child is adopted jointly by the spouses- the consequences of adoption and where there is common nationality of the spouses and the child, then as regards consequences of lineage (Art 17). Whether the traditional connecting factors of “nationality” and “habitual residence” are appropriate to determine the law applicable to personal statuses of migrants is another, highly important question which is not included in the scope of this paper. For an in-depth analysis of this question see S Courneloup, “Migrants in Transit or Under Temporary Protection- How Can Private International Law Deal with Provisional Presence?” (2023) 87 The Rabel Journal of Comparative and International Private Law 46, 47.
84 Regarding questions of international jurisdiction and applicable law in divorce actions and in actions of annulment of marriage involving Syrian temporary protection beneficiaries in Türkiye, see FR Tellioğlu, “Geçici Koruma Statüsünden Yararlanan Yabancıların Taraf Olduğu Evliliğin İptali ve Boşanma Davaları”, in G Bayraktaroğlu Özçelik and E Aktan (eds), Avrupa ve Uluslararası Göç Hukuku/European and International Migration Law (Yetkin Publishing, 2022), 483.
85 Gaziantep Regional Court of Justice (2nd Civil Chamber), Registration No 2018/229, Decision No 2018/1429, Dated 16.7.2018 “www.lexpera.com.tr accessed on 14 February 2022”.
86 Şanlıurfa Family Court (3rd Chamber), Registration No 2019/686, Decision No 2020/398, Dated 15.10.2020 (not published); İslâhiye Civil Court of First Instance (2nd Chamber), Registration No 2020/236, Decision No 2021/355, Dated 21.12.2021 (not published); Sinanpaşa (Afyonkarahisar) Court of First Instance (acting as a Family Court), Registration No 2020/97, Decision No 2021/276, Dated 27.08.2021 (not published); Adana Family Court (4th Chamber), Registration No 2022/113, Decision No 2022/224, Dated 16.03.2022 (not published). Also see the decision of Ankara Regional Court of Justice in which the court applied Turkish law in the custody action between a Turkish father and a Syrian mother, without considering the provisions of TAPIL: Ankara Regional Court of Justice (2nd Civil Chamber), Registration No 2019/2802, Decision No 2020/77, Dated 22.01.2020 “www.kazancı.com.tr accessed on 14 February 2022”.
87 One important exception to the application of Turkish conflict of laws rules is the application of the overriding mandatory rules of Turkish law. As provided under Art 6 TAPIL, where there is such a rule of the lex fori, the dispute shall be solved by that rule without recourse to the conflict of laws rules. Nevertheless, in the said actions involving the Syrian migrants, there are no such rules of mandatory character that might have forced the Turkish courts to apply Turkish substantive rules in ignorance of conflict of laws rules.
88 Şanlı et al, supra n 31, 35, fn. 63; Çelikel and Erdem, supra n 77, 69; AE Ulusu Karataş, “Geçici Koruma Altındaki Suriye Vatandaşlarının Çocuk Yaşta Evliliklerinin Mukayeseli Hukuka ve Türk Hukukuna Göre Geçerliliği” (2020) 78 İstanbul Hukuk Mecmuası 21, 45.
89 According to Art 12 of the Convention the personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.
90 For the rationale of TAPIL see “https://www5.tbmm.gov.tr/sirasayi/donem22/yil01/ss1324m.htm accessed on 20 May 2023”. Nevertheless Art 12 of the Geneva Convention is not free from doubts as to its scope of application and implementation of the law of domicile/residence. For an analysis of the issues raised by the said provision see Verhellen, supra n 69, 435.
91 OG, dated 26.08.1975, numbered 15338.
92 OG, dated 02.10.2004, numbered 25601.
93 Şanlı et al., supra n 31, 79.
94 Kayseri Family Court (4th Chamber), Registration No 2019/661, Decision No 2020/369, Dated 08/09/2020 (not published).
95 Kayseri Regional Court of Justice (2nd Chamber), Registration No 2019/661, Decision No 2020/369, Dated 13.01.2021 (not published).
96 Gaziantep Family Court (9th Chamber), Registration No 2021/531, Dated 9.07.2021 (not published).