authorized Court, on lack of venue because the legal place of residence of the foreigner is in abroad.
In a divorce suit, conducted in Antalya Family Courts where both husband and wife are citizens of a foreign country, the Local Court approved the plea of the jurisdiction and made a decision of rejection of venue as a final provision, not to send to the authorized Court, on lack of venue because the legal place of residence of the foreigner is in abroad. In other words, the Court made a final decision on jurisdiction because the legal place of residence of the foreigner is in abroad and so, he is out of jurisdiction of Turkey. Judgement of the Local Court reversed because our appeal reasons we submitted to the Supreme Court were justified.
The discipline upholds that having a residence permit of a foreigner in Turkey does not mean that s/he has a place of residence in Turkey, there is also a need for determination how and how much of his/her actual life, so his/her financial, social and family life relations are conducted in Turkey, beside the residence permit. It is not possible not to agree with the opinion of the discipline for the ordinary law. Because some time in Turkey, a condition can be laid down for having residence permit of foreigners just with the secondary legislation. For example, in a period of time, an obligation for having residence permit for a minimum of six months had been imposed for purchasing real estates in Turkey by the foreigners except for the European Union countries. The Foreigner's Department had been notifying the situation of foreigners except for ones from the European Union countries who had purchased real estates in this way to General
Directorate of Civil Registration and Nationality; and General Directorate of Civil Registration and Nationality has been registering these people on foreigners' register and had been giving them TR Identity Number. As indicated by the discipline, when we do not investigate if any foreigner, who has purchased a real estate in Turkey but who has never come to Turkey for residence purposes, have his/her actual life in Turkey or not, then we confront with an unjust consequence such as being able to file a lawsuit in Turkey in all respect. Even so, it may also create some unreasonable consequences to investigate in all cases if the actual life is in Turkey or not, apart from the residence permit.
If we take into consideration a foreigner who makes real estate investment, when there are some disputes related with a foreigner, who has purchased a real estate and who for that reason possesses a residence permit but who has never entered into or exit from Turkey, which has arisen in accordance with the Law of Property Ownership for the real estate that he/she has purchased or for his/her receivables of the servants employed by the owner in the building in accordance with the Labour Law or for the damages it has caused on third parties because of the building; it will create almost a judicial immunity for a foreigner to investigate if his/her actual life is in Turkey and to make a decision accordingly.
In the divorce suit we have filed by applying the foreign country law with regard to the husband and wife who are from a foreign country as mentioned above, in line with our justifications of appeal by the Supreme Court against the court’s final decision of rejection of venue, the court has sentenced to make a decision in accordance with the determination of if the foreigner has a legal residence, in consideration of the regulation of address recording system. In this regard, the Supreme Court contents itself with checking the foreign country register of the foreigner, for the lawsuits to be filed against any foreigner in Turkey, regardless from what the subject matter of the lawsuit is.
It does not take into consideration if his/her actual life is in Turkey or not. It is apparent that some foreigners who notices this situation and whose actual life is essentially in Turkey quit their residence permits and erases their names from the foreigner’s record and almost fall under the scope of to the judicial immunity. In consideration of all of these aspects, in our opinion, and also in consideration of the subject matter of the lawsuit, it is necessary that the Court takes into consideration the weight of the actual life when necessary, and the Supreme Court develops its court practices in this direction.
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