Sovereign Immunity in Turkey

The Questionnaire Covering All Aspects of Legislation and Practices in Sovereign Immunity Cases in Turkey.

Background
Jurisdicational Immunity
Enforcement Immunity
Immunity of International Organizations
Updates & Trends

BACKGROUND

Concept of sovereign immunity

1. What is the general approach to the concept of sovereign immunity in your state?

The concept of state immunity that applies in Turkey is a restrictive immunity. Domestic law distinguishes the state’s sovereign acts, acta jure imperii, and matters involving private acts of a state, acta jure gestionis. The state or its assets cannot be subject to any legal proceedings where it acts concerning its sovereign activities.

Following the contemporary understanding, the provision in International Private and Procedure Law (IPPL) distinguishes the actions of the state in the field of private law and activities performed by using sovereignty authority.

Legal basis

2.  What is the legal basis for the doctrine of sovereign immunity in your state?

The legal basis for the doctrine of sovereign immunity in Turkey derives from the domestic law.

According to article 49 of the IPPL:

The foreign state is not granted immunity for judicial disputes arising from private law relations. In such disputes, a notification can be made to diplomatic representatives of the foreign state.

Because the above provision does not frame the details of this broad matter, customary international law and precedents of the Turkish Court of Cassation are the sources for more certainty regarding the scope of the sovereign immunity.

Multilateral treaties

3. Is your state a party to any multilateral treaties on sovereign immunity? Has the state made any reservations or declarations regarding the treaties?

Turkey has been a party to the 1961 Vienna Convention on Diplomatic Relations since 1985. The scope and limits of the judicial immunity of the foreign diplomatic members before the Turkish authorities must be determined following this Convention’s provision.

JURISDICTIONAL IMMUNITY

Domestic law

4. Describe domestic law governing the scope of jurisdictional immunity.

Jurisdictional immunity covers the state itself and its various organs, agencies and instrumentalities, and extends to all activities. However, such separate entities will be subject to immunity only if they perform actions in sovereign authority. Besides the state itself, its diplomatic representatives also have immunity according to the 1961 Vienna Convention on Diplomatic Relations. According to article 31 of the 1961 Vienna Convention on Diplomatic Relations, a diplomatic agent shall enjoy immunity from the criminal, civil and administrative jurisdiction, except in the case of:

•        a real action relating to private immovable property situated in the territory of the receiving state, unless he or she holds it on behalf of the sending state for the mission;

•        an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state; and

•        an action relating to any professional or commercial activity exer- cised by the diplomatic agent in the receiving state outside his or her official functions.

State waiver of immunity or consent

5. How can the state, or its various organs and instrumentalities, waive immunity or consent to the exercise of jurisdiction?

The explicit consent of the state must be provided with specific reference to the jurisdiction of Turkish courts.

For arbitration, if a state organ has signed a valid arbitration agree- ment, it will be deemed to have waived the right to invoke its immunity for the arbitration proceedings and incidental court proceedings that might be initiated to review or enforce the award.

6. In which types of transactions or proceedings do states not enjoy immunity from suit (even without the state’s consent or waiver)? How does the law of your country assess whether a transaction falls into one of these categories?

All activities of the state arising from private law exercises will not be subject to sovereign immunity, even though there is no law regulating the particular proceedings where states do not enjoy immunity. Through interpretation of article 49 of the IPPL and case law, it can be ascertained that a state does not enjoy immunity for the following proceedings:

•        commercial transactions;

•        contractual obligations;

•        contracts of employment;

•        personal injury and damage to property; and

•        intellectual property rights.

For instance, if a car accident in Turkey is caused by a service vehicle of a foreign state, the subject matter of the case is considered as a private law matter since this dispute arises from a tortious act and, therefore, judicial immunity will not be taken into consideration.

Turkish Court of Cassation precedents provide a certain degree of guidance in this respect.

7.If one of the exceptions to sovereign immunity set out above applies, is there any related principle that could prevent a court having jurisdiction over the state?

There is no other principle that could prevent a court from having juris- diction over the state.

Proceedings against a state enterprise

8.To what extent do proceedings against a state enterprise or similar entity affect the immunity enjoyed by the state? Is there precedent for piercing the corporate veil to subject the state itself to those proceedings?

There is no precedent for piercing the corporate veil that can be exer- cised against a state enterprise or similar entity in Turkey yet. However, we believe that Turkish courts would be inclined to narrowly inter- pret such a request as it will potentially open a new route to remove state immunity not only against the state entities of other sovereigns but also against Turkish enterprises that are active abroad owing to reciprocity.

Standing

9. What is the nexus the plaintiff needs to have standing to bring a claim against a state?

For a plaintiff to have the standing to bring a claim against a state, the matter has to be connected to the state’s private transactions and actions for which the state as no immunity. If the matter is suitable to be examined before Turkish courts, the Turkish court will decide whether it has jurisdiction over the subject under the Turkish Code of Civil Procedure and International Private and Procedure Law as follows:

•        while determining the scope of the judicial immunity, the legal nature of the acts performed by the organ or representative of a foreign state should be taken into account;

•        when a dispute to which the foreign state is a party comes before the Turkish court, the judge must first determine whether the action in question involves private law or sovereignty;

•        the determination of the legal nature of the action is a matter of characterisation;

•        according to commonly accepted opinion, characterisation of the action should be made under lex fori; and

•        the Turkish judge will decide on whether the transaction or action in question derives from private law or sovereignty through the categorisation he or she will make following Turkish law.

Nexus of forum court

10. What is the nexus the forum court requires to exercise jurisdiction over a state if the property or conduct that forms the subject of the claim is outside the forum state’s territory?

If the Turkish judge decides that the transaction or action in question derives from private law, the rules concerning the forum according to private international law would come into play and the courts in the city of the claimant or where the tort has taken place will have jurisdiction.

Interim or injunctive relief

11. When a state is subject to proceedings before a court or arbitral tribunal in your jurisdiction, what interim or injunctive relief is available?

According to Turkish law, the following interim and injunctive reliefs can be initiated against the debtor or beneficiary:

•        The preliminary lien is the temporary seizure of the debtor’s property so that the creditor can receive money or collateral in time. On the other hand, if it becomes significantly difficult for the beneficiary to obtain his or her right or it becomes completely impossible or there is a possibility of serious damage owing to delay, an interim injunction decision may be made on the property subject to the dispute.

•        Following the Court of Cassation precedents and opinions in Turkish doctrine, if the receivable of a foreign state derives from the private law transactions to which the foreign state is a party without using its sovereign powers, it can be requested from the court to issue interim or injunctive relief. However, interim or injunctive reliefs cannot be initiated for the properties that are being used for foreign state’s diplomatic and consular matters in Turkey.

•        In practice, it is not possible to encounter cases where the receiva- bles from the state are not received on time or become significantly difficult to obtain. Therefore, the test to be applied on whether the interim or injunctive relief can be applied to a state should be subject to more strict evaluations and the threshold to decide on the interim or injunctive relief to be applied to a state should be higher than the threshold to be applied to private law persons.

Final relief

12. When a state is subject to proceedings before a court or arbitral tribunal in your jurisdiction, what type of final relief is available?

Turkish courts can issue various judgments including cease-and-desist orders, specific performance, declaratory judgments and damages, and no regulation limits them with a specific type of final relief if the defendant is severing its organ or its representative. Nevertheless, for court cases involving sovereigns, Turkish courts are more likely to decide against a state for the compensation of the damages.

Service of process

13. Identify the court or other entity that must be served with process before any proceeding against a state (or its organs and instrumentalities) may be issued.

Even though the courts are obliged to notify the defendant or respondent for the proceedings initiated by the claimant under Turkish law, notices to be served to a foreign state shall be made by the Ministry of Foreign Affairs. According to article 25 of the Notification Law, the notification to be made to the foreign representative office should be made through the Ministry of Foreign Affairs (ie, diplomatically). However, this provi- sion will only apply in cases where there is no mutual agreement between the states.

Turkey is a party to two conventions regarding international notifications:

•        The Hague Convention on Legal Procedure 1954; and

•        The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965.

Since most states that are parties to the 1954 Convention are also parties to the 1965 Convention, the application area of the 1954 Convention regarding the notification provisions has been consider- ably narrowed.

14.How is process served on a state?

According to article 49 of the IPPL:

The foreign state is not granted immunity from judicial disputes arising from private law relations. In such disputes, a notification can be made to diplomatic representatives of the foreign state.

Even though the courts are obliged to notify the defendant or respondent for the proceedings initiated by the claimant under Turkish law, notices to be served to a foreign state shall be made by the Ministry of Foreign Affairs.

In cases filed against a foreign state, the notification can be made to the foreign representative of that state following article 49/2 of the IPPL. The general procedure to be applied for the notifications to be made to the foreign representative should be following article 25 of the Notification Law. According to article 25 of the Notification Law, the noti- fication to be made to the foreign representative office should be made through the Ministry of Foreign Affairs (ie, diplomatically). However, this provision will only apply in cases where there is no mutual agreement between the states.

Turkey is a party to two conventions regarding international notifications:

•        The Hague Convention on Legal Procedure 1954; and

•        The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965.

Since most states that are parties to the 1954 Convention are also parties to the 1965 Convention, the application area of the 1954 Convention regarding the notification provisions has been consider- ably narrowed.

Judgment in absence of state participation

15. Under what conditions will a judgment be made against a state that does not participate in proceedings?

If the notices were duly served to a state, proceedings may continue even when the defendant state opted not to participate in the proceedings.

According to articles 122, 139 and 150 of the Turkish Code of Civil Procedure, if one of the parties who is duly notified of the proceeding and duly invited to the hearing, participates to the proceedings and the other does not; at the request of the incoming party, the proceed- ings are continued in the absence of the other party. The party who does not come to the hearing or participate in the proceedings without a valid excuse cannot object to the proceedings maintained in his or her absence.

However, for a decision to be validly rendered in the absence of one party, notifications must be made duly following the Turkish Notification Law.

ENFORCEMENT IMMUNITY

Domestic law

16.Describe domestic law governing the scope of enforcement immunity.

According to article 82/1 of the Turkish Enforcement and Bankruptcy Code, state property cannot be seized. However, this article regulates only the position concerning the properties of the Turkish state. There is also no legal regulation regarding the enforcement immunity of foreign state properties under Turkish law.

According to a common opinion in Turkish doctrine, judicial immu- nity and enforcement immunity are different from each other. When determining the immunity of the judiciary, the nature or purpose of the legal transaction subject to the dispute is taken into account. However, in the determination of the enforcement immunity, the legal nature of the property itself must be taken into consideration.

The prevailing view today is that while the properties of the foreign state allocated for public purposes cannot be seized within the scope of enforcement immunity, the properties of the foreign state allocated for commercial purposes can be subject to enforcement proceedings.

There are examples where assets of foreign sovereigns were seized by Turkish Enforcement Offices in connection with the enforce- ment of the International Centre for Settlement of Investment Disputes (ICSID) awards.

Application of civil procedure codes

17. When enforcing against a state, would debt collection statutes and the enforcement sections of civil procedure codes or similar codes also apply?

While enforcing against a state in Turkey, the creditor or claimant must act under Turkish Civil Procedure Law and Turkish Enforcement and Bankruptcy Law, and must follow the procedure therein.

Consent for further enforcement proceedings

18. Does a prior submission to the jurisdiction of a court or tribunal constitute consent for any further enforcement proceedings against the property of the state?

No. The nature of the claim giving rise to the enforcement request should be determined on a case-by-case basis.

Property or assets subject to enforcement or execution

19. Describe the property or assets that would typically be subject to enforcement or execution.

According to the precedents of the Court of Cassation, all property and assets of a foreign state could be subject to enforcement or execu- tion except for properties that are used for diplomatic, military and consular purposes.

In Decision of the 12th Civil Chamber of the Court of Cassation No. 2004/6469 E 2004/13007 K, it is stated that the properties allocated to a commercial enterprise carried out by the foreign state in Turkey may be subject to enforcement and execution. The foreign state’s properties such as railroad wagons, stored tobacco, the foreign state’s money reserved for a commercial enterprise invested in a local bank, money deposited as a guarantee by a foreign state, aircraft used by the foreign state for commercial purposes, etc, can be seized.

Assets covered by enforcement immunity

20. Describe the assets that would normally be covered by enforcement immunity and give examples of any restrictive or broader interpretations adopted by the courts.

All property and assets of a foreign state would be subject to enforce- ment or execution except for properties that are used for state, diplomatic, military and consular purposes.

21. Explain whether the property or bank accounts of a central bank or other monetary authority would be covered by enforcement immunity even when such property is in use or is intended for use for commercial purposes.

Unlike in European countries, Turkey does not differentiate between enforcement immunity as commercial and non-commercial actions of a foreign state. According to the precedents of the Court of Cassation, all property and assets of a foreign state would be subject to enforce- ment or execution except for properties that are used for diplomatic, military and consular purposes.

According to Decision of the 12th Civil Chamber of the Court Cassation No. 2004/6469 E 2004/13007 K:

Regarding the enforcement proceedings initiated against a foreign state, it was decided to reject the request to release the attachment by which the bank accounts of a foreign state were seized. However, only the bank accounts of a foreign state’s embassy and consulate would be covered by enforcement immunity. Therefore, the courts should investigate whether the bank accounts subject to the dispute can benefit from immunity.

Test for enforcement

22. Explain whether domestic jurisprudence has developed any further test that must be satisfied before enforcement against a state is permitted.

No further test has been developed.

Service of arbitration award or judgment

23. How is a state served with process or otherwise notified before an arbitration award or judgment against it (or its organs and instrumentalities) may be enforced?

According to article 49 of the International Private and Procedure Law (IPPL):

The foreign state is not granted immunity from judicial disputes arising from private law relations. In such disputes, a notification can be made to diplomatic representatives of the foreign state.

Even though the courts are obliged to notify the defendant or respondent for the whole proceeding under Turkish law, notices to be served to a foreign state shall be made by the Ministry of Foreign Affairs.

The notification can be made to the foreign representative of that state following article 49/2 of the IPPL. The general procedure to be applied for the notifications to be made to the foreign representative should be following article 25 of the Notification Law. According to article 25 of the Notification Law, the notification to be made to the foreign representative office should be made through the Ministry of Foreign Affairs (ie, diplomatically). However, this provision will only apply in cases where there is no mutual agreement between the states.

Turkey is a party to two conventions regarding international notifications:

•        The Hague Convention on Legal Procedure 1954; and

•        The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965.

Since most states that are parties to the 1954 Convention are also parties to the 1965 Convention, the application area of the 1954 Convention regarding the notification provisions has been consider- ably narrowed.

History of enforcement proceedings

24. Is there a history of enforcement proceedings against states in your jurisdiction? What part of these proceedings is based on arbitral awards?

Even though there is no statistical record, enforcement of ICSID awards are seen in Turkey concerning the assets of foreign countries.

Public databases

25. Are there any public databases through which assets held by states may be identified?

There are no public databases in Turkey holding records of assets belonging to foreign states.

Court competency

26. Would a court in your state be competent to assist with or otherwise intervene to help identify assets held by states in the territory?

Turkish courts are not competent to assist or otherwise intervene to help identify assets held by a foreign state.

IMMUNITY OF INTERNATIONAL ORGANISATIONS

Specific provisions

27.Does the state’s law make specific provision for immunity of international organisations?

There is no particular regulation regarding the scope of immunity of international organisations. However, one view in the doctrine has argued that, in article 105 of the UN Charter, the limit of privileges and immunity granted to international organisations will be determined by the task of the organisation. If the task of the organisation objectively requires immunity, such organisations generally enjoy judicial immunity and diplomatic privileges in interstate relations.

Domestic legal personality

28. Does the state consider international organisations headquartered or operating in its territory as enjoying domestic legal personality and could such organisations be subjected to proceedings before a court or arbitral tribunal?

According to a common opinion in doctrine, the legal personality of international organisations is determined by the objective of the organi- sation and the powers regulated in their founding treaties, meaning that the personality of all international organisations does not have an ordi- nary legal character as the personality of states. Some international organisations may take numerous legal actions, while others may not be able to take every legal action as a result of their limited personality. Therefore, it is safe to say that international organisations in Turkey can enjoy legal personality, depending on their objectives.

Although there is no precise answer for the question of whether such organisations can be subjected to proceedings before a court in Turkey, European Court of Human Rights’ (ECHR) decisions guide Turkish application on this matter due to their binding nature. Following the general view, if the task of the organisation objectively requires immunity, such organisations generally enjoy judicial immunity and diplomatic privileges in interstate relations. However, this immunity should be limited to the extent that not being able to initiate a proceeding against an international organisation should not violate article 6/1 of the ECHR that ensures the right to access to court (see Al-Dulimi and Montana Management Inc v Switzerland [GC] – 5809/08).

Enforcement immunity

29.Would international organisations in the state enjoy enforcement immunity? Are there any cases where debtors sought to enforce against a state by attaching or executing assets held by international organisations?

Legal personality of international organisations is recognised in Turkey. However, a broad spectrum of these organisations and a lack of regu- lation directly addressing their regulation make them open to legal challenges in Turkey, unless they have agreements with the Turkish government providing immunity.

UPDATES & TRENDS

Key developments of the past year

30.Are there any emerging trends or hot topics in your jurisdiction?

In this area of law, there is no emerging trend but there is an increase in civil cases brought against states due to visa rejections or cancellations. Such pilot cases are important because they may give rise to a domino and retrospective effect in Turkey and the sovereign country if Turkish courts find a sovereign liable because of the damages the claimant is alleged to have suffered in connection with the rejection or cancellation of a visa.

This article was first published on Lexology GTDT in June 2020. See our content here.

To download PDF click here