Limitation of legal capacity of adults under Turkish and German private international law

The main theme of this thesis is the limitation of legal capacity of the adult persons, the governance of the legal custody, the legal consequences of the legal custody and the governing law of the limitation of the legal capacity as well as the jurisdiction of the courts with regard to Turkish and German law. The governing law as well as the rules concerning the jurisdiction applicable to the limitation of legal capacity requests, which have foreign components, is regulated under the International Private and Procedural Law Nr.5718 ("Turkish PILA") article 10, article 41 and article 42 in Turkish law. The same rules are regulated under article 24 of German Introductory Act to the Civil Code, article 272 of Substantive Act on Procedure in Family Matters and Non-Contentious Matters. Since Germany is a state party to Convention of 13 January 2000 on the International Protection of Adults (2000 Hague Convention), the articles of this Convention is in force in Germany. One of the most used methods of limiting the one's legal capacity is the legal custody. By means of the appointment of the legal representative, the concerned is prevented from causing any damages not only on his account but also towards the others. Further, the proportionality as well as the will and the needs of the concerned must be taken into account upon the limitation his legal capacity since it has overreaching effects on the determination of one's own destiny and right to freedom. As a matter of fact there are noteworthy differences amongst Turkish law and German law when it comes to the limitation of legal capacity. One of the most considerable differences is the All-or-None principle of Turkish Civil Code. This affects the decision on the limitation of the legal capacity, the scope of the legal capacity, the exercise of the civil and political rights, the extent of the limitation of power of disposition as well as the representation power of the legal representative. Even if the concerned can still enjoy the exercise of personality right as long as he has the discretionary power, the power of disposition over his assets are completely restricted. The archaic attitude concerning the limitation of the capacity which dominated the relevant rules under Turkish Civil Code has rendered some of the grounds of the limitation of legal capacity vagueness. In fact some of the grounds of legal custody are designated on the basis of ethical values whereas the some of the other do not constitute appropriate means of achieving the purpose of legal custody. For instance even if the alcoholism and drug addiction are not rated in a positive manner, the limitation of the legal capacity of the people on these grounds would be a disproportionate intervention to the free determination of their destiny as well as the right to private life of the concerned. One of the most notable developments in German law in terms of limitation of legal capacity is the abolition of the legal custody (déresponsabilisation). The main driving forces of the new legal custody are the aim of increasing the life queality of the concerned person given the aging population structure. Accordingly the legal custody shall be ordered only in a particular context of the concerned person's life. The power of disposition of the concerned, who can sustain his daily needs on his own, remains unchanged whereas the high amount of donations, conclusion of the contracts shall be made performed by the transaction of the legal representative. Thanks to the relinquishing the principle of All-or-None Principle, all these developments could be realized. The private international law context is another aspect of the legal custody. Thereafter the determination of the courts havıng the jurisdiction as well as the law applicable to the legal custody requests with foreign components will take place. Due to the fact that the life expectancy of the people has increased through the years, people have encountered with problems, e.g. Alzheimer's disease, to satisfy their daily needs on their own. Given this fact, the limitation of the capacity has been also regulated in terms of private international law for the unification of the rules. 2000 Hague Convention has been drafted as a result of this movement. Many states have been party to this Convention which consists rules regarding the jurisdiction of the courts and the authorities as well as the applicable law and the framework of the protective measures. On the other hand the application of the domestic rules shall come into play since there are still some non-state parties to the Convention such as Turkey as well as the limited scope of application of the Convention. Further, the concerned has right to grant a power of representation beforehand "Vorsorgevollmacht (Lasting Power of Attorney)" as the German legal order considers the legal custody as a last resort. Contrary to Turkish law, the concerned is respected in terms of drafting a testament on own, right to vote or right to marry. The grounds of limitation of legal capacity are possible only in few cases in which the concerned requires support on physical, emotional and mental health grounds. The European Court of Human Rights (ECtHR) has also rendered some judgments regarding the legal custody. The Courts once considered the limitation of legal capacity in the ambit of article 8 of the European Convention on Human Rights (ECHR). Relinquishment of the right to vote as a result of the limitation of legal capacity is also considered disproportionate intervention. The Court has emphasized that the domestic regulations, which fully restricts the legal capacity, have to be revised. It is necessary for Turkey to amend its legislation in line with the modern legal orders in terms of limitation of legal capacity to comply with the current developments. From the perspective of private international law, the determination of the jurisdiction of the courts as well as the law applicable to the merits of the dispute in Turkish and German law is necessary. Pertaining to Turkish Law, article 41 and 42 of PILA determine the jurisdiction of Turkish courts whereas the article 272 of Substantive Act on Procedure in Family Matters and Non-Contentious Matters and the articles of 2000 Hague Convention Determines the same under German law. The legal status of foreigners who have renounced their Turkish nationality is highly disputed when it comes to the ratione personae of article 41 of Turkish PILA. Even if the verbatim of the article refers to the Turkish citizenship in terms of ratione personae, article 28 of the Citizenship Law grants these foreigners some privileges in terms of the exercise of the some rights. The Courts of Cassation of Turkey not only considers these foreigners in the ambit of Turkish citizenship but also accepts that the cases brought by these people do not contain any foreign elements even if they hold a foreign citizenship. The interpretation of the Courts with this regard does not correspond to the ratio legis of both articles 28 of Citizenship Law as well as article 41 of Turkish PILA. The rules pertaining to conflict of laws under Turkish and German law are quite similar to each other. Accordingly the legislators of the both states made a distinction between rules concerning the conflict of laws for the grounds for limitation of legal capacity and the management of the legal custody. In the former, the law of citizenship (lex patriae) is applicable law to the merits of the legal issue whereas the law of the judge (lex fori) is applicable law for the latter. Whether article 41 and 42 of Turkish PILA is applicable to non-contentious proceedings is also debated in the doctrine. Since the verbatim of the both articles defines the framework of the "litigations" which does not include the non-contentious proceedings, the applicability of these articles to the legal custody requests must be determined. Moreover, whether the parties can claim lis pendens under article 41 of Turkish PILA is highly disputed in legal academia. Therefore, the legal qualification of the article 41 must be set to determine if lis pendens is applicable to the disputes that concern the personality rights. When it comes to the determination of the jurisdiction both German and Turkish law use the following criteria for such determination: (1) the place of residence/habitual residence of the concerned, (2) the nationality of the concerned, (3) the place where the property of the concerned is located and (4) jurisdiction of the courts in extraordinary circumstances. The rules pertaining to conflict of laws under Turkish and German law are quite similar to each other. Accordingly the legislators of the both states made a distinction between rules concerning the conflict of laws for the grounds for limitation of legal capacity and the management of the legal custody. In the former, the law of citizenship (lex patriae) is applicable law to the merits of the legal issue whereas the law of the judge (lex fori) is applicable law for the latter. Both of the legislation consists of rules pertaining to personal status in special circumstances such as multiple citizenships, refugee status, the other international protections status and the status of statelessness. Lastly, it is deemed necessary for Turkey to access to the 2000 Hague Convention since the Convention unifies the rules regarding the legal custody. By means of this Convention, the decisions shall be taken promptly and effectively as well as the enforcement of the decisions in the states shall be promptly made as the Convention sets the jurisdiction of each state party. It is also important for the sake of the unification of the rules pertaining to jurisdiction and governing law.