Jurisdictional immunity, which can be characterized as a limitation of the national and international powers of the courts established in our country, finds a place for itself in many national and international texts. While the special legal regulations on the jurisdictional immunity of foreign states are included in the Law No. 5718 on International Private and Civil Procedure Law (“IPCPL”); the jurisdictional immunity of state representatives, diplomatic and consular representatives, which is the subject of this study, is regulated by international conventions in the context of Article 90 of the Constitution.
As a reflection of the sovereign rights of states, the phenomenon of jurisdictional immunity of foreign states was introduced into legislation with the idea that, on an international legal platform where each state is theoretically equal to each other, it would be contrary to these principles for one state to judge another state. In this context, although it was absolute in the historical process, a limited understanding is accepted today, and it is accepted in principle that foreign states cannot be tried in another state court.
Fundamental regulations on the jurisdictional immunity of the representatives of foreign states are located in Vienna Convention on Diplomatic Relations dated 1961 which entered into force through publication in the Official Gazette dated September 12, 1984 (“VCDR”) and Vienna Convention on Consular Relations dated April 24, 1963 which entered into force through publication in the Official Gazette dated May 29, 1975 (“VCCR”).
2. THE CONCEPT OF JURISDICTIONAL IMMUNITY
Parallel to the Article 9 of the Constitution, being a natural consequence of the sovereign right of state, as a rule, jurisdiction indicates that the state has jurisdiction over everyone and everything, including foreigners living in its territory. On the contrary, since the right of jurisdiction is not absolute, it is possible to limit this right in terms of place and person.
In this context, while the decisions made by the Turkish courts can only be executed within the borders of the country; from its opposite meaning, in principle, it is accepted that the execution of decisions made by foreign courts is not possible within the borders of the country. On the other hand, it is possible to state that, regardless of whether a person is a foreigner or a citizen, as a rule, every person who has a legal relationship with the Republic of Turkey remains within the scope of the jurisdictional right.
Since the right of jurisdiction is a case condition in accordance with Article 114/1(a) of the Code of Civil Procedure No. 6100 (“CCP”), the existence of this right will be observed by the court ex officio and at every stage of the proceedings; in the event that the right of jurisdiction does not exist, in accordance with Article 115/1 of the CCP, it will be decided to dismiss the case due to the lack of litigation conditions.
2.2. The Concept of Jurisdictional Immunity and its Difference from the Immunity from Enforcement
Jurisdictional immunity, which is an exception to the right of jurisdiction and has a limiting effect on the provisions of Article 6 of the European Convention on Human Rights (“ECHR”) and Article 36/1 of the Constitution, regarding its, both, narrow and wide definitions, can be defined as a norm of international law that prevents a court of a state authorized to hear a case under normal circumstances, from hearing the case before it, solely because of the title of the defendant, preventing a state from being tried in another state court, and restricting the exercise of the jurisdiction of the state of the country.
On the contrary, immunity from enforcement, although there are doctrinal opinions it is not different from the jurisdictional immunity, can be defined as, immunity from the execution of the judgment given by the courts.
3. JURISDICTIONAL AND EXECUTIONAL IMMUNITY OF FOREIGN STATES
3.1. The Principle of Jurisdictional Immunity of Foreign States
The jurisdictional immunity of a foreign state, aimed at protecting the equality (par in parem non habet imperium) and sovereign rights of states, is stated in accordance with Article 49/1 of the IPCPL as follows: “A foreign state is not granted jurisdictional exemption in legal disputes arising from private legal relations”. In accordance with the wording of the relevant article, it seems that this immunity is not absolute, and there are exceptions.
3.2. Exceptions to the Jurisdictional Immunity of Foreign States
3.2.1. Exceptions Arising from IPCPL
Pursuant to Article 49/1 of the IPCPL, it has been stated that the private law acts and relations of the states are not covered by jurisdictional immunity. In this context, it is possible to examine the legal actions that can be carried out by the states based on the law of the court hearing the case (lex fori) by dividing them into “sovereignty act” and “private law act”.
In this context, the acts carried out as a requirement of statehood and which are the direct result of the state’s right to sovereignty are considered as sovereignty acts and within the scope of private law, legal acts that have consequences, do not have the nature of exercising the sovereign right and are not carried out in order to fulfill the state function are considered to be private law acts. (see. Court of Appeals for the 4th Circuit File Number: 2013/10023 and Decision Number: 2013/13933; Court of Appeals for the 6th Circuit File Number: 2009/10643 and Decision Number: 2009/10643; Court of Appeals for the 10th Circuit File Number: 2010/15750 and Decision Number: 2012/5611)
3.2.2. Exceptions Arising from International Conventions
If a foreign state voluntarily, explicitly or implicitly waives jurisdictional immunity due to the fact that jurisdictional immunity is not an absolute right, and/or the subject of a legal dispute is related to the real right to immovable property in the country benefiting from immunity, the foreign state will not be covered by jurisdictional immunity. It is conceivable that the waiver of jurisdictional immunity can be made by the states through an international treaty before the case is filed or an explicit declaration of waiver before the court will also be valid after the case is filed.
In terms of the regulation of the jurisdictional immunity of a foreign state, within the framework of the Council of Europe, the 1972 European Convention on State Immunity has been adopted, but the aforementioned convention has not yet been ratified by Turkey on the date of this work.
3.3. Notification to the Diplomatic Representative of a Foreign State in Private Law Disputes
By stating “Notification shall be made to the diplomatic representatives of a foreign state in such disputes.” in Article 49/2 of the IPCPL, it is regulated that that a notification shall be made to the diplomatic representative of a foreign state in the disputes arising from the private law acts and transactions of a foreign state within the scope of Article 49/1 of the IPCPL. There are discussions in the doctrine as to whether the notification in question will be made through the diplomatic notification procedure through the Ministry of Foreign Affairs or in accordance with the Notification Law No. 7201.
3.4. Immunity from Enforcement of Foreign States
It is likely to characterize the immunity from enforcement of a foreign state as immunity that prevents the enforcement or execution of a decision made about a foreign state and prevents the seizure or confiscation of the property or receivables of a state or international organization by the authorities of another state through forced execution.
Pursuant to Article 32/2 of the Enforcement and Bankruptcy Law No. 2004 (“EBL”), the foreign state will benefit from the forced immunity from enforcement of its assets allocated and used for public purposes. On the other hand, the provision of Article 42 is clear that the enforcement proceedings without judgment shall not conducted against foreign states.
In summary, it is assessed that the goods allocated for public purposes and used by the state for the purpose of performing activities specific to the state’s sphere of sovereignty, such as defense, security, diplomacy, are goods unique to public purposes and remain within the scope of forced enforcement immunity as goods allocated for commercial purposes of a foreign state do not remain within the scope of forced enforcement immunity. (see. Court of Appeals for the 12th Circuit File Number: 2004/6469 and Decision Number: 2004/13007)
4. JURISDICTIONAL IMMUNITY OF STATE REPRESENTATIVES, DIPLOMATIC AND CONSULAR REPRESENTATIVES
The phenomenon of jurisdictional immunity of state representatives, diplomatic and consular representatives has also been regulated within the framework of the principles related to the jurisdictional immunity of a foreign state, and in this context, a limited understanding of immunity has been adopted rather than absolute immunity.
4.1. Jurisdictional Immunity of Those Who have Unlimited Authority to Represent the State
It is generally accepted that the head of state, the president, the head of government and the foreign ministers have the authority to represent the state in general in terms of international relations and contacts. Jurisdictional immunity is deemed the guarantee of the effective performance of duties and responsibilities of foreign heads of state and has its origin in customary law.
Unlike the jurisdictional immunity of a foreign state, it is deemed that the head of state has an absolute jurisdictional immunity, in this context, it is accepted that the head of state cannot be tried in a foreign state court, that he will benefit from absolute jurisdictional immunity during his term of office, and that the distinction of “sovereignty act” will not influence the result.
It is acknowledged that the ministers of foreign affairs will benefit from the jurisdictional immunity established in the VCDR for the diplomatic personnel. Indeed, it is considered that the immunity enjoyed by foreign ministers, unlike the chief of the diplomatic mission, is valid not only in the country that accepts it, but throughout the world, and therefore the scope is wider. It is assumed that the jurisdictional immunity recognized for heads of state and foreign ministers can be waived.
4.2. Jurisdictional Immunity of Diplomatic and Consular Representatives
The jurisdictional immunity of diplomatic and consular representatives is regulated under the VCDR and VCCR.
4.2.1. Jurisdictional Immunity of Diplomatic Representatives
Diplomatic representatives can be enlisted as ambassador, undersecretary, head clerk, second clerk, third clerk and attaché. The jurisdictional immunity of diplomats and other foreign diplomatic representatives is regulated under Articles 31-32 of the VCDR. It is agreed that the jurisdictional immunity of diplomatic representatives is absolute and final, except for the exceptional cases listed in the VCDR. Pursuant to Article 31 of the VCDR, it is regulated that the jurisdictional immunity of diplomatic representatives from the point of view of the criminal jurisdiction of the foreign state that accepts them is complete and absolute. By stating “The person of a diplomatic agent shall be inviolable. He shall not be liable to ant form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.” in Article 29 of the VCDR, it is regulated that diplomatic representatives cannot be subjected to arrest and detention measures in accordance with the criminal procedure in any way.
The diplomatic agent is also considered to be immune from the civil and administrative jurisdiction of the receiving state, with the exceptions listed in accordance with Article 31/1 of the VCDR. The Article 31/1 of the VCDR is as follows:
“A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
a) a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
b) 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;
c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”
In addition, it is regulated that the diplomatic representative is not obliged to testify in accordance with Article 31/2 of the VCDR. Pursuant to Article 37 of the VCDR, it is stated that the administrative and technical staff and their family members who are not Turkish citizens, who are not permanently resident in Turkey and who live together, provided that they are related to the duties of the representative, will also benefit from jurisdictional immunity.
It should be noted that the jurisdictional immunity of a diplomatic representative is only effective in the receiving state; this immunity is not valid for the jurisdictional authorities of the sending state. Again, it is stated that the existence of jurisdictional immunity of a diplomatic representative will not directly lead to the existence of jurisdictional immunity of a foreign state in all circumstances. (see. Court of Appeals for the 4th Circuit File Number: 2010/6451 and Decision Number: 2010/7394)
If the regulations of Articles 22 and 30 of the VCDR are evaluated together, it is understood that immunity exists in terms of unauthorized entry, search, seizure and decommissioning operations in terms of mission buildings and the private residence of diplomatic representatives. According to the Article 32 of the VCDR, jurisdictional immunities and immunities from enforcement of diplomatic representatives and other persons within the scope of Article 37 shall be removed by an express waiver of the sending state. In terms of civil and administrative cases, such a waiver will not directly remove the immunity from enforcement and immunity from enforcement must be abolished separately and explicitly by the sending state.
According to Article 32/3 of the VCDR, the initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.
4.2.2. Jurisdictional Immunity of Consular Representatives
With the expression of consular representatives, in accordance with the Article 5 of the VCCR, within the scope of the duties in this article, by taking into account the powers and responsibilities granted to them in performing these duties, in compliance with the VCCR and international conventions, consul general, deputy consul general, consul, vice consul, consulate agent, attachés and attachés and assistant attachés belonging to public institutions and organizations that are recognized by the receiving state, certain privileges and exemptions have been granted to perform the tasks assigned to them, are meant.
Again, the jurisdictional immunity of the consular representative, which is recognized as an extension of the jurisdictional immunity of the sending foreign state, is essentially regulated in the VCCR. Within the scope of Article 43/1 of the VCCR, it is stipulated that consular representatives have jurisdictional immunity only in matters arising from their acts committed during the performance of their official duties. In this regard, it is possible to say that the jurisdictional immunity of consular representatives is not absolute, and it is a limited immunity.
In the event that a consular representative has personally substituted a case for a matter that remains within the scope of jurisdictional immunity, it is not possible for him to assert this immunity directly about any request in response to the main request in accordance with Article 45/3 of the VCCR. As a matter of fact, it is probable for the sending state to waive the jurisdictional immunity of consular officers and their servants in accordance with Article 45/1 of the VCCR.
In accordance with Article 43/2 of the VCCR, which regulates the exceptions to the jurisdictional immunity of the consular representative, it is regulated that the jurisdictional immunity of consular representatives does not exist in matters that are not related to official duties and in civil cases related to accidents with property damage caused by vehicles.
Within the scope of Article 44 of the VCCR, it is regulated that there is no obstacle for consular members to testify in terms of jurisdictional and administrative cases, and that these persons can be called and heard by the jurisdictional authorities as witnesses. Again, according to the relevant article, in case the consular officer refuses to testify, it has been stated that the measures of forcible bringing or arrest cannot be applied in respect of these persons in accordance with Article 245 of the CCP.
The matter of jurisdictional immunity of foreign states and their rulers and representatives has found a place in international and national texts as a reflection of the equality and sovereignty of foreign states. It should be noted that, even if the jurisdictional immunities of the foreign states are absolute and jurisdictional immunities of the diplomatic and consular representatives are limited, this does not mean that the behaviors of these representatives is not restricted by any legal norms, and it should be noted that for these individuals, within the framework of the political and legal approaches of the receiving state, they can always be declared undesirable persons (persona non grata).
Although the subject of jurisdictional immunity is regulated by abstract norms, in our opinion, a more casuistic and inclusive approach for the relevant regulations would be more useful, given that there are a significant number of expressions in the wording of the norms that need interpretation. Considering that jurisdictional immunity is a restriction of the right to a fair trial, although it may be thought that narrowing its boundaries and making it more specific would be fairer and more equitable at first glance, considering that the receiving states do not always remain within the borders of the rule of law, it is clear that representatives of foreign states cannot perform their duties without hesitation and in a secure manner by any other method.
Adar UÇAR (Partner)
Uçar Law & Consultancy Office
- Adalet Bakanlığı Uluslararası Hukuk ve Dış İlişkiler Genel Müdürlüğü. (2011, Kasım 16). Hukuki Alanda Uluslararası Adli Tebligat İşlemleri Genelgesi. Mart 29, 2022 tarihinde Adalet Bakanlığı: https://www.adalet.gov.tr/pdf/63-3.pdf adresinden alındı
- AKINCI, Z. (2020). Milletlerarası Özel Hukuk (1. b.). İstanbul: Vedat Kitapçılık.
- ASAR, A. (2021). Yabancılar Hukuku (7. b.). Ankara: Seçkin Yayıncılık.
- AZARKAN, E. (2014). Uluslararası Örgütler Tarafından Yapılan Bireysel Temel Hak İhlalleri Durumunda Başvurulabilecek Hukuksal Önlemlere İlişkin Bir Değerlendirme. Dicle Üniversitesi Hukuk Fakültesi Dergisi, 19(30-31), 45-60.
- BERBEROĞLU YENİPINAR, F. (2019). Güncel İçtihatlarla Milletlerarası Özel Hukuk (1. b.). İstanbul: Aristo Yayınevi.
- Cemal Kaşıkçı cinayeti davası: Adalet Bakanı Bozdağ, ‘Dosyanın Suudi Arabistan’a devri için olumlu görüş bildireceğiz’ dedi. (2022, Mart 31). Nisan 3, 2022 tarihinde BBC News Türkçe: https://www.bbc.com/turkce/haberler-turkiye-60939013 adresinden alındı
- Council of Europe. (1972). Europen Convention on State Immunity. Retrieved March 28, 2022, from Europen Treaty Series – No. 74: https://rm.coe.int/16800730b1
- ÇAMYAMAÇ, A., & İNCİ, Z. Ö. (2020). Uluslararası Hukuk ve Ceza Hukuku Yönleriyle Diplomatik Bir Bağışıklık Olarak Ceza Yargısından Muafiyet (1. b.). Ankara: Seçkin Yayıncılık.
- ÇELİKEL, A., & ERDEM, B. B. (2021). Milletlerarası Özel Hukuk (17. b.). İstanbul: Beta Yayıncılık.
- ÇELİKEL, A., NOMER, E., GİRAY, F. K., & ESEN, E. (2013). Devletler Hususi Hukuku (Milletlererası Özel Hukuk) Çözümlenmiş Örnek Olaylar-Seçilmiş Mahkeme Kararları (11. b.). İstanbul: Beta Yayıncılık.
- ÇİÇEKLİ, B. (2014). Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun Yargıtay Kararları (1. b.). Ankara: Seçkin Yayıncılık. Dışişleri Bakanlığı Konsolosluk Genel Müdürlüğü Sözleşmeler ve Muhtelit Hukuk Dairesi Reisliği. (1963, Nisan 24). Konsolosluk İlişkileri Hakkında Viyana Sözleşmesi Viyana 24/04/1963.
- ERSON ASAR, B. (2016). Yabancı Devletlerdeki Yargılamalar Açısından Uluslararası Hukukta Devlet Görevlilerinin Yargı Bağışıklığı (1. b.). İstanbul: On İki Levha Yayıncılık.
- GÜNGÖR, G. (2021). Türk Milletlerarası Özel Hukuku (2. b.). Ankara: Yetkin Yayınları.
- KILINÇ, Ü. (2019). Uluslararası Hukukta Yargı Bağışıklığı ve AİHM (1. b.). İstanbul: On İki Levha Yayıncılık.
- MUKTEDİR, L. (2014). Özetli – İçtihatlı Yargıtay Uygulamasında Milletlerarası Özel Hukuk ve Usul Hukuku (1. b.). Ankara: Seçkin Yayıncılık.
- NOMER, E., & ŞANLI, C. (2005). Devletler Hususi Hukuku (13. b.). İstanbul: Beta Yayıncılık.
- ÖZTÜRK, B. A. (2020). Uluslararası Hukukta Yabancı Devletin Yargı Bağışıklığı. Bahçeşehir Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk Yüksek Lisans Programı Yüksek Lisans Tezi. İstanbul.
- SAK, Y. (2015). Devletin Yargı Bağışıklığı ve Temel Hakların Korunması (1. b.). Ankara: Seçkin Yayıncılık.
- ŞANLI, C., ESEN, E., & ATAMAN FİGANMEŞE, İ. (2013). Milletlerarası Özel Hukuk (1. b.). İstanbul: Vedat Kitapçılık.
- TİRYAKİOĞLU, B., AYGÜN, M., & KÜÇÜK, E. (2016). Türk Uluslararası Özel Hukuk Mevzuatı (9. b.). Ankara: Yetkin Yayınları.
- ULUGÜN, F. (2018). Medeni Usul Hukukunda Yargı ve Cebri İcra Bağışıklığı. Ankara Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk Anabilimdalı Yüksek Lisans Tezi. Ankara.
- United Nations General Assembly. (2005, January 17). United Nations Convention on Jurisdictional Immunities of States and Their Property. Retrieved March 29, 35 2022, from United Nations Treaties: https://treaties.un.org/doc/source/recenttexts/english_3_13.pdf
- Yargıtay Kararı – 4. HD., E. 2010/6451 K. 2010/7394 T. 17.6.2010. (2010, Haziran 17). Mart 30, 2022 tarihinde Lexpera İçtihat: https://www.lexpera.com.tr/Print/PDF/YA801D20100617K20107394E20106451/i adresinden alındı
- YILMAZ, E. (2014). (Öğrenciler İçin) Hukuk Sözlüğü (5. b.). Ankara: Yetkin Yayınları.
- YILMAZ, N. (1999). Yargı Muafiyeti ve İstinabe. Ankara Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk (Medeni Usul ve İcra İflas Hukuku) Anabilim Dalı Yüksek Lisans Tezi. Ankara.