SECURITY DEPOSIT REQUIREMENTS FOR FOREIGN PLAINTIFFS IN TURKISH COURTS: A PRACTICAL GUIDE TO CAUTIO JUDICATUM SOLVI
An Analysis of MÖHUK Article 48 and HMK Articles 84–89
Att. Cemil Şaar, PhD(c)
The information in this article is current as of the date of publication; however, legislation is constantly evolving and changing. It is important to verify current legislation and obtain legal advice before taking any action. In addition, not all topics are covered in this article; after providing basic information, attention has been drawn to matters that I personally consider important for personal or professional reasons, and the article in this form does not constitute legal advice.
I. INTRODUCTION AND TERMINOLOGY
Foreign nationals and foreign-incorporated entities that seek to file a lawsuit, file a counterclaim, intervene in ongoing proceedings as a secondary party, or initiate enforcement proceedings before Turkish courts are, on some occasions, subject to a preliminary procedural obligation that their Turkish counterparts are not. They may be required to post a security deposit before their case can be heard on the merits. This collateral obligation, also known as cautio judicatum solvi, is a potentially serious procedural requirement that any foreign investor, company or individual must understand before pursuing legal remedies in Turkish courts.
This article provides a practical guide to that requirement. It explains who qualifies as a “foreigner” for these purposes, the two primary statutory frameworks that govern the obligation, namely Article 48 of the Private International Law and International Civil Procedure Code (Law No. 5718, hereinafter “MÖHUK”) and Articles 84 to 89 of the Code of Civil Procedure (Law No. 6100, hereinafter “HMK”), how those two regimes differ from each other, what forms of reciprocity exempt a foreign party from posting security, how the amount and form of security are determined, and how the cautio judicatum solvi differs from the security deposits that arise in the separate context of precautionary measures, namely preliminary injunctions and preliminary attachments. The question of security deposit obligations in Turkish arbitration proceedings is a separate topic and is not addressed in this article.
A working understanding of the relevant terminology is necessary at the outset. “MÖHUK” (Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun, Law No. 5718) is Turkey’s private international law and international civil procedure codification; it governs all cross-border civil and commercial matters before Turkish courts, including the special procedural provisions applicable to foreign parties. “HMK” (Hukuk Muhakemeleri Kanunu, Law No. 6100) is the general code of civil procedure applicable to all civil litigation in Turkish courts, regardless of nationality. These two instruments operate on parallel but structurally distinct tracks, and understanding which one applies, and to what, are the first practical questions any foreign party must resolve before filing in Turkey.
For the purposes of this article, a “foreigner” in relation to natural persons means any individual who does not hold Turkish citizenship, as defined under Article 3(1)(d) of Turkish Citizenship Law No. 5901: “A person who has no nationality bond with the Republic of Turkey.”
The status of dual nationals is debated in the literature. If one of the nationalities is Turkish, there is no collateral requirement. Where both nationalities are foreign, the genuine link test applies: The nationality with which the person has the more real connection governs the reciprocity analysis. Although it must be stated that the courts will most likely not investigate this on their own, and the point must be diligently explained by competent counsel.
For legal entities, foreign status is determined by the entity’s registered center of administration; entities whose management center is located outside Turkey are considered foreign legal entities. The matter is simplified here to avoid overextension. In relation to foreign entities, other tests, such as those argued for in the Barcelona Traction case, may be applicable. For further details, please refer to: https://www.icj-cij.org/node/103111 [50-Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain)].
Stateless persons and refugees occupy a distinct position, discussed separately below. Blue card holders also warrant a separate analysis, presented below.
The article proceeds as follows: Section II sets out the security deposit obligation under MÖHUK and HMK, including who it applies to, when it applies, the amount and forms of security, and the wide variety of available exemptions. Section III addresses the rationale for the obligation, the substantive differences between the MÖHUK and HMK regimes, including the reciprocity analysis, and the critical distinction between the cautio judicatum solvi and the security obligations arising under precautionary measures. Section IV sets out conclusions and practical observations.
II. THE SECURITY DEPOSIT OBLIGATION: MÖHUK ARTICLE 48 AND HMK ARTICLES 84–89
A. The Primary Regime for Foreigners: MÖHUK Article 48
The principal rule governing the security deposit obligation for foreign parties is Article 48(1) of MÖHUK, which provides that foreign natural or legal persons who file a lawsuit, intervene in proceedings on the claimant’s side, or initiate enforcement proceedings before Turkish courts are required to post security in an amount determined by the court, to cover procedural costs and the potential losses of the opposing party.
The obligation is assessed by the court ex officio, without waiting for the defendant to raise it, and it operates as a condition of the action under HMK Article 114. Failure to post the required security within the deadline set by the court results in the automatic dismissal of the case on procedural grounds. An exception exists where the court grants the claimant legal aid under HMK Articles 334 to 340. A party who qualifies for and is granted legal aid is exempt from the security deposit requirement, as the legal aid regime is premised on the claimant’s inability to bear the costs of litigation. It should be noted, however, that foreign nationals seeking legal aid must separately satisfy a reciprocity requirement: Turkish nationals must enjoy equivalent access to legal aid before the courts of the foreign national’s home state.
Two features of Article 48(1) deserve particular emphasis. First, the obligation is owed not only to the defendant but also to the court itself, covering the costs of the proceedings as a whole. Yargıtay 11th Civil Chamber held in an 18 April 2006 decision (E.2005/4947, K.2006/4639) that the security obligation is not limited to the defendant’s potential recovery of costs and also covers losses that the court may be exposed to. A practical consequence follows: Even if the defendant expressly waives the right to security, the court’s institutional interest does not extinguish. In a decision predating the current HMK regime, Yargıtay 11th Civil Chamber held on 11 October 1988 (E.1988/2749, K.1988/5770), that the security obligation touches upon public order, covering court charges and procedural fees, and cannot be contracted away; a contractual clause purporting to waive the deposit in advance will not bind the court. Second, the obligation extends to enforcement proceedings, not only to litigation.
One exemption from Article 48(1) is set out in Article 48(2): the court shall exempt the foreign party from the security deposit requirement on the basis of reciprocity. Where reciprocity is established, exemption is mandatory. The reciprocity determination is therefore the threshold question in every case involving a foreign plaintiff in Turkey.
B. Special Categories: Stateless Persons, Refugees, and Blue Card Holders
Stateless persons and refugees occupy a distinct position under the legal systems of states that are a party to the 1951 Geneva Convention. Pursuant to Article 16 of Convention on the Status of Refugees, to which Turkey is a party, refugees are exempt from the security deposit requirement at the courts of the contracting state in which they have their habitual residence. In other contracting states, they are accorded treatment equivalent to nationals of their habitual residence state.
Similarly, Article 16 of the Convention on the Status of Stateless Persons exempts stateless persons, at the courts of the contracting state of their permanent residence, from the security deposit requirement and other equivalent obligations. Pursuant to Article 88(1) of the Law on Foreigners and International Protection (Law No. 6458, YUKK), holders of international protection status in Turkey are expressly exempt from the reciprocity requirement and are therefore not required to post security regardless of whether the state of their nationality has reciprocity arrangements with Turkey.
Blue card holders, that is persons who have renounced Turkish citizenship with permission and hold a blue card under Article 28 of Turkish Citizenship Law No. 5901 (TVK), occupy an unsettled position. Some Turkish private international law authors argue that blue card holders should be treated as Turkish citizens for the purpose of the security obligation under MÖHUK Article 48, on the basis that Article 28 of the Citizenship Law grants them the same rights as Turkish citizens, subject only to expressly listed exceptions, and the security obligation is a right related to access to justice which does not appear among those exceptions.
There is, however, a competing view in the doctrine that blue card holders are formally foreigners under the Citizenship Law and should therefore be required to post security. Given this legislative uncertainty, counsel on both sides has considerable room to maneuver.
In my opinion, the blue card status has no bearing on this topic. As they are no longer Turkish citizens, blue card holders should be viewed as foreigners in relation to the collateral requirement. It is also not entirely clear how being exempt from posting collateral can be construed as a “right” within the meaning of Article 28 of the TVK.
C. The HMK Regime: Turkish Citizens Without a Habitual Residence in Turkey
A separate and frequently misunderstood security deposit obligation applies to Turkish citizens under HMK Article 84(1)(a). This provision requires a Turkish citizen who does not have a habitual residence in Turkey to post security covering the defendant’s anticipated procedural costs when that person files a lawsuit, intervenes on the claimant’s side, or initiates enforcement proceedings. HMK Article 84 applies exclusively to Turkish citizens. The general procedural provisions of HMK Articles 86 to 89, covering how security is ordered, its amount, its forms, and its eventual return, apply to both regimes, since MÖHUK contains no independent procedural mechanics on these subsidiary points.
HMK Article 84(1)(b) provides a separate, nationality-neutral ground for requiring security: Where the plaintiff, regardless of nationality, is documented to be in financial difficulty, for example where an inability-to-pay certificate has been issued or bankruptcy has been declared, the court may require security.
HMK Article 85 sets out the exemptions from the obligation. Security may not be required where the plaintiff benefits from legal aid; where the plaintiff has immovable property in Turkey sufficient to cover the anticipated procedural costs, or holds a claim secured by a right in rem; where the action is brought solely to protect the interests of a minor; or where enforcement proceedings are based on a court judgment. These exemptions also apply to foreign plaintiffs.
Additionally, the fact that HMK Article 85 does not expressly refer to international agreements does not mean that treaty-based exemptions are inapplicable within the HMK framework. Where an international agreement providing for exemption from security exists, the court retains the authority to grant exemption on that basis.
D. Amount, Form, and Procedural Mechanics
Neither MÖHUK nor HMK prescribes a fixed percentage or formula for calculating the security amount. The determination is left to the court’s discretion under HMK Article 87(1), which the court must exercise in a manner that does not itself constitute a barrier to access to justice. (As mandated by the Turkish Constitution and the European Convention on Human Rights) In practice, Turkish courts have a strong tendency to apply the 10% to 15% rate commonly used in preliminary attachment and injunction proceedings by habit. This tendency is subject to heavy criticism in the Turkish Private International Law literature for being categorical rather than case specific. Courts should instead assess the actual anticipated procedural costs and potential losses in the specific dispute. There is no statutory ceiling, and in large claims the absolute figure can be substantial.
Its possible to argue for a reduction in the collateral calculation or to request the court to rule on a lower percentage if the claimants financial situation requires it. In my personal experience I have found that courts can be understanding of circumstances in this regard.
A practically significant point concerns how the deposit is made. Security posted in cash is deposited at the courthouse cashier. The courts may demand it to be made in foreign currency or Turkish Liras; this again is up to the claimants counsel to potentially affect as the courts have full discretion in this regard.
In terms of form, HMK Article 87(1) gives the court full discretion as well. Accepted forms include cash, government bonds or shares, a pledge over movable or immovable property, a letter of guarantee from a creditworthy bank, or a notarized suretyship agreement. Where the parties have contractually specified a form of security, the court is bound by that agreement. The court may subsequently increase, reduce, modify, or lift the security requirement if circumstances change (HMK Art. 87(2)). Where the plaintiff fails to post security within the allotted period, the case is dismissed on procedural grounds. The security is returned to the plaintiff upon application once the grounds for its requirement have ceased (HMK Art. 89).
III. RATIONALE, RECIPROCITY IN DEPTH, AND PRECAUTIONARY MEASURE SECURITIES
A. Why the Rule Exists
The underlying logic of the cautio judicatum solvi is straightforward: Where a losing plaintiff is located abroad and holds no assets within the Turkish jurisdiction, the winning defendant, who has incurred real procedural costs defending a claim that ultimately failed, may face severe practical difficulty in recovering those costs through cross-border enforcement. The security deposit is a pre-emptive guarantee, lodged at the opening of proceedings, that ensures the defendant and the court can be compensated without the friction of international debt recovery. It is a very practical procedural risk allocation mechanism shaped by jurisdictional reality.
This rationale also explains why the defendant cannot unilaterally waive the security on behalf of the court. The court’s institutional interest, covering public fees and court costs, is independent of the parties’ private choices. In consequence, even a contractual clause purporting to waive the deposit in advance will not bind the court and will not exempt a foreign plaintiff from the obligation.
B. Reciprocity: The Three-Form Framework and How It Works in Practice
The reciprocity exemption under MÖHUK Article 48(2) is the central analytical question in any case involving a foreign plaintiff. Turkish private international law recognizes three forms of reciprocity: (i) treaty-based reciprocity, arising from a bilateral or multilateral treaty between Turkey and the foreign party’s country of nationality; (ii) statutory reciprocity, arising from the domestic law of the foreign state, not requiring collateral for foreign plaintiffs or expressly granting foreign plaintiffs an exemption; and (iii) de facto reciprocity, arising from established practice, meaning Turkish nationals are in fact not required to post security before the courts of the foreign state.
The three forms are alternatives in the sense that establishing any one of them is sufficient for exemption; however, de facto reciprocity is in practice the most consequential of the three. Treaty-based and statutory reciprocity are of limited use where the foreign state does not actually enforce them, and the court’s first line of enquiry is always whether Turkish nationals can in practice proceed without posting security in the relevant jurisdiction.
The most significant multilateral instrument for treaty-based reciprocity is the 1954 Hague Convention on Civil Procedure, to which Turkey acceded via Law No. 1574 (Official Gazette, 23 May 1972, No. 14194). Article 17 of the Convention provides that nationals of a contracting state who are habitually resident in a contracting state may not be required to post security before the courts of another contracting state solely on account of their foreign nationality or non-residence. Contracting states relevant in practice include Germany, France, Italy, Spain, the Netherlands, Belgium, Austria, Switzerland, Poland, Russia, Japan, Israel, the Nordic states, and a significant number of Central and Eastern European states, as listed in the annex maintained by Turkey’s Ministry of Justice Directorate General for Foreign Relations and the European Union.
An important issue concerns the application of the 1954 Hague Convention to legal entities. For a period, Yargıtay 12th Civil Chamber held, in a 2 July 2013 decision (E.2013/17436, K.2013/24686), that the Article 17 exemption applied only to natural persons and not to corporations, reasoning that the 1980 Hague Convention on International Access to Justice had explicitly added the parenthetical “including legal persons” and that this addition demonstrated that the 1954 Convention had never covered legal persons. The dominant scholarly view consistently criticized this interpretation as analytically unsound, noting that the 1980 addition was a clarification, not a retroactive restriction.
Yargıtay 12th Civil Chamber ultimately agreed. In a 14 December 2017 decision (E.2017/8463, K.2017/15601), reached via the decision-correction mechanism, it reversed its prior line of authority, explicitly holding that the earlier rulings were based on material error and that no distinction between natural and legal persons applies under Article 17 of the 1954 Convention. The current settled position is therefore that legal entities from contracting states are exempt from the security deposit requirement on the same basis as natural persons. That said, given the prior inconsistency of the case law, practitioners should not assume courts will apply this automatically. The argument and the 2017 decision should be placed before the court affirmatively.
Turning to jurisdictions outside the 1954 Convention: The United States of America is not a party to it, and there is no bilateral treaty between Turkey and the U.S.A expressly providing for mutual security exemption. Nevertheless, Turkish courts recognize de facto reciprocity between the two countries, on the basis that US courts do not as a general rule require foreign plaintiffs to post security for costs. Turkey’s Ministry of Justice Directorate General for Foreign Relations and the European Union has confirmed this in official communications.
In addition, a 1931 Treaty of Commerce and Navigation between Turkey and the United States of America contains a most-favored-nation clause; Yargıtay 19th Civil Chamber held in a 26 January 2016 decision (E.2015/3799, K.2016/844) that such a clause indicates the existence of treaty-based reciprocity within the meaning of MÖHUK. None of this is automatic, however. The US situation is frequently unknown to courts handling it for the first time, and the de facto status, the 1931 treaty, and the relevant Court of Cassation decision all need to be placed before the court with supporting documentation. As with all reciprocity arguments, the burden of demonstrating it in practice falls on counsel.
The United Kingdom is in a broadly similar position: It is not a party to the 1954 Hague Convention on Civil Procedure, but Turkey’s Ministry of Justice has confirmed the existence of de facto reciprocity between Turkey and the UK. For nationals of other commercially active common-law jurisdictions, such as the UAE, Singapore, Canada, or Australia, the analysis is less settled and requires case-by-case examination of whether de facto or statutory reciprocity can be demonstrated to the court’s satisfaction. It must also be noted that political frictions or attitude shifts may (unfortunately) affect state practices in this regard in an extra-legal manner.
C. The MÖHUK / HMK Distinction: Dual Nationals and Turkish Expatriates
A dual national, that is, a person holding both the Turkish and a foreign citizenship, is entirely outside the MÖHUK Article 48 regime. If one of the nationalities is Turkish, that person is simply a Turkish citizen and no collateral requirement arises under MÖHUK Article 48. Their security obligation, if any, arises under HMK Article 84(1)(a) if they lack habitual residence in Turkey.
Where a person holds two or more foreign nationalities with no Turkish citizenship, the genuine link test popularized by the Nottebohm judgment (ICJ, 1955) may be applicable. Reciprocity in these situations should be investigated by reference to the state with which the person has the most genuine connection. This point is of practical significance for the growing population of individuals holding multiple citizenships.
D. Precautionary Measure Securities: A Parallel and Separate Obligation
The cautio judicatum solvi must be clearly distinguished from the security deposits that arise in the context of precautionary measures. The legal foundations, triggers, amounts, and purposes differ materially.
Under HMK Article 392, a party seeking a preliminary injunction, which is a general precautionary measure available in relation to any matter in dispute, may be required by the court to post security to cover the potential damages that the counterparty or third parties may suffer if the injunction turns out to have been wrongfully obtained. This security is not confined to foreigners: it applies to any party seeking a preliminary injunction, regardless of nationality. The court retains discretion to waive it where the application is based on an official document or other conclusive evidence, or where the circumstances justify doing so.
The preliminary attachment is available exclusively in relation to money claims and is governed by the Enforcement and Bankruptcy Code (İİK) Articles 257 to 268, not by HMK. Under İİK Article 259, the party seeking a preliminary attachment must post security to cover all losses that the debtor and third parties may suffer if the attachment is wrongfully obtained. Where the creditor’s claim is based on a court judgment, no security is required. Where it is based on a document of equivalent weight, the court has discretion.
The governing distinction is therefore this: The cautio judicatum solvi under MÖHUK Article 48 and HMK Article 84 applies at the initiation of substantive proceedings and is tied to the party’s status. The preliminary injunction security under HMK Article 392 applies at the time of the precautionary application and is tied to the risk of wrongful harm to the counterparty, with nationality being irrelevant. The preliminary attachment security under İİK Article 259 operates within enforcement proceedings and depends on the nature of the creditor’s title. These are legally separate obligations that must be planned for independently.
IV. CONCLUSIONS
The cautio judicatum solvi is a procedural institution whose underlying logic is sound; it addresses a real enforcement asymmetry in international litigation. The difficulty lies in navigating it correctly, because the framework maintains some degree of complexity. A threshold observation is warranted before turning to the practical takeaways: The obligation, while real, is subject to a wide range of exemptions, many of which apply by operation of law without requiring any judicial discretion. Identifying which exemption applies is therefore the first task, not an afterthought.
The available exemptions operate across several distinct legal bases.
1) Multilateral treaty exemptions: Where a foreign party is a national of a state that is party to a convention such as the 1954 Hague Convention that was mentioned above, they may be exempt from the requirement.
2) The bilateral treaty exemption: Nationals of states with which Turkey has concluded a bilateral agreement with, may be exempt from this requirement.
3) Reciprocity exemptions under MÖHUK Article 48(2): Where the foreign party’s home state does not require Turkish nationals to post security, whether by statute, treaty, or established practice, the Turkish court must exempt the foreign party, and this determination is mandatory rather than discretionary once reciprocity is established.
4) HMK Article 85 exemptions applicable to all parties including foreigners: Security may not be required where the claimant is granted legal aid, holds immovable property in Turkey sufficient to cover anticipated costs, holds a claim secured by a right in rem, brings an action solely to protect the interests of a minor, or initiates enforcement proceedings based on a court judgment.
5) International protection status: Holders of international protection status in Turkey are expressly exempt from the reciprocity requirement under YUKK Article 88 and therefore need not post security regardless of their nationality.
6) Refugees and stateless persons: Refugees who have their habitual residence in a contracting state to the 1951 Geneva Convention are exempt from the security deposit requirement before the courts of that state and are accorded treatment equivalent to nationals of their habitual residence state before courts of other contracting states. Stateless persons enjoy equivalent protection under the Convention on the Status of Stateless Persons. These exemptions apply independently of any reciprocity analysis.
7) Nationals of states where reciprocity with Turkey has been established. The reciprocity question is the most practically consequential element for parties outside the treaty network and is rarely straightforward. De facto reciprocity is ultimately the most operationally significant form: Treaty-based and statutory reciprocity mean little if Turkish nationals are not in practice exempted from security requirements in the relevant jurisdiction. The court’s first line of enquiry is always the factual position. For US and UK nationals, the Ministry of Justice has confirmed de facto reciprocity in official communications. For US nationals, the 1931 Treaty of Commerce and Navigation and Yargıtay 19th Civil Chamber’s 26 January 2016 decision (E.2015/3799, K.2016/844) provide additional treaty-based grounds, though courts frequently require these to be demonstrated afresh with supporting documentation. For common-law jurisdictions without an established Ministry of Justice confirmation, a case-specific evidentiary enquiry is required.
The amount, while nominally at the court’s discretion, can represent a meaningful financial obligation. Courts tend to apply the familiar 10 to 15% rate by habit, though this practice lacks a clear statutory basis and should in principle be calibrated to the actual anticipated costs. Security is deposited at the courthouse cashier and is often ordered in a foreign currency, which similarly lacks express statutory grounding but is established in practice.
The regime-selection question, that is MÖHUK versus HMK, is frequently misunderstood. Turkish citizens abroad and dual nationals are not automatically exempt from security obligations; they are simply governed by a different statutory framework with different exemptions and no reciprocity mechanism. Blue card holders face genuine legal uncertainty on this point and should seek specific advice. Holders of international protection status in Turkey are expressly exempt from the reciprocity requirement under YUKK Article 88.
Finally, the cautio judicatum solvi runs in parallel with, and not as a substitute for, any security obligations arising under precautionary measures. A party who needs to move quickly to freeze assets will face an independent security obligation under the applicable precautionary measure rules, regardless of anything already posted for the main proceedings. These obligations must be budgeted for and planned simultaneously.
Att. Cemil Şaar, PhD(c)
This article was originally published at https://cemilsaar.com/tpost/security-deposit-foreign-plaintiffs-turkish-courts
cemilsaar@kstlawfirm.com | +90 535 416 9476 | linkedin.com/in/cemilsaar
An Analysis of MÖHUK Article 48 and HMK Articles 84–89
Att. Cemil Şaar, PhD(c)
The information in this article is current as of the date of publication; however, legislation is constantly evolving and changing. It is important to verify current legislation and obtain legal advice before taking any action. In addition, not all topics are covered in this article; after providing basic information, attention has been drawn to matters that I personally consider important for personal or professional reasons, and the article in this form does not constitute legal advice.
I. INTRODUCTION AND TERMINOLOGY
Foreign nationals and foreign-incorporated entities that seek to file a lawsuit, file a counterclaim, intervene in ongoing proceedings as a secondary party, or initiate enforcement proceedings before Turkish courts are, on some occasions, subject to a preliminary procedural obligation that their Turkish counterparts are not. They may be required to post a security deposit before their case can be heard on the merits. This collateral obligation, also known as cautio judicatum solvi, is a potentially serious procedural requirement that any foreign investor, company or individual must understand before pursuing legal remedies in Turkish courts.
This article provides a practical guide to that requirement. It explains who qualifies as a “foreigner” for these purposes, the two primary statutory frameworks that govern the obligation, namely Article 48 of the Private International Law and International Civil Procedure Code (Law No. 5718, hereinafter “MÖHUK”) and Articles 84 to 89 of the Code of Civil Procedure (Law No. 6100, hereinafter “HMK”), how those two regimes differ from each other, what forms of reciprocity exempt a foreign party from posting security, how the amount and form of security are determined, and how the cautio judicatum solvi differs from the security deposits that arise in the separate context of precautionary measures, namely preliminary injunctions and preliminary attachments. The question of security deposit obligations in Turkish arbitration proceedings is a separate topic and is not addressed in this article.
A working understanding of the relevant terminology is necessary at the outset. “MÖHUK” (Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun, Law No. 5718) is Turkey’s private international law and international civil procedure codification; it governs all cross-border civil and commercial matters before Turkish courts, including the special procedural provisions applicable to foreign parties. “HMK” (Hukuk Muhakemeleri Kanunu, Law No. 6100) is the general code of civil procedure applicable to all civil litigation in Turkish courts, regardless of nationality. These two instruments operate on parallel but structurally distinct tracks, and understanding which one applies, and to what, are the first practical questions any foreign party must resolve before filing in Turkey.
For the purposes of this article, a “foreigner” in relation to natural persons means any individual who does not hold Turkish citizenship, as defined under Article 3(1)(d) of Turkish Citizenship Law No. 5901: “A person who has no nationality bond with the Republic of Turkey.”
The status of dual nationals is debated in the literature. If one of the nationalities is Turkish, there is no collateral requirement. Where both nationalities are foreign, the genuine link test applies: The nationality with which the person has the more real connection governs the reciprocity analysis. Although it must be stated that the courts will most likely not investigate this on their own, and the point must be diligently explained by competent counsel.
For legal entities, foreign status is determined by the entity’s registered center of administration; entities whose management center is located outside Turkey are considered foreign legal entities. The matter is simplified here to avoid overextension. In relation to foreign entities, other tests, such as those argued for in the Barcelona Traction case, may be applicable. For further details, please refer to: https://www.icj-cij.org/node/103111 [50-Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain)].
Stateless persons and refugees occupy a distinct position, discussed separately below. Blue card holders also warrant a separate analysis, presented below.
The article proceeds as follows: Section II sets out the security deposit obligation under MÖHUK and HMK, including who it applies to, when it applies, the amount and forms of security, and the wide variety of available exemptions. Section III addresses the rationale for the obligation, the substantive differences between the MÖHUK and HMK regimes, including the reciprocity analysis, and the critical distinction between the cautio judicatum solvi and the security obligations arising under precautionary measures. Section IV sets out conclusions and practical observations.
II. THE SECURITY DEPOSIT OBLIGATION: MÖHUK ARTICLE 48 AND HMK ARTICLES 84–89
A. The Primary Regime for Foreigners: MÖHUK Article 48
The principal rule governing the security deposit obligation for foreign parties is Article 48(1) of MÖHUK, which provides that foreign natural or legal persons who file a lawsuit, intervene in proceedings on the claimant’s side, or initiate enforcement proceedings before Turkish courts are required to post security in an amount determined by the court, to cover procedural costs and the potential losses of the opposing party.
The obligation is assessed by the court ex officio, without waiting for the defendant to raise it, and it operates as a condition of the action under HMK Article 114. Failure to post the required security within the deadline set by the court results in the automatic dismissal of the case on procedural grounds. An exception exists where the court grants the claimant legal aid under HMK Articles 334 to 340. A party who qualifies for and is granted legal aid is exempt from the security deposit requirement, as the legal aid regime is premised on the claimant’s inability to bear the costs of litigation. It should be noted, however, that foreign nationals seeking legal aid must separately satisfy a reciprocity requirement: Turkish nationals must enjoy equivalent access to legal aid before the courts of the foreign national’s home state.
Two features of Article 48(1) deserve particular emphasis. First, the obligation is owed not only to the defendant but also to the court itself, covering the costs of the proceedings as a whole. Yargıtay 11th Civil Chamber held in an 18 April 2006 decision (E.2005/4947, K.2006/4639) that the security obligation is not limited to the defendant’s potential recovery of costs and also covers losses that the court may be exposed to. A practical consequence follows: Even if the defendant expressly waives the right to security, the court’s institutional interest does not extinguish. In a decision predating the current HMK regime, Yargıtay 11th Civil Chamber held on 11 October 1988 (E.1988/2749, K.1988/5770), that the security obligation touches upon public order, covering court charges and procedural fees, and cannot be contracted away; a contractual clause purporting to waive the deposit in advance will not bind the court. Second, the obligation extends to enforcement proceedings, not only to litigation.
One exemption from Article 48(1) is set out in Article 48(2): the court shall exempt the foreign party from the security deposit requirement on the basis of reciprocity. Where reciprocity is established, exemption is mandatory. The reciprocity determination is therefore the threshold question in every case involving a foreign plaintiff in Turkey.
B. Special Categories: Stateless Persons, Refugees, and Blue Card Holders
Stateless persons and refugees occupy a distinct position under the legal systems of states that are a party to the 1951 Geneva Convention. Pursuant to Article 16 of Convention on the Status of Refugees, to which Turkey is a party, refugees are exempt from the security deposit requirement at the courts of the contracting state in which they have their habitual residence. In other contracting states, they are accorded treatment equivalent to nationals of their habitual residence state.
Similarly, Article 16 of the Convention on the Status of Stateless Persons exempts stateless persons, at the courts of the contracting state of their permanent residence, from the security deposit requirement and other equivalent obligations. Pursuant to Article 88(1) of the Law on Foreigners and International Protection (Law No. 6458, YUKK), holders of international protection status in Turkey are expressly exempt from the reciprocity requirement and are therefore not required to post security regardless of whether the state of their nationality has reciprocity arrangements with Turkey.
Blue card holders, that is persons who have renounced Turkish citizenship with permission and hold a blue card under Article 28 of Turkish Citizenship Law No. 5901 (TVK), occupy an unsettled position. Some Turkish private international law authors argue that blue card holders should be treated as Turkish citizens for the purpose of the security obligation under MÖHUK Article 48, on the basis that Article 28 of the Citizenship Law grants them the same rights as Turkish citizens, subject only to expressly listed exceptions, and the security obligation is a right related to access to justice which does not appear among those exceptions.
There is, however, a competing view in the doctrine that blue card holders are formally foreigners under the Citizenship Law and should therefore be required to post security. Given this legislative uncertainty, counsel on both sides has considerable room to maneuver.
In my opinion, the blue card status has no bearing on this topic. As they are no longer Turkish citizens, blue card holders should be viewed as foreigners in relation to the collateral requirement. It is also not entirely clear how being exempt from posting collateral can be construed as a “right” within the meaning of Article 28 of the TVK.
C. The HMK Regime: Turkish Citizens Without a Habitual Residence in Turkey
A separate and frequently misunderstood security deposit obligation applies to Turkish citizens under HMK Article 84(1)(a). This provision requires a Turkish citizen who does not have a habitual residence in Turkey to post security covering the defendant’s anticipated procedural costs when that person files a lawsuit, intervenes on the claimant’s side, or initiates enforcement proceedings. HMK Article 84 applies exclusively to Turkish citizens. The general procedural provisions of HMK Articles 86 to 89, covering how security is ordered, its amount, its forms, and its eventual return, apply to both regimes, since MÖHUK contains no independent procedural mechanics on these subsidiary points.
HMK Article 84(1)(b) provides a separate, nationality-neutral ground for requiring security: Where the plaintiff, regardless of nationality, is documented to be in financial difficulty, for example where an inability-to-pay certificate has been issued or bankruptcy has been declared, the court may require security.
HMK Article 85 sets out the exemptions from the obligation. Security may not be required where the plaintiff benefits from legal aid; where the plaintiff has immovable property in Turkey sufficient to cover the anticipated procedural costs, or holds a claim secured by a right in rem; where the action is brought solely to protect the interests of a minor; or where enforcement proceedings are based on a court judgment. These exemptions also apply to foreign plaintiffs.
Additionally, the fact that HMK Article 85 does not expressly refer to international agreements does not mean that treaty-based exemptions are inapplicable within the HMK framework. Where an international agreement providing for exemption from security exists, the court retains the authority to grant exemption on that basis.
D. Amount, Form, and Procedural Mechanics
Neither MÖHUK nor HMK prescribes a fixed percentage or formula for calculating the security amount. The determination is left to the court’s discretion under HMK Article 87(1), which the court must exercise in a manner that does not itself constitute a barrier to access to justice. (As mandated by the Turkish Constitution and the European Convention on Human Rights) In practice, Turkish courts have a strong tendency to apply the 10% to 15% rate commonly used in preliminary attachment and injunction proceedings by habit. This tendency is subject to heavy criticism in the Turkish Private International Law literature for being categorical rather than case specific. Courts should instead assess the actual anticipated procedural costs and potential losses in the specific dispute. There is no statutory ceiling, and in large claims the absolute figure can be substantial.
Its possible to argue for a reduction in the collateral calculation or to request the court to rule on a lower percentage if the claimants financial situation requires it. In my personal experience I have found that courts can be understanding of circumstances in this regard.
A practically significant point concerns how the deposit is made. Security posted in cash is deposited at the courthouse cashier. The courts may demand it to be made in foreign currency or Turkish Liras; this again is up to the claimants counsel to potentially affect as the courts have full discretion in this regard.
In terms of form, HMK Article 87(1) gives the court full discretion as well. Accepted forms include cash, government bonds or shares, a pledge over movable or immovable property, a letter of guarantee from a creditworthy bank, or a notarized suretyship agreement. Where the parties have contractually specified a form of security, the court is bound by that agreement. The court may subsequently increase, reduce, modify, or lift the security requirement if circumstances change (HMK Art. 87(2)). Where the plaintiff fails to post security within the allotted period, the case is dismissed on procedural grounds. The security is returned to the plaintiff upon application once the grounds for its requirement have ceased (HMK Art. 89).
III. RATIONALE, RECIPROCITY IN DEPTH, AND PRECAUTIONARY MEASURE SECURITIES
A. Why the Rule Exists
The underlying logic of the cautio judicatum solvi is straightforward: Where a losing plaintiff is located abroad and holds no assets within the Turkish jurisdiction, the winning defendant, who has incurred real procedural costs defending a claim that ultimately failed, may face severe practical difficulty in recovering those costs through cross-border enforcement. The security deposit is a pre-emptive guarantee, lodged at the opening of proceedings, that ensures the defendant and the court can be compensated without the friction of international debt recovery. It is a very practical procedural risk allocation mechanism shaped by jurisdictional reality.
This rationale also explains why the defendant cannot unilaterally waive the security on behalf of the court. The court’s institutional interest, covering public fees and court costs, is independent of the parties’ private choices. In consequence, even a contractual clause purporting to waive the deposit in advance will not bind the court and will not exempt a foreign plaintiff from the obligation.
B. Reciprocity: The Three-Form Framework and How It Works in Practice
The reciprocity exemption under MÖHUK Article 48(2) is the central analytical question in any case involving a foreign plaintiff. Turkish private international law recognizes three forms of reciprocity: (i) treaty-based reciprocity, arising from a bilateral or multilateral treaty between Turkey and the foreign party’s country of nationality; (ii) statutory reciprocity, arising from the domestic law of the foreign state, not requiring collateral for foreign plaintiffs or expressly granting foreign plaintiffs an exemption; and (iii) de facto reciprocity, arising from established practice, meaning Turkish nationals are in fact not required to post security before the courts of the foreign state.
The three forms are alternatives in the sense that establishing any one of them is sufficient for exemption; however, de facto reciprocity is in practice the most consequential of the three. Treaty-based and statutory reciprocity are of limited use where the foreign state does not actually enforce them, and the court’s first line of enquiry is always whether Turkish nationals can in practice proceed without posting security in the relevant jurisdiction.
The most significant multilateral instrument for treaty-based reciprocity is the 1954 Hague Convention on Civil Procedure, to which Turkey acceded via Law No. 1574 (Official Gazette, 23 May 1972, No. 14194). Article 17 of the Convention provides that nationals of a contracting state who are habitually resident in a contracting state may not be required to post security before the courts of another contracting state solely on account of their foreign nationality or non-residence. Contracting states relevant in practice include Germany, France, Italy, Spain, the Netherlands, Belgium, Austria, Switzerland, Poland, Russia, Japan, Israel, the Nordic states, and a significant number of Central and Eastern European states, as listed in the annex maintained by Turkey’s Ministry of Justice Directorate General for Foreign Relations and the European Union.
An important issue concerns the application of the 1954 Hague Convention to legal entities. For a period, Yargıtay 12th Civil Chamber held, in a 2 July 2013 decision (E.2013/17436, K.2013/24686), that the Article 17 exemption applied only to natural persons and not to corporations, reasoning that the 1980 Hague Convention on International Access to Justice had explicitly added the parenthetical “including legal persons” and that this addition demonstrated that the 1954 Convention had never covered legal persons. The dominant scholarly view consistently criticized this interpretation as analytically unsound, noting that the 1980 addition was a clarification, not a retroactive restriction.
Yargıtay 12th Civil Chamber ultimately agreed. In a 14 December 2017 decision (E.2017/8463, K.2017/15601), reached via the decision-correction mechanism, it reversed its prior line of authority, explicitly holding that the earlier rulings were based on material error and that no distinction between natural and legal persons applies under Article 17 of the 1954 Convention. The current settled position is therefore that legal entities from contracting states are exempt from the security deposit requirement on the same basis as natural persons. That said, given the prior inconsistency of the case law, practitioners should not assume courts will apply this automatically. The argument and the 2017 decision should be placed before the court affirmatively.
Turning to jurisdictions outside the 1954 Convention: The United States of America is not a party to it, and there is no bilateral treaty between Turkey and the U.S.A expressly providing for mutual security exemption. Nevertheless, Turkish courts recognize de facto reciprocity between the two countries, on the basis that US courts do not as a general rule require foreign plaintiffs to post security for costs. Turkey’s Ministry of Justice Directorate General for Foreign Relations and the European Union has confirmed this in official communications.
In addition, a 1931 Treaty of Commerce and Navigation between Turkey and the United States of America contains a most-favored-nation clause; Yargıtay 19th Civil Chamber held in a 26 January 2016 decision (E.2015/3799, K.2016/844) that such a clause indicates the existence of treaty-based reciprocity within the meaning of MÖHUK. None of this is automatic, however. The US situation is frequently unknown to courts handling it for the first time, and the de facto status, the 1931 treaty, and the relevant Court of Cassation decision all need to be placed before the court with supporting documentation. As with all reciprocity arguments, the burden of demonstrating it in practice falls on counsel.
The United Kingdom is in a broadly similar position: It is not a party to the 1954 Hague Convention on Civil Procedure, but Turkey’s Ministry of Justice has confirmed the existence of de facto reciprocity between Turkey and the UK. For nationals of other commercially active common-law jurisdictions, such as the UAE, Singapore, Canada, or Australia, the analysis is less settled and requires case-by-case examination of whether de facto or statutory reciprocity can be demonstrated to the court’s satisfaction. It must also be noted that political frictions or attitude shifts may (unfortunately) affect state practices in this regard in an extra-legal manner.
C. The MÖHUK / HMK Distinction: Dual Nationals and Turkish Expatriates
A dual national, that is, a person holding both the Turkish and a foreign citizenship, is entirely outside the MÖHUK Article 48 regime. If one of the nationalities is Turkish, that person is simply a Turkish citizen and no collateral requirement arises under MÖHUK Article 48. Their security obligation, if any, arises under HMK Article 84(1)(a) if they lack habitual residence in Turkey.
Where a person holds two or more foreign nationalities with no Turkish citizenship, the genuine link test popularized by the Nottebohm judgment (ICJ, 1955) may be applicable. Reciprocity in these situations should be investigated by reference to the state with which the person has the most genuine connection. This point is of practical significance for the growing population of individuals holding multiple citizenships.
D. Precautionary Measure Securities: A Parallel and Separate Obligation
The cautio judicatum solvi must be clearly distinguished from the security deposits that arise in the context of precautionary measures. The legal foundations, triggers, amounts, and purposes differ materially.
Under HMK Article 392, a party seeking a preliminary injunction, which is a general precautionary measure available in relation to any matter in dispute, may be required by the court to post security to cover the potential damages that the counterparty or third parties may suffer if the injunction turns out to have been wrongfully obtained. This security is not confined to foreigners: it applies to any party seeking a preliminary injunction, regardless of nationality. The court retains discretion to waive it where the application is based on an official document or other conclusive evidence, or where the circumstances justify doing so.
The preliminary attachment is available exclusively in relation to money claims and is governed by the Enforcement and Bankruptcy Code (İİK) Articles 257 to 268, not by HMK. Under İİK Article 259, the party seeking a preliminary attachment must post security to cover all losses that the debtor and third parties may suffer if the attachment is wrongfully obtained. Where the creditor’s claim is based on a court judgment, no security is required. Where it is based on a document of equivalent weight, the court has discretion.
The governing distinction is therefore this: The cautio judicatum solvi under MÖHUK Article 48 and HMK Article 84 applies at the initiation of substantive proceedings and is tied to the party’s status. The preliminary injunction security under HMK Article 392 applies at the time of the precautionary application and is tied to the risk of wrongful harm to the counterparty, with nationality being irrelevant. The preliminary attachment security under İİK Article 259 operates within enforcement proceedings and depends on the nature of the creditor’s title. These are legally separate obligations that must be planned for independently.
IV. CONCLUSIONS
The cautio judicatum solvi is a procedural institution whose underlying logic is sound; it addresses a real enforcement asymmetry in international litigation. The difficulty lies in navigating it correctly, because the framework maintains some degree of complexity. A threshold observation is warranted before turning to the practical takeaways: The obligation, while real, is subject to a wide range of exemptions, many of which apply by operation of law without requiring any judicial discretion. Identifying which exemption applies is therefore the first task, not an afterthought.
The available exemptions operate across several distinct legal bases.
1) Multilateral treaty exemptions: Where a foreign party is a national of a state that is party to a convention such as the 1954 Hague Convention that was mentioned above, they may be exempt from the requirement.
2) The bilateral treaty exemption: Nationals of states with which Turkey has concluded a bilateral agreement with, may be exempt from this requirement.
3) Reciprocity exemptions under MÖHUK Article 48(2): Where the foreign party’s home state does not require Turkish nationals to post security, whether by statute, treaty, or established practice, the Turkish court must exempt the foreign party, and this determination is mandatory rather than discretionary once reciprocity is established.
4) HMK Article 85 exemptions applicable to all parties including foreigners: Security may not be required where the claimant is granted legal aid, holds immovable property in Turkey sufficient to cover anticipated costs, holds a claim secured by a right in rem, brings an action solely to protect the interests of a minor, or initiates enforcement proceedings based on a court judgment.
5) International protection status: Holders of international protection status in Turkey are expressly exempt from the reciprocity requirement under YUKK Article 88 and therefore need not post security regardless of their nationality.
6) Refugees and stateless persons: Refugees who have their habitual residence in a contracting state to the 1951 Geneva Convention are exempt from the security deposit requirement before the courts of that state and are accorded treatment equivalent to nationals of their habitual residence state before courts of other contracting states. Stateless persons enjoy equivalent protection under the Convention on the Status of Stateless Persons. These exemptions apply independently of any reciprocity analysis.
7) Nationals of states where reciprocity with Turkey has been established. The reciprocity question is the most practically consequential element for parties outside the treaty network and is rarely straightforward. De facto reciprocity is ultimately the most operationally significant form: Treaty-based and statutory reciprocity mean little if Turkish nationals are not in practice exempted from security requirements in the relevant jurisdiction. The court’s first line of enquiry is always the factual position. For US and UK nationals, the Ministry of Justice has confirmed de facto reciprocity in official communications. For US nationals, the 1931 Treaty of Commerce and Navigation and Yargıtay 19th Civil Chamber’s 26 January 2016 decision (E.2015/3799, K.2016/844) provide additional treaty-based grounds, though courts frequently require these to be demonstrated afresh with supporting documentation. For common-law jurisdictions without an established Ministry of Justice confirmation, a case-specific evidentiary enquiry is required.
The amount, while nominally at the court’s discretion, can represent a meaningful financial obligation. Courts tend to apply the familiar 10 to 15% rate by habit, though this practice lacks a clear statutory basis and should in principle be calibrated to the actual anticipated costs. Security is deposited at the courthouse cashier and is often ordered in a foreign currency, which similarly lacks express statutory grounding but is established in practice.
The regime-selection question, that is MÖHUK versus HMK, is frequently misunderstood. Turkish citizens abroad and dual nationals are not automatically exempt from security obligations; they are simply governed by a different statutory framework with different exemptions and no reciprocity mechanism. Blue card holders face genuine legal uncertainty on this point and should seek specific advice. Holders of international protection status in Turkey are expressly exempt from the reciprocity requirement under YUKK Article 88.
Finally, the cautio judicatum solvi runs in parallel with, and not as a substitute for, any security obligations arising under precautionary measures. A party who needs to move quickly to freeze assets will face an independent security obligation under the applicable precautionary measure rules, regardless of anything already posted for the main proceedings. These obligations must be budgeted for and planned simultaneously.
Att. Cemil Şaar, PhD(c)
This article was originally published at https://cemilsaar.com/tpost/security-deposit-foreign-plaintiffs-turkish-courts
cemilsaar@kstlawfirm.com | +90 535 416 9476 | linkedin.com/in/cemilsaar