The Decision Subjected to the Evaluation : The decision of the Supreme Court numbered 2019/102 2019/99 Decision No. dated 25.12.2019, published in the Official Gazette on 15.04.2020
Article 300 of Turkish Civil Code numbered 4721 under the title of Foreclosures
The right of the action of the recognizant, expires by being elapsed one year commencing from the date of the discovery of the ground of the annulment of the date on which influence of fear vanished and in any case five years from the recognition.
The right of the action of the persons concerned, expires by being elapsed on year commencing from the date on which the claimant discovered recognition and that he can not be the father of the child and any case five years from the recognition.
The right of the action of the child, expires by being elapsed one year of commending from becoming the major.
If there has been any cause which justifies the delay despite the periods above elapsed, the action can be filed in one month commending from the disappearing of the case.
The case that was brought to the Supreme Court upon the objection is stated as the case of cancellation of the recognition that was filed after 5 years of legal term based on ground of error or frightening stated under the Article 297 of the Code and it is decided on the present file the reason of the frightening does not create the justification of the cancellation of the recognition and the evaluation of the decision will be made with the scope of “in any case five years from the recognition” and “from the date of the discovery” with the consideration of that this case was filed after passing the five years of the recognition.
It is accepted that “the recognition” can be made with the written statement of the father submitted to the civil register or to the Court or can be made with the official deed or the statement under the will and the recognizant can file the cancellation of the recognition based on the grounds of error, frightening or fraud in accordance with the Article 297 of the same Code. The foreclosures for the case of the cancellation of the recognition are stated under the Art. 300 and this article is stated above.
The basis of the application decision under the examination is that Supreme Court cancelled the statement of “..in any case in five years starting from the birth..” in terms of the father as a result of the objection made to the Art. 289 of Turkish Civil Code, that there is a connection between the cancelled rule and this objected rule, that there will be a fact against the principle of equality in case of not cancellation of this rule that is objected and limiting the legal terms to file such lawsuit will restrict the right to legal remedies of the recognizant that recognized a child, who does not have any bond, by misguiding the will. The Supreme Court examined this application under three criteria:
- The obligation to provide effective legal remedies : Under the rule that is evaluated by the Supreme Court, it is accepted that in addition to the fact that the right of the recognizant to file a lawsuit will be removed by five years after the recognition, in the event of the presence of the reason that will make the delay justified and the case can be filed in one month starting from the removing of this reason in accordance with 4thParagraph of Art. 300 of the Code and that even if the legal term is passed and in case of the recognizant can prove that there was a justified reason of the delay, he will have the right to file the case, again.
In this regard, it is accepted by the Supreme Court that the obligation to provide effective legal remedies is fulfilledas the suitable conditions are provided to the recognizant.
- The Principle of Having the Reasonable and Objective Basis : The Supreme Court compared the subject of the file of the rejection of the paternity stated under the Article 289 of the Code and the subject of the recognition stated under the Article 295, and stated that the legal status of both claimants are similar even the legal base of both files are different. It is also stated that 1 month of additional legal time, stated under 4thParagraph of Art. 300 that also has the objected rule, is also applicable for the legal term of 5 years of foreclosures; the additional time stated regarding the rejection of the paternity file under Art. 289 is not valid for 5 years of foreclosures; that it is clearly stated that this is valid only for the duration of one year, it is accepted that different conditions stated under two articles are based on the reasonable and objective basis
- The Principle of Proportionality : It is stated that there must be proportionality between the objection made to 1st Paragraph of Art. 300 of the Code and the provided rule; it is accepted that the proportionality is fulfilled when the one month of duration, that is convenient as the starting point of each event can be evaluated in itself with their own condition in accordance with the 4th Paragraph of Art. 300 and the objected rule are considered together.
In conclusion, the Supreme Court decided that the objected rule is not against the Constitution and rejected the objection and accepted the convenience of the article of the cancellation of the paternity bond established with frightening, with the scope of public order.
 It is cancelled with the decision of Supreme Court dated 25/6/2009 and numbered 2008/30 2009/96 Decision