in Which Cases Can a Declaration of Absence be Obtained??

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Gaip (absentee), in its dictionary meaning, refers to a person who is not present and whose whereabouts are unknown. Naturally, this word is used as a technical term in law. From a legal perspective, a person will acquire the status of an absentee upon the court's rendering a judgment of absence. With the issuance of this judgment, this decision will produce numerous legal consequences for the absentee. The most significant effect of a declaration of absence concerning a person is that this decision leads to the termination of legal personality. This decision can only be rendered for natural persons. Therefore, the absence of legal entities is not possible.

The conditions for absence can be briefly listed as follows: 1) One of the circumstances stipulated by the Turkish Civil Code must exist. These circumstances are the person's disappearance under life-threatening conditions or the lack of news from the person for a long time. 2) A certain period must have elapsed since the occurrence of the circumstances stipulated by law. 3) The person's death must be considered a highly probable possibility. 4) Persons deemed interested parties according to the law must request the issuance of this decision. 5) The court must render a judgment declaring absence.

For this decision to be obtained, the person must either have disappeared under life-threatening circumstances or there must have been no news from them for a long time. Disappearance in every dangerous event is not sufficient for a person's absence. The disappearance must have occurred under a significant risk of death. The law does not specify what dangers could lead to the death of the missing person. Therefore, the judge will assess whether a risk of death exists based on each concrete case. Examples of disappearance under life-threatening circumstances include participation in war and disappearance in a dangerous area, disappearance as a result of a ship sinking at sea, disappearance in a plane crash, disappearance during an earthquake, and disappearance during a fire.

Another situation is the lack of news from a person for a long time. In this case, the person is generally not at their usual place. Furthermore, their whereabouts are unknown, and there has been no news from them for a long time. In this situation, a specific dangerous circumstance is not sought. Only the person's state of being alive or dead has become doubtful. Here too, a case-specific assessment will be made by the judge. For example, if a worker who does not have the habit of writing letters goes to Germany to work and there has been no news from them for a long time, this is not a reason for absence. Conversely, if a student who went to Germany for a master's degree and regularly video-called their family has been missing for a long time, this would constitute a reason for absence.

If the lack of news from a person for a long time can be explained by specific reasons, a declaration of absence cannot be issued for that person. For instance, a woman who argued with her spouse might have left the city and there might have been no news from her for a long time. Here, the lack of news occurs at the person's own will. She wished not to be contacted, and therefore left the city. Consequently, as in this example, a declaration of absence cannot be issued solely based on the lack of news from the person.

Another condition required for a declaration of absence to be issued is the lapse of a certain period. The legislator has determined this period to vary according to the reason for absence. The reason for this is that the probability of the missing person being deceased differs between disappearance under life-threatening circumstances and lack of news for a long time. Therefore, the period stipulated for disappearance under life-threatening circumstances is shorter than the period stipulated for the other situation. These periods are specified in Article 33 of the Turkish Civil Code.

Firstly, if we look at the period that must elapse in the case of disappearance under life-threatening circumstances, this period is stated as at least one year. This one-year period is set as a minimum. Therefore, those who are hopeful for the absentee's return may wait longer. Because, no matter how much time passes after the one-year period has elapsed, interested parties can apply to the court for the person's absence at any time they wish. There is no statute of limitations for this.

The one-year period is calculated from the occurrence of the event creating the danger or from the end of the dangerous event. For example, if a plane crash is involved, the period will run from the date of the accident. Furthermore, if events such as floods, which take a certain time to occur and end, are involved, the period will run from the end of the flood disaster.

In the case of a person being missing for a long time, the period that must elapse for a declaration of absence to be requested is at least five years. This means at least five years must have passed since the last date news was received from the person. Only then can a declaration of absence be issued. The news does not necessarily have to be received directly from the person. News may also have been received from other individuals or institutions. In this case, the period will run not from the date the last news was personally received, but from the date of the last news received from another source.

Which Court Issues the Declaration of Absence?

Another condition required for a person's absence to be declared is that interested parties must file a request with the court. It is not possible for the court to act ex officio (on its own motion). The aforementioned interested parties are those whose rights are contingent upon death. That is, they are persons who will acquire certain rights or be relieved of existing obligations if a declaration of absence is issued concerning the missing person. Examples include the spouse of the missing person, appointed and legal heirs, and someone holding a usufruct right over their immovable property. Furthermore, legatees, co-heirs with the absentee, and persons who cannot participate in the inheritance due to the absentee are also among those whose rights are contingent upon death.

The aforementioned interested parties must apply to the competent and authorized court. Subsequently, a comprehensive investigation regarding this non-contentious judicial matter will be conducted by the court ex officio. If the conditions are met, the competent and authorized court will issue a declaration of absence concerning the missing person. The state of absence will begin to produce its effects after this decision.

Which Court is the Competent and Authorized Court for a Declaration of Absence?

The Turkish Civil Code does not regulate which court is the competent court to issue a declaration of absence. Therefore, it is necessary to refer to the general provisions of the Code of Civil Procedure. This law states that, unless otherwise stipulated, all non-contentious judicial matters shall be heard in the Civil Courts of Peace. The issuance of a declaration of absence is also a non-contentious judicial matter. Furthermore, no regulation contrary to the general provision has been made on this matter. Consequently, the competent court in this matter is the Civil Court of Peace.

Regarding jurisdiction, the Code of Civil Procedure states that, unless otherwise stipulated, in all non-contentious judicial matters, the court of the place of residence of the applicant or one of the interested parties has jurisdiction. However, Article 32 of the Turkish Civil Code stipulates a special rule of jurisdiction for this matter. Accordingly, the authorized court for a declaration of absence is the person's last place of residence in Turkey. If the person has never resided in Turkey before, the court of the place where they are registered in the civil registry has jurisdiction.

If there is no such registration, the court of the place where their mother or father resides will have jurisdiction. Should neither the mother nor the father reside in Turkey, this issue will then be resolved as a last resort according to the Law on International Private and Procedural Law. Article 41 of this law states: "If the person is not resident in Turkey, the case shall be heard in the court of their last place of residence in Turkey, and if that cannot be determined, in one of the courts of Ankara, Istanbul, or Izmir," thereby concluding the matter of jurisdiction.

What is the Publication Period for a Declaration of Absence?

The existence of the conditions and the application of interested parties to the competent and authorized court are not sufficient for a declaration of absence to be issued concerning a person. Before this decision is rendered, the court must make a publication (announcement). At this point, since the person for whom a declaration of absence is to be issued will suffer significant loss of rights, a balance of interests is observed between them and the interested parties, and efforts are made to obtain news from the person through publication. Therefore, efforts are made to locate the person through publication.

The judge makes at least two publications, stipulating a certain period for the person to appear or for those with information to apply to the court and provide notification. The period to be determined is at the judge's discretion. However, the period between the two publications must be at least 6 months. The judge may extend this period if desired, but cannot shorten it. Therefore, we can say that if a person disappeared under life-threatening circumstances, at least 1.5 years must have passed since the occurrence of the situation for a declaration of absence to be issued.

In the case of a person being missing for a long time, this period is a minimum of 5.5 years. It is worth noting that the judge may make more than two publications if deemed necessary. This publication can be made in the Official Gazette, national newspapers, and local newspapers. This matter is also at the judge's discretion, in accordance with the circumstances.

Following the publication, the court will either issue a declaration of absence concerning the person or dismiss the request. If the person for whom a declaration of absence is requested appears or news is received from them within the publication period, the request will be dismissed. Similarly, if it is determined that the person has died, the request will also be dismissed. Conversely, if none of these situations occur, a declaration of absence will be issued concerning the person.

How Long Does a Declaration of Absence Remain in Effect?

Following a declaration of absence, rights contingent upon death concerning the absentee arise as if the person's death had been proven. This decision does not establish the person's death but creates a rebuttable presumption of death. We can say that the burden of proof shifts here. Someone who can prove that the person is not dead can always come forward and rebut this presumption. Until then, the declaration of absence will continue to be in full effect.

Furthermore, a declaration of absence produces retroactive effects. The consequences associated with this situation will take effect from the time the person disappeared under life-threatening circumstances or from the last time news was received from the person. Legal personality will terminate with the court's final decision. Additionally, the court must notify the relevant civil registry office of this declaration of absence within ten days and have this matter recorded in the death register. This entry is merely declaratory in nature.

A declaration of absence continues to produce its effects until it loses its validity. This loss of validity can occur with the absentee's reappearance or the determination of their death. This matter does not produce effects automatically. An application must be made to the court in this regard. The validity of the declaration of absence will cease depending on the court's decision in this regard. Apart from this, there is no other situation that would terminate the effect of absence.

What are the Consequences of a Declaration of Absence in Terms of Inheritance Law?

Since a declaration of absence also produces consequences contingent upon death, inheritance will likewise be opened for this person. However, the Civil Code has regulated certain different applications specific to the situation of absence. Here, the provisions regarding delivery against security regulated in Article 584 and restitution regulated in Article 585 of the Turkish Civil Code will be of importance. It is also worth noting that these concepts will be taken as a basis for application even if the absentee is in the position of an heir. It would be beneficial to seek the assistance of a specialized inheritance lawyer on this matter.

The purpose of delivery against security is that the person for whom a declaration of absence has been issued is not officially deceased and there is a possibility of their reappearance one day. In this situation, since the inheritance distribution would be invalid, the aim is to create a fund for the return of the distributed assets to the presumed deceased. The determination that the absentee has actually died is also important here. Because accordingly, the date of birth of the right to inheritance will change, and other right holders may emerge. Therefore, delivery against security is an extremely important institution.

The type and amount of security are not specified in the law. The judge is granted discretionary power in this regard. However, the judge must rule on a sufficient amount of security to protect the rights of the absentee. The security to be provided will be valid for a certain period. For this, the law has stipulated maximum and minimum periods, considering the balance of interests of the parties. Five years have been determined for disappearance under life-threatening circumstances, and fifteen years for lack of news for a long time. However, this period is determined as a maximum until the absentee reaches the age of one hundred.

Upon the expiry of the determined period, the security will terminate. However, the obligation to return (restitution) always continues. Because, if the absentee or superior right holders subsequently appear, those who received the absentee's inheritance are obliged to return the inheritance shares they received to the absentee or the superior right holders. Differently, with the termination of the security period, the heirs will acquire an unlimited right of disposition over the assets transferred to them.

What are the Differences Between Presumption of Death and Absence?

Presumption of death is a rebuttable legal presumption concerning death. This presumption will arise concerning a person who disappeared under a definite risk of death and whose body cannot be found. At first glance, it appears to be a very similar institution to absence. However, these two institutions are quite different in terms of procedure, substance, and consequences. We can briefly list these differences as follows:

• In the presumption of death, the person's situation is definitively regarded as deceased. However, for absence, the existence of a highly probable possibility of death is sought.
• For a presumption of death to be mentioned, no condition of a certain period having elapsed is required. However, in absence, certain period conditions are required for such a decision to be rendered.
• In the presumption of death, any interested party can file a declaratory action and have this matter recorded in the civil registry according to the court's decision. Additionally, interested parties can apply to the local administrative authority to have a death record entered in the person's civil registry due to the presumption of death. In absence, however, the right to apply is granted only to those whose rights are contingent upon death. This means that a broader group of people can apply for a presumption of death.
• A presumption of death can be established by a declaratory action to be filed or by a decision of the administrative authority to be applied to. Conversely, a declaration of absence can only be issued by a court.
• With the entry of a death record in a person's civil registry due to the presumption of death, the marriage union will automatically terminate. In a declaration of absence, however, such a situation does not occur. However, the marriage union will terminate as a result of a court decision rendered in this regard, following a request from the spouse.
• In the case of a presumption of death, following the entry of this matter in the civil registry, inheritance will be opened, and asset distribution will be carried out as if the person had died. In absence, the situation is different. Inheritance will also be opened there. However, differently, the provisions regarding delivery against security and restitution will come into play.
• In the case of a presumption of death, a person who subsequently reappears will be able to reclaim their distributed assets from the heirs based on the provisions of unjust enrichment. In the case of absence, however, the reclamation of distributed assets by the reappearing person will be possible by filing an action for recovery against the heirs.

Sample Petition for a Declaration of Absence

Firstly, we would like to state that this sample petition is provided to give you an idea. Since each concrete case will be evaluated separately, the petition to be prepared for each case will be shaped accordingly. If you are considering filing a lawsuit on this matter, you should seek legal assistance. Otherwise, we would like to point out that you may suffer significant loss of rights. You can download the sample petition we provided in Word or PDF format to your devices. Here is the sample petition we prepared for you:

TO THE SİLOPİ ( ) CIVIL COURT OF PEACE

PLAINTIFFS :

ATTORNEY :

DEFENDANT : Uncontested

SUBJECT : Submission of our petition for a declaration of absence.

EXPLANATIONS :

1 – E….. A….., the father of my clients, works as a shepherd. He regularly takes his flock of small ruminants to graze in the lands on Mount Cudi, within the borders of Şırnak province, every day.

2 – On 20/03/2013, the citizen, for the same purpose, went to the foothills of Mount Cudi with his sheep. Despite it being evening, he did not return to the village. Only a few sheep from the flock found their way home. Thereupon, the gendarmerie was notified. Despite search efforts conducted by the gendarmerie for approximately 1 week, no trace of the citizen, dead or alive, could be found.

3 – Since that date, no news has been received from my clients' father. More than 5 years have passed since the date my clients' father disappeared. Therefore, we have been compelled to file the present lawsuit.

LEGAL GROUNDS : Code of Civil Procedure (HMK), Turkish Civil Code (TMK), and other relevant legal legislation.

LEGAL EVIDENCE : Silopi Gendarmerie Command's reports dated 21.03.2013 and 26.03.2013, expert witness, on-site inspection, witness testimony, and all other legal evidence.

CONCLUSION AND REQUEST : For the reasons presented and explained, I hereby, as attorney, respectfully request and demand that a declaration of absence be issued concerning E….. A…… (Turkish ID No: 3\*\*\*\*\*\*\*\*\*4), the father of my clients, from whom no news has been received for over 5 years, and that a decision be rendered for the registration of the final declaration of absence in the civil registry. 25.06.2020

Attorney for Plaintiffs SIGNATURE

Click to download the sample petition in Word format: Sample Petition for Declaration of Absence – Word

Click to download the sample petition in PDF format: Sample Petition for Declaration of Absence – PDF

We have tried our best to inform you about absence. Regarding the subject,

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy