Case for Correction of Population Registry

What is a Case for the Correction of Population Registry?

As is well known, in our country, the population information of every individual is regulated and recorded by the Population Directorates. In order for a person to exercise their personal rights derived from the Civil Code, it is necessary to file this case to correct any material errors made by the Population Directorate or to determine the paternity of a child. The corrected or amended population record, especially in matters of lineage and inheritance, contributes to the legal interests of the parties involved.

What Information Can Be Changed Through a Case for Correcting the Population Registry?

A case for correcting the population registry can be filed for changes such as altering the first and last name, gender change, correction of birth date and age, cancellation of population records, paternity, denial of lineage, religious conversion, missing person status, information derived from personal status registers, age change, and changing the names of the mother and father.

Changing the first and last name can be done through marriage or at the request of the individual. The details of gender change will be discussed further in the continuation of our article. It is also possible to change the incorrectly recorded birth date in the population registry through this case. We will also discuss in detail the issues of paternity and denial of lineage in our article. As for the status of a missing person, a case can be filed within 1 year for a person who has disappeared as a result of an event likely leading to their death, while a case for someone who has been missing but whose death is not certain can be filed within 5 years.

Who Are the Parties in a Case for Correcting the Population Registry?

The parties in a case for correcting the population registry include the person whose population record is being contested and those with a legal interest in the matter, or the relevant Population Directorate. It is a recognized practice in the established case law of the Court of Cassation to include the Population Directorate as the defendant.

Which Court Has Jurisdiction for a Case for Correcting the Population Registry?

In a case for correcting the population registry, the court with jurisdiction is the Civil Court of First Instance of the place where the plaintiff resides. For individuals living abroad, the case must be filed in the Civil Courts of First Instance in Ankara, Istanbul, or Izmir.

What is the Statute of Limitations for a Case to Correct the Population Registry?

Since a case for correcting the population registry pertains to matters arising from personal rights, it is not subject to any statute of limitations. It can be filed at any time.

What are the Differences Between a Paternity Action, a Case for the Rejection of Lineage, and a Case for Correcting the Population Registry?

A paternity lawsuit is filed by the mother or child against the person who does not acknowledge being the father, with the request to establish paternity. In a paternity case, if the defendant is proven to be the father, a judgment is made that the defendant is the father of the child born without a formal marital union.

If the male spouse claims that the child is not his, he can file a case for the rejection of lineage to refute the presumption of paternity. A case for the rejection of lineage is filed against the mother and the child.

As seen, in a paternity case, the attempt is to prove that the person is the father, while in a case for the rejection of lineage, the male spouse is attempting to prove that he is not the father.

The request by the biological father to register the child in the population registry means the rejection of lineage, and the case should be filed in the Family Court, not in the Civil Court, as a case for correcting the population registry.

What is the case for changing the population registry due to gender change?

The gender change case consists of two stages. In the first stage, the person who meets the necessary conditions applies to the court to file a case for permission to change their gender. After the acceptance of this case and the necessary medical procedures, the gender change takes place. After the gender change, in the second stage, the issue of name change will come up. The gender change case can be filed with a request for name change, or it can be filed following the judgment of the first case.

Court Decisions Related to the Case for Correcting the Population Registry

T.C. COURT OF CASSATION 8th CIVIL CHAMBER E. 2019/5440 K. 2021/3370 DATED 12.4.2021

REQUEST FOR CORRECTION OF POPULATION REGISTRATION (Considering the Claims that the Child’s Registered Parents Are Not the Biological Parents and the Real Mother Is Someone Else, the Case Falls Under the Scope of Article 36 of the 5490 Population Services Law, and Therefore, the Case Must Be Heard in the Civil Court with the Participation of the Population Directorate Representative)
ERROR IN POPULATION REGISTRATION (As the Request Involves the Correction of a Registration that Was Initially Incorrect Due to False Declaration, the Case Falls Under the Scope of Article 36 of the 5490 Population Services Law, and Population Registration Correction Cases Should Be Heard in the Civil Court with the Participation of the Population Directorate Representative)
JURISDICTION (It Was Necessary for the Court to Make a Decision of Lack of Jurisdiction to Transfer the Case to the Civil Court Regarding the Claims that the Child’s Registered Parents Are Not the Biological Parents and the Real Mother Is Someone Else – It Was Not Correct to Make a Decision Without Considering This Matter)

5490/m.36

SUMMARY: The case relates to the request for the correction of population records.

In terms of the claims, the case falls under the scope of Article 36 of the Law No. 5490 on Population Services, which concerns the correction of population records. Cases related to the correction of population records are handled by the Civil Court of First Instance with the participation of the Population Directorate representative. The court’s failure to consider that a decision of lack of jurisdiction should be issued to refer the matter to the Civil Court of First Instance, regarding the claims that the child is not the child of the parents listed in the registry and that the real mother is another person, was deemed incorrect. Therefore, the decision of the Regional Court of Appeal to reject the appeal on the merits must be overturned, and the decision of the First Instance Court should be annulled.

CASE: In the case between the parties, as explained above, the Ankara 16th Family Court decided to dismiss the case on procedural grounds with its decision dated 06.11.2018, and numbered 2018/47 (Case) and 2018/146 (Decision). Following the appeal by the plaintiff’s attorney against the court’s ruling, the Ankara Regional Court of Appeal, 2nd Civil Chamber, ruled to reject the appeal on its merits. After the plaintiff’s attorney appealed the decision of the Regional Court of Appeal, the Chamber reviewed the case file, and the following was decided:

DECISION: In the plaintiff’s petition, the attorney stated that the person they represent, R., and R.’s sister Nazmiye, along with Nazmiye’s husband Umut, are listed as the parents of Edanur, while the child E., registered in the bachelor’s household of the person they represent, was born from the non-marital relationship between R. and the defendant… The attorney requested the correction of the population records for minor Edanur, the determination of paternity for Edanur, and the determination of paternity for the child E.

At the conclusion of the proceedings conducted by the Family Court, the case was dismissed on procedural grounds on the basis that the power of attorney submitted did not contain specific authorization for determining paternity and that the deficiency was not rectified despite the given time. The plaintiff’s attorney’s appeal was rejected on its merits by the Regional Court of Appeal. The decision to reject the appeal on its merits was appealed by the plaintiff’s attorney.

Based on the contents of the file, the case documents, the trial records, and the existing evidence, the Court has made its decision, and there is no error in the assessment. Therefore, the other appeal objections, which are not included in the following section, have not been found to be valid.
In Article 1 of the Code of Civil Procedure No. 6100, titled “Determination and Nature of Jurisdiction,” it is established that the jurisdiction of the courts is regulated solely by law, and the rules regarding jurisdiction are of public order. Therefore, this matter must be observed ex officio by the courts at every stage of the trial.

According to the Civil Procedure Code (HMK), the legal qualification of the facts belongs to the judge.

The first issue to be resolved is whether the case is a paternity or a case for the rejection of the parent-child relationship, or a case for the correction of the civil registry records. As is known, kinship refers to the relationship between individuals descended from each other, and this concept must involve both a blood relationship and a legal relationship, in other words, the blood relationship must exist within the conditions required by the legal system. According to Article 282 of the Turkish Civil Code, the kinship between a child and the mother is established by birth, and the kinship between a child and the father is established by marriage to the mother, recognition, or a court ruling. Kinship can also be established through adoption, and also, in accordance with laws regarding the correction of the descent of children born from unions that do not stem from a marriage act, such as laws referred to as amnesty laws, kinship can be established. (Supreme Court General Assembly decision, dated 30.01.2008, No. 2008/2-36-47) The kinship between a child and the mother is established automatically by birth, and since no ruling is required to establish this relationship, the issue of the child’s relationship with its mother is not the subject of the case; rather, the identification of the woman who gave birth to the child can be brought as the subject of the case.

On the other hand, according to Article 36/1 of the Turkish Civil Code, personal status is determined by the official registry kept for this purpose. In accordance with Article 39 of the same Code and Article 35/1 of the Population Services Law, no record in the population registers can be corrected, nor can annotations be made that would change the meaning or the information carried by the records, unless there is a final court decision. However, material errors made during the registration of events in the family registry are corrected by the population directorate in accordance with the supporting document.

Correcting a record is the modification or change of a part of the record that has been entered into the family registry. To correct incorrect records in the population registers, a court decision must be obtained. At this point, incorrect records in the population registry can be corrected to reflect the actual situation through a record correction case filed by the interested parties. This case is practically referred to as a case for correcting the population record, and in cases related to the correction of the population record that are not subject to the statute of limitations or procedural deadlines, all kinds of evidence can be used (Supreme Court General Assembly decision, 11.02.1998, 2-87/77). Although a case for the rejection of kinship and a record correction case show similarities in terms of their outcomes (such as removal from the household), they are governed by their own special provisions in terms of content and procedural rules. In a case for the rejection of kinship, the information in the population record regarding personal status is correctly registered and recorded in the registry. However, this correct information is later technically altered in the course of a rejection of kinship case. In a population record correction case, however, it is a matter of the population record not reflecting the true situation, having been incorrectly registered from the start (Supreme Court General Assembly decision, 30.01.2008, 2008/2-36-47). Cases related to the correction of population records fall outside the scope of Article 4 of Law No. 4787 and do not fall under the jurisdiction of family courts. In population record correction cases falling under the jurisdiction of civil courts, the presence of the population director or officer and the issuance of the decision before them is mandatory, as stipulated in Article 36 of the Population Services Law.

One of the claims made in the concrete case is related to the request for the cancellation of the population record, which was created based on a false statement, showing the minor … as the child of … and …, and the determination that the real mother is the plaintiff …, along with the request for the correction of the population record accordingly.

Considering the explanations provided above, since kinship between the mother and the child is established by birth, and the real mother of … is …, not …, and the real father is also not …, the claim is essentially related to the correction of a record that has been wrong from the beginning due to a false statement. Therefore, this case is a population record correction case falling under the scope of Article 36 of the Population Services Law No. 5490. In a population record correction case, the fact documented in the official registry is not true, and it has been wrongfully recorded in the registry from the outset. Cases related to the correction of population records as regulated under Article 36 of the Population Services Law No. 5490 are examined in civil courts with the participation of a representative from the Population Directorate.

Considering the explanations provided above, the court’s failure to consider that a decision of lack of jurisdiction should have been made in order to send the case to the Civil Court regarding the claims that … is not the child of … and …, and that the real mother is … was deemed incorrect. Therefore, the decision of the Regional Court of Appeal to dismiss the appeal on its merits should be overturned, and the decision of the First Instance Court should be annulled.

CONCLUSION: For the reasons explained above, the decision of the Regional Court of Appeal is to be REVOKED in accordance with Article 373/1 of the Civil Procedure Code No. 6100.

The decision of the 8th Civil Chamber of the Court of Cassation, dated 15.10.2018, case number 2017/7945 E., 2018/17302 K., is as follows:

“… The case, as explained in the decision of the Civil Law General Assembly of the Court of Cassation dated 30.01.2008, case number 2008/2-36-47, is a case for the correction of the registry due to the fact that the fact documented in the official record is incorrect, having been entered incorrectly from the outset. As a result of such a case, the fact that the person whose record is being corrected will be removed from the household where they were registered until that date and registered in another household does not transform the case into a paternity case.”

The decision of the 8th Civil Chamber of the Court of Cassation, dated 14.01.2019, case number 2017/8217 E., 2019/284 K., is as follows:

“The plaintiffs’ attorney, in the petition, argued that their deceased ancestor’s daughter, as shown in the population records, was actually the child of … and not the listed mother …, and therefore requested the correction of the population records. The Court rejected the case on the grounds that the person whose records were being corrected had passed away. Since the plaintiffs’ inheritance rights are affected, it was understood that they had a legal interest in requesting the correction of the records, and thus had the standing to be active participants in the case. Therefore, instead of rejecting the case with an inappropriate justification, the Court should have entered into the merits of the case and made a decision.”

The decision of the 17th Civil Chamber of the Court of Cassation, Case No: 2014/11217, Decision No: 2014/17316, dated 01.12.2014:

“…In the case concerning the correction of the population records between the parties, separate decisions of lack of jurisdiction were issued by the … Family Court and the … 1st Civil Court of First Instance. Therefore, after examining all the documents in the file sent for the determination of the competent court, the necessary steps were considered.”

-DECISION-

The case concerns the plaintiff’s request for the correction of the mother’s name in the population record.

The Family Court ruled a lack of jurisdiction, reasoning that the request for the correction of the father’s name was not related to lineage but to the correction of the population record.

The Civil Court of First Instance also issued a lack of jurisdiction decision, stating that the case was related to the correction of lineage.

In the present case, the plaintiff, whose real mother is …, has requested the correction of the mother’s household registration as … on the grounds that her mother and father were not legally married and that she was registered as the daughter of her grandfather, who is a relative of … .

In this context, the case is not a matter of lineage, but concerns the correction of an erroneous population record. Pursuant to Article 36 of the Law No. 5490 on Population Services, the case, which pertains to the correction of the population record and does not relate to the establishment of lineage as regulated in Articles 282 and subsequent articles of the Turkish Civil Code, should be heard and concluded by the Civil Court of First Instance in accordance with general provisions.

CONCLUSION: For the reasons explained above, it was unanimously decided on 01.12.2014 to designate … 1st Civil Court of First Instance as the court of jurisdiction, in accordance with Articles 21 and 22 of the Civil Procedure Code No. 6100.