RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENT IN TURKEY
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGEMENT IN TURKEY
Recognition and enforcement cases are the types of lawsuits used to make foreign court decisions valid under Turkish law. The decision of a foreign court is treated as if a local court has issued it, carrying the status of a final judgment or conclusive evidence. Recognition and enforcement cases are regulated in the second section of the Private International Law and Procedure Law (Code Number. 5718), articles 50-59.
Legal Sources for Recognition and Enforcement of Foreign Court Decisions
- Law No. 5718 on International Private Law and Procedure Law is the fundamental legislation governing the recognition and enforcement of foreign court decisions.
- According to Article 90 of the Turkish Constitution, “International agreements duly put into effect have the force of law.” Relevant international treaties are also legal sources for the recognition and enforcement of foreign court decisions.
- Although not binding, decisions of the Court of Cassation (Yargıtay) set legal precedent.
HAGUE CONVENTION AND ITS IMPACT ON RECOGNITION AND ENFORCEMENT CASES
The Hague Convention is a treaty containing internationally recognized rules. It ensures that decisions issued by courts within the EU are recognized and enforced in non-EU countries that are parties to the convention. Additionally, it allows for the recognition and enforcement of decisions from non-EU countries in the EU, provided that they respect the fundamental principles of EU law.
In Turkey, the recognition and enforcement of foreign court decisions fall under articles 50-59 of the Private International and Procedure Law. Article 90/V of the Constitution dictates that international agreements are considered to have the force of law. Furthermore, according to Article 1/2 of the Private International Law and Procedure Law, the provisions of international agreements take precedence. Thus, since Turkey is a party to and has ratified the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, the provisions of the Convention take priority over the Law on Private International Law and Procedure Law in cases falling within the scope of the Convention.
RECOGNITION OF FOREIGN JUDGEMENT UNDER TURKISH LAW
A recognition case is initiated to establish the validity of a foreign court decision as a final judgment or conclusive evidence in Turkish courts. The purpose of a recognition case is to determine the status of the foreign judgment, and it is a remedy sought for non-executable court decisions.
ENFORCEMENT OF FOREIGN JUDGEMENT IN TURKEY
An enforcement case is initiated to render an enforceable foreign court decision valid within Turkish courts. One of the fundamental conditions for enforcement is reciprocity. If there is no reciprocal recognition of judgments between the foreign state and Turkey (whether through legal provisions, customary practice, or international treaties), the enforcement request will be denied. For legal reciprocity, it is not necessary for Turkey to recognize the state where the court decision was rendered. However, for treaty-based reciprocity, the states involved must recognize each other. The judge must ascertain the existence of reciprocity on its own.
Under Article 50 of the Law on Private International Law and Procedure Law, foreign court decisions regarding civil matters can be enforced if they have become final according to the laws of the foreign country. Moreover, foreign judgments related to personal rights or compensation issued by criminal courts can also be enforced.
The types of decisions a Turkish court can render in response to an enforcement request are detailed in Article 56 of the Law on Private International Law and Procedure Law. The court can either accept or reject the enforcement of the foreign decision. The court cannot issue interim measures to prevent the enforcement of a foreign judgment.
REQUIREMENTS FOR ENFORCEMENT CASES UNDER TURKISH LAW
- The relevant foreign country must have a law, actual practice, or international agreement that allows for recognition and enforcement between Turkey and that country (reciprocity).
- The judgment should fall within the jurisdiction of Turkish courts or not be against public policy.
- The defendant must not have been duly summoned, represented, or properly informed according to the foreign country’s laws, and they must not have opposed the enforcement request in response to these violations.
DOCUMENTS REQUIRED FOR RECOGNITION AND ENFORCEMENT OF FOREIGN COURT DECISIONS IN TURKEY
For the recognition and enforcement of foreign court decisions, the necessary documents include:
- The original (wet-signed, sealed) or authenticated copy of the foreign court decision.
- Proof that the foreign court decision has become final (wet-signed, sealed).
- A translation of the foreign court decision into Turkish, certified by a sworn translator and authenticated by a Notary Public or Consulate.
- Apostille endorsement. 5. Copy of passport and ID card. 6. Power of attorney.
DIFFERENCES BETWEEN RECOGNITION AND ENFORCEMENT
Reciprocity is not required for recognition, unlike enforcement. Additionally, recognition does not involve enforcing the decision itself, while enforcement is about executing the decision. For instance, a recognition case might involve validating a foreign divorce decree that doesn’t require execution, while an enforcement case might be necessary for a money judgment that requires execution through Turkish enforcement offices. A recognized decision can serve as conclusive evidence and be used as a judgment.
As a general rule, recognition and enforcement are separate legal processes that result in a foreign court decision gaining legal force in Turkey.
CONFLICT WITH ANOTHER FINAL DECISION FOREIGN DECISION CANNOT BE ENFORCED IN TURKISH COURTS
If a foreign court decision contradicts another final decision, there is a view in legal doctrine that the. In case of conflicting decisions, the parties and subject matter of the foreign decision must be identical to those of the final and binding decision. The final decision could either be a Turkish court decision or another foreign decision recognized or enforced in Turkey.
RECOGNITION OF DECISION WITHOUT GROUNDS
According to a decision by the Court of Cassation dated February 10, 2012 (2010/1 E, 2012/1 K), the absence of grounds in a foreign judgment does not constitute a violation of Turkish public policy, and therefore, it does not hinder the recognition and enforcement of the foreign judgment.
CAN THE COURT PARTIALLY ENFORCE A FOREIGN COURT DECISION OR ALTER A COMPENSATION DECISION?
According to Article 56 of the Turkish Law on Private International Law and Procedure Law, the court can decide to enforce a foreign court decision partially or entirely. The court, however, cannot alter or limit compensation decisions unless they exceed actual damages, which would be inconsistent with Turkish public policy.
APPEAL POSSIBILITY IN RECOGNITION AND ENFORCEMENT CASES
Under Article 57 of the Law on Turkish Private International Law and Procedure Law, decisions related to the recognition and enforcement of foreign court decisions can be appealed. The decision of the court regarding recognition or enforcement can be appealed to the Regional Court of Justice (bölge adliye mahkemesi) within two weeks from the notification of the decision. Additionally, the decision of the Regional Court of Justice can be further appealed to the Court of Cassation within two weeks from the notification of that decision. The appeal process suspends the execution of the decision until the finalization of the process.
JURISDICTION FOR RECOGNITION AND ENFORCEMENT OF FOREING JUDGMENET IN TURKEY
The competent court is the court at the place of residence of the party against whom recognition or enforcement is sought, or if not available, the court of the location where that party is domiciled. In case of neither, the courts in Ankara, Istanbul, or Izmir have jurisdiction.
COMPETENCE FOR RECOGNITION AND ENFORCEMENT CASES IN TURKEY
The competent court is the Civil Court of Justice (asliye hukuk mahkemesi), which is the general jurisdiction court in Turkish law.
STATUTE OF LIMITATIONS FOR RECOGNITION AND ENFORCEMENT CASES IN TURKEY
In Turkish law, there is no statute of limitations explicitly defined for recognition and enforcement cases. Article 8 of the Law Private International Law and Procedure Law regulates the statute of limitations for legal acts and relationships involving foreign elements. However, some Court of Cassation decisions suggest that statute of limitations periods are not applicable to matters of recognition and enforcement. Instead, the statute of limitations of the specific subject matter could apply. Furthermore, in cases where the recognition of a foreign decision has been granted, but enforcement has not yet occurred, Turkish courts might apply specific subject matter-based statute of limitations for the enforcement.
YARGITAY (TURKISH COURT OF CASSATION) DECISIONS
- A decision of the 3rd Civil Chamber of the Court of Cassation (2016/20654E, 2018/10592K) emphasizes that foreign alimony judgments can be recognized and enforced in Turkey, subject to the conditions set by international agreements and national laws. The decision indicates that directly enforcing foreign alimony judgments in Turkey is possible without the need for recognition and enforcement.
- The decision of the Court of Cassation’s General Assembly on the Unification of Judgments (2010/1E, 20112/1K) underscores that the judge in an enforcement case cannot examine or evaluate the substance of a foreign court decision regarding its accuracy in terms of substantive law. The judge’s role is limited to checking whether the decision is in accordance with the public policy of Turkey. The presence or absence of grounds in the foreign decision does not affect the decision’s recognition and enforcement in Turkey. September 2023
Av. Abdulvahit KAYA & Av. Meral Melis ERCAN & Stj. Av. Boran Utku ÖZER –
Team at International Law Department of Kaya & Partner Lawyers