Implementation of Foreign Court Decisions in Turkey
Recognition is the type of lawsuit filed to ensure that the court decision given in a foreign country is accepted in our country as a final judgment or conclusive evidence.
Enforcement is the type of lawsuit that ensures that the decisions made by foreign judgement as a result of the lawsuit according to the private law relations of the people including the commissive actions, are valid in Turkey and that the judgments and consequences are formed.
The basic provisions regarding the recognition and enforcement of foreign judgement are regulated in the Law No. 5718 on International Private and Procedural Law which of the recognition or enforcement lawsuits will be filed an action is determined according to the content of the decision that is willed to have an effect.
Effect of Recognition and Enforcement Decisions
Recognition of a foreign judgement means that it has an impact on the jurisdiction of the country in which is recognized. Recognized foreign judgement have two separate effects in Turkish law: Final judgment and conclusive evidence. Turkish law is deemed to have accepted the effect of final judgment in the material sense of the verdict recognized by it, in other words, foreign judgments from now on showing the same characteristics as the judgments that have the effect of final judgment in Turkish law.The final judgement or the conclusive evidence expressing of the foreign decree will take effect from the moment the foreign judgement becomes definite.
The decision of enforcement has another effect in addition to these two effects, it is the enforceability. Recognition of a foreign judgement containing a fulfillment verdict does not give it the enforceability on the contrary, if it is desired that the foreign judgement has the effect of final judgment and conclusive evidence in Turkish law, as well as enforceability, a duly enforcement decision must be taken. The foreign judgement that has been enforced will result in the same way effect as a fulfillment verdict in Turkish courts. As soon as the enforcement decision is made by the Turkish courts, it has backward effect from the moment the foreign judgement becomes definite.
What are the Conditions of Recognition and Enforcement Lawsuits?
Recognition and enforcement proceedings are divided into two as preconditions and substantive conditions. International Private and Procedural Law (IPPL) according to Article 50, the prerequisites for the recognition and enforcement lawsuit are as follows:
Ø Existence of a decision issued by a foreign court
Ø Foreign court decision is related to civil cases
Ø Finalization of the decision
The essential conditions required for the recognition and enforcement request to be accepted are IPPL according to Article 58. These are:
Ø The existence of reciprocity between the place where the verdict is given and Turkey,
Ø The verdict is given on a subject that does not fall under the exclusive jurisdiction of the Turkish courts or provided that the defendants, the writ has not been given by a state court that has authorized it, although it does not have a real relationship with the subject of the case or the parties,
Ø The provision is not clearly contrary to public order,
Ø The decision was made in compliance with the defense rights of the defendant.
The accuracy of the procedure applied in the foreign judgement or the material and legal determinations in the decision cannot be examined in Turkish courts. This is called a revision ban.
The following documents are required in cases to be filed for the recognition and enforcement of foreign judgement:
Ø The original of the foreign judgement (ink signature, sealed)
Ø Annotation or document showing that the foreign judgement is finalized
(ink signature, sealed)
Ø Apostille Commentary
Ø Translation of the foreign judgement into Turkish by a sworn translator and having this translation approved by the notary public or consulate
Ø Photocopy of passport and identity card
Ø Power of Attorney
Recognition and enforcement lawsuit will be handled according to the simple procedure of trial (IPPL art. 55/1). The request for recognition of the foreign judgement can also be brought forward in a case pending in Turkish courts and in this case, recognition will be made according to the procedure, which the main proceedings are subject (IPPL art. 58). However, emphasized hereby is that although the recognition can be requested within a pending lawsuit in Turkish courts, the enforcement request must be made in a separate lawsuit to be filed. The Court of Cassation stated in a decision that the recognition can also be requested by filing a countersuit.
Who is the Court with Territorial Jurisdiction in Recognition and Enforcement Lawsuits?
Competent court in recognition and enforcement lawsuit regulated (IPPL art. 51) according to the relevant article, these verdicts are issued by against himself/herself whose recognition or enforcement is requested and if there is no legal residence in Turkey otherwise it can be requested from the court of the place of residence. If there is not any available place of legal residence in Turkey, it can be requested from one of the courts in Istanbul, Ankara or Izmir.
Who is the Competence Court in Recognition and Enforcement Lawsuits?
The court in charge of recognition and enforcement lawsuit is the Civil Court of First Instance. However, there is a provision in the Law No. 4787 that the recognition and enforcement requests of foreign judgements regarding Family Law will be made in the Family Court.
Notification in Recognition and Enforcement Lawsuits
The most important issue on behalf of the lawsuits is a notification, and notification to the relevant parties is a procedural process. Firstly, the notification varies depending on whether the person to be served is a foreign national or a Turkish citizen. The notification can be made to a person who is a Turkish citizen through a political representation. Thus, the notification can be made by the Turkish Embassy or Consulate to the person who is a Turkish citizen. This notification to be made to the related person will be made by an officer appointed by the political representation. In this notification, the subject of it and the warning about the notification will be made, if the application is not made within thirty days is stated.
Another thing is the notification to be made to foreign citizens. Notification to foreign citizens are made by way of the Ministry of Justice. The notice informing about the trial day must be sent three months in advance.
It is mentioned (IPPL art.52) that anyone who has a legal interest can request recognition and enforcement. The person who will request recognition or enforcement does not necessarily have to be the parties to the foreign judgement likewise, the person making this request does not have to be a Turkish citizen or the person against whom a claim will be made is not a Turkish citizen. The only condition, it resorts to be able to request recognition and enforcement is to have legal interest.
Litigation Expenses in Recognition and Enforcement Lawsuits
Fees to be paid for recognition and enforcement lawsuits mentioned in “Act of Fees art.4”. Fees are charged for the lawsuits to be filed for the enforcement of the writs given by a foreign court, according to the value, type and nature of work has been worded in these writs. In accordance with the lawsuit, Court of Cassation is stated that fixed fees should be paid, since enforcement lawsuits are in the nature of declaratory action. In lawsuits whose value can be measured in money, the fee is a proportional fee.
In the following circumstances, the defendant posts a guarantee to compensate the possible litigation expenses:
Ø Filing a lawsuit by a Turkish citizen who does not have a habitual residence in Turkey, participating in the lawsuit as an intervening party alongside the plaintiff or following up.
Ø If the plaintiff’s bankruptcy has been decided before, and the restructuring proceedings have been initiated by means of a concordat or reconciliation; financial difficulty due to reasons such as the existence of a certificate of insolvency.
No posts a guarantee may be requested in the following cases:
Ø Plaintiff’s use of legal aid,
Ø The plaintiff’s immovable property or a receivable secured by guarantee in kind is sufficient to meet the requested guarantee in the country,
Ø The lawsuit is filed solely to protect the interests of the minor,
Ø Enforcement proceedings with a judgment have been made for the receivable,
What are the Ordinary Legal Avenues of Recognition Enforcement Lawsuits?
Code of Civil Procedure (CPC) art. 341/5, “The trial court can be Cassation in other laws or it has been stated that an application can be made to the Court of Cassation, but it is possible to apply to the Regional Court of Justice against the final decrees of the Regional Court of Justice regarding the lawsuits and works that fall under their jurisdiction”. The fact that the Appeal application has been made will not stop the execution unless the decision to postpone the execution is taken, and the execution will stop automatically at the stage of the Cassation application.
In Which Fields Are Recognition and Enforcement Lawsuit Heard?
Although these lawsuits are mostly filed in Family Law for the purpose of giving effect to divorce lawsuits in Turkey, they can also be filed in order to have receivables filed abroad to have results in our country. In such cases, the required documents should be attached to the recognition and enforcement petition. These documents are:
Ø The original of the foreign judgement, duly approved by the authorities of that country, or a copy and certified translation approved by the judicial body that issued the decision.
Ø It is stated as a certified translation with a letter or document that is duly approved by the authorities of that country and showing that the decision has been finalized.
With a new regulation added with the Statutory Decree, the things to be done before filing lawsuits are;
Ø First of all, there must be a decision of the foreign court regarding divorce, separation or nullity of marriage. In addition to this, decision must be finalized.
Ø The application of one of the parties is not sufficient, and it is possible with the participation of both parties.
Ø Another important issue is that the decision to be subject to recognition and enforcement should not be a decision contrary to the judicial order in Turkey.
The documents required for the application of the decision to the population registry are;
Ø A petition containing the registration request of the decision given by the foreign judgement to the population registry,
Ø The original, certified copy of the foreign judgement,
Ø Notary public or consular-approved translation of foreign judgement,
Ø Approved document confirming that the foreign judgement has become final,
Ø Certified translation of the approved document
In the event that all these conditions are met, the relevant persons may jointly apply for registration to the authorized population registry.
How Long Do Recognition and Enforcement Lawsuits Take?
Recognition and enforcement lawsuits are technical. In these lawsuits, witnesses cannot be heard, no judicial inspection is made, and CAE examination is not carried out unless it is obligatory. In such cases, the subject of proceedings is limited to examining whether the foreign judgement fulfills the conditions of recognition or enforcement. The issue that takes time in recognition and enforcement cases and causes the prolongation of the lawsuit is the notifications made to the defendant. It is obligatory to notify the defendant of the petition, the trial day and the decision rendered at the end of the trial. If the defendant is abroad and the defendant is a citizen of a foreigner, the process is prolonged. In this case, a long and complex procedure comes before us in accordance with the foreign notification procedure. Considering the fact that there is a minimum four-month period for notifications abroad and the determination of the trial day, the process takes at least six months to a year.