RECOGNATION AND ENFORCEMENT OF FOREIGN COURT JUDGMENTS IN TURKEY

RECOGNATION AND ENFORCEMENT OF FOREIGN COURT

JUDGMENTS IN TURKEY

                      Recognation and enforcement of foreign court jugments have been regulated by International Private and Civil Procedure Code numbered 5718 in Turkey. The conditions of enforcement of foreign court judgments is placed in Article 50 and 54 of the code. According to Article 50 and 54, foreign court judgments must meet seven conditions to be enforced in Turkey :

- The foreign judgment must belong to civil action: Thus, the judgment must be conclusion of a private law conflict. In this sense, one of parties of conflict can be public administration or private law person. And also, it does not matter that the judgment is taken from civil court or criminal court. The important issue is that the judgment must arise from private law conflict. In addition to this, the decision must belongs to the judicial power. [i]

- The foreign judgment shall be final verdict: The foreign judgment that is demanded to recognize and enforce must be final verdict. According to article 50/1, the issue that whether the judgment is final verdict or not subjects to the code of practice of the foreign court. The final verdict shall be proven by certificate of approval which is taken from the foreign court or approval in the foreign judgment.

- There shall be a judgment of enforcement: There shall be a judgment which determinates the conditions of enforcement is given from the competent court to enforce a foreign judgment in Turkey. The judge of the competent court, can analyze only the conditions of enforcement and recognation while giving a decision about it. Therefore, the court can not probe the foreign judgment in terms of substance.

- Mutuality: The another condition of enforcement of foreign court judgment is mutuality. There shall be an aggrement between Turkey and foreign country or an act or actual practice that provides enforcement of Turkish court judgments in the foreign counrty which gives the foreign judgment.

- The foreign court judgment shall be given from a competent court : If the subject of the foreign judgment is in exclusive jurisdiction of Turkish court, the foreign court judgment can not been enforced in Turkey. For instance, according to Civil Procedure Code numbered 6100, in the case about right in rem of tenement the court where the tenement is has exclusive jurisdiction.[ii] In case of violation of exclusive jurisdiction of Tukish courts, Turkish court considers this matter on its own motion  and will not enforce the foreign court judgment. In addition to this, if the foreign judgment is given from the court of the country which has not real relation to the subject or the parties of the case and the defendant takes exception to this situation, Turkish court will not enforce the foreign court judgment.

- The foreign court judgment shall not be against Turkish public order : While the judge gives a decision about enforcement and recognation of the foreign court judgment, probes foreign judgment in terms of Turkish public order. For example, if the foreign judgment is about that a movebal estate which is ban to be existed from Turkey is given to the plaintiff , enforcement of the foreign judgment will be against Turkish public order. In case, there is a Turkish court judgment is final verdict has the same parties, cause and subject of the foreign court judgment, enforcement of the foreign judgment is not possible because of being against public order.

- It should be complied with rights of defence : According to article 54/ç the defendant can raise an objection to demand of enforcement of foreign judgment if the foreign court breaks the rules about the right of defence. The situations about this kind of violation are described at the article :

-       The foreign court does not invite the defendant to the court in accordance the law of foreign court.

-       The defendant has not opportunity to be principal in the foreign court.

-       The foreign judgment is a default judgment.

           Hence, the defendant can raise an objection to these situations at Turkish court and prevent enforcement of the judgment in Turkey.

           In conclusion, there shall be the conditions of enforcement of foreign court judgments that are explained aforesaid except mutuality for recognation of foreign court judgments.

[i] However, there are some exception of this rule which is about judicial power. For example, article 30/2 of the Population  Services Act.

[ii] This rule is also accepted in International Private Law.