Recognition and enforcement of decisions of foreign courts in Turkey
Throughout the XX century. in many countries, private international law has been comprehensively codified.
The state has a desire for a single legal act containing fundamental provisions in the field of private international law. This has formed a modern trend in the development of this branch of law. Its essence lies in the separation of private international law as a branch of law.
The example of the Republic of Turkey in this area is of particular interest. Due to the fact that two very successful codifications of private international law have already been implemented in this country.
In particular, in 1982, the Law on Private International Law was adopted, which was in force from November 20, 1982 to December 12, 2007 and was the first legislative act to codify private international law in Turkey. And in 2007, it was replaced by the Code of Private International Law and the International Civil Procedure (hereinafter referred to as the Turkish Code of 2007), a comprehensive codification act covering the definition of competent law applicable to civil, family, labor and other private law relations, issues international civil litigation and commercial arbitration. Currently, the provisions regarding the recognition and enforcement of foreign judgments are governed by chapter II of the 2007 Turkish Code.
First of all, it should be noted that the recognition of foreign judgments as final must be confirmed by a Turkish court. A foreign court decision has no legal force in Turkey. It receives it only insofar as the procedural legislation of the Republic of Turkey allows the recognition and enforcement of such a judgment. However, for this it must meet the requirements. First, recognition and enforcement of a decision of a foreign court occurs only if the foreign decision is made solely by the court. Secondly, a recognized decision should not be made on criminal law matters, otherwise enforcement is rejected.
At the same time, a decision on enforcement may be claimed in accordance with the provisions on personal rights provided for in a sentence in a criminal case of a foreign court (clause 2 of article 50 of the Turkish Code of 2007); thirdly, the decision must be final in accordance with the law of the court that issued the decision. This means that a foreign court decision that has entered into force is binding on the parties of the dispute. and cannot be reviewed either in substance or in procedure. At the same time, it should be borne in mind that they do not have signs of finality and are temporary in nature of a court decision to seize property, as well as other interim measures. Also, decisions on bankruptcy issues cannot be considered final, since they do not resolve the dispute between the parties on the merits.
The right to demand the enforcement of a judgment is granted to any person who has an appropriate legal interest.
The compulsory recognition and enforcement in Turkey of judicial decisions made in civil cases by foreign courts and which are final by the law of the place of consideration of the case is carried out by decision of a competent Turkish court. As indicated in Art. 51 of the Turkish Code of 2007, the competent courts for the settlement of disputes on enforcement are the courts of first instance:
1) at the place of permanent residence in Turkey of the person in respect of whom enforcement is required;
at the place of usual residence, if there is no place of permanent residence;
Ankara, Istanbul or Izmir, if there is no place of permanent or usual residence in Turkey.
In accordance with Art. 52 of the Turkish Code of 2007, the enforcement of a court decision may be requested by submitting a written request with the attached copies in the number of copies corresponding to the number of persons of the opposite party.
In this case, the application must contain the following information:
name, surname and address of the person requiring enforcement, the opposing party and, if available, the legal representative;
name of the state in which the decision requiring enforcement was issued, name of the court, date, number and summary of the decision;
if partial enforcement is required, then this part of the judgment.
The following documents must be attached to the application for enforcement (Article 53 of the Turkish Code of 2007):
- the original of the court decision duly certified by the authorities of the country or a copy of the court decision certified by the judicial authority that issued this decision and its certified translation;
2) a statement or a document duly certified by the authorities of this country, certifying that the decision is final, and its certified translation.
Article 54 of the Turkish Code of 2007 lays down the conditions for the enforcement of a foreign judgment. In particular, a court with jurisdiction shall decide on the enforcement of a judgment, provided that:
- there is a reciprocity agreement between the Republic of Turkey and the state in which the judgment was issued, or provisions of law or practice allowing the enforcement of judgments handed down by Turkish courts in that state.
This condition means that for the recognition and enforcement of foreign decisions it is important not so much to have an international treaty as to observe the principle of reciprocity. Reciprocity should be based on national law or the practice of a foreign state that recognizes and enforces decisions of Turkish courts. The reciprocity between the Turkish state and the state whose court ruled may be ensured by the provisions of international conventions, the norms of Turkish law or the application of “de facto” (“in practice”, “in fact”).
So, for example, on December 15, 1997, in Ankara, an Agreement was signed between the Russian Federation and the Republic of Turkey on the mutual provision of legal assistance in civil, commercial and criminal matters, which, however, has not yet entered into force.
Moreover, in Art. 19 of the Agreement, it is indicated that the parties agreed to recognize and enforce judicial decisions in civil and criminal matters regarding compensation for damage, and duly approved arbitral awards, as well as the possibility of recognizing decisions regarding personal status, if they handed down before the entry into force of the contract. Thus, we can say that between Russia and the Republic of Turkey there is the possibility of mutual recognition of decisions. But only on issues of personal status of citizens on an extremely unusual basis – an unpublished international treaty that has not entered into legal force;
2) the court decision was made on a matter that is not in the exclusive jurisdiction of the Turkish courts or has not been made by a court that has lost its jurisdiction, although it is not directly related to the subject matter or to the parties, provided that the defendant objects to its validity.
This condition implies that in some cases the Turkish courts have exclusive powers to examine the merits of the dispute and in such cases the Turkish court will be the only competent court;
3) the court decision is clearly not contrary to public policy.
Currently, the Turkish legislator is operating with the term “public order” that is customary for private international law. However, it does not disclose its content, which is due to the possibility of changing the content of this category in temporal and spatial contexts.The Turkish legislator uses such evaluative language. Such as “clearly contradictory” and “if deemed necessary”, which allows various interpretations of this category depending on the discretion of the law enforcer. In this case, the legislator provides the prerogative of the interpretation of the concept of “public order” law enforcement practice and doctrine. For example, one of the most successful definitions was proposed by the Supreme Court of Cassation, which in its decision of May 6, 1998 (that is, even before the adoption of the Turkish Code of 2007) made an attempt to outline the general framework of the “public order” category, meaning him “events that seriously contradict or undermine the rules of morality and honesty, the basic principles and values of law and society, justice, understanding of morality and fundamental rights provided for by the Constitution”.
The next step in this direction was taken by the Turkish Supreme Court of Cassation in 2012.
Referring to Art. 54 of the Turkish Code of 2007. According to this article, one of the conditions for refusing to enforce foreign judgments is the contradiction of their enforcement of public policy.The court tried to answer the question whether the lack of a reasoning part in the decision of the foreign court violates Turkish public order, and gave a negative answer. According to the peremptory norm of Turkish law, the court decision must contain a reasoning part. However, the lack of such in a foreign court decision does not automatically make it contrary to Turkish public policy.
Despite the fact…
4) Despite the fact that the person in respect of whom the enforcement of the decision is required.In violation of the right of this place, it was not duly summoned to the court making the decision, or was not properly represented in this court, or because of his failure to appear, an absentee decision was made, or the court decision in his absence was made in violation of these laws, and this person It did not raise objections on these grounds in a Turkish court regarding the enforcement of a decision. This norm is almost unique.
The universally recognized requirement for the recognition and enforcement of foreign court decisions is their compliance with the law of the place of issuance and proper notification of the defendant of the time and place of the trial. The Turkish legislator does not present such requirements: a refusal of recognition and enforcement is possible only if the interested person himself raises objections on these grounds in a Turkish court.
Thus, the 2007 Turkish Code provides a limited and exhaustive list of conditions for refusing recognition of foreign judgments.
The consideration of the requirement of enforcement and the issuance of an appropriate decision is regulated by the general rules of procedural law of Turkey (clause 1 of article 55 of the Turkish Code of 2007). In this provision, Turkish law enshrined the use of “lex fori” (“law of the court”) as a procedural imperative. The court may decide that the decision is enforceable in whole or in part. Or that the claim is not subject to satisfaction, which is indicated in writing in the final part of the decision of the foreign court, sealed and signed by the judge (Article 56 of the Turkish Code of 2007).
An appeal of decisions made in respect of recognition and a demand for enforcement or refusal of execution is carried out in accordance with the general rules, in particular, such an appeal suspends the execution of a decision (clause 2 of Article 57 of the Turkish Code of 2007).
Paragraph 1 of Art. 57 of the Turkish Code of 2007 establishes that a foreign court decision in respect of which a decision was made on enforcement is enforceable as a decision made by Turkish courts, that is, a foreign decision acquires the properties of a national court decision.
In accordance with Art. 59 of the Turkish Code of 2007, a foreign court decision comes into force from the moment when it becomes final.