The international jurisdiction of Turkish courts, recognition and enforcement of foreign court decisions are regulated in the Law No. 5718 on International Private and Civil Procedure Law.
What is Recognition?
Each State has the exclusive right and authority to judge the events taking place within its borders.
This right and authority may be restricted by international treaties to which the State is a party.
Therefore, as a rule, the provisions of the legislation of the place where it occurs are applied in the resolution of a dispute about a transaction or action.
On the other hand, it is frequently encountered that a decision made by the judicial authorities of one State must be implemented in another State in legal relations having an element of foreignness.
In these cases, States may establish rules on the binding nature of decisions made by foreign courts, either as a party to international treaties or in their domestic legislation.
Recognition and enforcement institutions emerged from this need and became a part of both international conventions and local legislation.
Recognition is the acceptance of a foreign court decision by the local judicial authority as definitive evidence or final judgment.
As a result of the recognition case, the local court makes a decision regarding the recognition of the foreign court decision or the rejection of the recognition request. There is a right to apply for legal remedies against this decision in accordance with our local legislation.
In the legal procedure to be followed in the recognition case in our country, the following should be investigated firstly.
In the examination of recognition request, unlike the enforcement request, It is not sought that there is a treaty based on reciprocity between the Republic of Turkey and the state where the court decision was made, or It is not required to have that state a provision in its law that enables the enforcement of judgments made by Turkish courts.
Recognition is essentially a remedy filed in cases where a foreign court decision does not qualify for enforcement.
The Republic of Turkey has adopted joint recognition and enforcement provisions with many states with international agreements.
Articles 58 and 59 of the Law No. 5718 on Private International Law and Procedural Law are about the "Recognition" procedure.
In order to make a recognition decision;
The foreign court verdict must have been given on a matter that is not within the exclusive jurisdiction of the Turkish courts, or, provided that the defendant objects, the verdict must not have been issued by a state court that grants itself jurisdiction in the absence of a real relationship with the subject or the parties.
The provision cannot not be clearly contrary to public order.
Pursuant to the laws of that place, the person against whom recognition is sought must not have been duly summoned to the court giving the verdict, or not represented in that court, or made decision in his absence contrary to these laws. It is sought that this person should not have objected to the Turkish court against the recognition request based on one of the above points.
The recognition of the decisions made by the foreign court with non-authority cannot be requested from Turkish Courts. The Turkish Court is obliged to examine ex officio whether a decision has been made with non-authority, in cases where there is exclusive authority; and in cases of non-jurisdiction outside of exclusive jurisdiction, the counterparty, namely the defendant, must have made an objection on this matter. The precedent decisions of the Court of Cassation are in this direction.
In the evaluation of whether the decision of the foreign court is against the public order or not, action shall be taken according to the decision of the Court of Cassation General Assembly on the Unification of Judgments dated 10/02/2012 dated 2010/1 and numbered 2012/1 k.
The Court of Cassation stated in its decision that the concept of public order is extremely broad and open for interpretation, and it is not possible to say that every violation of mandatory provisions creates violation of public order. Subsequently, It stated that the framework of public order in domestic law can be drawn according to the basic values of Turkish law, the principles of law which are the expression of the Turkish general principles of adaptation and moral principles and the understanding of justice, the civilization level of the society, the political and economic regime, and human rights and freedoms.
While the Turkish court evaluates the violation of public order, it is also obliged not to enter into the control of basics. The control on basics ban cannot be removed with judicial discretion.
In both recognition and enforcement requests included in MÖHUK, the foreign court decision cannot be examined in basics by the enforcement judge and its compliance with the law cannot be inspected. Otherwise, the judge of the Turkish court will have served on the foreign court as a higher court.
The Turkish Court should make a limited assessment of whether the provision clause included in the decision of the foreign court is contrary to the basic principles of our Constitution or the legal system, the general customs and traditions of the Turkish society, and moral convictions.
The Civil Courts of General Jurisdiction are the courts with general authority in the recognition of foreign court decisions. However, the recognition of foreign court decisions regarding the jurisdiction of the Family Court will be requested from the Family Court. Recognition of the foreign court decisions regarding the disputes within the scope of Bankruptcy Law will be requested from the Commercial Courts. The recognition of the judgments regarding other matters falling under the jurisdiction of the Commercial Court will be requested from the Commercial Courts of First Instance.
For example, the plaintiff must apply to the Family Court in order to recognize the divorce decision made in a foreign country.
In determining the competent court in the recognition case, we benefit from article 51/2 of the MÖHUK.
The recognition lawsuit will be held in the settlement place of person who is the defendant, in Turkey. If there is no settlement place, the case will be held in the court of the place of residence. If there is no place of settlement or residence in Turkey, the lawsuit will be held in Ankara, Istanbul or Izmir courts.
An important issue that is frequently encountered in practice is related to the finalization process of the foreign court decision subject to the recognition case and whether there is an annotation such as certified copy.
Pursuant to our rule of procedure, when filing a recognition case, the original of the foreign court verdict approved by the authorities of that country or a certified translation by the judicial authority that issued the verdict and a translation approved by the authorities of that country showing the final date of the verdict must be attached.
The final judgment in substantive sense has two consequences as a requirement of its nature: The decision constitutes definitive evidence and the opposing party can file a final judgment objection if a lawsuit is filed between the same parties for the same reason.
Here, the legal justification for the recognition of the foreign court decision is the final judgment force of the decision.
The Court of Cassation ruled that the fact that the finalization annotation is not included in the petition should not be considered as a reason for the rejection of the case.
Pursuant to article 53 / b of MÖHUK, a letter or document that has been approved by the authorities of that country showing the finalization of decision and a translation approved by the authorities of that country must be attached to the petition. However, it should be possible to correct the deficiencies regarding the finalization annotation during the trial in case the decision is finalized before the trial date. Because the finalization annotation is not stipulated as a condition of enforcement in the 50th and 54th articles of MÖHUK. 19.12.2019 COURT OF CASSATION General Assembly of Civil Chambers 2019/272 E. , 2019/1396 K.
We also find it useful to share the decision of the 2nd Civil Chamber of the Court of Cassation regarding the fact that the final date of the foreign court's decision is incorrectly written into the recognition decision.
In the event, the plaintiff's attorney requested the correction of this issue, stating that the finalization date of the foreign court decision was written incorrectly in the decision. This request of the plaintiff's attorney is a request within the scope of correction and according to article 52/1 of MÖHUK, the plaintiff also has a legal benefit in requesting it. The rejection of the request by the court on the grounds that the conditions in article 304 of the HMK are not present is wrong. In addition, since the decision requested to be corrected was notified to the parties, it was not found correct that the court decided on the request without inviting the parties. Accordingly, while the court should implement the procedure in article 304/1 of the HMK and establish a decision regarding the request of the plaintiff for correction, its rejection with a written justification was erroneous and required reversal.
CONCLUSION: It has been unanimously resolved that the appealed judgment will be reverse for the reason shown above, that the appeal advance fee will be returned to the depositor upon request, within 15 days from the notification of this decision, with the option to revise the decision. 16.01.2020 COURT OF CASSATION 2nd Civil Chamber 2019/8373 E. , 2020/290 K.