To execute civil case judgments from foreign countries in Turkey, it is necessary to obtain a recognition and enforcement order from a Turkish court in accordance with Turkish law. The regulations regarding the recognition and enforcement of foreign court decisions are stipulated between articles 50 and 57 of the Law on Private International Law and Procedure. After a Turkish court has issued a recognition and enforcement order for a foreign court decision, the decision is considered as a judgment. The same rules apply to foreign judgments that have been recognized and enforced in Turkey as judgments issued by Turkish courts.
In Turkey, a recognition and enforcement order must be issued by a Turkish court for foreign court judgments regarding civil cases to be enforced. To request a recognition and enforcement order, anyone with a legal interest can make an application. Article 54 of the Law on Private International Law and Procedure outlines the conditions for the recognition and enforcement of foreign court judgments. These conditions include:
a) There must be a reciprocal agreement or a law or practice in the state where the judgment was made that allows for the recognition and enforcement of judgments made by Turkish courts
b) The decision cannot have been issued by a state court that has given itself jurisdiction in a matter that does not fall within the exclusive jurisdiction of Turkish courts. If the defendant objects, the decision must also have a real connection to the case's subject matter or parties, and must have been issued by a state court that has given itself jurisdiction
c) The decision must not violate public policy.
d) The person against whom the recognition and enforcement order is being sought must not have been improperly summoned or convicted in absentia in violation of the laws of the place where the decision was made, and must not have objected to the request for recognition and enforcement based on any of these circumstances.
An appeal can be filed against a recognition and enforcement order. Turkish law provides for three ways to enforce claims: non-judicial enforcement, judicial enforcement, and the conversion of a pledge into cash.
Enforcement with an order is a type of enforcement procedure initiated for the implementation of a court decision. For foreign court decisions to become enforceable in Turkey, a decision on recognition and enforcement must be finalized. If a foreign court decision is recognized by a competent Turkish court and this decision becomes final, an enforcement procedure with an order can be initiated. Once the decision becomes final, the debtor cannot object to the debt and cannot stop the enforcement procedure.
Enforcement without an order is a type of enforcement procedure in which the creditor can directly apply to the enforcement office without the need for a court decision. Enforcement without an order is divided into two types: enforcement by general attachment and enforcement by attachment specific to bills of exchange.
For general attachment, no document needs to be added to the file for claims of money and collateral. However, if the enforcement is based on a document, this document must be specified in the enforcement request and added to the file.
Enforcement with a general attachment can be initiated based on an unenforced foreign court decision. There is no legal obstacle to this (Court of Cassation 19th Civil Chamber 20/09/2011 517/11139). However, if enforcement with a general attachment is initiated, the debtor can object and claim that they do not owe the debt. If the enforcement procedure is stopped due to an objection, the creditor can file a lawsuit for the cancellation of the objection. If a lawsuit for the cancellation of the objection is filed, the foreign court decision that has not been recognized and enforced will not be a final decision or conclusive evidence. In this case, the court will have to investigate and examine whether the creditor has a claim or not.
Another issue that needs to be addressed in an enforcement proceeding initiated based on an unenforced foreign court decision is the request for provisional attachment.
Provisional attachment is regulated in Article 257 of the Enforcement and Bankruptcy Law. The conditions to be met when a provisional attachment decision is issued are divided into two categories: due debts and future debts.
For due debts, the following conditions must be met together for a provisional attachment to be requested: the debt must not be secured by a mortgage and the debt must be due.
For future debts, any of the following conditions is sufficient for a provisional attachment to be requested: the debtor has no place of residence or the debtor is taking action to evade their commitments or there is a possibility of such an action.
To obtain a provisional attachment decision, the creditor must convince the court that these conditions are met (Article 258 of the Enforcement and Bankruptcy Law).
It is necessary to determine whether an unenforced foreign court decision is sufficient evidence to convince the court about the existence of the debt when requesting a provisional attachment decision.
In some decisions, the Court of Cassation has concluded that it is not necessary to require the recognition of a foreign court decision in order to obtain a provisional attachment decision concerning a debt determined by a foreign court as a precautionary measure. ( Court of Cassation 23rd Civil Chamber 25.10.2016 6937/4665)
However, there are also decisions of the Court of Cassation stating that the existence and maturity of the debt cannot be determined based on an unenforced foreign court decision, and that this requires a trial, and therefore a decision cannot be made for provisional attachment. ( Court of Cassation 15th Civil Chamber 26.01.2015 7100/365)
As a result, an unenforced foreign court decision may be the subject of non-judicial execution. However, there is no unanimity of opinion in the Court of Cassation regarding the request for provisional attachment in relation to non-judicial execution proceedings. Therefore, if a request for provisional attachment is made in connection with a non-judicial execution proceeding, the creditor may need to provide evidence other than the foreign court decision to prove the existence of the debt in order for the court to decide on the provisional attachment.