What are the conditions sought for the acceptance of an enforcement action?
The conditions listed under the title of enforcement conditions in article 54 of MOHUK are as follows:
There must be an agreement based on reciprocity between the Republic of Turkey and the country where the judgement subject to enforcement is given, or the existence of a provision of law or actual practice in the local legislation of the foreign country that makes it possible to enforce the judgments given by Turkish courts,
The judgement must have been given on a subject that does not fall under the exclusive jurisdiction of the Turkish courts, or provided that the defendant objects, the verdict can not given by a state court that grants authority, although it does not have a real relationship with the subject of the case or the parties.
The provision can not be clearly contrary to public order.
According to the laws of that place, if the person requested for enforcement against him / her has not been duly summoned to the court in accordance with the laws of that place, that is, he has not been invited to the court, or has not been represented although an appropriate call has been made, or if the decision has been made in his absence, it will not be possible to enforce a foreign court decision if the person concerned objects to the enforcement at the Turkish court.
Simple trial procedure is applied in enforcement proceedings. After the lawsuit is filed, the other party is notified of the petition of the lawsuit and the date of the hearing, and preliminary proceedings report.
The legislator has regulated that notifications are not made in uncontested foreign court decisions.
The Court of Cassation seeks the foreign court decision subject to enforcement in the precedent decisions to have the status of a judicial decision according to Turkish Law.
Although it is stated that judicial decisions can be enforced, the decision requested by the plaintiff has been made in accordance with the warning procedure and cannot be accepted as a judicial decision under Turkish Law. It is against public order to accept a decision given in accordance with the warning procedure as a judicial decision. COURT OF CASSATION 19th Civil Chamber 2018/3154 E., 2020/455 K.
One of the most frequently encountered disputes in practice is whether the foreign court decision is finalized or what legislation should be applied regarding other enforcement conditions.
The Court of Cassation ruled as follows on this issue. "The law to be observed for the matters regulated in article 54 / ç of MOHUK is not the procedural provisions of the court of the place where the decision of enforcement is made, but the laws of the country where the decision subject to enforcement is made.
The Assembly of Civil Chambers of Court Cassation states the following in another decision:
“To an addressee in Turkey, in accordance with article 10 of the 1965 Hague Convention to be done through direct mail notifications from abroad it is not possible. In accordance with article 50 of MOHUK, among the prerequisites of enforcement, the decision made in foreign courts should be finalized according to the laws of that state. The finalization of the decision subject to enforcement is possible by duly notified. Due to the 1965 Hague Convention set out in respect of article 10, mail directly to the addressee in Turkey are considered improper notification and notifying of the decision by mail directly to the addressee in Turkey by a state party to the said Convention, prevent the finalization of the judgment according to the laws of that state.” By making such a decision, the Court of Cassation stated that the international conventions and local legislation to which it is a party should be taken into account in the evaluation of the conditions regarding notification.
Again, in the enforcement case, the subject of the right of objection granted to the defendant may be the claim that the right to defense was violated during the foreign court proceedings.
Because the defendant's right to defense must not be violated in order for an enforcement decision to be made in accordance with article 54 / Ç of MOHUK. However, the Turkish Court will not observe this issue ex officio, but if it is brought forward by the defendant as an objection, it may be subject to evaluation.
“In accordance with article 54 / Ç of MÖHUK, if the person requested for enforcement against him / her has not been duly summoned to the court in accordance with the laws of that place, that is, he has not been invited to the court, or has not been represented although an appropriate call has been made, or if the decision has been made in his absence, it will not be possible to enforce a foreign court decision if the person concerned objects to the enforcement at the Turkish court.”
Finally, as it is worth mentioning, the Supreme Court evaluates the principle of reciprocity in order to decide on the enforcement of a decision made by the US Foreign State Court in Turkish Courts and also oversees that between Turkey and state where the foreign court is located whether have de facto reciprocity in the enforcement of court decisions or not.
Can the enforcement court judge examine the basics of the foreign court decision?
The foreign court decision cannot be examined on the basics and its compliance with the law cannot be inspected by the enforcement judge. The enforcement judge does not have the right and authority to examine the content of the verdict, except for the conditions of enforcement.
Enforcement is the procedure to be followed the way of being executed of certified copy of the judgement that taken from foreign courts within the Republic of Turkey. The enforcement decision may also be requested for the provisions regarding personal rights in the criminal proceedings of foreign courts.
If the party who want to ensure the execution of foreign court decisions in Turkey, he has to apply to the competent and authorized Turkish Court and file an enforcement action against the other party.
Procedural provisions regarding enforcement are generally regulated in bilateral and multilateral international agreements and in our Law No. 5718 on the Application of International Private Law and Civil Procedure Law. In some exceptional cases, we can give our Law on the Civil Registration Services and Turkish Commercial Code as examples of laws that contain special provisions regarding enforcement.
In article 1360 of our Turkish Commercial Code, it is stipulated that the Turkish Court, which has given a precautionary attachment order regarding the maritime claim, is also authorized to examine the enforcement of the judgment issued by the foreign court regarding the same receivable.
The way of enforcement is a method to be applied in cases where it is not sufficient to recognize a foreign court decision as a definitive evidence or a final verdict. Otherwise, recognition will have legal consequences for the parties. The creditor who wishes to register the foreign receivables arising from the foreign court decision to the bankrupt's estate does not need to take a decision on the enforcement of the foreign court decision, it is sufficient to take a recognition decision.
As a result of the enforcement proceedings, the judgment to be given by the Turkish Court will give the foreign court decision the status of the decision made by the Turkish Court.
There is a right of appeal against the decision to be made as a result of the enforcement.
What are the conditions for enforcement?
Competent court
The duty to examine enforcement actions is given to the Civil Court of General Jurisdiction. However, as in recognition actions, cases related to Family Law will be heard in Family Courts, and Commercial Law cases will be heard in Commercial Courts of First Instance.
Authorized Court
While determining the competent court in enforcement actions, MOHUK(International Private and Civil Procedure Law) article 51/2 will be applied. According to this: These decisions can be requested from court of settlement of the person who is requested enforcement against him in Turkey, or from the court of the place of residence or If settlement place or a residence place is not available, from Ankara, Istanbul or Izmir courts.
Who can request enforcement?
According to article 52/1 of MOHUK, anyone who has a legal interest in the enforcement of the decision can request enforcement.
The plaintiff must prove, in the petition of enforcement, that he has a legal interest in the enforcement of the decision.
What are the documents to be attached to the petition of enforcement action?
The original of the foreign court verdict that has been duly approved by the authorities of that country or certified copy of the judgement approved by the judicial body that issued the verdict.
A translation approved by a letter or document showing the finalization of the verdict and duly approved by the authorities of that country.
In the precedent decisions of the Court of Cassation, it is ruled that if the finalization statement is incomplete while the lawsuit is filed or, for example, can be completed at the trial stage.
Is it possible to request partial enforcement?
Pursuant to article 52/1-c of MOHUK, only part of the foreign court decision can be subject to enforcement action. In this case, the plaintiff must clearly state this issue in his petition.
What are the conditions sought for the acceptance of an enforcement action?
The conditions listed under the title of enforcement conditions in article 54 of MOHUK are as follows:
There must be an agreement based on reciprocity between the Republic of Turkey and the country where the judgement subject to enforcement is given, or the existence of a provision of law or actual practice in the local legislation of the foreign country that makes it possible to enforce the judgments given by Turkish courts,
The judgement must have been given on a subject that does not fall under the exclusive jurisdiction of the Turkish courts, or provided that the defendant objects, the verdict can not given by a state court that grants authority, although it does not have a real relationship with the subject of the case or the parties.
The provision can not be clearly contrary to public order.
According to the laws of that place, if the person requested for enforcement against him / her has not been duly summoned to the court in accordance with the laws of that place, that is, he has not been invited to the court, or has not been represented although an appropriate call has been made, or if the decision has been made in his absence, it will not be possible to enforce a foreign court decision if the person concerned objects to the enforcement at the Turkish court.
Simple trial procedure is applied in enforcement proceedings. After the lawsuit is filed, the other party is notified of the petition of the lawsuit and the date of the hearing, and preliminary proceedings report.
The legislator has regulated that notifications are not made in uncontested foreign court decisions.
The Court of Cassation seeks the foreign court decision subject to enforcement in the precedent decisions to have the status of a judicial decision according to Turkish Law.
Although it is stated that judicial decisions can be enforced, the decision requested by the plaintiff has been made in accordance with the warning procedure and cannot be accepted as a judicial decision under Turkish Law. It is against public order to accept a decision given in accordance with the warning procedure as a judicial decision. COURT OF CASSATION 19th Civil Chamber 2018/3154 E., 2020/455 K.
One of the most frequently encountered disputes in practice is whether the foreign court decision is finalized or what legislation should be applied regarding other enforcement conditions.
The Court of Cassation ruled as follows on this issue. "The law to be observed for the matters regulated in article 54 / ç of MOHUK is not the procedural provisions of the court of the place where the decision of enforcement is made, but the laws of the country where the decision subject to enforcement is made.
The Assembly of Civil Chambers of Court Cassation states the following in another decision: “To an addressee in Turkey, in accordance with article 10 of the 1965 Hague Convention to be done through direct mail notifications from abroad it is not possible. In accordance with article 50 of MOHUK, among the prerequisites of enforcement, the decision made in foreign courts should be finalized according to the laws of that state. The finalization of the decision subject to enforcement is possible by duly notified. Due to the 1965 Hague Convention set out in respect of article 10, mail directly to the addressee in Turkey are considered improper notification and notifying of the decision by mail directly to the addressee in Turkey by a state party to the said Convention, prevent the finalization of the judgment according to the laws of that state.” By making such a decision, the Court of Cassation stated that the international conventions and local legislation to which it is a party should be taken into account in the evaluation of the conditions regarding notification.
Again, in the enforcement case, the subject of the right of objection granted to the defendant may be the claim that the right to defense was violated during the foreign court proceedings.
Because the defendant's right to defense must not be violated in order for an enforcement decision to be made in accordance with article 54 / Ç of MOHUK. However, the Turkish Court will not observe this issue ex officio, but if it is brought forward by the defendant as an objection, it may be subject to evaluation.
“In accordance with article 54 / Ç of MÖHUK, if the person requested for enforcement against him / her has not been duly summoned to the court in accordance with the laws of that place, that is, he has not been invited to the court, or has not been represented although an appropriate call has been made, or if the decision has been made in his absence, it will not be possible to enforce a foreign court decision if the person concerned objects to the enforcement at the Turkish court.”
Finally, as it is worth mentioning, the Supreme Court evaluates the principle of reciprocity in order to decide on the enforcement of a decision made by the US Foreign State Court in Turkish Courts and also oversees that between Turkey and state where the foreign court is located whether have de facto reciprocity in the enforcement of court decisions or not.
Can the enforcement court judge examine the basics of the foreign court decision?
The foreign court decision cannot be examined on the basics and its compliance with the law cannot be inspected by the enforcement judge. The enforcement judge does not have the right and authority to examine the content of the verdict, except for the conditions of enforcement.