Recognition is the process of accepting the validity of a foreign court decision in order for it to have legal consequences in Turkey. Recognition is only applied to decisions that constitute a final judgment (such as divorce decisions). As a result of this process, the decision becomes binding in Turkish courts. However, a foreign court decision cannot be directly enforced with the recognition process. An enforcement case must be filed for enforceability.

Enforcement is a legal procedure to make a foreign court judgment enforceable in Turkiye. For example, a compensation or alimony judgment obtained from a foreign court cannot be directly subject to enforcement proceedings without enforcement in Turkiye. With the enforcement decision, the foreign court decision becomes enforceable in Turkiye.

Under Turkish law, recognition and enforcement proceedings are regulated under Articles 50-63 of the Law on Private International Law and Procedural Law (IPPL). In order for the judgment rendered by a foreign court to be recognized or enforced in Turkiye, the following conditions must be met.

3.1 Finalization of the Foreign Court Decision

For recognition and enforcement proceedings, the foreign court decision must be finalized. A document indicating that the judgment has become final (for example, a finalization annotation) must be submitted to the court.

3.2 The Decision is not Contrary to Public Order

Since the unlimited enforcement of a foreign court judgment in the territory of another state may be contrary to the sovereignty of states, states attach certain conditions to this enforcement. While some of these conditions aim to protect the interests of the parties, others aim to secure the interests of the states.

The condition of contravention of public order is an important principle in the recognition and enforcement of judgments obtained from foreign courts. The main purpose of this condition is to protect the interests of society. The aim here is to prevent the established legal, moral and political values and understandings of the society from being harmed by a foreign court decision. This principle, which is regulated in subparagraph (e) of Article 54 of the IPPL, provides this protection with the requirement that a foreign court decision must not be clearly contrary to the Turkish public order.

3.3 Principle of Reciprocity

The principle of reciprocity is a fundamental legal principle that states that the foreign state should show the same approach to the recognition and enforcement of foreign court judgments. This principle has an important place in terms of ensuring justice and equality in interstate relations.

The principle of reciprocity is stipulated in Article 54 of the IPPL. According to this provision, there must be a reciprocity relationship between Turkiye and the foreign state for the recognition or enforcement of a foreign court judgment. Reciprocity is analyzed in three types:

• Contractual Reciprocity

In the presence of a bilateral or multilateral agreement between the state where the judgment was rendered and the Republic of Turkiye on the enforcement of court judgments, there will be mention of treaty reciprocity.

• Legal Reciprocity (De Jure Reciprocity)

Recognition and enforcement of judgments of Turkish courts is considered to be legal reciprocity if the legislation of the relevant foreign country explicitly regulates the recognition and enforcement of Turkish court judgments or if the validity of Turkish court judgments is legally recognized in that country.

• De Facto Reciprocity

Even in the absence of a legal arrangement, de facto reciprocity is deemed to exist if foreign courts de facto recognize and enforce the judgments of Turkish courts.

During the proceedings, the court must examine whether there is reciprocity. To determine the status of reciprocity:

• Examination of the legislation of the foreign state,
• Information from the Ministry of Foreign Affairs or the Ministry of Justice,
• Precedent decisions on whether the relevant state has previously recognized Turkish court judgments should be assessed.

If there is no reciprocity, the relevant foreign court decision cannot be recognized and enforced in Turkiye.

3.4 Proper Notification and Right of Defense

In order for a court judgment to be recognized or enforced, the parties’ right to be heard must have been respected during the process in which the judgment was rendered. This is a requirement of the rule of law and ensures that the judicial process is conducted in a fair and equal manner.

Article 54/ç of the IPPL stipulates that for the recognition and enforcement of foreign court judgments, the defendant must have been duly notified and the defendant must have been able to exercise his/her right of defense.

In recognition and enforcement proceedings, whether the foreign court judgment has been duly served to the parties is meticulously evaluated in terms of the fairness of the proceedings. If the notification is incomplete, delivered to the wrong person, not delivered at all or carried out in violation of the procedure, this situation means a violation of the right to defense and recognition or enforcement of the judgment will not be possible.

Notification is an extension of the right to a fair trial. It is only through proper notification that the parties can be informed of the case, defend themselves and participate in the proceedings. Turkiye is a party to various international conventions on the recognition and enforcement of foreign court judgments. These conventions regulate the procedures and principles regarding notification in the recognition and enforcement of foreign court judgments. International notification procedures must be carried out in accordance with the international conventions to which it is a party or bilateral agreements concluded between states. Conventions to which Turkiye is a party regarding notification can be listed as:

• New York Convention
• Council of Europe Civil Law Convention
• Istanbul Convention
• Hague Convention

Pursuant to Article 51 of IPPL, the courts of first instance have jurisdiction over the recognition and enforcement of foreign court judgments. However, in practice, there are decisions of the Court of Cassation stating that specialized courts have jurisdiction in some special types of recognition and enforcement cases. These exceptions are as follows:

• Family Law Decisions: If a foreign court judgment is related to family law, such as divorce, the Court of Cassation considers that these cases should be heard in family courts due to their specialized nature.
• Commercial Cases: Commercial courts of first instance are deemed competent for the enforcement of foreign judgments of a commercial nature. The Court of Cassation has stated that such cases should be heard by the commercial courts of first instance due to the specialization requirements in the field of commercial law.
• Decisions Arising from Labor Law: In recognition and enforcement cases related to labor law, the Court of Cassation initially accepted that the labor courts have jurisdiction, but later ruled that the civil courts of first instance have jurisdiction. In its decisions, the Court of Cassation emphasized that the labor courts have jurisdiction only in cases between the employee and the employer, and that recognition and enforcement cases should be conducted by the civil courts of first instance.

In recognition and enforcement proceedings, the competent court shall be the court of the place of residence of the person against whom recognition or enforcement is sought in Turkiye; if not, the court of his/her place of residence; if not, the courts of Ankara, Istanbul or Izmir.

The differences between recognition and enforcement proceedings can be evaluated with the following summary table.

The process of ensuring that the legal effects of foreign court judgments are valid in Turkiye requires a proper understanding of the differences between recognition and enforcement. Recognition ensures that the legal existence of a foreign court judgement is recognised in Turkiye, while enforcement ensures that the judgement is enforceable in Turkiye. Both procedures are not independent of each other. In some cases, an enforcement decision cannot be obtained without first obtaining a recognition decision.

The decisions of the Court of Cassation serve as a guide to understand how the practice is shaped in recognition and enforcement cases and to determine the legal principles. Recognition and enforcement are the only proceedings that enable the legal effects of a judgement rendered abroad to have legal consequences in Turkiye. Various decisions of the Court of Cassation reveal how the rules of international law and domestic law work in harmony and which criteria come to the fore.

6.1 Public Order

One of the most frequently discussed issues in recognition and enforcement cases is the element of public order. The Court of Cassation emphasises that the judgments rendered by the courts of foreign states should not create a clear contradiction with the Turkish public order. Since public order is often an abstract concept, it should be evaluated according to the characteristics of each case.

When the above-mentioned Court of Cassation decision is analysed, it is stated by the Court of Cassation that the concept of public order is a flexible concept. Turkish law recognises that public order varies according to time, place and situation. Therefore, instead of defining public order, the law leaves this assessment to the discretion of the judge. However, it is intended to prevent the judge from making an arbitrary decision by regulating the contravention of public order as “manifest contravention”.

In the concrete case, in order to evaluate whether the foreign court decision is contrary to public order, firstly, whether the defendant’s right of defence has been violated has been examined. The German court served the defendant with the statement of claim in accordance with the Hague Convention, the defendant did not present a defence, and therefore a judgment was rendered in absentia in accordance with the German Procedural Code. The opinion of the Court of Cassation is that such a procedural procedure would not be contrary to the Turkish public order. The fact that the procedural rules of the foreign court are different from Turkish law shall not, by itself, constitute a violation of public order. In addition, the Court of Cassation has stated that the fact that the rules of proof applied by foreign courts differ from Turkish law will not, by itself, constitute a violation of Turkish public order.

6.2 The Requirement of Final Judgment

In order for a foreign court decision to be recognised and enforced in Turkiye, the decision must be a final judgment according to the laws of the foreign country. When the decisions of the Court of Cassation are examined, it is stated that the conditions stipulated in the law must be fulfilled in order to determine that the foreign court decision to be subject to the recognition or enforcement case has become final. While presenting the foreign court judgement to the Turkish court, the following documents listed below must be submitted in full. These documents can be listed as; the original of the foreign court decision duly approved by the authorities of that country or the copy approved by the judicial body issuing the judgement, the approved translation of the decision, the letter or document approved by the authorities of that country showing that the judgement has become final and its approved translation.

In the concrete case, the plaintiff woman filed a lawsuit for the recognition and enforcement of a divorce protocol concluded in France. However, only the original and the translation of the “reconciliation divorce agreement” signed by the parties and their attorneys were submitted to the court. The Court of Cassation stated that the missing documents could be completed during the court proceedings. When the court notices the deficiencies, it is obliged to request the completion of the documents by giving a deadline to the parties. Recognition and enforcement requests cannot be based solely on protocols or agreements. The foreign court judgement itself must be submitted to the court. Since the main subject matter of the recognition and enforcement cases is the final judgements rendered by the foreign court, the recognition and enforcement case will be rejected since a final judgement cannot be mentioned in a concrete case where these deficiencies are mentioned.

6.3 The Authority and Limits of the Enforcement Judge

• Prohibition of Review on the Merits (Revision au Fond Prohibition):

The enforcement judge only assesses whether the foreign judgement will be enforceable in Turkiye. The limits of the enforcement judge are basically defined as the prohibition of examining the merits. The enforcement judge cannot review the content, substantive correctness or legal grounds of the foreign court judgement. For example, if the foreign court awards custody to the mother in a divorce case, the judge cannot discuss the correctness or propriety of this decision. The judge shall only examine whether the judgement complies with procedural and public order. The foreign court’s evaluation of the evidence or interpretation of the facts is beyond the jurisdiction of the enforcement judge. For example, if a foreign court renders a judgement on the basis of a contract, the judge cannot examine the validity or evidentiary quality of this contract.

The prohibition of judicial review is recognised as an important principle in private international law. This principle prevents the re-examination of the merits of a judgment rendered in one country during the recognition and enforcement of the judgment in another country. The prohibition of judicial review has been developed in international law to ensure the sovereignty of states, respect for the decisions of courts and the enforceability of international judicial decisions.

The application of this prohibition provides a critical balance for the recognition and enforcement of judicial decisions in international law. Review of foreign judgements on their merits may create mistrust between the countries concerned. This principle prevents such distrust and encourages international judicial co-operation. It is clear that each country is independent in making its own judicial decisions and therefore the content of judgements rendered by a court of another country cannot be questioned.

The prohibition of substantive review ensures that enforcement proceedings are concluded quickly and efficiently. Otherwise, a detailed examination of the content of each foreign court judgement may lead to both waste of time and complication of legal processes.

6.4 Improper Notification

Proper notification is an important issue for the protection of the right to a fair trial and the parties’ right to be heard in civil cases. Failure to make proper notification may cause loss of rights of one of the parties in the proceedings and may also affect the finalisation of court decisions.

Based on the above-mentioned Court of Cassation decision, it is understood that the relevant foreign court judgement was first notified by post and then diplomatic notification was made. The foreign court ruled that the notification made by post was valid and stated that the notification made by diplomatic means did not confer any new right on the defendant. This leads to the conclusion that the judgment has not been duly finalised for the defendant.

The Court of Cassation emphasised that if the notification is not made in accordance with the procedure, the relevant decision shall not be deemed finalised and therefore the request for enforcement shall be rejected. This issue emphasises the importance of protecting the provisions of the international convention and the right of defence of the parties.

Improper notification may lead to similar problems not only in recognition and enforcement of foreign judgments, but also in domestic court proceedings. Failure to serve the notification in accordance with the procedure prevents the parties from effectively participating in the proceedings and exercising their rights of defence. As a result, as emphasised in the relevant decisions of the Court of Cassation, in the event of improper notification, the finalisation of the court decision is out of question and the request for enforcement should be rejected. In order to protect the right to a fair trial, which is one of the fundamental principles of law, and the right to be heard, proper notification is an important requirement that ensures legal security in judicial proceedings.

Recognition and enforcement are of great importance in terms of ensuring the effectiveness and reliability of the law in the context of private international law. Recognition is the acceptance of the existence of a foreign court judgement in order for it to have legal consequences in Turkiye. Enforcement, on the other hand, is a legal procedure that enables a foreign court judgement to be enforced in Turkiye, that is, to be implemented in practice. The decisions of the Court of Cassation clarify the provisions of the relevant legislation and ensure unity in practice.

The decisions of the Court of Cassation discussed in this article provide an assessment of the legal issues arising in the recognition and enforcement processes and reveal how important elements related to recognition and enforcement, such as public order, the requirement of final judgement and the principle of reciprocity, are applied in concrete cases. The approach of the Court of Cassation in this field contributes both to the resolution of disputes between the parties and to the establishment of legal stability in international relations.

Att. Talha Arslan

Int. Att. Umut Safa Duygulu