I. CONCEPT
OF ENFORCEMENT
Enforcement can be defined as the enforcement of a judgment rendered by a foreign court in another country. Through enforcement, it is possible for an executive, determinative or constitutive judgment to be directly enforceable in Turkish law. In this context, it is possible to say that a judgment rendered by a foreign court becomes enforceable in the Turkish legal system upon the decision to enforce it.
II.
ENFORCEMENT DECISION
The enforcement decision is regulated under Article 50
of the Law No. 5718 on Private International Law and Procedural Law. According
to the relevant provision;
1. The execution of judgments rendered by foreign
courts in civil cases in Türkiye and finalized in accordance with the laws of
that state is subject to the issuance of an enforcement decision by the
competent Turkish court.
2. An enforcement decision may also be requested for
the provisions related to personal rights in criminal judgments of foreign
courts.
Therefore, the prerequisites for requesting the
enforcement of a judgment are as follows:
a) the judgment must have been rendered by a court of
a foreign state,
b) the decision relates to civil proceedings,
c) the decision has become final,
as the "enforcement of a judgment".
III.
ESSENTIAL CONDITIONS FOR ENFORCEMENT
The conditions for enforcement are regulated under
Article 54 of the Law No. 5718 on Private International Law and Procedural Law.
According to the relevant provision;
1. The competent court shall issue an enforcement
decision under the following conditions
a) The existence of an agreement based on reciprocity
between the Republic of Turkey and the state where the judgment was rendered,
or the existence in that state of a legal provision or de facto practice
enabling the enforcement of judgments rendered by Turkish courts.
b) The judgment has been rendered in a matter which
does not fall within the exclusive jurisdiction of Turkish courts, or, provided
that the defendant objects, the judgment has not been rendered by a court of a
state which recognizes its jurisdiction even though it has no real relationship
with the subject matter of the case or the parties.
c) The judgment is not clearly contrary to public
order.
ç) The person against whom enforcement is sought has
not been duly summoned or represented before the court which rendered the
judgment, or a judgment has been rendered in absentia or in the absence of the
person against whom enforcement is sought, in accordance with the laws of that
place, and such person has not objected to the Turkish court against the
request for enforcement based on one of the above-mentioned issues.
Therefore, the main conditions for requesting the
enforcement of a judgment are as follows:
a) there is reciprocity between the country where the
judgment was rendered and Turkey,
b) the judgment was not rendered on a matter falling
within the exclusive jurisdiction of the Turkish courts and the foreign court
did not consider itself competent in such a way as to constitute
"excessive jurisdiction",
c) the decision is not manifestly contrary to Turkish
public order,
d) the decision was given in compliance with the
defendant's rights of defense
as a "good and fair".
IV. WHAT
IS THE DIFFERENCE BETWEEN ENFORCEMENT AND RECOGNITION?
Court judgments give rise to two effects: finality and
enforceability.
Recognition, unlike enforcement, can be characterized
as the acceptance of the res judicata force of foreign court judgments in a
foreign country, independent of enforceability. Recognition of foreign court
judgments that are not enforceable (divorce, nullity of marriage, denial of
paternity, etc.) is sufficient.
The foreign court judgments that must be enforced are
enforcement judgments. Examples of performance judgments are; fulfillment of an
act, ordering the performance of an act, doing or not doing something by
foreign court judgments. Unlike recognition, performance judgments are both
final and enforceable. Therefore, these judgments must be enforced in order to
be enforceable in a foreign country.
V. IS
PARTIAL ENFORCEMENT POSSIBLE?
Enforcement is expressly regulated under Article
52/1-c of the Law No. 5718 on Private International Law and Procedural Law.
According to the relevant provision;
1. Anyone who has a legal interest in the enforcement
of the provision may request enforcement. The request for enforcement shall be
made by petition. The petition shall be accompanied by as many samples as the
number of opposing parties. The following matters shall be included in the
petition:
a) The names, surnames and addresses of the party
seeking enforcement and of the other party and of their legal representatives
and attorneys, if any.
b) The State court from which the judgment subject to
enforcement was rendered, the name of the court, the date and number of the
judgment and a summary of the judgment.
c) If enforcement is sought for a part of the
judgment, the part of the judgment.
The decision,
bearing the Basis number 2001/8721 and the Decision number 2002/2586, and dated
22.03.2002, of the 11th Civil Chamber of the Court of Cessation reads as follows:
"The plaintiff's attorney ... requested and sued
for the partial enforcement of DM 6490 of the judgment of the original court
... The court ... on the grounds that the conditions for enforcement existed,
it was decided to enforce the partial enforcement of DM 6490 of the Paderborn
State Court's judgment dated 14.10.1991 and numbered 60115/91, which was
pronounced on 01.10.1991, regarding the defendant's payment of DM 130,294.09 to
the plaintiff. ... it was unanimously decided ... to uphold the judgment by rejecting
all appellate objections".
Att. Aysima Öykü Taş
References:
1. Prof.
Dr. Cemil Sanli, International Private Law, July 2020, Istanbul, 8th Edition
2. The Decision,
bearing the Basis number 2001/8721 and the Decision number 2002/2586, and dated
22.03.2002, of the 11th Civil Chamber of the Court of Cessation
