States have sovereign authority, a fundamental principle in international law. So, no state is required to recognize foreign court decisions automatically. For example, a decision issued by an Australian court that concerns you will not automatically hold validity in Turkey. To make such a decision valid in Turkey, specific legal actions, known as Recognition-Enforcement cases, must be initiated. Through these actions, you can introduce the Australian court decision to the Turkish legal system, making it valid and enforceable if necessary.
The first law to consult in these matters is Law No. 5718 on Private International Law and Procedural Law, which governs conflict of laws rules. This law outlines the content and processes involved, specifically stating that "the execution of judgments issued by foreign courts about civil cases and finalized according to the laws of that state in Turkey depends on the decision of enforcement by the competent Turkish court."
To file a lawsuit for the recognition and enforcement of judgments rendered by foreign judicial authorities, the decision typically needs to pertain to matters of private law, excluding issues related to administrative or criminal law. However, our law makes an exception to this rule, stating that "an enforcement decision can also be requested for provisions related to personal rights in the criminal judgments of foreign courts."
Now, let's consider the conditions the court will test when filing such a lawsuit: 1) The judgment must be issued by a foreign court, 2) It must relate to civil cases, and 3) The judgment must be final. If we examine these conditions: reviews from foreign courts, such as those from Australian courts, meet this criterion since they are recognized as foreign courts by Turkish law. However, it is sometimes possible to get a decision from administrative authorities in Australia. In such cases, the law provides a solution. Anticipating these situations, the legislator allows decisions that are not technically court judgments but still resolve disputes to be enforced in Turkey, provided independent judicial bodies review them. A prime example of this would be divorce decisions made by administrative authorities in Australia.
In the article's opening paragraphs, we briefly mentioned that the judgment must relate to civil cases, as administrative and criminal law judgments, including punitive compensation, cannot be subject to recognition and enforcement. The finality of a decision means that it is conclusive in both substantive and formal senses under the law of the country where it was issued. That implies that, as a general rule, interim decisions or injunctions cannot be enforced. However, two exceptions exist. An interim injunction may be enforced if it definitively resolves the dispute or if international treaties finally state its enforceability. In this regard, custody cases in Australia provide a common example. Article 7 of the European Convention, dated 20 October 1997, which governs the recognition of child custody, allows for the enforcement of temporary custody injunctions even if they are not final judgments, provided they are enforceable.
The essential conditions for enforcement include the following: First, an agreement based on reciprocity must exist between the Republic of Turkey and the state where the judgment was rendered, or there must be a legal provision or de facto practice in that state that allows the enforcement of judgments issued by Turkish courts. Second, the judgment must concern a matter outside the exclusive jurisdiction of the Turkish courts. If the defendant objects, the judgment should not come from a court in a state that claims jurisdiction without a real connection to the parties. Third, the judgment must not be manifestly contrary to public order. This rule is typically straightforward, as Australia does not enforce laws that contradict public order. Finally, the person against whom enforcement is sought must have been duly summoned to the court that issued the judgment or represented there. If the judgment was rendered in absentia or without the presence of this person, and they did not object to the Turkish court's enforcement request based on these grounds, this also forms an essential condition. The separate inspection of all these factors forms the core conditions for enforcement.
Anyone with a legal interest in enforcing a judgment may file an enforcement request. This request must be submitted through a petition and should include enough copies for each opposing party. Certain details must be included in the petition: the names, surnames, and addresses of the party seeking enforcement, the opposing party, and their legal representatives or attorneys, if any. It should also list the state court that rendered the judgment, the court's name, the judgment date and number, and a summary of the judgment. If the enforcement request concerns only part of the judgment, that specific part must be identified. Preparing and submitting all these details accurately is crucial to avoid any loss of rights, as the law explicitly requires these items and makes them mandatory in the petition.
Article 53 of our relevant law outlines the documents that must be attached to the enforcement petition. These include the original foreign court decision, duly approved by the authorities of that country, or a copy approved by the judicial body that issued the decision, along with its certified translation. Additionally, a letter or document confirming the judgment's finality, also approved by the authorities of that country and accompanied by its certified translation, must be included. These are the essential documents that must go with the enforcement petition.
Once all these processes are completed, including fulfilling more requirements, the foreign court decision will become valid in the Turkish legal system through recognition and enforcement decisions. The decision will then have the effect of a final judgment and serve as conclusive evidence before the Turkish courts. Our law states that "the final judgment or conclusive evidence effect of the foreign judgment takes effect from the moment the foreign court decision becomes final."
Best Regards,
Attorney Cetin Tugberk Gurcan