In today's world, influenced by globalization, individuals and organizations are no longer confined to their own countries. International relations and transactions in various fields such as business, family, education, and commerce are on the rise. People are choosing to live, work, and establish families in different countries, while commercial enterprises engage in cross-border activities to gain presence in international markets. This shift has introduced new legal needs, including the requirement for court decisions made in foreign countries to be recognized and enforced(exequatur process) in other jurisdictions.
Recognition and enforcement cases ensure that court decisions rendered abroad are recognized and enforceable in Turkey, safeguarding the legal rights of individuals and companies. A recognition case allows the acceptance of the judgment and its consequences in Turkey, while an enforcement case ensures that these decisions become enforceable within the country. These cases are crucial for the smooth functioning of international social and economic relations brought about by globalization.
Recognition and enforcement cases provide solutions to common legal challenges such as:
I divorced my spouse in France, but we are still considered married in Turkey. What should I do?
We resolved an inheritance dispute in German courts, but the issue persists in Turkey. What steps should I take?
How can I enforce a final commercial court decision from England in Turkey?
What kind of application do I need to file to implement an arbitration award I won in Germany within Turkey?
These are just a few examples of the legal issues encountered in practice. In this context, recognition and enforcement cases are not limited to commercial or family law but play a critical role in resolving international disputes across inheritance, compensation, and many other legal areas. Ensuring the validity of foreign court decisions in Turkey is essential for safeguarding the legal security of individuals and businesses. By eliminating legal uncertainties in cross-border relations, these cases uphold the local applicability of international justice and contribute to protecting the rights of all parties involved.
Recognition Case
A recognition case ensures that a finalized decision rendered by a foreign court is recognized in Turkey solely for its judgment and outcomes. This type of case is commonly filed to validate rulings related to personal status, such as divorce decisions, within the Turkish legal framework. While a recognition case makes the foreign court decision binding under Turkish law, it does not grant the decision enforceable power in Turkey. For instance, if the recognition pertains to a divorce ruling, it officially updates the individual’s marital status in Turkey.
Enforcement Case
An enforcement case is a crucial legal process that enables a foreign court decision to be enforced in Turkey, allowing its legal and financial outcomes to be applied through compulsory execution. These cases especially make it possible for decisions involving alimony, custody, compensation, and debt collection to be valid in Turkey. Beyond safeguarding individual legal rights, enforcement cases play a vital role in fostering trust in international commercial relations. For instance, making a foreign court’s ruling on a commercial debt enforceable in Turkey is essential for maintaining the continuity of international economic interactions.
Who Can File for Recognition and Enforcement(Exequatur Process)?
Individuals who would derive a legal benefit from the foreign court decision can file for recognition or enforcement. For example, a person who has divorced abroad may file for recognition to ensure the divorce decision is valid in Turkey and to update the marital status. If the goal is to enforce rights such as alimony or compensation obligations in Turkey, an enforcement procedure would need to be followed. Moreover, the right to initiate a recognition or enforcement process is not limited to the party who won the case; the losing party also has the right to file such a case.
Conditions and Required Documents
Article 54 of the International Private and Civil Procedure Law No. 5718 outlines the conditions necessary for enforcement:
Principle of Reciprocity (Article 54/1-a)
There must be an agreement based on the principle of reciprocity between Turkey and the country where the foreign court decision was issued.
Alternatively, there must be a legal provision or de facto practice in that country allowing the enforcement of Turkish court decisions.
No Conflict with the Jurisdiction of Turkish Courts (Article 54/1-b)
The judgment must concern a matter not falling under the exclusive jurisdiction of Turkish courts.
If the defendant objects, the judgment must not have been issued by a court of a state that has no genuine connection with the subject matter or the parties involved.
Public Order Compliance (Article 54/1-c)
The content of the judgment must not be explicitly contrary to Turkish public order.
Proper Notification and Representation (Article 54/1-ç)
The person against whom enforcement is sought must have been duly summoned to or represented in the foreign court.
Under Article 58 of Law No. 5718, for a foreign court decision to be recognized, the court must first verify whether the decision meets the conditions for enforcement. However, the principle of reciprocity is not a precondition for recognition. In addition, a person who was not summoned to court or who had a judgment rendered in absentia may raise this as an objection in the Turkish court during the recognition proceedings.
The documents required for recognition and enforcement cases are as follows:
Foreign Court Judgment
The original of the foreign court judgment, duly certified by the authorities of the issuing country, or a certified copy issued by the court that rendered the judgment.
Finalization statement
A document or certificate indicating that the judgment is final. This must be properly certified by the authorities of the issuing country.
Apostille Certification (If Necessary)
If the issuing country is a party to the Hague Convention, an apostille must be affixed to both the foreign court judgment and the finalization statement. If the issuing country is not a party to the Hague Convention, the foreign court judgment and its annexes must be authenticated either by consular certification or in accordance with bilateral agreements.
Notarized Turkish Translations
Notarized Turkish translations of the foreign court's decision, finalization statement and annexes must be made.
Passport or Copy of Identity Card
The applicant's passport and its notary-approved translation or a legible photocopy of the identity card may be required.
Power of Attorney with Photo and Special Authority
If the applicant is represented by a lawyer, a power of attorney with photo and special authority for recognition/enforcement is required.
Effects of Divorce Decisions Made Abroad in Turkey
Divorce decisions obtained abroad are not automatically valid in Turkey. For such a decision to have legal effect in Turkey, a recognition case must be filed. Otherwise, a person who is divorced abroad may still be legally considered married in Turkey, which can hinder the ability to exercise specific civil rights. However, spouses may jointly apply to the Civil Registry Office to have the divorce recognized without a court decision. Nonetheless, if the divorce decision includes additional provisions such as alimony, child custody, or property division, it is mandatory to file an enforcement case for these provisions. This is because the Civil Registry Office only handles the recognition of the divorce itself and is not authorized to address other matters. In cases involving child custody, the Civil Registry Office may refer the matter to the family court and request a decision. Hence, it is crucial for individuals who have divorced abroad to complete the recognition and, if necessary, enforcement processes in Turkey to avoid losing their rights.
Alimony and Custody Decisions Issued Abroad
Alimony or custody decisions issued by a foreign court are not considered binding or executable in Turkey unless they are recognized through an enforcement case (exequatur). Therefore, to implement alimony and custody decisions made abroad in Turkey, an enforcement case must be filed. Once the enforcement decision is granted, these rulings become valid and can be executed in Turkey, ensuring that the parties' rights are effectively upheld.
Enforcement of Foreign Court Decisions Involving Commercial Receivables
The enforcement of foreign court decisions concerning commercial receivables in Turkey is of significant importance for ensuring security in international commercial relations. These types of cases allow foreign court decisions related to commercial receivables to obtain validity and enforceability in Turkey. Particularly in matters such as the collection of commercial debts, breach of contracts, or compensation for damages, the prompt and efficient enforcement of decisions helps protect the rights of the parties and contributes to maintaining trust and continuity in commercial relationships.
Recognition and Enforcement of Foreign Arbitral Awards in Turkey
The recognition and enforcement of foreign arbitral awards in Turkey is governed by international treaties and local legal provisions. The primary instrument in this regard is the 1958 New York Convention, to which Turkey acceded in 1992. This convention facilitates the mutual recognition and enforcement of foreign arbitral awards. Awards from countries that are party to the convention can be recognized and enforced by Turkish courts. However, for awards from non-signatory countries, the process is governed by Turkey's Law No. 5718 on Private International Law and Civil Procedure, which sets specific conditions for recognition and enforcement.
What is an Apostille, and Where Can It Be Obtained?
An apostille is the process of certifying the authenticity of a document by a competent authority to ensure its international recognition. Based on the Hague Convention of 5 October 1961, this system is only valid between member or signatory states. An apostille is obtained when the authenticity of a document is certified by an institution or ministry authorized by the relevant state. This process allows the document to be legally accepted by another member or signatory state. The apostille is recognized in all countries that are parties to the Hague Convention and is typically issued by foreign ministries or other official designated authorities.
Where Can an Apostille Be Obtained in Turkey?
Apostille certification is carried out by the legal offices of district governorships and provincial governorships. Apostille procedures for judicial documents are handled by the Justice Commission Presidencies in central areas with Heavy Penal Courts.
Is It Necessary to Be in Turkey to File a Recognition and Enforcement Case?
It is not mandatory to be in Turkey to file a recognition and enforcement case. Individuals residing abroad can grant power of attorney to a lawyer to file and follow the case in Turkey.
Competent and Authorized Court
The competent court for the recognition and enforcement of foreign court decisions is the Civil Court of First Instance. Depending on the content of the decision, other civil courts such as family courts or commercial courts may also have jurisdiction. The authorized court in a recognition and enforcement case is determined by the location of the defendant's domicile in Turkey. If the defendant does not have a domicile in Turkey, the case may be filed at the court of their place of residence. If neither a domicile nor a place of residence exists in Turkey, the case may be filed at one of the courts in Istanbul, Ankara, or Izmir.
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