Whether a court judgment is amenable to compulsory enforcement is one of the questions that gives rise to the most debate in practice. The mere fact that a judgment has been handed down is not sufficient on its own; in certain types of action, the possibility of making the judgment the subject of enforcement proceedings depends upon the appellate remedies having been exhausted. This requirement is intended to prevent the parties from suffering losses that are difficult to make good and to safeguard the guarantee of a fair trial.
Proceeding to enforcement while an appeal or an appeal on points of law is still pending may give rise to irreparable damage in files that entail serious financial consequences or contain acts that are all but impossible to reverse. Our legal order has not been prepared to run that risk; it has provided that certain judgments may be given effect only once they have acquired the character of res judicata.
In this briefing note we explain the concept of finality in the light of the provisions of the Enforcement and Bankruptcy Act No. 2004 and the Code of Civil Procedure No. 6100, and we assess, with examples, the types of judgment frequently encountered in practice and the situations in which the requirement is and is not sought.
The Concept of Finality and Its Importance
The finality of a judgment means that the decision has become unalterable and has acquired binding force as between the parties. Put another way, the decision has reached a state in which it can no longer be set aside by appellate remedies such as appeal or appeal on points of law and has begun to preserve its validity permanently.
The importance of the concept manifests itself in two separate statutes:
- As regards the Enforcement and Bankruptcy Act No. 2004, certain judgments may be made the subject of enforcement proceedings only if they have become final. Here finality is in the nature of a precondition for enforcement proceedings to be commenced.
- As regards the Code of Civil Procedure No. 6100, a decision that has become final prevents the same dispute from being litigated again. In legal doctrine this effect is termed “res judicata”.
Judgments relating to declaratory relief, annulment and personal status in particular are subject to this requirement. Knowing whether a decision has become final is decisive for creditor and debtor alike; proceedings pursued before the requirement has been satisfied may be regarded as unlawful and may be stayed.
Types of Judgment Not Capable of Enforcement
Not every judgment may be made the subject of enforcement proceedings the moment it is given. For some, the condition of having first become final is required. This requirement stems both from the fundamental principles of procedural law and from the need to protect the rights of the parties. The groups most frequently encountered in practice are gathered below.
Declaratory judgments
In declaratory actions the court’s task is confined to establishing whether a legal relationship or a right exists. Since there is no performance to be rendered, such judgments cannot be enforced directly. It is, however, possible for an action for performance to be brought subsequently on the basis of the declaratory decision and for enforcement proceedings to be pursued on the outcome of that action.
Judgments of annulment
Decisions given in actions brought in order to establish the invalidity of an administrative or private-law act demonstrate the invalidity of the act or document concerned; they are not, however, sufficient on their own to commence enforcement proceedings. In judgments of annulment, enforceability depends upon finality.
Judgments concerning rights in rem
Decisions relating to rights in rem such as ownership of immovable property, usufruct or servitude as a rule require registration in the land registry. Judgments of this kind may be relied upon as the basis for land registry transactions only after they have become final; their being made the subject of enforcement proceedings is likewise conditional upon the same requirement.
Judgments giving rise to no obligation of performance
Decisions in which the court merely establishes a legal situation and imposes no obligation whatsoever on the parties are not capable of enforcement. A judgment that does no more than establish that a divorce has taken place is an example. Where there are consequences such as alimony or damages, these must be separately awarded in the judgment and, where necessary, made the subject of independent enforcement proceedings.
Judgments relating to personal status
Decisions touching upon an individual’s legal status, such as divorce, adoption, correction of the civil register or a change of gender, produce direct effects upon the parties. Such judgments take effect only after they have become final; no enforcement act may be carried out before that point.
The Principal Groups of Judgments Subject to the Finality Requirement
Below, those types of judgment which must have become final before they may be enforced and which are most frequently encountered in practice are dealt with under separate headings.
Family Law and Personal Status Judgments
Certain judgments relating to family law and to personal status may be made the subject of enforcement proceedings only after they have become final. The reason for this is that the decisions in question produce lasting consequences in sensitive areas such as an individual’s identity, family ties or legal status. Finality is required in order to forestall an erroneous act.
Changes of forename and surname, correction of age, removal of custody, the paternity action, correction of parentage, and divorce together with the ancillary awards attached to it — such as alimony and damages — are assessed within this group. Finality is mandatory before such judgments may be made the subject of enforcement proceedings.
There are, nevertheless, exceptions. Judgments which do not directly alter the personal status of the parties and which have the character of an award of performance, such as alimony, may be enforced without waiting for finality.
Judgments Concerning Rights in Rem over Immovable Property
Rights in rem over immovable property, such as ownership, usufruct and servitude, are rights that may be asserted against all and that are entered in the land registry. Because of that character, the possibility of making judgments affecting rights in rem the subject of enforcement proceedings depends first of all upon their becoming final.
Pursuant to Article 367(2) of the Code of Civil Procedure No. 6100, decisions relating to rights in rem over immovable property, together with heads such as the litigation costs and counsel’s fees attached to such a decision, cannot be given effect by way of compulsory enforcement before the judgment has become final.
By way of example, judgments given in annulment of title deed and registration actions cannot be made the subject of enforcement proceedings before they become final. By contrast, this requirement is not sought in decisions concerning not a right in rem but the use or possession of the immovable property. Judgments relating to compensation for unjust occupation, to the prevention of interference or to claims arising from a lease agreement may be relied upon as the basis of enforcement proceedings without waiting for finality.
Judgments on the Determination of Insured Employment
Actions for the determination of insured employment are brought in order that a period worked as an insured person may be entered in the records of the Social Security Institution. The judgments given in such actions may be given effect by the SGK only after they have become final.
Pursuant to Article 7(4) of the Labour Courts Act No. 7036, in actions for the determination of insured employment pursued against the employer, the possibility of the decision producing effects before the SGK is made conditional upon finality. The Institution registers the period of employment only on the basis of a judgment that has become final.
For that reason, the decisions in question, together with the counsel’s fees and litigation costs attached to them, likewise cannot be made the subject of compulsory enforcement before they become final.
Judgments Determining the Rent
Judgments given in actions for the determination of the rent merely fix the amount of rent to be applied in the new period; they contain no obligation to pay or to do. Since they embody no award of performance, such decisions cannot be made the subject of enforcement proceedings based on a judgment and cannot be given effect before they become final.
The Court of Cassation’s decision on the unification of case law dated 12 November 1979, No. 1/3, likewise establishes that judgments determining the rent cannot be made the subject of compulsory enforcement before they become final. The same result applies in respect of ancillary claims contained in such decisions, such as litigation costs and counsel’s fees.
Enforcement of Foreign Court Judgments
Enforcement denotes a judgment handed down in a foreign state acquiring validity and enforceability in Türkiye. The institution is regulated in Article 50 of the Act on Private International Law and Procedural Law No. 5718. Pursuant to that provision, the possibility of applying in Türkiye a judgment given in a foreign civil action and final under the law of the country in which it was given depends upon a decision of enforcement to be obtained from the competent Turkish court.
Act on Private International Law and Procedural Law No. 5718, Art. 50
“The enforcement in Türkiye of judgments given by foreign courts in civil actions and final under the laws of that State depends upon a decision of enforcement to be given by the competent Turkish court.”
In addition, Article 9 of the Constitution has vested judicial power in the Turkish courts. Accordingly, a judgment issuing from the court of another country cannot be applied directly in Türkiye; a decision of enforcement must first be obtained and that decision must in turn become final.
In short, foreign judgments do not become enforceable unless the enforcement procedure has been completed and the decision has become final.
Negative Declaration and Recovery Judgments
An action for a negative declaration is brought by a person asserting that he is not indebted. Pursuant to Article 72 of the Enforcement and Bankruptcy Act No. 2004, the judgments given in such actions cannot be made the subject of enforcement proceedings before they become final. The ancillary heads contained in the judgment, such as litigation costs and counsel’s fees, are subject to the same requirement.
Actions for recovery, for their part, are actions brought by a person who has made payment under the threat of enforcement in order to recover the sum paid. A twofold distinction must be drawn here:
- Actions for recovery brought directly: where the return of money paid under the pressure of compulsory enforcement is sought, the subject matter of the judgment is directly a monetary claim. Finality is therefore not required; the judgment may be made the subject of enforcement proceedings before it becomes final.
- Actions for recovery converted from an action for a negative declaration: in this case the enforceability of the judgment given depends upon its becoming final.
The distinction in question plays a decisive role in practice on the point of whether claims for recovery are amenable to enforcement proceedings.
Litigation Costs and Compensation Heads in Criminal Judgments
In criminal proceedings, who is to bear heads such as counsel’s fees, litigation costs and compensation varies according to the nature of the judgment. Where there is a conviction or a deferral of the announcement of the verdict, this burden falls upon the accused, whereas in the event of acquittal it is left upon the public purse.
Article 4 of Act No. 5275 on the Execution of Sentences and Security Measures has laid down the rule that “Judgments of conviction cannot be executed unless they have become final.” Pursuant to that provision, the counsel’s fees and litigation costs contained in criminal decisions involving a conviction may likewise be enforced only after finality.
Although there are views to the effect that finality may not be required in respect of decisions other than convictions, in enforcement proceedings based on criminal judgments practice generally requires the finality condition and matters are conducted accordingly.
Judgments Given in Third-Party Title Actions
Third-party title actions are brought by those asserting that the attached property belongs not to the debtor but to a third person, and for the most part seek to establish to whom ownership belongs. In that respect they give rise to judgments directly concerning both enforcement law and the right of property.
Since decisions allowing a third-party title claim produce direct effects upon ownership, they cannot be made the subject of enforcement proceedings before they become final; it is not possible to give effect to them by way of compulsory enforcement before they have acquired the character of res judicata. Practice too has settled in this direction.
By contrast, heads such as litigation costs and counsel’s fees contained in decisions dismissing the claim may be made the subject of enforcement proceedings without waiting for finality.
Judgments Concerning Ships
The judgments handed down in disputes concerning ships are not confined to those directed at rights in rem over the ship; the prohibition on enforcement before finality applies equally to decisions concerning use, such as the chartering, operation or delivery of the ship.
Judicial practice accepts that every kind of judgment relating to ships, including claims arising from ownership, possession, delivery and a charter or lease agreement, may be made the subject of compulsory enforcement only after it has become final. Behind this approach lie the distinctive structure of maritime commercial law and the special provisions that assimilate ships to immovable property.
Remedies Available Where the Requirement Is Breached
Where enforcement proceedings have been commenced in respect of a judgment that cannot be made the subject of enforcement before it becomes final, there are legal and administrative avenues open to the debtor for the purpose of staying or setting aside that act. These avenues are provided in order to prevent the debtor from being harmed by a procedurally defective act and to ensure that enforcement activity is conducted with legal certainty.
The Enforcement Director’s Duty of Review
The first review of whether a judgment may be made the subject of enforcement proceedings before becoming final falls to the enforcement director. Whether the judgment relied upon as the basis of the request for enforcement is subject to the finality requirement must be examined by the director.
If the issue of an enforcement order is sought in respect of a judgment that cannot be enforced before becoming final, the director must refuse that request. Where, notwithstanding this obligation, an enforcement order is issued through inadvertence or by mistake, an act has come into being that may give rise to a loss of rights on the debtor’s part.
The Debtor’s Recourse to Complaint (Enforcement and Bankruptcy Act, Art. 16)
Where the enforcement director performs a defective act, the debtor may have recourse to the complaint procedure on the basis of Article 16 of the Enforcement and Bankruptcy Act No. 2004. The manner in which the right of complaint is exercised is determined according to the type of unlawfulness:
- In situations such as a manifest lack of competence, or the issue of an enforcement order in respect of a judgment subject to the finality requirement, the complaint may be raised without being bound by any period, that is to say subject to no time limit.
By directing his complaint to the Enforcement Court of the place where the proceedings are being pursued, the debtor may obtain a stay or the annulment of the proceedings.
Independent Legal’s Assessment
In practice the finality requirement is a matter that must in most cases be assessed head by head rather than in respect of the judgment as a whole. While the part of a judgment relating to the principal claim cannot be enforced before it becomes final, the position of the ancillary heads may differ; as the examples of third-party title and recovery actions show, whether the decision allows or dismisses the claim can change the outcome entirely. Overlooking these distinctions turns, for the creditor, into a loss of time that ends in the annulment of the proceedings.
On the debtor’s side, the fact that recourse to the complaint procedure against an enforcement order issued on the basis of a judgment that has not become final is available with no time limit constitutes an important safeguard; notwithstanding that safeguard, however, actual loss can arise in files that have proceeded to the attachment stage, and early action is therefore required.
In a concrete file, the headings to which attention should be paid are the following:
- Separating out, one by one, which heads of the judgment are subject to the finality requirement
- Clarifying, in judgments relating to immovable property, whether the dispute concerns a right in rem or rather use and possession
- Assessing awards of performance such as alimony in divorce judgments independently of the part relating to status
- Determining, in claims for recovery, whether the action was brought directly or was converted from an action for a negative declaration
- Requiring, in the case of foreign judgments, that the decision of enforcement itself has also become final
- Obtaining the certificate of finality from the relevant court in due form before the request for enforcement is lodged
Independent Legal provides advisory services and conducts litigation at every stage of enforcement law disputes, from the review of finality in enforcement proceedings based on a judgment to the pursuit of complaint and annulment applications.