Even where a dispute has been decided by a court abroad, that judgment produces no effect of its own accord within the Turkish legal order. A foreign judgment can produce effects in Türkiye only through separate proceedings. The action for recognition and enforcement builds precisely this bridge, and it is in practice one of the most frequently used instruments in matters carrying a foreign element.
The institution serves two distinct functions. Recognition allows the foreign judgment to acquire the status of res judicata and of conclusive evidence in Türkiye; enforcement additionally opens the way for the judgment to be executed. Which route is followed is determined by the content of the judgment and by the needs of the party holding the right.
In this briefing note we examine, in turn, the legal basis of the action, the preliminary and substantive conditions required, the different scenarios that arise in relation to limitation periods, the practice specific to divorce judgments, the courts with subject-matter and territorial jurisdiction, the constitution of the parties, the documents to be placed on the file, the heads of cost, the duration of the proceedings, the effects produced by the judgment, and the available appeals.
What Is an Action for Recognition and Enforcement?
Actions brought before the Turkish courts so that judgments rendered by foreign courts in private law disputes may produce effects or be executed in our country are termed actions for recognition and enforcement. As a result of such an action, a judgment given in a foreign country becomes capable of producing effects within the Turkish legal order.
This type of action, frequently encountered in practice, meets the concrete needs generated by cross-border legal relationships. The principal provisions on the subject are contained in the Act on Private International Law and Procedural Law No. 5718.
CAUTION: Because of the foreign connection, the procedural steps in this action call for particular care. Errors at the stages of obtaining documents, translation, certification and notification may cause the file to be concluded without the merits being reached.
The Practical Necessity of the Action
A foreign court judgment means nothing in Türkiye on its own. For this reason, recourse to recognition or enforcement becomes a necessity in most cases.
To explain by way of a concrete example: a person who has divorced in Germany continues to be regarded as married for the purposes of Turkish law for as long as that judgment is not recognised in Türkiye and registered with the civil registry.
The consequences of this situation are serious. The obligations arising from the marital union continue, the spouse retains the status of heir, disputes arise as to custody of the child, and the person becomes unable to benefit from various rights. A similar picture may arise in respect of almost any foreign judgment that has not been recognised or enforced.
Conditions Required in the Action
The conditions required fall into two groups: the preliminary conditions that must be present from the outset for the action to be heard, and the secondary conditions relating to the merits.
At this point a fundamental limit applies. In recognition and enforcement proceedings the Turkish court may not examine whether the foreign judgment is substantively correct; it may not review the legal soundness of the ruling. In practice this limit is referred to as the prohibition of review on the merits.
The court’s review is confined to whether the conditions explained below have been satisfied. If they have, a decision granting recognition or enforcement, according to the nature of the case, must be given.
Preliminary Conditions
The first and mandatory condition is the existence of a foreign court judgment. Acts performed by foreign administrative authorities cannot form the subject matter of this action. That said, it is not necessary for the body to be named a court; a decision given by an organ that, by its legal nature, has the character of a court is sufficient. Conversely, decisions that do not have the character of a judgment cannot form the subject matter of the action even if they emanate from a court.
Secondly, the judgment must relate to civil proceedings. Penalties imposed by foreign criminal courts and the ancillary rulings attached to them cannot be made the subject of recognition or enforcement in Türkiye. What is decisive is not so much the character of the court as the fact that the ruling falls within the field of private law.
Thirdly, the foreign judgment must have become final. Judgments that are at the appeal stage, that continue to be examined before another higher authority, or that have not yet reached that stage but in respect of which the time limits for application have not expired, cannot form the subject matter of the action. Whether finality has been achieved is determined according to the law of the country to which the court that gave the judgment is subject.
Substantive Conditions
The substantive conditions fall under four headings: reciprocity, the absence of any encroachment upon exclusive jurisdiction, the absence of any contravention of public policy and the absence of any infringement of the right of defence. Of these, reciprocity is required only for enforcement; it is not a condition of a request for recognition. The other three conditions apply to both routes.
The concept of reciprocity denotes mutuality; it rests on the principle that the state whose judgment is to be enforced must afford the same treatment to Turkish judicial decisions. It makes no difference whether that mutuality arises from actual practice, from a statutory provision or from an international agreement; what matters is that mutuality exists.
The fact that a Turkish court judgment has not been recognised or enforced in a foreign country on procedural or other grounds does not, in itself, lead to the conclusion that mutuality is absent. What is required here is systematic mutuality at the legal or factual level.
The second condition concerns exclusive jurisdiction. If the foreign judgment was given on a matter falling within the exclusive jurisdiction of the Turkish courts, the request is refused. Certain mandatory jurisdiction rules are assessed within this scope. For instance, exclusive jurisdiction exists in disputes concerning rights in rem over immovable property; foreign judgments of that kind therefore cannot be taken through the recognition and enforcement route. The same applies to actions arising from the Enforcement and Bankruptcy Act No. 2004. Certain employment and consumer disputes have likewise been excluded from the scope of this action by reason of exclusive jurisdiction.
The third condition is that the foreign ruling must not be manifestly contrary to Turkish public policy. Contravention of public policy arises from such matters as conflict with society’s general understanding of propriety and morals, with the fundamental notion of justice on which the laws are based, or with the fundamental principles of the Constitution. In assessing this criterion, the point taken as the basis is the outcome that would arise were the judgment in question to be recognised or enforced.
The fourth condition concerns the right of defence. The parties’ right of defence must have been respected when the foreign court judgment was given. Where the right to a fair trial has been infringed in this respect, the conditions of the action are treated as not having been met.
IMPORTANT: While the conditions listed give rise to no argument at all in some files, in others they lie at the centre of a serious legal debate. Although a significant proportion of foreign judgments plainly satisfy the conditions, a far from negligible number call for a separate determination alongside doctrinal discussion.
The Position on Limitation Periods
The statute of limitations is a matter that must be examined separately in every file, since not one period but four mutually independent assessments of time may arise:
- The limitation period applicable to the merits in an action in which the merits are examined
- The period prescribed for bringing an action for recognition or enforcement
- The limitation period applicable to the levying of execution on the judgment whose enforcement is sought
- The starting point of the period in actions to be brought in reliance on a judgment that has been recognised or enforced
In the first scenario, that is to say where the merits are reached, the applicable limitation period is governed, under Art. 8 of the Act on Private International Law and Procedural Law No. 5718, by the law applicable to the substance of the legal transaction and relationship.
In the second scenario there is no provision in the legislation. Accordingly, there is no time limit on bringing an action for the recognition or enforcement of a foreign judgment.
In the third scenario, as regards execution of a judgment that has been recognised and enforced, the period is 10 years unless the law provides otherwise.
In the fourth scenario, in actions to be brought in reliance on the judgment following recognition or enforcement, the limitation period as a rule begins to run from the recognition or enforcement decision. For example, where an action for alimony or damages is to be brought in consequence of a divorce judgment that has been recognised, the one-year limitation period prescribed for those actions begins when the recognition decision becomes final.
Recognition and Enforcement of Divorce Judgments
The great majority of these actions concern divorce judgments. Both spouses who have divorced abroad, or only one of them, need the judgment to be recognised or enforced in Türkiye for a variety of reasons.
Where the request consists solely of having the termination of the marriage registered, the recognition procedure is followed. In the case of divorce judgments, recognition may be achieved by two routes: bringing an action or applying to the civil registry office.
Where, by contrast, the foreign judgment contains rulings ancillary to the divorce, such as alimony, damages or custody, and it is also sought to have those rulings produce effects in Türkiye, an action for enforcement must be brought.
Because the recognition and enforcement of divorce judgments involves a great many particular details, it is the subject of a separate study; detailed information on the matter is set out in the study entitled recognition and enforcement of divorce.
Subject-Matter and Territorial Jurisdiction
As to subject-matter jurisdiction, the courts of first instance are competent. Depending on the nature of the dispute, the civil court of first instance, the commercial court of first instance or a specialised court at first-instance level will have jurisdiction. For example, where the recognition or enforcement of a divorce judgment is sought, the court with subject-matter jurisdiction is the family court.
Territorial jurisdiction is determined under Art. 51 of the Act on Private International Law and Procedural Law No. 5718. Accordingly, the court of the respondent’s domicile in Türkiye has jurisdiction in the first place. If there is no domicile, the court of the place where the respondent resides in Türkiye; failing that, one of the courts of Ankara, İstanbul or İzmir will have jurisdiction.
Parties to the Action
The capacity of the parties is determined according to Turkish law. Even where the dispute carries a foreign element, Turkish law applies as regards procedure. The claimant is the person seeking to have the foreign judgment recognised or enforced; the respondent is the opposing party in the foreign judgment.
In addition, a legal interest must exist for the action to be brought. If the court does not find a legal interest in the recognition or enforcement of the foreign judgment, it will refuse the request.
Documents to Be Filed
Every file calls for certain documents specific to the particular case, and these must be identified before the action is brought. That said, the documents that must as a minimum be present in every recognition and enforcement file are as follows:
- The original of the final foreign court judgment, a copy certified by the foreign authorities and a notarised translation
- The document issued by the authorities of the foreign country attesting that the judgment has become final, together with its translation
- The claimant’s identity document and a photocopy of it
- Where the action is to be conducted through a representative, the power of attorney granted to the advocate, receipts for the costs paid and similar documents
The documents listed are certified by way of an apostille. That certification is mandatory if judgments issued by foreign authorities are to have the character of official documents in Türkiye. Detailed explanations on the matter are set out in the study entitled apostille.
Preparing the Statement of Claim
Since proceedings in Turkish law are conducted largely in writing through pleadings, the statement of claim performs a decisive function in this process. The pleading must state the names and surnames of the parties, their legal representatives if any, and their address details.
In addition, the pleading must show which court of which country gave the foreign judgment, the date and number of the judgment and a summary of its terms. It is also possible to seek enforcement of only part of the ruling; where such a request is made, the explanations relating to it must be given in detail.
Ready-made draft pleadings are frequently encountered in practice. Such texts are remote from the features of the particular case, out of step with continually changing legislation and apt to cause the loss of rights. Actions brought on the basis of such examples most often end in dismissal on procedural grounds.
Litigation Costs
Costs fall essentially under two heads: the court fee and security.
If the ruling whose recognition or enforcement is sought carries a particular monetary value, the fee is calculated proportionately on that value. Where, by contrast, the foreign judgment contains no order for performance, a fixed fee, that is to say a fee of a set amount, applies.
As regards security, the capacity of the claimant is decisive. If the action is brought by a Turkish citizen, security is taken under the provisions of the Code of Civil Procedure No. 6100; if by a foreigner, under the rules of the Act on Private International Law and Procedural Law No. 5718. While security arises in actions brought by foreigners, whether security will be required in actions brought by Turkish citizens may vary according to the features of the particular case.
The final head of cost, where the action is to be conducted through a representative, is the advocate’s fee. It is not mandatory to bring an action for recognition and enforcement through a representative. Where the case is conducted through a representative, the fee is freely agreed between the advocate and the client; criteria such as the scope of the action and the workload it will generate are taken into account in setting it. The only limit here is that the agreed fee may not fall below the minimum fee tariff for advocates.
How Long Do Proceedings Take?
It is not always possible to predict the duration of the proceedings with certainty in advance. In files carrying a foreign element the process may be very short, but it may also be appreciably prolonged. Factors such as the judicial calendar, the position of the parties, the evidence submitted to the file, the nature of the judgment and whether the decision is challenged operate to increase or reduce the time taken.
One of the most important elements determining the time taken is service of the statement of claim on the respondent. Failure to reach the respondent prolongs the process. That said, if the documents have been prepared in due form and the conditions explained above are satisfied, the action will in any event be brought to a conclusion.
The rules of Turkish procedural law apply to notification. In this field the provisions of the Notification Act No. 7201 and of the implementing regulation are taken as the basis; in certain situations the provisions of the Electronic Notification Regulation also become important.
As regards international notifications, the various international agreements to which Türkiye is a party come into play. Such notifications are mostly effected through the Ministry of Justice, and these stages need to be followed closely.
Effects of the Judgment
Recognition and enforcement decisions produce significant legal effects. Even where full validity has been obtained before the Turkish courts, the process must be followed separately as regards execution of the judgment and the other steps connected with it. The effects of the two decisions must be assessed separately.
The effect of a recognition decision: Once a recognition decision has been given in respect of a foreign judgment, that ruling acquires validity in Türkiye and the legal position is recognised. From that moment the judgment has the character of conclusive evidence and of res judicata; that character arises once the recognition decision becomes final. Even where a request for recognition has been refused, it is accepted that the ruling in question may be used as discretionary evidence.
The effect of an enforcement decision: An enforcement decision likewise produces the effects of res judicata and of conclusive evidence; in addition, it confers enforceability. A foreign judgment susceptible of execution thereby becomes capable of being executed in Türkiye. It is also possible for the court to order the enforcement of part of the judgment and to refuse the request as regards the remainder.
That said, enforcement cannot be ordered in respect of rulings not contained in the foreign judgment; the court may not add a ruling of its own to the foreign judgment. The enforcement ruling produces retrospective effect; that is to say, the foreign judgment is deemed to have acquired validity as from the date on which it became final in the country where it was given.
Appeals Against the Judgment
A court ruling on recognition or enforcement may be taken first to appeal and then to appeal on points of law. The appeal is examined by the regional court of appeal and the appeal on points of law by the Court of Cassation.
Where the judgment has been taken to a higher court, execution of the enforcement ruling is stayed. In other words, while the file is under examination before the higher authority, the ruling does not yet acquire the character of res judicata and of conclusive evidence.
Attention must be paid at this point to the monetary thresholds. Actions falling below the amount redetermined each year cannot be taken to appeal; for 2021 that amount was applied as TRY 2,920. In respect of rulings below TRY 40,000, appeal is available but appeal on points of law is not. In the case of decisions carrying no monetary value, no such restriction applies. Details on the matter are addressed in the studies entitled appeal pleading and pleading for appeal on points of law.
Independent Legal’s Assessment
Despite its technical appearance, recognition and enforcement is an institution whose effects reach across a broad field, from a person’s civil status and status as an heir to custody relationships and claims. Because the merits are not reviewed in the proceedings, the success of the file depends largely on the conditions being correctly identified and the procedural steps being carried out without omission.
A significant proportion of the files that end unfavourably in practice do so not because of an obstacle on the merits but because of non-compliance with procedural rules. The absence of a certificate of finality, failure to obtain an apostille, translations that are not notarised, and the notification stage not being carried out correctly are the most frequently encountered shortcomings.
When drawing up a roadmap in a particular file, the following headings should be given priority:
- Clarifying at the outset whether the request is one for recognition or for enforcement, and assessing the condition of reciprocity accordingly
- Documenting whether the foreign judgment has become final, according to the law of the country that gave the judgment
- Examining in advance whether the dispute falls within the exclusive jurisdiction of the Turkish courts
- Ensuring that the requirements of an apostille and a notarised translation are met in full for all documents
- Determining the court with subject-matter jurisdiction according to the nature of the dispute, and territorial jurisdiction according to the order set out in Art. 51 of the Act on Private International Law and Procedural Law No. 5718
- Monitoring the periods applicable to execution of the judgment and to actions to be brought in reliance on it by reference to the date on which the recognition or enforcement decision became final
Independent Legal provides advisory services and conducts litigation in the recognition and enforcement of foreign court judgments in disputes carrying a foreign element, from the preparation of documents through to the appeal stage.