What Are Recognition and Enforcement?

For court decisions rendered in a foreign country to produce legal effects in Turkey, they must be subjected to a specific judicial process. This process is called a recognition or enforcement (tenfiz) proceeding depending on the nature of the decision and the legal effect sought. Both institutions are regulated by the Act on International Private and Procedural Law (MOHUK) No. 5718 and constitute the fundamental mechanisms for foreign decisions to gain validity in Turkish domestic law.

Recognition and enforcement institutions are mechanisms required by the principle of state sovereignty. A decision rendered by a court of one state is, as a rule, effective only within the borders of that state and does not automatically produce legal effects in another state. Therefore, for foreign decisions to be applicable in Turkey, Turkish courts must examine and approve these decisions.

Differences Between Recognition and Enforcement

Although the concepts of recognition and enforcement are frequently confused, they contain significant differences in terms of their legal nature and consequences:

For example, a recognition case is sufficient for a divorce decision rendered in a foreign country to be considered valid in Turkey. However, an enforcement case must be filed for the collection of compensation or alimony awarded by a foreign court in Turkey.

Conditions for Enforcement (MOHUK Art. 54)

Article 54 of MOHUK No. 5718 regulates the conditions required for the enforcement of foreign court decisions in Turkey. These conditions are as follows:

1. Existence of a Foreign Court Decision

The decision subject to enforcement must have been rendered by the competent judicial organs of a foreign state. Arbitral awards, administrative decisions, or notarial transactions are generally not subject to enforcement. Enforcement of arbitral awards is subject to separate regulations.

2. Finality of the Decision

The foreign court decision must be final according to the law of the country where it was rendered. Finality means that ordinary legal remedies against the decision have been exhausted or the appeal period has expired. A certificate of finality (with apostille or consular attestation) must be submitted together with the enforcement case.

3. Existence of Reciprocity

For enforcement, reciprocity must exist between the country where the decision was rendered and Turkey. Reciprocity can be realized in three ways:

• Treaty-based reciprocity: The existence of bilateral or multilateral treaties regulating mutual recognition and enforcement between the two countries
• Legal reciprocity: The legislation of the other state allowing the enforcement of Turkish court decisions
• De facto reciprocity: The other state enforcing Turkish court decisions in practice

It is important to note that the reciprocity condition is not required for recognition cases (MOHUK Art. 58/1).

4. Not Falling Within Exclusive Jurisdiction of Turkish Courts

The subject matter of the foreign court decision must not be a dispute falling within the exclusive jurisdiction of Turkish courts. Disputes regarding rights in rem related to immovable property in Turkey are within the scope of exclusive jurisdiction.

5. Not Being Contrary to Public Order

The foreign court decision must not be manifestly contrary to Turkish public order. The concept of public order is narrowly interpreted and is applied only when there is a clear conflict with the fundamental values, constitutional principles, and mandatory legal rules of Turkish society. In judicial practice, the public order review examines not the content of the foreign decision but whether its consequences are unacceptable from the perspective of Turkish law.

6. Defense Rights Must Not Have Been Violated

The foreign court decision must not have been rendered in a manner that violates the defendant's defense rights. The enforcement request will be rejected if the defendant was not properly served with notice, was not given the opportunity to defend, or if there was illegality in rendering a default judgment.

Conditions for Recognition

The conditions required for recognition are lighter than those for enforcement. Under MOHUK Art. 58, the reciprocity condition is not required in recognition cases. Other conditions (existence of a final decision, no contrariety to public order, no violation of defense rights) are required exactly as in enforcement cases.

Competent Court

The court with jurisdiction over recognition and enforcement cases is the civil court of first instance. For recognition and enforcement of family law decisions, the family court has jurisdiction.

The competent court is determined pursuant to MOHUK Art. 51 as follows:

• The court of the defendant's domicile in Turkey
• If the defendant has no domicile in Turkey, the court of the defendant's place of residence
• If neither exists, the courts of Ankara, Istanbul, or Izmir

Recognition and Enforcement Proceedings Process

Recognition and enforcement proceedings consist of the following stages:

1. Application and Filing of the Case

The party requesting recognition or enforcement applies to the competent Turkish court with a petition. The documents that must be submitted with the petition are:

• The original or certified copy of the foreign court decision
• A document indicating that the decision has become final (finality annotation)
• A Turkish translation of the decision and finality annotation made by a sworn translator
• Apostille or consular attestation of the documents

2. Service of Process and Defense

The complaint is duly served on the defendant. The defendant may submit a response petition within two weeks of service. The defendant may object to the case by claiming that the enforcement conditions are not met.

3. Trial and Examination

The court does not examine the content (merits) of the foreign decision; it only reviews whether the conditions for enforcement or recognition are met. This principle is called the prohibition of revision au fond. The court does not investigate whether the foreign court's application of substantive law was correct.

4. Decision

If the court finds that the conditions are met, it renders a recognition or enforcement decision. With the enforcement decision, the foreign court decision becomes enforceable like a Turkish court decision. With the recognition decision, the foreign decision gains res judicata and conclusive evidence effect.

Recognition of Divorce Decisions

One of the most common legal issues faced by Turkish citizens living abroad is making the divorce decision obtained in a foreign country valid in Turkey. Unless the foreign divorce decision is recognized in Turkey, it cannot be recorded in population registers, and the person still appears married in Turkey.

Special Situations in Recognition of Divorce Decisions

Some special situations arise in the recognition of foreign divorce decisions:

• Recording in population register: After the recognition decision becomes final, the divorce is recorded in the population register by applying to the relevant population directorate.
• Custody and alimony: If the foreign decision also contains provisions regarding custody and alimony, these may need to be separately enforced.
• Dual citizenship: When both spouses are Turkish citizens, the public order review in recognition of the foreign divorce decision is conducted more meticulously.
• Uncontested divorce: In uncontested divorces conducted in foreign countries, particular attention is paid to whether the parties' wills were freely expressed.

Direct Recognition at Population Directorate

With the legal amendment made in 2019 (Population Services Act Art. 27/A), the possibility of recognizing divorce decisions rendered in foreign countries directly at provincial or district population directorates without applying to a court was introduced, under certain conditions. To benefit from this route, the following conditions must be met simultaneously:

• Both parties must be present at the application together or one must be represented through a proxy
• The decision must be final
• The divorce decision must not contain provisions regarding custody, alimony, or compensation, or no claims must have been made on these matters

This practice has provided great convenience, especially for Turkish citizens living abroad. However, if one party objects or if the above conditions are not met, it is mandatory to file a case in court [TO BE VERIFIED].

Grounds for Rejection of Enforcement Request

The court rejects the enforcement request in the following cases:

• Absence of reciprocity: If there is no legal, de facto, or treaty-based reciprocity between the country where the decision was rendered and Turkey, the enforcement request is rejected.
• Contrariety to public order: If the consequences of the foreign decision manifestly violate Turkish public order, the enforcement request is rejected.
• Violation of defense rights: If the defendant was not properly served with notice or was not given the right to defend, the enforcement request is rejected.
• Exclusive jurisdiction violation: If the dispute falls within the exclusive jurisdiction of Turkish courts, the enforcement request is rejected.
• Decision not being final: If ordinary legal remedies against the foreign decision have not yet been exhausted, the enforcement request is rejected.

International Treaties and Recognition-Enforcement

Turkey has signed bilateral judicial assistance treaties with various countries. These treaties may contain provisions facilitating recognition and enforcement proceedings. Additionally, multilateral treaties to which Turkey is a party are also taken into account in the recognition and enforcement process:

• Hague Conference Conventions: Some Hague conventions to which Turkey is a party facilitate recognition and enforcement in certain areas.
• Bilateral judicial assistance treaties: Bilateral treaties signed by Turkey with various countries (Germany, Austria, France, Italy, Switzerland, etc.) may contain special provisions.
• New York Convention: Turkey is a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Time Limits in Recognition and Enforcement Cases

MOHUK does not prescribe a specific statute of limitations or forfeiture period for filing recognition and enforcement cases. However, attention must be paid to the statute of limitations periods under Turkish law with respect to the content of the foreign decision. For example, in an enforcement case filed for the collection of a claim awarded by a foreign court, it may be evaluated whether the claim has expired under the Turkish statute of limitations [TO BE VERIFIED].

Costs of Recognition and Enforcement Cases

The following costs arise in recognition and enforcement cases:

• Court fees: Recognition cases are subject to fixed fees, while enforcement cases are subject to fixed or proportional fees depending on the content of the decision.
• Attorney fees: Determined according to the Minimum Attorney Fee Tariff.
• Translation and attestation costs: The costs of Turkish translation and apostille/consular attestation of the decision belong to the plaintiff.
• Service of process costs: Additional costs may arise if service must be made to a defendant abroad.

Problems Encountered in Practice

Problems frequently encountered in practice in recognition and enforcement cases include:

• Difficulty in obtaining documents: Obtaining finality annotations, apostilles, and other documents from foreign countries may take time.
• Service of process issues: Making service to a defendant abroad may take a long time and extend the case.
• Public order assessment: The vagueness of the boundaries of the public order concept may lead to different assessments by different courts.
• Reciprocity determination: Determining the reciprocity status with some countries may present difficulties.

Legal Remedies

Appeals may be filed against decisions rendered in recognition or enforcement cases to the Regional Court of Appeal. Cassation appeals may also be filed against the Regional Court of Appeal's decision. Legal remedies are subject to the general provisions of the Code of Civil Procedure (HMK).

This content is for general informational purposes only and does not constitute legal advice. For your specific legal issues, it is recommended that you obtain professional support from an attorney.