A DECISION OF JOINT CHAMBERS THAT THE JUSTIFICATION OF FOREIGN COURT DECISIONS DOES NOT CONSTITUTE A VIOLATION OF PUBLIC ORDER

06 Sep A DECISION OF JOINT CHAMBERS THAT THE JUSTIFICATION OF FOREIGN COURT DECISIONS DOES NOT CONSTITUTE A VIOLATION OF PUBLIC ORDER

T.C.
SUPREME COURT
Grand General Assembly
Base No: 2010/1
Decision No: 2012/1
Decision Date: 10.02.2012

Abstract: Turkish enforcement law foreign court decisions clearly violate Turkish public order
he’s interested in whether or not. Moreover, the judge of enforcement to examine and consider the reason for the decision
he was not even given the task and authority to receive it. Foreign court decision, procedural law of the country in which it was issued
the rule is governed by the > lex fori> rule. Terms of enforcement how and to what extent these rules are enforced
he has shown that he will block it separately. It can be seen that the Turkish procedure in the decision of the foreign court
The law?in the sense of the law on Civil Procedure 6100, which has just entered into force
the absence of justification is not a phenomenon that requires the intervention of the Turkish public order in the press alone.
As a principle, each court applies its own national procedural provisions, so the foreign court applies
the fact that the procedure is different from Turkish law is not a justification for the intervention of public order. Same
the principle also applies to the rules of the law of proof applied in a foreign court decision.
A foreigner created and certain without justification without being granted the right to an exclusive legal hearing
by stating that the court’s decision is contrary to Turkish public order for this reason alone, enforcement the refusal of his request would also contradict the Lex fori principle.
(5718 P. K. m. 50, 52, 53, 54, 55, 56, 57) (2675 S. K. m. 34, 36, 37, 38, 39, 40, 41) (2709 S. K. m. 141)
(6100 P. K. m. 297, 298) (1086 P. K. m. 388) (YHGK. 27.05.2009 T. 2009/19-102 E. 2009/208 K.)
(YHGK. 21.06.2000 T. 2000/2-1051 E. 2000/1068 K.) (2. HD. 08.06.2006 t. 2006/2612 E. 2006/9147
K.) (13. HD. 02.10.2003 T. 2003/6226 E. 2003/11095 K.) (13. HD. 05.12.2001 t. 2001/9007 E.
2001/11406 K.)
I – Application For Combining Case Law
Whether the justification of a foreign court application is contrary to public order and this
whether the lack of justification in the baglam will prevent the enforcement of a foreign court decision
Supreme Court 2. Decisions of the legal department, decisions of the same department and the Supreme Court 13. Law
By combining case law, the contrary of opinion is claimed to contradict the decisions of his office
elimination, Av. Serpil Alatali Bayburtun was requested with the application dated 24.11.2009.
II-decisions on the purpose of eliminating the violation of opinion
Supreme Court 2. 30.06.1999 days of the legal department and E:1999/5858 K:1999/7609 a numbered decision.
Supreme Court 2. 08.06.2006 day of the legal department and E:2006/2612 K:2006/9147 a numbered decision.
Supreme Court 13. 05.12.2001 day of the legal department and E:2001/9007 K:2001/11406 a numbered decision.
Supreme Court 13. 02.10.2003 day of the legal department and E:2003/6226 K:2001/11095 a numbered decision.
21.06.2000 days of the General Assembly of the Supreme Court of Law and E:2000/2-1051 K: resolution 2000/1068.
27.05.2009 day of the General Assembly of the Supreme Court of Law and E:2009/19-102 K: resolution 2009/208.
III – summaries of the views specified in the decisions to resolve the conflict of opinion
Supreme Court 2. 30.06.1999 days of the legal department and E:1999/5858 K:1999/7609 in his numbered decision; justification
a foreign court decision that does not contain and is a temporary divorce is a Turkish public order
it has been stated that it is a violation.
Supreme Court 2. 08.06.2006 day of the legal department and E:2006/2612 K:2006/9147 in his numbered decision; recognition and
the truth of the foreign court’s decision in enforcement, the procedural provisions that have been applied, material and
it is clearly contrary to public order that legal determinations should be excluded from review, but,
Basic rights and freedoms regulated by the Constitution, basic principles adopted in international law,
the right to a fair trial and defense, general morality, which forms the basis of the Turkish legal order and
in this respect, a foreign court is limited to cases of violation of the principles that the state cannot give up
it is contrary to public order and therefore cannot be considered an obstacle to enforcement.
it has been stated that the president of the said Department has also announced that his stable recent practices are in this direction.
Supreme Court 13. 05.12.2001 day of the legal department and E:2001/9007 K:2001/11406 and 02.10.2003 days and
E:2003/6226 K:2001/11095 in numbered decisions, foreign court declarations contain justification
because its failure to do so is contrary to the Constitution and public order, it will prevent recognition and enforcement
it was adopted and pointed in the same direction in the opinion writings.
Direct invalidity in the enforcement of foreign court declarations of the General Assembly of the Supreme Court of law
although there is no relevant decision; 21.06.2000 days, E:2000/2-1051 K:2000/1068 and 27.05.2009
day, E:2009/19-102 K: in decisions 2009/208, the need to implement law 2675 and
as well as the examination of the content of the foreign declaration in the implementation of the Law No. 5718 in force and
it has been accepted that it is appropriate for the audit and that the public order measure is sufficient for the audit.
In the case of water; in relation to the subject of the General Assembly of law, in the enforcement of foreign court declarations
because there is no direct decision on invalidity; the decisions of the second Legal Department are their own
it is clear that he contradicts the decisions of the Thirteenth Legal Department.
IV-decisions on the need to eliminate the violation of opinion by combining the case law, and
The Jurisprudence On The Subject Of Combining
By the decision of the first Presidential Council of the Supreme Court dated 29.11.2010 and numbered 158;
As to whether the absence of justification for foreign court decisions will prevent enforcement
30.06.1999 date of the second Legal Department E:1999/5858 K:1999/7609, date 08.06.2006 E:2006/2612
K:2006/9147, date 05.12.2001 of the Thirteenth Law Department E:2001/9007 K:2001/11406, 02.10.2003
history E:2003/6226 K:2003/11095 among the numbered decisions, there is a discrepancy in opinion and decisiveness
as it is concluded that the practice is maintained; combining contrary case law General
The date of the meeting is later determined by the First Presidency.
it has been decided to appoint a rapporteur member.
Rapporteur at the session of the General Assembly of the Supreme Court of law on the unification of cases dated 10.02.2012
after the member’s statements are heard, before they are entered into the decency; first of all, the opinion among the case law
decision that there is a violation and that this violation should be eliminated by combining the law
given and the subject of combining the case law, the mere justification of foreign court decisions
whether its absence will interfere with the enforcement of a final foreign court decision, this issue
In the sense of Article 54 / c of the Law No. 5718 on International Private Law and Procedural Law
it is determined whether it will be considered a clear violation of public order.
V-Justification For Combining The Law
1 – Legal Regulations Related To The Subject

A) The Constitution Of The Republic Of Turkey
Open hearings and reasoned decisions
Article 141-hearings in the courts are open to all. Some or all of the hearings
closed, but where general morality or public safety is strictly necessary
it can be decided.
Special provisions are made by law on the trial of minors.
All decisions of all courts are written as reasoned.
It is the duty of the judiciary to conclude cases with the least expense and as quickly as possible.
B) law on Civil Procedure No. 6100
Scope of provision
Article 297 – (1) the provision is given on behalf of the Turkish nation and covers the following issues after this phrase:
a) registration with the first and last names of the court and the judge or judges and the clerk of the police
if the court serves in various adjectives, in which adjective the sentence is given.
b) the identities of the parties and participants in the case and the identification number of the Republic of Turkey, if any, legal
first and last names and addresses of Representatives and proxies.
(c) the summary of the claims and defenses of the parties, the issues they understand and do not understand, should be withdrawn
evidence collected about cases, weighing and evaluating evidence,
conclusions and legal reasons extracted from them with cases.
D) as a result of the provision, court costs and refund of the unspent portion of the advance received from the parties,
ways and duration of the law, if any.
d) the date of provision and the signatures of the judge or judges and the clerk of the police.
e) date on which the reasoned decision was written.
(2) in the conclusion part of the provision, without repeating any words of justification, each of the claims
in accordance with the provision given about the debt and recognized rights charged to the parties, under the sequence number;,
it must be shown in a way that does not arouse doubt and hesitation.
C) Law on Civil Procedure No. 1086
Article 388-the decision covers the following considerations:
1. Names and surnames of the court and the judge or judges and the clerk of the record who made the decision, and the register
numbers, if the court serves in various adjectives, in which adjective the decision is made,
2. The identities of the parties and the participants in the case, as well as the names and surnames of the legal representatives and their proxies, if any
with addresses,
3. Summary of the claims and defenses of the two parties, issues that they understand and do not understand, disputed issues
evidence collected about him, weighing of evidence, reasons for rejection and superiority, in cases that are considered fixed
conclusion and legal reason extracted from them,
4. Path and duration of the law, if any, with the result of the provision,
5. Date of decision and signatures of the judge or judges and the clerk of the minutes,
In the conclusion of the provision Section, without repeating any words of justification, each of the results of the request
debt and recognized rights charged to the parties by the provision given about one, if possible, sequence number
below it, it must be shown one by one, clearly, without arousing doubt or hesitation.
D) Law No. 5718 on International Private Law and Procedural Law
Enforcement and recognition of foreign court and arbitration decisions
Enforcement decision
Article 50 – (1) foreign courts in relation to civil cases and that state
the Turkish court authorized to execute the declarations finalized according to the laws in Turkey
it depends on the decision of enforcement.
(2) enforcement of the provisions on personal rights contained in the criminal declarations of foreign courts
his decision may be requested.
enforcement prompt
Article 52 – (1) anyone who has legal benefit in enforcing the decision may request enforcement.
A request for enforcement becomes with a petition. As many examples as the number of opposing parties are added to the petition. In the petition below
considerations include:
(a) the name, surname and addresses of the applicant, the opposing party and its legal representatives and proxies, if any.
b) from which state court the provision in question of enforcement was issued, and the application with the name of the court
date and number and summary of the provision.
c) if Enforcement is requested about part of the provision, which part is it.
Documents to be added to the petition
Article 53 – (1) the following documents are added to the request for enforcement:
(a) the original or judicial body issuing the declaration duly approved by the authorities of that country of the foreign court
an example approved by and a translation approved by.
b) approved by a letter or document indicating the completion of the application and duly approved by the authorities of that country
translation.
enforcement terms
Article 54 – (1) the competent court makes a decision on enforcement within the following conditions:
(a) an agreement between the Republic of Turkey and the state to which the decommissioning was issued on the basis of reciprocity
or a law that makes it possible to enforce the declarations issued by the Turkish courts in that state
finding a provision or actual application.
(B) the declaration has been issued in a matter that does not fall under the exclusive jurisdiction of the Turkish courts; or
the defendant’s objection is that the application has not been granted by a state court that authorizes him if he has no real relationship with the subject matter or the parties to the case.
c) the provision is not clearly contrary to public order.
D) in accordance with the laws of this place, the court that rules the person who requested enforcement against him duly
he has not been properly summoned or represented in this court, or is contrary to this law
he was sentenced in absentia or in absentia, and this person was sentenced to one of the above considerations
based on the fact that he did not appeal to the Turkish court against the request for enforcement .
Teblig and appeal
Article 55 – (1) a petition related to the request for enforcement is notified to the opposite party along with the day of the hearing.
Recognition and enforcement of non-essential accident decisions are also subject to the same provision. Hasimsiz, conflict-free accident
in their decisions, the notification provision does not apply. A request is examined in accordance with the provisions of a simple judicial procedure
it depends on the decision.
(2) the opposing party, however, does not have conditions of enforcement in accordance with the provisions of this section or is foreign
a reason for partially or completely fulfilling or preventing the execution of the court order
he can object by suggesting that it has appeared.
Decision
Article 56 – (1) the court decides on the partial or complete enforcement of the application or the rejection of the request
attributable. This decision is written under the foreign court order and sealed by the judge
it’s signed.
Path of fulfillment and appeal
Article 57 – (1) foreign declarations decided on enforcement, such as declarations issued by Turkish courts
references
(2) appeal of decisions made regarding acceptance or rejection of the request for enforcement is subject to the general provisions.
The appeal stops the execution.
E) Law No. 2675 on International Private Law and Procedural Law
Enforcement decision
Article 34-it has been granted to civil cases from foreign courts and to the laws of that state
according to the official Turkish court, the execution of the documents found in Turkey
it depends on the decision of enforcement.
Enforcement of the provisions on personal rights contained in the criminal declarations of foreign courts
his decision may be requested.
Enforcement prompt

Article 36 – request for enforcement becomes by petition. As many examples as the number of opposing parties are added to the petition. On petition
the following considerations are included.
a) the name, surname and addresses of the applicant, the opposing party and its legal representatives and proxies, if any,
b) from which state court the provision in question of enforcement was issued, and the application with the name of the court
date and number and summary of the provision,
c) if Enforcement is requested about part of the provision, which part is it,
Documents to be added to the petition
Article 37-the following documents are added to the enforcement petition:
a) the original and translation of the foreign court declaration duly approved by the authorities of that country,
b) approved by a letter or document indicating the completion of the application and duly approved by the authorities of that country
translation.
enforcement Terms
Article 38-the competent court makes a decision on enforcement within the following conditions.
(a) an agreement between the Republic of Turkey and the state to which the declaration was issued on the basis of reciprocity or Dec.
a provision of the law that makes it possible to enforce the declarations issued by the Turkish courts in that state, or
finding the actual application,
b) the application has been issued on a matter that does not fall under the exclusive jurisdiction of the Turkish courts,
c) the provision is not clearly contrary to public order,
d) in accordance with the laws of that place, the court that rules against the person who requested enforcement is duly
he has not been properly summoned or represented in this court, or is contrary to this law
he was sentenced in absentia, and this person requested enforcement on the basis of one of the above considerations
Karsi did not appeal to the Turkish court,
e) authorized in accordance with the rules of the Turkish conflict of laws in a foreign declaration related to the state of the person of the Turks
the law was not applied and the defendant, who is a Turkish citizen, did not object to the enforcement in this respect
it being.
Teblig and appeal
Article 39-a petition related to the request for enforcement is notified to the opposite party along with the day of the hearing. Request,
it is examined according to the provisions of a simple trial procedure and depends on the decision.
The opposing party, however, does not have the terms of enforcement in accordance with the provisions of this section, or a foreign court
a reason arises that the declaration has been partially or completely fulfilled or prevented from being fulfilled
he can object by suggesting he’s out.
Decision
Article 40-the court may decide on the partial or complete enforcement of the application or the rejection of the request.
This decision is written under the foreign court order and sealed and signed by the judge.
Path of fulfillment and appeal
Article 41-foreign declarations decided on enforcement, such as those issued by Turkish courts
references
Appeal of decisions made regarding acceptance or rejection of the request for enforcement is subject to the general provisions.
The appeal stops the execution.
2 – concepts and institutions related to the unification of the case law:
Considering the subject of combining the case law described above, first of all, foreign
enforcement of court orders, public order and justification of court decisions
emphasis on concepts and institutions and regulations on all these issues
it needs to be evaluated.
2/1-enforcement
2/1. 1-concept
Implementation of an application by mobilizing the executive bodies of that state in another country, enforcement
it is only possible to connect its viability with the existence of a enforcement decision.
In the country where Icra must be applied, there are conditions for enforcement in the decision of a foreign court for enforcement
it is possible and appropriate with the examination of the absence and the decision to be made in the results circle to be reached
will be.
enforcement (exequatur) is explained in different forms in the doctrine. Decision of the foreign court of enforcement ,
in addition to seeing the force of final judgment and conclusive evidence in accordance, through Turkish executive bodies in Turkey
it is a court decision concerning the granting of enforceable power.
In order for the decision of a foreign court to be sanctioned by the Turkish courts, from the relationship of private law
it must have been given to solve a dogan mismatch. (5718 PP. MÖHUK m. 50)
Civil cases are a qualification related to procedural law, related to qualification
assessments and what kind of cases will be a civil case, according to the law of the country where enforcement is requested
it will be determined and evaluated according to.
In another aspect, the foreign declaration must be finalized in accordance with the law of the country in which it was issued.
In the case of enforcement , the legal benefit is first examined and the judge who will make the decision, only
whether it carries the conditions required in Turkish law in order to enforce a foreign decision
after examination, exequatur will be able to decide if the conditions are found.
The law applied by the court of enforcement, the foreign court on the basis and its own procedure in the same way
ability to examine whether it applies its provisions correctly and to examine the content of a foreign application
references (2675 PP. MÖHUK m. 38 / c, 5718 P. MÖHUK m. 54 / a, b, c, o)
However, if the foreign court application is clearly contrary to Turkish public order, enforcement is always
the amir provision of the law No. 5718 is required.
2/1. 2-Tenphysin Terms
Law No. 5718 on private international law and Procedural Law No. 54. in the article, for the enforcement
its terms are regulated.
Accordingly, the first condition is based on reciprocity between the Republic of Turkey and the state to which the decommissioning was issued
an agreement based on or enforcement of the declarations issued by the Turkish courts in that state is possible
it is related to the fact that a provision of the law or actual application must be found. (m. 54 / a)
The condition of reciprocity is not a condition related to citizenship, but to the court in which the decision is made, and the said condition
if it is not implemented, it can no longer be passed on to the study of other conditions.
Another condition provided for in this article is that the application has the exclusive authority of the Turkish courts
if it was given in a matter that did not enter, or if the defendant objected, the application, the subject of the lawsuit, or
a state court that grants it authority, even though it has no real relationship with the parties
it is a case of not being given (m. 54 / b).
Here, it is also sufficient to have legal or actual reciprocity other than contractual reciprocity; enforcement
the laws of the state issuing the subject notice are enforcement of decisions made by Turkish courts in that country
if an actual application has been created in this regard, or if the basis of reciprocity exists
it means it’s real.

Another of the conditions of enforcement is that defense rights have not been violated; the laws of this place
in accordance with the court that rules the person who requested enforcement against him duly
he was not called or represented in that court, or in absentia in violation of these laws, or
a decision has been made in his absence, and this person has requested enforcement on the basis of one of the above considerations
Karsi has not appealed to the Turkish court. (m.54 / O)
Finally, Law No. 5718 on International Private Law and Procedural Law 54 / c. references,
enforcement that the provision that is the subject of combining case law is not clearly contrary to public order
it is shown between the decks.
In the face of this clear provision, enforcement of a foreign court application in cases of clear violation of public order
it is impossible to be done and performed in Turkey.
So, at this point, the concept of public order, the determination of the violation of the provision of public order, the public
it is useful to examine the impact of order on enforcement, public order and the existence of justification.
2/2-Public Order
2/2. 1-concept
Public order, according to each specific event, the nature of which varies according to time, place, the content of which is difficult to determine
it’s a changing concept. Law that has developed despite Ilmi openings and judicial decisions
although there is no definition even in their system, the rules that protect the basic structure and interests of society
definition can be made as a whole.
The area of intervention of the concept of Public Order is extremely wide and accessible to interpretation. Provision without justification
acting from the concept of public order due to its existence, committed in the issuance of a foreign declaration
by examining the results of the procedure, the applied law, the execution of the declaration,
it is a very heavy result to say that the decision will not be able to be enforced by being contrary to public order
it will be creation.
Cases that require a violation of Turkish public order are often in clear violation of an ordered provision
it will be considered. But in the case of a violation of each commandment or a violation of each commandment
it is not possible to say that the Foreign decision is contrary to Turkish public order.
So, the framework of public order in domestic law, the basic values of Turkish law, Turkish general etiquette
and the understanding of morality, the basic understanding of justice on which Turkish laws are based, the understanding of Turkish laws are based
general politics, fundamental rights and freedoms contained in the Constitution, common in the international sphere
rules based on the principle and the principle of goodwill of private law,
according to the principles of law, which are the expression of the moral principles and understanding of justice that they adopt, society
contrary to the level of civilization, political and economic regime, human rights and freedoms
it can be scratched.
Public order in domestic law, which the parties must comply with, from public law and private law
dogan should only be understood as rules on which parties cannot freely save money.
2/2. 2 – effect of public order on enforcement
Having final judgment, conclusive evidence and enforcement power outside the country in which court decisions are made,
establishing and creating economic relations brought about by personal and commercial life in the International Society
and a foreign person who is required, as well as a court decision without discussion, to resolve the disputes that have occurred
it requires recognition and acceptance of the declaration.
It is impossible that such a necessity brings two dominions against each other. First of all, each state
it is necessary to protect its sovereignty and national interests, and secondly, international interests
according to the Universal Declaration of human rights, the rule of respect for the requirements and rights of persons
it is the adoption of preservation and preservation.
Activity, enforcement in the country of another independent state, to the savings of sovereignty of a foreign country with enforcement
the recognition of qualification.
A state that recognizes and enforces decisions of foreign courts, in principle, its own courts
he gives up his authority to solve a mismatch that he is authorized to solve, almost on the incompatibility
eliminating the power to save sovereignty by exercising jurisdiction by another state
allows removal.
In particular, as a result of enforcement, the decision of the executive bodies of the state executed in its country, a foreign
the fact that they will take action on the orders of the court will give much more effectiveness to enforcement and audit the content
it will bring along the doubt of viability.
What criteria will arise as a result of the uncertain nature of public order
accepting that the issue will arise on the grounds shown in the foreign declaration and with the provision ittihazed
references Audit of whether a foreign court decision is contrary to Turkish public order
during the content inspection ban comes into play, this ban is eliminated at our discretion
it’s clear it can’t be removed.
According to the system adopted in the law on International Private Law and procedural law, by the judge of enforcement ,
a foreign court decision cannot be examined on the basis and its compliance with the law cannot be controlled.
In this case, the judge has the right to examine the content of the application other than the terms of the application and
he has no authority. Acceptance of the opposite situation, enforcement judge, find himself in the position of the upper court
it leads to a conclusion in its form.
2/2. 3-determination of the violation of the provision of public order
Article 54 / c of the Law No. 5718 on International Private Law and Procedural Law,
the fact that it is not clearly contrary to public order is considered within the conditions of enforcement.
Accordingly, the law applied in the issuance of a foreign court decision and according to what criteria it is
if the Foreign decision is executed in Turkey, the consequences that will occur in Turkey are Turkish
it is necessary to investigate whether it violates public order.
From the statement contained in the aforementioned article that the provision is not clearly contrary to public order,
the law applied on the basis of the court’s decision cannot be examined in violation of Turkish public order,
only if the legal consequences arising from the enforcement of the provision are contrary to public order
it should be concluded that the enforcement of the foreign court’s decision will be rejected.
The fact that the law applied on the basis is different in Turkish law or the mandatory rules of Turkish law
for reasons such as contravention, the enforcement of a foreign decision cannot be rejected. Here should be based
criteria, the foreign declaration is found to be contrary to the provisions of one or more laws in Turkish law
a lot, the basic values of Turkish law, Turkish general etiquette and moral understanding of Turkish laws
basic understanding of justice and Legal Policy, fundamental rights and freedoms contained in the Constitution, common and accepted principles of law valid in the international arena, bilateral agreements, developed
political and Economic to the level of civilization, to the understanding of morality and justice that societies adopt in common
you should be looking at your regime.

2/2. 4-existence of Public Order and justification
Rule of law strengthen trust in the judiciary, alongside impartial and public judgment,
it is possible that decisions are written in a satisfactory and convincing manner in accordance with the judgment.
As long as the law is not applied equally to all who are in the same situation, its glorification is impossible.
It is clear that the rationale is related to public order. Justification rule with public interest, utility and order
it is the values that are made possible by its control that unite at the same intersection.
In Democratic states of law, justification is not only based on a provision, but also on its content
a person, society and the public with an interest in reality in the person of judgment, the judge and his effectiveness
by supervising, he takes on a role that anvils his receptivity. Justification is binding. Binding trial
the procedure differs according to the intended purpose. The rationale must be inclusive and multiplicative.
Failure to evaluate the claims and cases put forward by the parties is a violation of the right to defense
in this case, it should be noted that the justification also comes into play. Because the court’s decisions are justified
it is a result of taking into account the claims and defenses put forward by the parties. Decision
141/3 of the Constitution, in which these considerations are the subject of discussion. with the provision of the article this
Civil Procedure No. 1086
Act 388., Also open in articles 297 and 298 of the Code of Civil Procedure 6100
it’s obvious he’s committed to the ruling.
Approximation of private law of states to the justification of foreign court decisions Civil Procedure Law
is not the same. The justification for the decision is subject to the procedural laws of the state to which the judge making the decision belongs
as a rule, it will not create a violation of public order in the press.
Violation of the basic right of Defense and the fact that the decision is not justified are different considerations, the right of Defense
although the fact that it was not given would be contrary to public order in domestic law, the foreign declaration is not justified
it will not be contrary to public order as a cause only and alone.
2/3-rating
Mulga Law No. 2675 and Law No. 5718, which repeals this law, is a foreign
documents issued by the court in relation to civil cases may be enforced,
in addition, it has been accepted that criminal notices are subject to enforcement in their provisions on personal rights.
All kinds of foreign court decisions made on material law claims in this case,
a decision on enforcement is a decision that can be made.
A court decision granted in accordance with the procedural law of a foreign state, a court order
whether it is qualified or not and the terms of conclusion, there is no doubt that it is exclusively the country in which the decision was made
the procedure shall be appointed and determined according to the law.
This has, as is known, been accepted in the inter-national area and in the implementation of the Turkish court Dec.
found that the Lex fori principle in procedural law, in other words, is subject to the court’s own procedural law
it is a requirement of the principle that it should be.
As a court order issued by a Turkish court is the own procedural law of a foreign state
if, according to its rules, it is unthinkable to qualify as an executive order or order, the foreigner in the same way
determination of the nature of a court order in accordance with the provisions of Turkish procedural law
it’s not a question.
As a matter of fact, 54 for enforcement in the law on International Private Law and Procedural Law No. 5718.
from the conditions related to the procedural law provided for in the article, the procedure in which the court making the decision is of course
it is clear that it is acting on the principle that it can be evaluated according to its law.
In this regard, a court decision adopted as a declaration in accordance with the provisions of its procedural law
Likening it to a regulation contained in Turkish Icra law, the warning to pay a certain amount of money
it is impossible to qualify as a containing order or payment order. So, a foreign one suitable for enforcement
decision on enforcement if the court application carries conditions that are considered limited in law 5718
it has to be given.
One of the conditions sought for enforcement is related to the intervention of the Turkish public order. Law No. 5718
According to Article 54 / c, in order for a foreign court application to be enforced, this court application
It is a condition that the Turkish public order does not carry a provision that may require intervention.
Here, the only possibility that can ensure the rejection of the application of a foreign court is a foreign court Juliette
its provision or provisions are clearly contrary to Turkish public order. From the point of view of this condition
the justification contained in the foreign declaration does not have the power to affect the enforcement of the declaration.
It should be emphasized that from the point of view of the material law of the foreign court application of the enforcement judge
it is not authorized to examine and evaluate its accuracy. In accordance with this ban, the judge of enforcement
it is also out of the question to examine and evaluate the justification available in the ad.
In other words, the presence or absence of a justification in the application of the provision contained in the application to the public
it is not important to determine its violation of the order. Foreign court demanding enforcement
in the declaration, there is or does not have a reason in the sense that Turkish Procedural Law is understood Turkish
It is neither effective nor necessary for enforcement from the point of view of public order intervention. Acceptance of the contrary,
as a result of a retrial, the court that makes the foreign declaration untihaz
an undesirable situation will arise, such as becoming an audit and review body.
The fact that the party decided against was not given the opportunity to exercise the right to defend the Turkish public
it is a situation that requires the intervention of the order. As a principle, each court has its own procedural provisions
applies (Lex Fori principle). For this reason, the procedure applied by the foreign court, the Turkish procedure
the fact that it differs from the law is not a justification for the intervention of the Turkish public order.
The same principle applies in terms of the rules of the law of proof applied in a foreign court application.
However, if a foreign court application is in a state of law, according to the Turkish understanding of law
principles of fair trial, which differ from the procedural Law Order and the rules of the law of proof, which may be
if, Of course, a procedure of a violating nature is given, the intervention of the Turkish public order is necessary
a denial of the request may be applied. Especially the parties themselves to a sufficient degree
a request for enforcement for a foreign court application issued in a procedural system that does not allow a defense
there may be a rejection.
The procedure of the case used by the foreign court in the case also requires the intervention of the Turkish public order
it’s not a procedure.
Constitution of the Republic of Turkey all kinds of decisions of all courts are written as reasoned
he adopted the principle. (m. 141/3) proceedings related to hearings in cases in Turkish courts
141. place in the decree of the article ordering the justification of all kinds of decisions
it is impossible to say that the concept of all courts in the field includes foreign courts.
141 of the Constitution. the principles established by the article in relation to the judicial procedure, exclusively Turkish
It is a clear and non-weighing determination that will apply to their courts.
It is a justification in the sense of Turkish Procedural Law, where the justification that the Turkish Code of Civil Procedure determines its form and material content is known. Asking or seeking a justification in this content to be found in a foreign court decision will undoubtedly not be associated with the Lex fory principle.
First, a justification in this content belongs not to the Constitution, but to the Turkish law of Civil Procedure
reason. Old 388 of the Turkish Procedural Code, new 297. form and material elements counted in the article
waiting and looking for a foreign court decision to take part in, after all, one of these elements
or a foreign court eligible for enforcement, considering it if several of them are not available
it means preventing the enforcement of the declaration. This is a regulation of international Procedural Law and
It is a form of opinion and understanding that Turkish enforcement law cannot accept.
Lex fori principle, adopted in practice and according to scientific views, with its shape and material content
the justification is determined by the law of each country itself and by the laws of other countries
it is a necessary and necessary concept to be accepted as justification. Despite this, the Turkish Constitution
The rule of justification of court decisions may require intervention by the Turkish public order
it cannot be considered a commandment.
On the other hand, the Turkish constitutional rule, which states that court decisions must be written on grounds
There is no doubt that it is of a ordering nature for decisions made by its courts.
But here, every ordering rule, even the constitutional rule, is related to fundamental rights and freedoms
Turkish public order in the application and consideration of foreign laws unless there are rules
remembering that it is also a well-known principle of public order that does not require intervention
need to.

Turkish enforcement law the provisions of foreign court decisions clearly violate Turkish public order
he’s interested in whether or not. Moreover, the judge of enforcement to examine and consider the reason for the decision
he was not even given the task and authority to receive it. Foreign court decision, procedural law of the country in which it was issued
his rule is governed by the lex fory rule. Terms of enforcement how and to what extent these rules are enforced
he has shown that he will block it separately.
It can be seen that the Turkish Procedural Law has just entered into force in the foreign court’s decision
297 of the Code of Civil Procedure No. 6100. a reason in the sense of the provision of the article
its absence is not a phenomenon that requires the intervention of the Turkish public order in the press alone.
In short; in principle, each court applies its own national procedural provisions, so the foreign
for the intervention of public order, the procedure applied by the court is different from Turkish law
it’s not a motive. Same principle rules of proof law applied in foreign court decision
it also applies in terms of. Created and finalized without granting exclusive legal right to be heard
a foreign court decision without justification was found to be contrary to Turkish public order for this reason alone
the refusal of the request for enforcement by specifying will also contradict the Lex fori principle.
In other words, in accordance with the provisions of its procedural law, in the sense of Turkish procedural law, its justification
for this reason alone, the lack of justification of foreign court declarations that do not exist is an obstacle to enforcement.
it can’t be put forward as a reason. But the decision is based on the basic values of Turkish law, Turkish general morality and
understanding of etiquette, understanding of fundamental justice, fundamental rights and freedoms contained in the Constitution, international
principles applicable in the field, rules of wishful thinking related to private law, Political of the Turkish state
the basic human being, which will shake the regime from the foundation of the economic structure of society
because violations of rights and understanding of justice will be considered violations of Public Order, foreign
by applying the provision clause of the court order, the foreign court shall establish the water consequences
enforcement of their decisions is not possible.
VI-result
The lack of a foreign court finalized the absolute justification of foreign court decisions
International Private Law and procedure No. 5718
In the sense of Article 54/c of the law on the law, it will not be considered a clear violation of public order,
At the first meeting held on 10.02.2012, it was decided by a plurality of votes, which hung two-thirds.