There is a difference of jurisprudence between the 2. and 13. Civil Chambers of the Court of Appeals whether enforcement of (final) judgments which do not include any justification constitutes incompliance with the ordre public. The Court of Appeals Grand Chamber of Unification of Jurisprudence conclusively decided on whether the lack of justification constitutes an obstacle to enforcement, to resolve this jurisprudential difference. The decision of the board with Case numbered 2010/1, Decision numbered 2012/1 dated 10 February 2012 ("Decision") was published in the Official Gazette dated 20 September 2012 numbered 28417. This Decision and its justification shall be assessed in this article.
Enforcement of foreign court judgments
As elaborated on in detail in the newsletter article entitled "Recognition and Enforcement of Arbitral Awards and Foreign Judgments" which was published in the Newsletter issue of March 2012, the enforcement of foreign court judgments are subject to the provisions of International Private and Procedure Law No. 5718 ("IPPL"). In order for a foreign court judgment to be enforced (a) there should be contractual, statutory or actual reciprocity with the relevant foreign country with regards to enforcement, (b) the matter resolved upon by the judgment shall not fall within the exclusive jurisdiction of Turkish courts (such as claims related to the rights in rem over an immovable property), (c) the person against whom the enforcement is sought should have not been improperly summoned, or not represented in court or, a default judgment should not have been rendered against him which was contrary to the laws of that country, and (d) it shouldn't explicitly violate Turkish ordre public (art. 54 of IPPL).
Court of Appeals 2. Civil Chamber has amended its jurisprudence1 declaring foreign judgments not including any justification being in violation of the Turkish public order. In its decision in the year 20062, it declared that the court shall disregard the accuracy of a judgment, the applied provisions and the legal or procedural determinations thereunder whilst considering enforcement, and therefore that the lack of justification shall not constitute a violation of public order. The decision also underlines that explicit violation of public order is limited to events such as violation of fundamental rights and freedoms regulated under the Constitution, fundamental legal principles accepted by international law, right to fair trial and right to defense.
Court of Appeals 13. Civil Chamber, on the other hand, states in its decisions3 that the lack of justification in foreign court judgments shall constitute violation of the Constitution and of the public order. Therefore, it accepts that lack of justification of foreign court judgments constitutes obstacles in recognition and enforcement of such awards. The Court of Appeals Assembly of Civil Chambers has not adopted a decision governing the enforcement of judgments not including any justification.
The jurisprudential difference between the Civil Chambers of the Court of Appeals arises from whether the lack of justification of foreign court judgments constitutes an explicit violation of the public order or not.
Justification and the public order
The explicit violation of Turkish public order is regulated as an obstacle to the enforcement of foreign court awards under the IPPL. The State, in principle, waives its sovereign right to rule on conflicts over which its own courts have jurisdiction and adopt the decision of a foreign court while enforcing a decision. Consequently, the sovereign right of the state is exercised by the bodies of another state. Therefore, violation of the public order is a materially important obstacle to the enforcement of foreign court awards.
The concept of public order is dependent on the time and place, and its content and limits may not be precisely delimited. The Court of Appeals has assessed, in the justification of the Decision, the relevant provisions of Turkish law and how such provisions shall be taken into consideration with regards to enforcement, in order to determine whether the lack of justification constitutes a violation of public order or not.
Justification under Turkish law
Article 141 of the Constitution of 1982 regulates that court judgments shall include justification. Article 297 of the Civil Procedural Code numbered 6100 (as well as article 388 of the abrogated Civil Procedural Code numbered 1086) stipulates that the judgment shall include (in its justification) the matters on which the parties have or have not agreed, the proof for contested matters, discussion and assessment of proof, the deducted conclusion and the legal cause. Court judgments shall include a justification as per Turkish law. The justification of judgments derives from public order. The justification shall justify the judgment and is binding. The justification states how the claims and defense of the parties are assessed. It is apparent that under the Turkish law the justification is directly in relation to the fundamental right to defense.
Public order and prohibition of revision au fond
The investigation made for the enforcement regarding whether the public order has been explicitly violated or not comprehends an assessment of whether the legal consequences of enforcement of the foreign judgment in Turkey are in violation of the public order or not. Nevertheless, while assessing the noncompliance with public order, the prohibition to review the merits of the case must be taken into consideration. The court handling the enforcement request may not disregard this prohibition by using its discretion. Assessment for enforcement is limited to identification of the existence of requisite conditions for enforcement. The due application of law and procedural provisions to the merits of the foreign judgment may not be inspected (art 54 of IPPL).
The formal and material content of justification under the Turkish law is regulated by the Civil Procedure Code. The justification is subject to the lex fori principle, as it is a matter of procedural law. Foreign states may provide for different provisions under their procedural law rules with respect to the justification. Therefore, the lack of justification in a judgment and the violation of the fundamental right to defense should be assessed as separate and independent matters; and the mere lack of justification in foreign judgments should not be assessed as a violation of public order per se.
Turkish legal rules concerning verdicts under Turkish law should not be applicable by analogy to a foreign court judgment regarded as a "verdict" as per the procedural rules of a foreign state. Drawing conclusions from the existence or lack of justification in the foreign judgments shall constitute assessment of compliance of the foreign verdict with the civil and procedural Turkish law. This constitutes violation of the prohibition revision au fond. Any procedure to the contrary shall constitute a renewal of the litigation procedure by Turkish courts.
The criteria to be taken into account for enforcement are whether the verdict of the foreign decision explicitly violates the Turkish public order or not. Bearing the prohibition of revision au fond in mind, in order for the procedural law applied to a judgment to constitute an obstacle to its enforcement, it shall per se violate the principles of due and fair trial, prevent any defense and constitute a violation of the Turkish public order.
The justification of the Decision specifically states that, instead of the differences with the Turkish law or incompliances with mandatory legal Turkish provisions of foreign judgments; what shall be taken into consideration is whether the fundamental values of Turkish law, the general public moral and main legal policy, fundamental rights and freedoms, concept of justice are violated by such foreign judgment or not.
Decision of the Court of Appeals Grand Chamber of Unification of Jurisprudence
The Court of Appeals Grand Chamber of Unification of Jurisprudence has resolved with a majority exceeding two thirds of the votes that "the mere lack of justification of foreign judgments shall not prevent the enforcement of final foreign court judgments". The Decision states that the justification is a concept of procedural law and thus the declaration of foreign court judgments not including any justification in violation of the public order is regarded as a violation of the prohibition of revision au fond. Whilst assessing compliance with public order, violation of fundamental principles and the concept of justice as well as fundamental rights and freedoms shall be taken into consideration instead of violation of any mandatory provision under Turkish law.
Nonetheless, the chair and members of the Court of Appeal 13th Civil Chamber have given negative votes to the Decision and submitted their dissenting opinion. The dissenting opinion states that violation of the public order may only be assessed with the justification of a judgment. The members having given negative votes affirm that the verdict section of a judgment is a mere statement of conclusions with respect to the claims and that compliance with the public order may only be assessed once the verdict and the justification are regarded as a whole.
The Civil Chambers of the Court of Appeals had adopted different jurisprudence with respect to whether the lack of justification of foreign court judgments constitutes an explicit violation of the public order or not. Therefore, the Court of Appeals Grand Chamber of Unification of Jurisprudence resolved this difference by its Decision adopted on 10 February 2012.
Justification is a matter of procedural law. Although Turkish law relates the existence of justification with public order, foreign states may have adopted different rules of procedure. The foreign court judgments are subject to their own procedural laws. Declaring foreign judgments as explicitly in violation of Turkish public order based on the mere lack of justification constitutes a violation of the prohibition of revision au fond regulated under the IPPL. Whether the foreign verdict explicitly violates the Turkish public order or not shall be taken into regard when compliance with public order is assessed for the sake of enforcing such decision.
The Civil Chambers of the Court of Appeals has therefore, with the majority of the votes, declared that foreign judgments may not be deprived of enforcement or be declared explicitly in violation of Turkish public order merely for the lack of justification.
1. Decision dated 30.06.1999 with Case numbered 1999/5858 and Decision numbered 1999/7609.
2. Decision dated 08.06.2006 with Case numbered 2006/2612 and Decision numbered 2006/9147.
3. Decision dated 05.12.2001 with Case numbered 2001/9007and Decision numbered 2001/11406 and decision dated 02.10.2003 with Case numbered 2003/6226and Decision numbered 2001/11095.