1. Legal Framework for the Enforcement of Foreign Judgments in Turkey
1.1 The Statutory Basis: Articles 50–59 of MÖHUK
The Turkish legal system allows the recognition and enforcement of foreign judgments through a dual judicial mechanism under MÖHUK. According to Article 50, a foreign judgment may only be enforced in Turkey if it has become final and binding in the country of origin, and if it meets additional conditions stipulated under Article 54.
These include:
- Reciprocity between Turkey and the issuing state (Article 54/a),
- Jurisdictional legitimacy of the foreign court (Article 54/b),
- Absence of public policy violation (Article 54/c),
- Proper representation and defense rights of the parties (Article 54/d),
- Proof of finality (Article 54/e).
Among these, finality remains the most technically and evidentially challenging.
1.2 The Concept of “Finality” (Kesinleşme)
“Kesinleşme” in Turkish procedural law refers to the non-appealability and binding nature of a judicial decision. In domestic proceedings, finality occurs when all ordinary appeal routes are exhausted, or when the time limit for appeal lapses without action.
In foreign enforcement, this concept requires an equivalence test — determining whether the foreign judgment has acquired a similar status of enforceability in its own legal order.
The Yargıtay consistently holds that a judgment lacking finality cannot be recognized or enforced, as it may still be altered by the appellate courts abroad. This rule preserves both legal certainty and judicial sovereignty by preventing premature enforcement of unstable rulings.
2. The Requirement of Finality: Rationale and Judicial Function
2.1 Sovereignty and Legal Certainty
Finality serves two primary functions:
- Safeguarding sovereignty — preventing Turkish courts from enforcing judgments that may later be modified abroad.
- Ensuring stability — protecting the debtor from facing contradictory enforcement proceedings based on unsettled decisions.
The principle resonates with the maxim “res judicata pro veritate habetur”, meaning that only a final judgment enjoys the authority of truth.
2.2 The Finality Test in Practice
In practice, Turkish courts require the applicant to demonstrate, through official documentation, that the judgment is final in its country of origin.
This proof may take various forms:
- A finality certificate issued by the foreign court or clerk’s office,
- An official annotation on the judgment text itself indicating non-appealability,
- A declaration of enforceability under foreign law.
However, Turkish courts often examine these documents with caution, questioning both their authenticity and compliance with Turkish procedural standards.
3. Evidentiary Challenges in Proving Finality
3.1 Formal Proof under Article 52 of MÖHUK
Under Article 52, the enforcement application must include:
- The original or duly certified copy of the judgment,
- A document certifying its finality,
- A duly authenticated and certified translation of both documents.
The evidentiary burden thus rests heavily upon the applicant. Incomplete, uncertified, or improperly translated documents are frequent grounds for dismissal of enforcement requests.
3.2 Authentication and Apostille Requirements
To ensure authenticity, documents issued abroad must comply with either:
- The Apostille Convention (1961), or
- Bilateral agreements providing for equivalent certification.
If the issuing state is not a party to the Apostille Convention, Turkish courts require consular authentication, a process that significantly delays enforcement and increases costs.
Yargıtay’s jurisprudence affirms that even minor formal defects in apostille or translation can invalidate the enforcement process.
3.3 Translation and Terminological Ambiguities
Translation errors constitute another recurrent obstacle. Terms such as “final,” “binding,” “enforceable,” or “res judicata” may not perfectly align across jurisdictions.
For instance, in common law systems, a “final judgment” may still be subject to appeal, whereas in civil law systems like Turkey, finality implies complete exhaustion of remedies.
The Yargıtay 11th Civil Chamber (E.2021/3241, K.2022/1056) held that a certificate stating “the decision is final unless appealed” did not meet the requirement of kesinleşme. This ruling illustrates the strict interpretation of finality — potential appealability is sufficient to defeat enforcement.
4. Comparative Perspective on the Finality Requirement
4.1 European Union: Brussels I Recast Regulation
Within the European Union, the Brussels I Recast Regulation (Reg. No. 1215/2012) abolished the need for an exequatur procedure among member states. Judgments are automatically recognized unless manifestly contrary to public policy.
However, finality is presumed, not explicitly proven, given the high level of trust between judicial systems. This trust principle, known as mutual recognition, has no parallel in Turkish law, which still requires proof of finality as a procedural safeguard.
4.2 United States and Common Law Jurisdictions
In the United States, the Uniform Foreign Money Judgments Recognition Act focuses on reciprocity and due process rather than finality certificates.
A foreign judgment may be recognized if it is “final, conclusive, and enforceable where rendered.” The burden of proving otherwise rests on the debtor.
In contrast, Turkish law demands affirmative proof by the applicant — reversing the evidentiary presumption.
4.3 The New York Convention on Arbitral Awards
Although the New York Convention governs arbitral awards, its influence on the interpretation of finality is significant. Article V(1)(e) allows refusal of enforcement if the award has not yet become binding or has been suspended.
This mirrors the rationale under MÖHUK Article 54(e), underscoring the international trend that only binding decisions can cross borders.
5. Yargıtay Jurisprudence on Finality and Proof Problems
5.1 General Approach of the Court of Cassation
The Yargıtay 11th, 12th, and 15th Civil Chambers have repeatedly confirmed that the lack of a clear, unambiguous certificate of finality constitutes a procedural defect that cannot be remedied post-factum.
For instance:
- Yargıtay 11. HD., 2019/3232 E., 2020/2145 K.: Enforcement refused because the foreign certificate stated “subject to revision,” which was interpreted as non-final.
- Yargıtay 12. HD., 2021/7483 E., 2022/4109 K.: Recognized the necessity of proving that all ordinary remedies had lapsed according to the foreign procedural law.
- Yargıtay HGK., 2017/11-2053 E., 2019/879 K.: Emphasized that “finality” must be demonstrated through objective and official evidence, not merely party declarations.
5.2 Exceptions and Flexibility in Practice
Despite this rigidity, certain chambers have accepted alternative documentation where formal certificates were unavailable.
For example, if the foreign court system does not issue separate finality certificates, a court registry statement or a certified docket record showing the absence of appeal may suffice.
This pragmatic approach seeks to balance procedural formality with the realities of international litigation.
5.3 Interaction with Reciprocity and Public Policy
Interestingly, Yargıtay sometimes evaluates the finality requirement in conjunction with reciprocity and public policy considerations. A judgment deemed “non-final” under foreign law may also be rejected for lacking reciprocity, since Turkish judgments would not be enforceable abroad in similar conditions.
This shows that finality is not merely procedural; it carries substantive implications for mutual respect between jurisdictions.
6. Evidentiary Burdens and the Role of the Applicant
6.1 Burden of Proof
The burden of proving finality rests entirely on the party seeking enforcement (usually the creditor).
Under Article 190 of the Code of Civil Procedure (HMK), each party bears the burden of proof for facts supporting its claim. Thus, failure to provide a valid finality certificate or equivalent evidence results in outright rejection.
6.2 Role of Expert Evidence and Comparative Law Reports
In some cases, Turkish courts may appoint expert witnesses or request foreign law reports to ascertain whether the decision has become final under the foreign procedural system.
Such reports, however, must themselves be authenticated and translated, creating further evidentiary complexity.
6.3 The Debtor’s Objections
The debtor (defendant) in enforcement proceedings may challenge finality by arguing that:
- An appeal is still pending or possible abroad,
- The certificate is inaccurate or forged,
- The translation misrepresents the legal status of the judgment.
These objections often trigger mini-trials on foreign procedural law, prolonging enforcement litigation.
7. Specific Challenges in Multi-Jurisdictional Cases
7.1 Parallel Proceedings and Partial Finality
Modern cross-border disputes often involve multi-layered judgments, where different parts of a decision become final at different times.
For example, damages may be finalized while costs remain pending. Turkish courts have sometimes enforced only the final portions, provided they are severable.
7.2 Interim and Provisional Orders
Turkish law does not allow the enforcement of interim or provisional judgments, as they inherently lack finality.
Even if a foreign interim injunction is “enforceable” abroad, Turkish courts view it as violating the principle of non-intervention into another state’s ongoing judicial sovereignty.
7.3 Default Judgments and Ex Parte Orders
In cases of default judgments, the debtor may argue that the judgment has not yet become final due to the right of reopening or setting aside default under foreign procedural law.
Yargıtay generally requires clear evidence that all post-judgment remedies have expired before allowing enforcement.
8. Procedural Innovations and Reform Proposals
8.1 Towards a More Flexible Interpretation
Legal scholars have argued for a functional approach to finality — one that focuses on the practical enforceability of the foreign judgment rather than rigid formalism.
This could align Turkish practice with modern trends in international judicial cooperation.
8.2 Electronic Verification and Judicial Networks
Given the digitalization of judicial records, Turkey could benefit from electronic verification mechanisms, enabling direct confirmation of finality through official online databases or judicial networks.
Such reforms would reduce delays and enhance trust between legal systems.
8.3 The Role of Bilateral and Multilateral Treaties
Bilateral treaties on judicial assistance often simplify finality verification by providing model certificates or mutual presumptions of authenticity.
For instance, Turkey’s agreements with Germany, Italy, and Austria have proven effective in reducing evidentiary friction.
Expanding such treaties remains a practical path toward smoother enforcement processes.
9. Case Studies and Practical Observations
9.1 Enforcement of a German Civil Judgment
A creditor sought enforcement of a German court judgment awarding damages. The applicant submitted a judgment annotated as “rechtskräftig,” meaning “final and enforceable.”
Yargıtay accepted this as sufficient proof, interpreting “rechtskräftig” as equivalent to “kesinleşmiş.” The enforcement was granted.
9.2 Refusal of a U.K. High Court Order
Conversely, in a case involving a U.K. commercial judgment, the finality certificate stated that the decision was “final but subject to permission for appeal.”
The Turkish court refused enforcement, holding that the potential for appeal rendered the decision non-final under Turkish standards.
9.3 U.S. Federal Judgment Example
In another instance, a U.S. District Court judgment was presented with a clerk’s certificate stating, “no appeal filed within 30 days.”
The Istanbul 10th Civil Court of First Instance accepted this as conclusive proof of finality, illustrating the court’s pragmatic approach when documentary clarity exists.
10. Policy Considerations and Theoretical Implications
10.1 Balancing Sovereignty and Efficiency
The tension between judicial sovereignty and international cooperation remains at the heart of the finality debate.
While strict adherence to finality protects national procedural order, excessive rigidity can discourage cross-border trade and undermine the efficiency of transnational enforcement.
10.2 The Role of Public Policy (Türk Kamu Düzeni)
Even if a judgment is final, Turkish courts must still assess whether its enforcement violates public policy (kamu düzeni).
A judgment enforcing foreign punitive damages, for instance, might be final abroad but unenforceable in Turkey due to disproportionate damages conflicting with Turkish legal principles.
10.3 Comparative Harmonization
Harmonizing the concept of finality across jurisdictions could promote consistency.
Turkey’s potential accession to future Hague Judgments Conventions would likely require adopting a mutual trust model, shifting the burden from strict formal verification to substantive equivalence.
11. The Evidentiary Future: From Paper to Digital Proof
11.1 Apostille Modernization
Recent reforms in e-apostille systems allow digital authentication of foreign judgments.
If fully implemented, Turkish courts could directly verify authenticity online, minimizing forgery risks and reducing litigation over formal defects.
11.2 Artificial Intelligence and Document Analysis
In the future, AI-driven tools may assist in identifying inconsistencies in translations or detecting counterfeit seals.
Such innovations, however, must coexist with strict legal safeguards to preserve the reliability of judicial evidence.
11.3 Judicial Cooperation Platforms
Turkey’s growing participation in international judicial cooperation frameworks (e.g., EJN, Hague e-Courts projects) may pave the way for automated exchange of finality certificates, effectively transforming enforcement into a streamlined administrative process.
Conclusion
The requirement of finality in the enforcement of foreign judgments under Turkish law remains both essential and problematic. While it upholds the principles of legal certainty, sovereignty, and procedural integrity, its rigid evidentiary demands often hinder efficiency and cross-border justice.
To mitigate these challenges, Turkish courts and policymakers should consider:
- Adopting a functional equivalence test for finality, emphasizing substance over form,
- Expanding bilateral treaties on judicial cooperation,
- Implementing digital verification systems for apostilles and judicial communications,
- Encouraging judicial education on foreign procedural systems and terminology.
By modernizing the evidentiary framework and aligning with international standards, Turkey can maintain judicial sovereignty while promoting the seamless recognition of legitimate foreign judgments — a balance vital to international commerce and the rule of law.
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