Court Decisions:
Recognition and Enforcement Under PILA (MÖHUK):
2nd Civil Chamber 2016/19230 E. , 2017/8979 K.
“Text of Jurisprudence” COURT: Family Court A correction of decision having been requested regarding the dismissal of the request for correction of decision filed against the ruling of our Chamber dated 23/12/2015 and numbered 19770-24782, the case file was read and considered:
Although the Code of Civil Procedure numbered 6100 entered into force on 01.10.2011, it is stipulated in sub-clause (1) of provisional article 3 added to this Code by Code numbered 6217 that, regarding decisions rendered before the date Regional Courts of Appeal commenced their duties, the provisions of Articles 427 to 454 of Code numbered 1086 prior to the amendment made by Code numbered 5236 dated 26.09.2014 shall continue to be applied until such decisions become final; therefore, it has been necessary to examine the request for correction of decision.
The plaintiff requested the recognition of the foreign court judgment regarding the divorce of their son, who died on 23.06.2013, and the defendant daughter-in-law, and the court dismissed the case on the grounds that there was no legal interest. Recognition grants a foreign court judgment the status of conclusive evidence or res judicata (PILA art. 58). In the case of recognition, the effect of res judicata and conclusive evidence of the foreign judgment produces effects from the moment the foreign court judgment becomes final (PILA art. 59). In other words, the parties are deemed divorced at the moment the foreign court judgment becomes final. Anyone who has a legal interest in the enforcement of a foreign judgment may request enforcement (PILA art. 52/1). This provision also applies when the recognition of a foreign judgment is requested. From this perspective, the plaintiff has a legal interest in terms of inheritance in requesting the recognition of the foreign judgment regarding divorce. In a lawsuit for the enforcement of a foreign court judgment, the opposing party—the defendant against whom enforcement is requested—may only oppose the request by asserting that the conditions for enforcement and recognition are not present, that the foreign court judgment has been partially or fully executed, or that a reason preventing the execution of the judgment has arisen (PILA art. 55/2). No other ground for objection is accepted in the law. Accepting a foreign court judgment as conclusive evidence or res judicata depends on the court’s determination that the foreign judgment carries the conditions for enforcement (PILA art. 58/1). Accordingly, while the merits of the request should have been examined, its dismissal on unlawful grounds was not correct. However, since this issue was overlooked during the initial examination, it has been necessary to accept the plaintiff’s request for correction of decision, to lift our Chamber’s approval ruling dated 23.12.2015 and numbered 2015/19770 E. – 2015/24782 K., and to reverse the judgment for the stated reason.
CONCLUSION: ACCEPTANCE of the plaintiff’s request for correction of decision pursuant to Articles 440-442 of the Code of Civil Procedure, LIFTING of our Chamber’s approval decision dated 23.12.2015 and numbered 2015/19770 E. – 2015/24782 K., REVERSAL of the court decision for the reason shown above, returning the correction of decision fee to the depositor upon request, with unanimous vote. 12.07.2017 (Wednesday)
Divorce Under PILA (MÖHUK):
Text of Jurisprudence COURT: Gaziantep Regional Court of Appeal 2nd Civil Chamber At the end of the trial concerning the lawsuit between the parties, the ruling rendered by the regional court of appeal civil chamber, whose date and number are indicated above, having been appealed by the defendant husband regarding the acceptance of the case, the awarded alimony, and non-pecuniary damages, the file was read, discussed, and considered:
In the divorce lawsuit filed by the plaintiff wife, the court of first instance accepted the case and ruled for the divorce of the parties pursuant to Articles 166/1-2 of the Turkish Civil Code and its ancillary claims; upon the defendant husband’s timely application for the appeal remedy, the regional court of appeal dismissed the defendant husband’s appeal on the merits. The decision was appealed by the defendant husband.
The court of first instance rendered a judgment based on Turkish Law by reasoning: “Information and legislation regarding Syrian Law on family, marriage, divorce, custody, alimony, and descent matters were tried to be obtained but no information could be reached, therefore an official letter was sent to the General Directorate of Legislation of the Ministry of Justice on 23.09.2019 requesting the legislation containing the provisions of Syrian Law regarding family law to be sent to our Court to be applied in these lawsuits; however, in the reply letter of the Directorate General for Foreign Relations and European Union of the Ministry of Justice dated 21.11.2019, it was stated that the legislation regarding Syrian Law could not be acquired yet due to internal conflict, studies were ongoing, and that Turkish Law could be applied based on the decision of our judicial authority; since no information or document regarding the common national law of the parties could be reached, pursuant to Article 14/1 of PILA, it has been decided to apply Turkish Law in this lawsuit.”
Article 14 of the Private International Law and Procedural Law Act No. 5718 stipulates: “Causes and consequences of divorce and separation are governed by the parties’ common national law. If the parties are of different nationalities, the common habitual residence law, and in the absence thereof, Turkish law shall apply.”
Upon examination, it is understood that neither of the parties was a Turkish citizen as of the date of the lawsuit, but they were Syrian citizens. Accordingly, the lawsuit bears a “foreignness” element regarding the parties. In this case, the law to be applied in the lawsuit shall be determined according to the provisions of Law No. 5718 (PILA art. 1). According to this law, the causes and consequences of divorce and separation are subject to the parties’ common national law (PILA art. 14/1). The judge is obliged to apply Turkish conflict of laws rules and the foreign law competent according to these rules ex officio, regardless of whether the parties have a request in this regard (PILA art. 2/1). In that case, the court should have awaited the reply to the official letter written to the Directorate General for Foreign Relations and European Union of the Ministry of Justice, written another official letter on this matter considering the elapsed time, or—taking into account that it could resort to the assistance of the parties in determining the content of foreign law pursuant to PILA art. 2/1—applied the parties’ common national law in resolving the dispute between them, or applied Turkish law if the common national law was clearly contrary to Turkish public policy; it was not correct to render a judgment by directly applying Turkish Law without dwelling on these issues, and the judgment must be reversed for this reason.
CONCLUSION: LIFTING of the appealed regional court of appeal decision, REVERSAL of the court of first instance decision, finding it unnecessary for the time being to examine the appeal objections of the defendant husband due to the reason for reversal, returning the prepaid appeal fee to the depositor upon request, sending the file to the court of first instance and a copy of the decision to the relevant regional court of appeal civil chamber, with unanimous vote. 02.11.2022 (Wednesday)
Jurisdiction Under PILA (MÖHUK):
12th Civil Chamber 2025/975 E. , 2025/2718 K.
“Text of Jurisprudence” COURT: Izmir Regional Court of Appeal 8th Civil Chamber Upon the request of the plaintiff/creditor for the appellate review within the legal period of the decision rendered by the Regional Court of Appeal, the date and number of which are written above, the file related to this matter was sent to the chamber, and after the report prepared by the Reporting Judge was listened to and all documents in the file were read and examined, the necessity of the business was discussed and considered:
It was seen in the request sent by the Aliağa Enforcement Office to the enforcement court that an opinion was asked regarding the determination of the amount of the foreignness security to be taken pursuant to Article 48 of PILA, since the creditor is a company resident in Estonia; that the Court of First Instance decided to take a foreignness security at the rate of 20% of the receivable; and that upon the creditor’s application for the appeal remedy, the Regional Court of Appeal dismissed the appeal on the merits.
In Turkish Law, individuals’ exercise of their freedom to seek legal remedies has not been subjected to any restriction. However, in some exceptional cases, a person filing a lawsuit or exercising the right of execution may be required to fulfill certain pre-determined special obligations. One of these exceptional conditions is the obligation to provide security.
In certain special cases where it is deemed that it would be difficult or impossible to claim the potential damages of the debtor in the event that the creditor is unjustified in the enforcement proceedings, the legislator has deemed it necessary to provide security.
According to Article 48/1 of PILA No. 5718: “Foreign real and legal persons who file a lawsuit, intervene in a lawsuit, or initiate enforcement proceedings in a Turkish court are obliged to provide the security to be determined by the court to cover trial and execution expenses and the damages and losses of the opposing party.” The term “court” stipulated in the law should be understood as “enforcement office” for enforcement proceedings. The security stipulated in the aforementioned article is a prerequisite for initiating proceedings and is observed by the court ex officio.
According to Article 48/1 of PILA No. 5718, the enforcement officer must determine a security from foreign real and legal persons initiating enforcement proceedings to cover execution expenses and the damages and losses that the opposing party may incur due to this proceeding. It may be advanced via a complaint to the enforcement court that the security amount determined by the enforcement officer does not comply with the principles specified in the writing or that security was requested although they were exempt from security. In the concrete case, the enforcement court decided to deposit security at the rate of 20% of the proceeding receivable. However, an enforcement court making a transaction instead of the enforcement office should only be possible if it does not require the enforcement organ that made the transaction to perform a transaction anew. Since the authority to execute the transaction belongs to the original BASE NO: 2025/975 enforcement organ, the enforcement court deciding on the transaction is valid only if there is no need to conduct a re-investigation and make a new transaction—that is, if the transaction can be corrected according to the file. The enforcement court cannot use an authority belonging to the enforcement organ. (Pekcanıtez Hakan / Simil Cemil – İcra ve İflas Hukukunda Şikayet [Complaint in Enforcement and Bankruptcy Law], Istanbul p.399). In PILA, the “foreignness” criterion was taken as the basis regarding the obligation to provide security. On the other hand, the citizenship of the defendant or the opposing party against whom enforcement proceedings are initiated does not have significance under this article either.
Pursuant to the 1st paragraph of Article 17 of the Enforcement and Bankruptcy Law (İİK), ”If the complaint is accepted by the enforcement court, the complained transaction is either annulled or corrected.” According to the 2nd paragraph of the same article; ”The execution of matters that the officer unjustifiably did not perform or delayed is ordered.” provisions are included.
In addition, pursuant to Article 48/1 of PILA No. 5718, it is required to decide that the determination of the security amount to cover the damages, proceeding and trial expenses that the opposing party may incur due to the enforcement proceedings to be made shall be performed by the enforcement office.
In that case; the Court of First Instance should have decided, pursuant to Article 17 of the Enforcement and Bankruptcy Law (İİK) and in line with the principles explained above, that the determination of the security should be made by the enforcement office; instead, stepping into the place of the enforcement officer and deciding to take security at the rate of 20% of the receivable was inaccurate, and it was necessary to lift the Regional Court of Appeal decision and reverse the Court of First Instance decision.
CONCLUSION: With the partial acceptance of the creditor’s appeal request, pursuant to Article 373/1 of the Code of Civil Procedure No. 6100 which must be applied with the reference of Article 364/2 of the Enforcement and Bankruptcy Law (İİK) amended by Law No. 5311, for the reasons written above, (LIFTING) of the decision of Izmir Regional Court of Appeal 8th Civil Chamber dated 13.11.2024 and numbered 2024/562 E. – 2024/2620 K., (REVERSAL) of the decision of Aliağa Enforcement Court dated 07.07.2023 and numbered 2023/99 D. İş. Esas – 2023/151 D.İş Karar, finding it unnecessary to examine the remaining appeal objections of the creditor due to the reason for reversal, returning the prepaid fee to the concerned party upon request, sending the file to the Court of First Instance and a copy of the decision to the Regional Court of Appeal, decided with unanimous vote on 26.03.2025.
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