*L. Intern Yağmur Çorbacı

Foreign court judgements can become effective in accordance with Turkish law by the recognition or enforcement of the decision of foreign courts based on its qualification. Enforcement of the provisions of a foreign court decision is subjected to the enforcement decision provided by Turkish courts. With the enforcement decision, the foreign court judgement’s res judicata effect is accepted in Turkey.

According to the doctrine, it is possible to divide the enforcement request’s conditions into two subheadings as preconditions and essential conditions. Before examining the conditions of the enforcement request, it should be pointed out that the “Révision au Fond” meaning substantive examination, is not permitted in Turkish law. Enforcement decision will be made without reviewing the merits of the dispute in case of existence of the conditions written in International Private and Civil Procedure Law (“IPCPL”) Art.50, Art.54 and Art.55/2.

When IPCPL Art. 50/1 is examined, the prerequisites of enforcement can be counted as follows;

  • There must be a court decision (verdict)
  • The decision must be related to civil law-suits
  • There must be a final verdict. The enforceability of the judicial decision in a foreign country does not matter, it is must be the final verdict.

Although it is inferred from the article at a first glance that the verdicts related to criminal proceedings are not enforceable, IPCPL Art. 50/2 clearly stipulates that the compensation decisions regarding personal rights given by criminal court, in the decisions that both punish and indemnify, can be enforced.

As it is comprehended from IPCPL 50/2, the qualification of the judgement should be determined according to the nature of the decision’s provisions instead of the title of the court that made the decision or the name given to the decision. This determination must be made by the characterization process. Since it is accepted that the characterization procedures in the field of international procedural law should be made in line with the lex fori as a rule, the determination of whether the decision is related to a civil action will be made according to Turkish law.

The clauses related to personal rights, which are included in the criminal decisions of foreign courts and which have essentially the nature of compensation or chose in action or which result in the limitation of capacity, can only be enforced in accordance with this part of decision.

Enforcement of criminal judgements is not possible. In legal systems, decisions such as fines or non-pecuniary damages are frequently encountered. These decisions are of a criminal nature; in a word, includes provisions regarding monetary compensation given for the purpose of deterrence and intimidation. Decisions related to certain foreign exchange crimes in Turkish law and punitive damages decisions in US law are of this kind. Pursuant to an opinion defended by the doctrine, these decisions should be considered criminal verdicts to the extent that they aim to deter, intimidate or heal on behalf of the public, rather than the rights arising from substantive law.

For instance, in a decision dated 1992 of the German Supreme Court, it was accepted that punitive or exemplary decisions on American law system have the character of the law of obligations. These decisions, in terms of their essential functions, were deemed to be of a punitive nature and their enforcement was refused on the grounds that they had the purpose of punishing or intimidating.

A position in the doctrine compares the compensation in the Clayton Act of USA, which is three times higher, regarding the compensation of damages arising from the violation of competition, with the compensation in the act on the Protection of Competition or the Law on Intellectual and Artistic Works.  This view advocates that the punitive nature of these compensations should not prevent enforcement.[1]


In this respect, in the decision of the 4th Civil Chamber of the Supreme Court of Appeals, numbered 2017/4509 E. 2018/713 K. and dated 08.02.2018, while the foreign court should enforce only the part regarding non-pecuniary damage, the domestic court decision that encompasses the penalty sentence has been overturned;

“ABSTRACT: The case is about the recognition and enforcement of the foreign criminal court decision, which also includes individual rights.  It is understood that it was decided that the defendant was sentenced to 8 years in prison and paid 150.000 Euros of non-pecuniary damage, and the said decision became final on 04/03/2008. The recognition and enforcement of the decision numbered 459/07 dated 19/11/2007 given by the Ordinary Court of Appeals has been requested. The defendant defended the rejection of the case by declaring that he received a monthly retirement pension of 1,100,00 TL, that he is not able to pay the specified amount, and that he did not acknowledge court’s recognition and enforcement judgement. With the adoption of the case, the Court ruled that the exclusive jurisdiction of the Turkish Courts was not in question and that the provision was not obviously perverse to the public order and also adjudged the recognition and enforcement of the decision numbered 4590 which was given by Ordinary Court on the date 19 November 2007 and became final on 04/03/2008. 

Within the scope of the file; The case pertains to recognition and enforcement of a foreign criminal court decision, which also includes individual rights. As a result of the examination of the Ordinary Court’s decision dated 19/11/2007 and numbered 459/07; It is understood that the defendant was sentenced to 8 years in prison and paid 150,000 Euros for non-pecuniary damage, and the said decision became final on 04/03/2008. As stated in IPCPL article 50/2; An enforcement decision may also be requested for the provisions regarding personal rights in the foreign courts’ criminal writs. However, it was not correct for the court to give a recognition and enforcement decision, including the criminal provision in the foreign court decision. Therefore, the decision had to be reversed. CONCLUSION: due to reasons explained above the reversal of the appealed decision has been decided.” 

The 4th Civil Chamber of the Supreme Court, in its decision numbered 2018/3111 E. 2018/5995 K. and dated 08.10.2018, acknowledged that the decisions of foreign criminal courts regarding individual rights, which also rule on non-pecuniary damages, can be enforced in accordance with the provisions of IPCPL 50/2.

“…

The court decided to reject the recognition and enforcement of the District Court’s criminal verdict numbered 41 Hv 32/13s-65 dated 27/03/2014 with the reason that the decision was given regarding criminal case and with the reason that the defendant was sentenced to 8 years in prison because of non-pecuniary damages.

Within the scope of the file; The case pertains to recognition and enforcement of a foreign criminal court decision, which also includes individual rights.

As a result of the examination of the District Court’s verdict dated 27/03/2014 and numbered Hv 32/13s-65; It is understood that the defendant was sentenced to 8 years in prison and paid 150,000 Euros for non-pecuniary damage, and the said decision became final on 04/03/2008.

As stated in IPCPL article 50/2; An enforcement decision may also be requested for the provisions regarding personal rights in the foreign courts’ criminal writs. In accordance with the relevant legal regulation, the plaintiff has a legal interest in his or her personal claim for compensation. In this respect, while the request should be evaluated and concluded, the rejection of the case was not correct and the decision had to be reversed for this reason. CONCLUSION: Due to reasons explained in second paragraph above the reversal of the appealed decision has been decided.” Eventually, one of the prerequisites for enforcement in terms of International Procedural Law is the fact that the decision is related to a civil case. At this stage, the qualification of the judgement should be determined according to the nature of the decision’s provisions, not the title of the court that made the decision or the name given to the decision. This determination must be made by the lex fori principal in accordance with Turkish law. In line with IPCPL Art.50/2, the decision given by criminal courts related to personal rights can only be enforced in accordance with this part of the decision. In the doctrine and in the Supreme Court case law, non-pecuniary damages decisions are given as an example. these decisions should be considered criminal to the extent that they aim to deter, intimidate or heal on behalf of the public, rather than the rights arising from substantive law and their enforcement should not be accepted. If the law of obligations character of the compensation decision taken from the foreign criminal court comes to the fore, its enforcement may be accepted in Turkey. On the other hand, if it is given for the purpose of punishment, its enforcement will not be possible.

[1] ŞANLI Cemal / ESEN Emre / ATAMAN-FİGANMEŞE İnci, Milletlerarası Özel Hukuk, 8. Bası, İstanbul, 2020

*Yavuz&Uyanık Law Firm, Legal Intern