Enforcement of a Foreign (Romania) Judgment in Turkey
Author: Mr. Gökhan Cindemir , Phd Candidate , Senior Partner Lawyer cindemir@cindemir.av.tr
This article aims at explaining enforcement of foreign judgments obtained from Courts of Romania in Turkey. It explains the procedure of implementation of Romanian Decrees/Decisions in Romania based on judicial and legal cooperation agreement which enables reciprocity between Turkey and Poland as a core treaty. It also touches arbitral awards enforcement which are given by Romanian Courts.
There is a mutual international agreement (Legal, Commercial and Judicial Cooperation Agreement between Republic of Turkey and Romania ratified on date of 25/10/2007 and entered into force in 11/01/2008 by publishing of National Gazette) on legal cooperation between Turkey and Poland. This agreement is entered into force in Turkey in 2008. According to Article 16 of this agreement both countries are obliged to enforce court decisions in concerned with both countries. In addition Article 13 of the agreement stipulates that waiver of security deposit (Catio Judicatum Solvi) for filing cases in both countries.
Accordingly under this agreement, reciprocity principle between Romania and Turkey has become explicit. It means that Polish Judgments obtained from Romanian Courts shall be recognized and enforced without discussion of reciprocity thanking to the mutual agreement mentioned above.
In addition to that, agreement also enables enforcement of arbitral awards given by Romanian courts.
What are other conditions regarding enforcement of decree (from Romania) in Turkey?
Said international treaty also stipulates that other conditions regarding implementation of Romanian court decisions in Turkey. In 5th section of agreement, the provisions regarding the enforcement of decisions are as mentioned below:
Article 19 of treaty specifies the types of decision which can be enforced in both Romania and Turkey. Accordingly, the decisions must be given by court based on legal, compensation and criminal matters. Arbitral awards and settlement agreements concluded by the courts shall also fall into the content of this agreement.
Article 22 defines the methods of legal cooperation between Romanian and Turkish Courts in the matters of recognition and enforcement of court decisions. The court of mutual side can request information and documents regarding the decisions.
Article 23 of the treaty envisages that the decisions which have not become absolute shall not be enforced in the courts of parties.
Presence of Absoluteness decision: In this criteria, Turkish Courts are very strict as compared to other countries, despite of New York conventions spirit. Because 6th Article of the conventions’ definition is the word “binding” instead absoluteness”. Turkish Courts must take into account of this provision due to the superiority of International Agreements compared to ordinary Turkish Law.
This criteria generally makes applicant to obtain a new document related to judgment from a foreign court, clearly stating that the decision is not appealed. In practice, courts refuse to enforce a decision without that clarification, despite of the fact that defendant can explain to the court that the judgment is not absolute.
Therefore, upon judgment’s delivery it is better to have a separate document from the court that the judgment is not appealed by the other party and explanation that judgment is a final decision.
Right to Defend: If the defendant was not given a full right to defend themselves, and/or was not informed about the judgment, and was not represented at the court, then application to the court for the enforcement of a foreign judgment will be declined.
According to the agreement, the procedure of enforcement shall be implemented by the means of contracting states’ own national procedural law regarding implementation of foreign decrees.
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