Case No: 2023/1038
Decision No: 2024/538
Decision Date: 06.11.2024

country law • ex parte proceeding • vested right • simplified procedure • answer pleadings • absence of procedural requirement • acceptance of case • decision of persistence • decision of arbitration tribunal • appeal • reciprocity principle • direct evidence • preliminary examination • procedural vested right • enforcement of will • recognition and enforcement of a foreign judgment • jurisdiction plea • competent court

absence of procedural requirements

judgment call / arbitral award

procedural vested right

 

The Court: Civil Court of First Instance

Case No: 2022/432 M.(Merits no), 2023/134 D. (Decree no)

Decision: Uphold the case

Special Chamber Verdict: Court of Cassation, 7th Civil Chamber, Decision of Reversal dated 03.11.2022, Case No: 2021/5683, Decision No: 2022/6587

Following the action for recognition and enforcement of a foreign judgment, the court of first instance rendered a judgment in favor of the plaintiff.

Upon appeal by the defendant heir’s attorney, the regional appellate court dismissed the appeal on the merits.

This decision was then appealed to the Court of Cassation, which reversed the judgment. The court of first instance persisted in its original ruling (issued a resistance decision).

The resistance decision was also appealed by the defendant heir’s counsel […]. Following a procedural review, the appellate request was accepted; however, since Article 369 of the Turkish Code of Civil Procedure (Law No. 6100) does not permit oral hearings in resistance appeals, and Article 373 does not allow hearings either, the request for oral hearing was denied. The file was then reviewed on the merits:

I. THE CASE

1. In the petition, the plaintiff’s counsel requested the opening and reading of the will prepared before Frankfurt am Main Notary Dr. K1 on 30.12.2003, and the adoption of necessary precautionary measures regarding the estate. In the hearing dated 26.06.2019, the plaintiff amended the action, requesting it to be considered as a recognition and enforcement case.

II. DEFENSES

1. The counsels of heirs […] stated during the hearings that the case was initially filed for the opening of the will, but later reclassified as an enforcement action, which they did not accept. They also noted their intent to initiate an annulment action regarding the will and argued that, since the deceased had no domicile, the court where the property is located has jurisdiction.

2. Some heirs’ attorneys requested that the claim be accepted and stated they did not accept the objection to jurisdiction.

3. The beneficiary of the will, […], submitted a written response stating that he had no objections to either the will or the lawsuit.

III. JUDGMENT OF THE COURT OF FIRST INSTANCE

1. The 2nd Civil Court of Peace of Trabzon, in its decision dated 26.06.2019 (File No: 2018/48, Decision No: 2019/680), ruled to dismiss the case on the grounds of “absence of procedural condition,” as the plaintiff had ultimately classified the claim as one for recognition and enforcement. The court declared itself incompetent and ordered that the file be forwarded to the competent and authorized Civil Court of First Instance of Trabzon upon request within two weeks of the finalization of the decision. The decision was appealed. Samsun Regional Court of Appeal (1st Civil Chamber) rejected the appeal on the merits.

2. Upon the plaintiff’s request, the file was transferred to the Trabzon Civil Court of First Instance. In its decision dated 26.11.2020 (File No: 2020/324, Decision No: 2020/649), the court stated that although the opening of the will is not a contentious legal matter, it nonetheless required a judicial decision for the will to be officially opened. Therefore, the court recognized and enforced the non-contentious decision of the Frankfurt am Main Probate Court (File No: 51 IV 133704/90 M, dated 18.01.2018).

IV. APPEAL (İstinaf)

A. Appellant:

The aforementioned decision was appealed within due time by the counsel for the defendant heir.

B. Reasoning and Conclusion:

The Regional Court of Appeal, in its decision dated 21.05.2021 (File No: 2021/868, Decision No: 2021/998) and 1st Civil Chamber, held that there was no legal or procedural error in the factual and legal assessment made by the first instance court and thus rejected the appeal on the merits.

V. ANNULMENT AND POST-ANNULMENT JUDICIAL PROCEEDINGS

A. Reverse Decision

1. An appeal was filed in due time by the attorney of the defendant heir against the decision of the Regional Court of Appeal as mentioned above.

2. By its decision bearing the date and number indicated above, the 7th Civil Chamber of the Court of Cassation annulled the judgment, reasoning that: “Regarding the decision rendered by the Frankfurt am Main Civil Court – Probate Division (File No. 51 IV 133704/90 M, dated 18.01.2018), which was prepared by a judicial officer and recognized by the first instance court, the plaintiff requested that the said decision be finalized. However, in the court’s response dated 24.04.2018, it was stated that the certified copy of the will and the protocol of the opening were returned, and that no finalization statement could be affixed to the protocol of opening, as such annotations are only applied to actual court decisions. Since the procedure of opening the will does not constitute a judgment rendered by a court, it cannot be finalized either.

6.3.2. Pursuant to Article 50 of the Turkish Private International and Procedural Law (Law No. 5718), whether a decision qualifies as a “court judgment” is to be determined not based on the designation or title of the issuing authority, but on the substantive nature of the ruling. Furthermore, the question of whether a foreign decision constitutes a court judgment must be determined in accordance with the law of the issuing country.
(ŞANLI, Cemal / ESEN, Emre / ATAMAN FİGENMEŞE, İnci, Milletlerarası Özel Hukuk, 8th ed., Istanbul, 2020, p. 565)

In fact, in the official response dated 24.04.2018 regarding the case file numbered 51 IV 133704/90 M of the Frankfurt am Main Civil Court – Probate Division, it was explicitly stated that the relevant act was not a court judgment but a protocol of opening, and therefore a finality annotation could not be applied. Accordingly, the decision sought to be recognized—Frankfurt am Main Civil Court – Probate Division, File No. 51 IV 133704/90 M, dated 18.01.2018—does not constitute a court judgment under the law of the issuing country.
Thus, the judgment of the First Instance Court, which overlooked this fact and accepted the claim, and the Regional Court of Appeal’s decision to dismiss the appeal on the merits are both found to be legally incorrect.

Even assuming, for the sake of argument, that the aforementioned decision could be considered a judgment eligible for recognition under Turkish law, Article 53/b of Law No. 5718 still requires the plaintiff to attach proof that the foreign judgment has become final, such as a finality certificate or similar document. In this case, however, the plaintiff submitted no such proof, and moreover, the court’s own response of 24.04.2018 explicitly states that no finality annotation could be applied to a protocol of opening, confirming that the decision is not capable of finalization under the foreign law. Therefore, it is clear that the foreign decision sought to be recognized does not fulfill the requirement under Article 50 of Law No. 5718, namely that the decision must be final under the law of the issuing country.

In light of the foregoing, since the decision sought to be recognized pertains to a protocol of opening and does not constitute a court judgment, and hence fails to meet the conditions stipulated under Article 50 of Law No. 5718, the case should have been dismissed.
However, both the First Instance Court and the Regional Court of Appeal rendered judgments in disregard of these essential legal considerations, which were found to be erroneous. The decision was overturned on the grounds.

B. Resistance Decision Rendered by the Court of First Instance

In its resistance judgment dated as previously stated, the First Instance Court reiterated the grounds set forth in its previous decision, and further reasoned that: Although the German court had characterized the act as “not a court judgment,” this must be interpreted merely as a determination that the matter was non-contentious in nature. A judicial determination confirming the opening and reading of a will, even if non-contentious, is still necessary in order for it to have legal effect in the external world. Accordingly, such non-contentious court decisions constitute an exception to the general rule under Article 50 of Law No. 5718, which requires a foreign judgment to be final in order to be recognized or enforced.

VI. APPEAL (temyiz)

1. 1. Appellant:

The resistance decision was appealed within the legal period by the counsel for the defendant heir.

B. Grounds for Appeal:

The counsel argued in the appeal petition that: The decision in question does not constitute a judicial judgment; The second paragraph of the First Instance Court’s decision incorrectly included a statement that the will had been read; The Trabzon courts lacked jurisdiction. Therefore, the annulment of the judgment was requested.

C. Dispute:

The central legal issue brought before the General Assembly of Civil Chambers by means of the resistance decision is whether the conditions required under Turkish law have been met for the recognition and enforcement of a will that was opened and read abroad.

D. Reasoning:

1. Relevant Law:

The applicable legal provisions are Articles 50 to 59 of the Private International and Procedural Law Act (Law No. 5718), and Article 2 of the Turkish Civil Code (Law No. 4721).

2. Evaluation:

2.1. The subject of the lawsuit concerns the recognition and enforcement of a will drafted and executed abroad. Therefore, it is first necessary to examine the relevant legal framework and the nature of the legal concepts involved.

2.2. As a general principle of international law, court decisions do not automatically produce effects in foreign countries due to state sovereignty. Hence, enforcement of a judgment from one country cannot directly trigger executive measures in another, nor can it bind the courts of that foreign country. Each state exercises judicial power only within its territory.

2.3. For a foreign court judgment to produce legal effect and consequences outside the country in which it was rendered, it must be either recognized or enforced by the relevant foreign jurisdiction. As a rule, recognition and enforcement are carried out through a separate lawsuit. Once the recognition or enforcement judgment is granted, the foreign judgment acquires the force and nature of a domestic court decision within the jurisdiction of the recognizing state.
Whether the plaintiff should bring an action for recognition or enforcement depends on the substantive content of the foreign decision. If the content of the judgment necessitates recourse to an enforcement office, i.e., if it requires activation of the foreign state’s enforcement mechanisms, then the appropriate legal remedy is an action for enforcement. However, if the judgment does not have this characteristic, then an action for recognition must be filed.
In some cases, where a foreign judgment would normally require enforcement, it is accepted that an action for recognition may be filed instead, provided the plaintiff has a legitimate interest in seeking recognition rather than enforcement.

2.4. In the Turkish Legal Dictionary, recognition is defined as: “The acceptance of a foreign court or arbitral award as having the legal effect of res judicata (final and binding judgment) within the country.” (Turkish Legal Dictionary, Ankara, 2021 Edition, Vol. I, p. 1060)

2.5. Under Turkish law, the rules governing the recognition and enforcement of foreign judgments are found in the Second Part, Second Section of the Private International and Procedural Law Act (Law No. 5718). Articles 50 to 57 govern enforcement, while Articles 58 and 59 govern recognition.

2.6. As is well known, under the provisions of Law No. 5718, the conditions for recognition and enforcement are divided into two categories: Preliminary (formal) conditions, and Substantive conditions. Article 50(1), titled “Enforcement Decision,” provides: “The enforcement of judgments rendered by foreign courts in civil matters, which have become final in accordance with the laws of that state, is subject to an enforcement decision issued by the competent Turkish court.” Accordingly, the preliminary conditions necessary for granting an enforcement decision include the existence of a foreign judgment rendered by a foreign court, the fact that the judgment must relate to civil matters, and the fact that the judgment must be final and binding under the laws of the issuing country.

2.7. The substantive conditions required for granting recognition or enforcement are set forth in Article 54 of Law No. 5718, titled “Conditions for Enforcement,” as follows:

“(1) The competent court may grant enforcement under the following conditions:

a) A bilateral treaty on reciprocity exists between the Republic of Türkiye and the state where the judgment was issued, or there is a statutory provision or actual practice in that state allowing the enforcement of decisions rendered by Turkish courts.

b) The judgment must have been rendered on a matter not subject to the exclusive jurisdiction of Turkish courts, or, if an objection is raised, must not have been rendered by a court that was granted jurisdiction by the parties despite having no genuine connection with the subject matter or the parties.

c) The judgment must not be manifestly contrary to Turkish public order (ordre public).

ç) The person against whom enforcement is sought must have been duly summoned or represented before the foreign court in accordance with the procedural laws of that state, or, in cases of default judgment, the person must not have objected to the enforcement request in Türkiye on the grounds of lack of proper notice or representation.” According to these provisions, for a foreign judgment to be enforced in Türkiye, the following must be satisfied: There must be reciprocity between the state where the judgment was issued and Türkiye; The judgment must not fall within the exclusive jurisdiction of Turkish courts, or, if an objection is raised, it must not have been rendered by a court lacking a genuine connection to the dispute or the parties; The judgment must not violate Turkish public policy; The judgment must have been rendered in accordance with due process, with proper notice and an opportunity to be heard.

2.8. In recognition or enforcement lawsuits concerning foreign judgments, Turkish courts may only examine whether the statutory conditions for recognition or enforcement have been met. They may not evaluate the accuracy of the procedural rules applied by the foreign court, nor the substantive or legal findings in the judgment. This is known as the “prohibition of revision au fond”. In its judgment dated 10.02.2012, Case No: 2010/1, Decision No: 2012/1, the Plenary Assembly on the Unification of Judgments of the Court of Cassation held that: “The enforcement judge has no authority to examine or assess the substantive accuracy of the foreign judgment. Within this framework, the judge cannot examine the reasoning of the judgment either. The presence or absence of reasoning is not relevant for determining whether the judgment violates public policy. The principles enshrined in Article 141 of the Turkish Constitution regarding procedural law apply exclusively to Turkish courts. If the enforcement of the operative part of a foreign judgment would produce consequences contrary to public policy, enforcement shall be denied. The mere absence of reasoning in a finalized foreign judgment shall not bar enforcement and shall not constitute a violation of public policy under Article 54(c) of Law No. 5718.”

2.9. Every court decision produces two main effects: conclusive evidence and res judicata (enforcement capability). Some court decisions may also possess enforceability (See: Mehmet Köle, Procedure of Recognition and Enforcement of Foreign Judgments, DergiPark, p. 41). The legal justification for the recognition of a foreign judgment lies in its res judicata effect.

2.10. Res judicata refers to a legal reality that definitively resolves a dispute and prevents the same matter from being re-litigated between the same parties on the same grounds before a judicial authority. Judgments that constitute res judicata generally also carry enforceability, except in certain exceptional cases. However, there are also court judgments that possess res judicata without enforceability. Whether a judgment contains both the effects of res judicata and enforceability is determined by the legal nature of the judgment under the law of the issuing court. This legal assessment applies equally to foreign judgments. Substantive res judicata has two consequences due to its nature: The judgment constitutes conclusive evidence, and in the event of a new case filed on the same matter, between the same parties, and on the same legal grounds, the opposing party may raise an objection based on res judicata.

2.11. In legal doctrine, recognition is defined as: “The acceptance of the res judicata effect of a judgment in a foreign country.” While enforcement is defined as: “The activation of public authority for the purpose of material execution based on the res judicata effect of a judgment.” (Pelin Güven, Recognition-Enforcement, Ankara, 2013, pp. 23–24)

2.12. Article 59 of the Private International and Procedural Law Act (Law No. 5718), titled “Effect of Res Judicata and Conclusive Evidence”, provides: “The res judicata or evidentiary effect of a foreign judgment shall take effect from the moment the judgment becomes final under the law of the issuing country.” This provision clarifies that the legal effect of res judicata or the evidentiary value of a foreign judgment begins not from the moment of its recognition in Türkiye, but rather from the date it became final in the issuing state. In other words, recognition decisions operate retroactively from the finalization date of the foreign judgment. As a result, all legal consequences tied to the finalization of the foreign judgment also take effect as of that earlier date.

2.13. In light of the above explanations, according to Article 50(1) of Law No. 5718, the enforcement of foreign judgments is only possible if: The judgment was issued by a foreign court; It concerns civil matters; and it has become finalized under the laws of the issuing country.

2.14. Accordingly, any foreign court judgment issued on claims related to substantive civil law is potentially eligible for enforcement. However, whether such a judgment constitutes a court decision and whether it has become final must be determined exclusively under the procedural law of the issuing state. This approach reflects the universally accepted principle of lex fori—meaning that a court applies its own procedural law—and is firmly entrenched both in international practice and Turkish judicial application.

2.15. In this context, just as it would be inconceivable for a foreign state to qualify a court judgment rendered by a Turkish court as a decision based on its own procedural law, likewise, it is not possible for the status of a foreign court decision as a ‘judgment’ to be determined according to Turkish procedural law. Indeed, it is clear that Article 54 of Law No. 5718—which regulates the procedural requirements for enforcement—must be interpreted in light of the principle that such requirements are to be assessed according to the procedural law of the court rendering the decision. Therefore, a foreign court decision that is not recognized as a ‘judgment’ under its own procedural law cannot be characterized as a judgment by analogy through reference to Turkish legal classifications. Consequently, only those foreign judgments that fulfill the specific and limited conditions enumerated in Law No. 5718 may be subject to enforcement in Türkiye.

2.16. As a general rule, every court applies its own procedural law (lex fori). Hence, the mere fact that the foreign court followed procedures different from Turkish law does not justify a public policy violation. Turkish enforcement law focuses solely on whether the effects of the foreign judgment would clearly violate Turkish public policy. The procedural path leading to the foreign judgment cannot be scrutinized.

2.17. In the present case, the decision dated 18.01.2018, file no. 51 IV 133704/90 M, issued by the Frankfurt am Main Civil Court – Probate Division, was requested to be finalized by the plaintiff. However, in the response dated 24.04.2018, it was stated that the certified copy of the will and the protocol of opening were returned, and that finalization is not possible, since only court judgments that are subject to appeal may be finalized. The opening of a will does not constitute a court judgment, and therefore, no finality annotation may be applied.

2.18. As such, the decision sought to be recognized and enforced is merely a will-opening procedure conducted under the procedural rules of the foreign court. It is not a court judgment and cannot be finalized. Therefore, it does not qualify as an enforceable judgment under Articles 50 and subsequent of Law No. 5718.

2.19. During deliberations within the General Assembly, it was argued that: enforcement proceedings follow the simplified trial procedure; failure to submit a finalized judgment violates procedural vested rights; since inheritance matters fall under the exclusive jurisdiction of Turkish courts, recognition/enforcement should not be allowed; the phrase “reading of the will” should be removed from the judgment, as the will-opening decision is merely a declaratory determination. However, these views were not accepted by the majority of the Assembly.

2.20. Accordingly, the decision to resist the Court of Cassation’s reversal ruling was incorrect.

2.21. The resistance decision must be annulled.

 

VII. DECISION

For the foregoing reasons:

The appeal of the defendant heir’s attorney’s acceptance, and the resistance decision is annulled pursuant to Article 371 of the Code of Civil Procedure (Law No. 6100) based on the reasons stated in the reversal judgment of the Court of Cassation.

The file is to be remanded to the Trabzon 2nd Civil Court of First Instance pursuant to Article 373(2) of the same Law.

This decision was rendered on 06.11.2024, by majority vote, and is final.

 

“DISSENTING OPINION”

The first paragraph of Article 50(1) of the Private International and Procedural Law Act (Law No. 5718) states: “The enforcement of judgments rendered by foreign courts in civil matters, which have become final in accordance with the laws of that state, is subject to an enforcement decision issued by the competent Turkish court.”

Article 54, which regulates the conditions for enforcement, requires:

a) The existence of a bilateral treaty or legal provision or actual practice based on reciprocity between the Republic of Türkiye and the state where the judgment was rendered.

b) That the judgment was not issued on a matter within the exclusive jurisdiction of Turkish courts or, in the event of an objection, that it was not rendered by a court that has no genuine connection to the subject or the parties.

c) That the judgment is not manifestly contrary to public policy.

ç) That the person against whom enforcement is sought was duly summoned or represented in accordance with the procedural rules of the issuing state, and that they did not object on these grounds during the enforcement proceedings in Türkiye.

According to Article 52 of Law No. 5718, any person with a legal interest may seek recognition or enforcement of a foreign judgment.

Article 55 stipulates that non-contentious decisions are also subject to these provisions and, if unopposed and rendered without parties, the notification requirement does not apply.

In the present dispute, the plaintiff’s attorney requested the enforcement of the decision dated 18.01.2018, File No. 51 IV 133704/90 M, issued by the Frankfurt am Main Civil Court – Probate Division, regarding the opening of a will prepared before Notary Dr. K1 on 30.12.2023. The Trabzon 2nd Civil Court of First Instance accepted this request. The defendant’s heir appealed, and the Samsun Regional Court of Appeal, 1st Civil Chamber, rejected the appeal. On further appeal, the Court of Cassation held that the decision in question was not a court judgment but a protocol of opening, and thus could not be finalized. It concluded that the document was not a judgment under the law of the issuing state and lacked the necessary conditions under Article 50 of Law No. 5718, requiring dismissal of the claim.

In its resistance decision, the first instance court reasoned that if the document is not considered a judgment, this would mean that wills validly prepared and opened under German law would have no legal effect in Türkiye, which contradicts the will-maker’s intentions and cannot be justified legally.

The decision dated 18.01.2018 concerns the opening of a will executed by an individual born on 25.05.1956 in Arsin/ Türkiye and who passed away on 26.12.2017 in Frankfurt am Main. It was recorded that the testamentary document was opened and closed in accordance with procedural formality.

According to Articles 7 and 20 of Law No. 5718, the form of testamentary dispositions is subject to the law of the place where the disposition was made, the applicable law governing the transaction, or the national law of the deceased. This principle seeks to uphold the validity of the decedent’s last wishes. Moreover, Türkiye became a party in 1983 to the 1961 Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions.

The will, subject to enforcement, was prepared under the applicable law of the place where it was made and is valid. The will-opening procedure was carried out under the court’s supervision, and correspondence occurred with the Frankfurt am Main Probate Court.

The fact that the will was opened by a judicial officer rather than a judge does not change the fact that the document is court-related. The enforcement judge may not examine the correctness of the foreign court’s substantive determination. It is not the content of the applicable foreign law, but the legal effects of enforcement, that must be evaluated in terms of public policy. A judgment cannot be denied enforcement solely because it contradicts Turkish substantive law. (Ömer Uğur Gençcan Inheritance Law-Extended 4th Edition pages. 808, 809, 815-818).

Since the opening of the will was conducted according to foreign procedural law, its enforceability must be accepted unless the legal effect violates public order. If that foreign law does not provide for finalization in such proceedings, then seeking finalization under Turkish enforcement law is unwarranted.

It is also understood from the case file that the German part of the will has already been executed, and the Turkish part requires enforcement in Türkiye.

The fact that the will was opened by a judicial officer rather than a judge and was described as a protocol of opening in the German court’s response pertains to German procedural law. Nonetheless, for enforcement purposes, the document should be considered a court-related instrument.

Sometimes, a teleological interpretation (interpretation based on purpose) should be preferred over a strictly literal one. Since the will-opening procedure is non-contentious, it is natural that no notification or finalization would occur.

The opening of a will is a non-contentious judicial matter, and therefore, it is naturally accepted that no service of process or finalization (res judicata annotation) is required. The opening of a will constitutes a declaratory judgment, and no further judicial confirmation—such as verifying the absence of any objection—should be issued in this regard.
Instead, any such determination shall be evaluated within the context of a separate lawsuit regarding the enforcement and registration of the will, as consistently held by the 3rd Civil Chamber of the Court of Cassation (See decisions: 14.09.2009, Nos. 12139, 13690; 15.09.2009, Nos. 9713, 13820; and 01.06.2010, Nos. 3382, 9673).

Although the will-opening procedure conducted by the Frankfurt am Main Civil Court – Probate Division was carried out under judicial authority and supervision, and the court itself was the formal addressee of the matter, the declaratory nature of the decision still requires enforcement (tenfiz) in Türkiye in order to have legal effect. Accordingly, it is necessary to interpret the relevant statutory provisions teleologically (purposively). While we believe that the resistance decision is substantively correct, since the decision in question concerns only the opening of the will, and the judgment mistakenly refers to the reading of the will as well, we are of the opinion that the phrase “reading”  must be removed from the judgment. Therefore, the resistance decision should be affirmed with correction, and we do not concur with the majority opinion that the judgment should be reversed.

“DISSENTING OPINION”

The case concerns the recognition of a foreign court decision regarding the opening of a will.

The action was filed on 12.01.2018. According to Article 55 of Law No. 5718, such proceedings follow the simplified procedure, and all evidence must be submitted with the initial petition. Article 54 requires the submission of a finalized foreign court judgment. The foreign judgment was submitted on 18.01.2018. Its later submission violates procedural vested rights and is contrary to the law. Although it has been argued that the foreign decision is not finalized under Article 54, it must be noted that the decision was rendered in non-contentious proceedings and, therefore, does not require finalization.

The document bears a court case number. However, the reference to “finality annotation cannot be given” due to its non-contentious nature has been misinterpreted. It does not mean the decision is not a court judgment.

According to Article 43 of Law No. 5718, inheritance matters fall under the exclusive jurisdiction of Turkish courts, and under Article 54(1)(b), decisions on such matters cannot be recognized or enforced.

Therefore, due to the late submission of the decision and its subject matter falling within the exclusive jurisdiction of Turkish courts, I am of the opinion that the judgment must be annulled, and I dissent from the majority view.