Enforcement of Foreign Judgments (Austria) in Turkey
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Author: Av. Gökhan Cindemir
Enforcement of a foreign (Austria) Judgment in Turkey – Is it possible to enforce Austrian judgments in Turkey?
There is a mutual international agreement (Legal, Commercial and Judicial Cooperation Agreement between Republic of Turkey and Austria ratified on date of 23/05/1989 and entered into force in 23/09/1991 by publishment of National Gazette) on legal cooperation between Turkey and Austria. This agreement is entered into force in Turkey in 1991. According to Article 1 of this agreement both countries are obliged to enforce court decisions pertaining to each other.
Accordingly under this agreement, reciprocity principle between Austria and Turkey has become explicit. It means that Austria Judgments obtained from Austrian Courts shall be recognized and enforced without discussion of reciprocity thanking to the mutual agreement mentioned above.
What are other conditions regarding enforcement of decree (from Austria) in Turkey?
Said international treaty also stipulates that other conditions regarding implementation of Austrian court decisions in Turkey. In the agreement, the provisions regarding the enforcement of decisions are as mentioned below:
Article 4 of treaty specifies the types of decision which can be enforced in both Austria and Turkey. Accordingly, the decisions must be given by court based on legal, compensation and criminal matters.
Article 11 defines the methods of legal cooperation between Austrian 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 3 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.
ABOUT THE AUTHOR: Attorney Gokhan Cindemir
He graduated from Anatolian High School of Karadeniz Eregli, after his graduation he studied in Belgium with AFS intercultural exchange program. He obtained his law license degree from Marmara University of Law Faculty. During his university education, he participated in Philip C. Jessup International Law Moot Court Competition on behalf of the Marmara University. After his admission to Istanbul Bar Association in 2009, he obtained master degree (LL.M) from Gent University / Belgium in the field of European and Comparative law. His master research was about Freedom of Establishment In Relation With Turkish rep. and EEC in the frame of Ankara Agreement. He is specialized in International Private Law, European Law, Real Estate Law, Penal Law and Tort Law. He speaks fluent English and has good command of Dutch and French. He is also authorized as a solicitor, barrister.