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judgment in Turkey are in violation of the public order or not.
Nevertheless, while assessing the noncompliance with public order, the
prohibition to review the merits of the case must be taken into consid-
eration. The court handling the enforcement request may not disregard
this prohibition by using its discretion. Assessment for enforcement is
limited to identification of the existence of requisite conditions for
enforcement. The due application of law and procedural provisions
to the merits of the foreign judgment may not be inspected (art 54
of IPPL).
The formal and material content of justification under the Turkish
law is regulated by the Civil Procedure Code. The justification is sub-
ject to the
lex fori
principle, as it is a matter of procedural law. Foreign
states may provide for different provisions under their procedural law
rules with respect to the justification. Therefore, the lack of justifica-
tion in a judgment and the violation of the fundamental right to defense
should be assessed as two separate and independent matters; and the
mere lack of justification in foreign judgments should not be assessed
as a violation of public order
per se
.
Turkish legal rules concerning verdicts under Turkish law should
not be applicable by analogy to a foreign court judgment regarded as a
“verdict” as per the procedural rules of a foreign state. Drawing con-
clusions from the existence or lack of justification in the foreign judg-
ments shall constitute assessment of compliance of the foreign verdict
with the civil and procedural Turkish law. This constitutes violation of
the prohibition of
révision au fond
. Any procedure to the contrary shall
constitute a renewal of the litigation procedure by Turkish courts.
The criteria to be taken into account for enforcement are whether
the verdict of the foreign decision explicitly violates the Turkish pub-
lic order or not. Bearing the prohibition of
révision au fond
in mind, in
order for the procedural law applied to a judgment to constitute an
obstacle to its enforcement, it shall
per se
violate the principles of due
and fair trial, prevent any defense and constitute a violation of the
Turkish public order.
The justification of the Decision specifically states that, instead of
the differences with the Turkish law or incompliances with mandatory
legal Turkish provisions of foreign judgments; what shall be taken into
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NEWSLETTER 2012