Revista da EMERJ - V. 22 - N.3 - Setembro/Dezembro - 2020

19  R. EMERJ, Rio de Janeiro, v. 22, n. 3, p. 9-68, Setembro-Dezembro. 2020  4.EXECUTORY DECLARATION OF ENFORCEABILITY Similarly, the execution of a foreign Court ruling within Turkey is not possible unless a decision of enforceability (tenfiz kararı) is first issued by the competent Turkish Court. This deci- sion will first determine whether the first two basic conditions are met: either it is a matter of civil litigation or it is final 47 . Of course, for the recognition and enforcement of a foreign judgment, it must, in principle, be enforceable under the law of the State in which it was issued 48 . However, since this decision is not merely a finding of enforceability of the foreign judgment, but a decision of a Turkish Court investigating the existence of the relevant conditions required by law, its execution in Turkey is in accordance with the provisions of domestic law on forced and only if they allow it 49 . As is the case today, and in almost all European countries, the power of the judge to recognize and declare the enforcea- bility of the judgment does not extend to the substance of the case, hence can not re-judge the legal or substantive validity of the requests accepted 50 . By contrast, until the introduction of the first Turkish Code of Private International and Procedural Law in 1982, art. 540 of the Turkish Code of Civil Procedure stipulated that: “(…) the Court of First Instance shall, at its sole discretion, issue a declaration of enforceability (...)” 51 , leaving the judge the opportunity to recognize the foreign decision at its discretion, since there were no specific conditions for recognition 52 . The Court of first instance competent for the recognition and enforcement of foreign judgments is (art. 51 par. 1) the Court of first instance (asliye mahkemesi). However, in some cases, de- 47 A. ÇELIKEL, Milletlerarası Özel Hukuku, Beta Kitabevi, op. cit., pp. 590ss. 48 Thus, if according to the law of the State of origin of the decision, the limitation period has been reached, it can no longer be enforced within that State and therefore can not even be recognized or enforced in Turkey. 49 E. ΝOMER, Devletler Hususi Hukuku, op. cit. pp. 433ss. 50 Υ. 2. HD 24.04.2009, in İstanbul Barosu Dergisi, 2003, pp. 1012-1014. 51 G. TEKINALP, E. NOMER, N. AYSE ODMAN BOZTOSUN, International civil procedure, in B. Vers- chraegen, R. Blanpain, F. Hendrickx, Turkey, IEL Private international law, Kluwer Law International, 2012. 52 R. KORAL, Milletlerarası hakemlik alanında Yargıtay XI. Hukuk Dairemizin devrim Yargıtay son kararları, Milletlerarası Hukuk ve Milletlerarası Özel Hukuk Bülteni Cilt 8 Sayı 2, 1988, pp. 45ss.