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

 R. EMERJ, Rio de Janeiro, v. 22, n. 3, p. 9-68, Setembro-Dezembro. 2020  38 11.(FOLLOWS) PROCEDURAL REASONS The impossibility of executing a foreign decision due to a clear opposition to Turkish public order exists also where the judge finds that the fundamental procedural rights recognized by Turkish law in the context of the right to a fair trial have not been respected. The violation of these fundamental principles, guaranteed both by the Turkish Constitution and by Internatio- nally ratified treaties, such as the European Convention on Hu- man Rights, during the adoption of the foreign decision prevents its execution in Turkish territory because of the opposition of the latter to the public order of Turkey 144 . Indicatively in this case it has been established by case law that the divorce decision issued by a foreign Court against a defendant spouse who did not re- side in the state of that Court and whose residence was known was summoned to the foreign Court as an unknown residence 145 , when it is sufficient for the defendant to be summoned abroad to publish it in a local form and not to personally call him 146 . An opposition to public order can also be based on cases where a reason for repeating the process 147 (yargılamanın yenil- mesi sebepleri), provided that this is foreseen by the procedural law of the Court seized. Such cases include inter alia the sub- sequent appearance of a substantive documentary evidence or proof of falsity on which the decision was based, as well as the subsequent conviction by the judge of misconduct against the 144 Turkey is a party to the 1961 European Convention on International Commercial Arbitration (“Geneva Convention”) and the 1958 New York Convention, which was ratified on 2 July 1992 and entered into force on 30 September 1992. Turkey also ratified many bilateral and multilateral treaties and conventions, such as the Convention on Settlement of Investment Disputes between States and Nationals of Other States (“ICSID Convention”), which entered into force in 1989 and the Energy Charter Treaty and Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA), which was published in the Official Gazette in year 2000. 145 Υ. 2. HD 25.06.2009, Κ.12603. This could also be included in the last provision of article 54, if a complaint ismade. 146 Y. 2. HD 26.06.1987, K.5571, in Yasa Hukuk Dergisi, 1998, pp. 1457, but where it is stated that if the defendant finally joined the trial, then there is no obvious opposition to the Turkish public order. 147 The term “yargılamanın yenilmesi” or “iade-i muhakeme” as defined in the old HMK could be attribu- ted to greek as a “rejoinder” as the relevant process of Turkish law resembles in many respects the provi- sions of 539 et seq. of the Greek Code of Civil Procedure. See in particular: Y. ALAGOYA, M.K. YILDIRIM, N.Y. DEREN, Medeni Usul Hukuku Esasları, Beta, 7. baskı İstanbul, 2001. A. ÇELIKEL, Milletlerarası Özel Hukuku, Beta Kitabevi, op. cit., pp. 566ss.