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

41  R. EMERJ, Rio de Janeiro, v. 22, n. 3, p. 9-68, Setembro-Dezembro. 2020  foreign judgment is abused, contrary to the rules of good faith, the application for recognition is rejected, because of its abusive nature, its recognition in Turkey would be contrary to the rules of public order 158 . 12.RESPECT FOR THE RIGHT TO LEGAL DEFENSE BEFORE THE JUDGMENT IS GIVEN TO THE FOREIGN COURT The last condition of art. 54 of Turkish Code of Private In- ternational and Procedural Law relates to the defendant’s en- forcement and refers to the right to defend his interests before the foreign Court during the hearing of the claim 159 , which is a manifestation of the right to a fair trial guaranteed by the Turkish Constitution and the European Convention of Human Rights 160 . Critical matters to which the law refers relate to a) an appropria- te appeal for representation during the hearing of the claim, b) whether he or she was actually represented in the trial, and c) if the case was lawfully discussed in absentia. However, the basic feature of this provision of art. 54 is that the Courtwill examinewhether the above conditions have beenmet only if the defendant has complained that none of them is fulfilled. That is to say, in this case, the condition is not investigated by the Court of its own motion, as is done on the condition of public order 161 , but only on appeal by the person against whom enforcement is sought 162 . The provisions of procedural law which will indicate how the defendant is summoned and represented in the proceedings and in the absen- 158 Y. HGK 11.10.1972 E.453/K.829, in İstanbul Barosu Dergisi, 1974, pp. 548 in which the application for recognition of a divorce decree issued abroad was dismissed as unfair and contrary to public order because the applicant spouse had been represented at the divorce proceedings brought by her husband in Turkey and had refused the basis of the claim for the rejection so that there is no res judicata for marriage on the basis of a decision by a Turkish Court so that it can freely recognize the decision favorable to that foreigner. 159 E. NOMER, Devletler Hususi Hukuku, op. cit., pp. 498ss. 160 See article 36 par. 1 of the Turkish Constitution and article 6 of ECHR. According to the Turkish case law, timely summons are therefore a prerequisite for a fair trial, since only so the defendant has the time to prepare himself properly to put forward the allegations and evidence he deems necessary, as well as to challenge his respective claimant, ΑΥΜ 28.09.1995 Ε.42/Κ.53 R.G. 16.05.1997, 22991 161 Y. 2. HD 25.06.1987 E. 4539/K.5571, in Yasa Hukuk Dergisi, 1988, pp. 1457ss. 162 Υ. 2 HD 04.11.2004, E; 10683/K.13120, in İstanbul Barosu Dergisi, 2007, pp. 709 which states that the examination of whether the foreign judge’s procedural rules have been complied with for the summoning or absent minded hearing of the case, doe not constitute a breach of the rule of non examination of the correctness of the foreign decision.