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  42 ce of such a hearing shall be those of the foreign Court. It is therefo- re not lawful for the defendant’s assertion to execute, for example, the service of the claimwas filed within a shorter time limit than the Turkish Code of Civil Procedure and therefore the last condition of art. 54 is not met. However, in our view, we should not exclude the possibility of refusing to execute the decision in Turkey, for example, in foreign law, the termof service to a foreign resident was very short, but the reason for refusing the enforcement request should be sought in dealingwith such execution as contrary to the Turkish public order because of the violation of the right to a fair trial, which of course is being investigated ex officio 163 . As regards the burden of proof of inappropriate summons and representation of the defendant in the foreign Court, proof must be given to the claimant, who must provide all the information requi- red by law for the enforcement of the judgment. On the contrary, the defendant’s claim to prove that he was not summoned correctly is far from perfect, since his objection often refers to total ignorance of the trial and therefore no evidence is in his hands, unlike the plainti- ff, who also initiated the entire judicial process abroad 164 . In a case which divided theory and case law, the Turkish Court of Cassation was called upon to judge whether it is a vio- lation of the defendant’s right to defend himself against the en- forcement of the decision, not to represent the defendant in fault, not the plaintiff but the lawyer of the defendant himself. The question was, therefore, that, despite the fact that the defendant was lawfully summoned in time to appear in the trial, and to that end he instructed a lawyer to appear on his behalf, his lawyer was not represented by his own fault, the defendant has to be convicted and the decision against him be issued. The Court held that this case did not fall under the fourth indent of art. 54, as this would in principle require a lawful summoning of the adversary, which was not the case here 165 . 163 E. NOMER, Devletler Hususi Hukuku, op. cit., pp. 498ss. Also see: Y. 2. HD 04.10.2005 E.10735/K.13428 (Kazancı Hukuk Otomasyonu) 164 A. ÇELIKEL, Milletlerarası Özel Hukuku, Beta Kitabevi, op. cit., pp. 623ss. 165 Y. 2. HD 12.04.2000 E.2634/K.4605 (Kazancı Hukuk Otomasyonu).