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

43  R. EMERJ, Rio de Janeiro, v. 22, n. 3, p. 9-68, Setembro-Dezembro. 2020  It is noteworthy that the old Turkish Code of Private Inter- national and Procedural Law of 1982 laid down art. 38 and a fifth condition: if the defendant was a Turkish resident, the judgment could only be enforced if the foreign Court applied the lawwhich under the rules of association of the Turkish private internatio- nal law would be applied by a Turkish Court if it had been dealt with. This provision was intended to protect Turkish residents alone, precluding the possibility of coming from abroad even if it had adopted a law other than that applied by Turkish Courts. However, because of its purely subjective nature, this provision was removed from art. 54 of the Turkish Code of Private Interna- tional and Procedural Law 166 . With regard to the abrogated above provision, in many ca- ses in the past, the question has been raised whether a foreign decision can be enforced, although it has implemented Turkish law, but it has incorrectly applied it because of poor interpreta- tion or application of irrelevant provisions 167 or were wrongly as- sessed and despite the Turkish law the evidence 168 . Any rejection by the Turkish Court of the application for enforceability due to the incorrect application of the applicable law by the foreign Court would run counter to the basic principle of Turkish private international law that it has no right to review the content of the foreign decision. The position claimed was that such a decision was contrary to the Turkish public order, but that did not accept the case law of the Turkish Court of Cassation, which reiterated once again that the Turkish Court does not have the power to check the subs- tance of the case 169 . In a relevant plenary decision stating that it is not for the Turkish Court of recognition to determine whether the applicable law was correctly applied, the defendant had the possibility to challenge the foreign decision in a higher Court of the State in which it was issued proposing its political divisions, 166 M. ŞİMŞEK, Aile Mahkemele-rinin Görevine Giren Davalar Ve Yargılama Usulü, Vedat Kitapçılık, 2007. 167 Υ. 11. HD 15.09.1989 E.5912/K.4324 (Kazancı Hukuk Otomasyonu). 168 Υ. 11. HD 15.09.1989 E.5912/K.4324 (Kazancı Hukuk Otomasyonu). 169 Y. 2. HD 27/10/1995 E.10281/K.11167, in Yargıtay Kararları Dergisi,1996, pp. 528ss and Y. HGK 21.06.2000 E.1051/K.1068.