THE EVALUATION OF THE RECIPROCITY AS A CONDITION FOR THE ENFORCEMENT OF FOREIGN JUDGMENTS IN TERMS OF ART. 6(1) OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS IN TURKISH LAW

The reciprocity, which is one of the conditions that must be met for the enforcement of foreign judgments pursuant to Art.54 of Turkish Code on Private International Law and International Civil Procedure numbered 5718 (CPIL), does not objectively take into account of the interests of the parties to the enforcement proceedings, nor it is completely uncertain what kind of interest the enforcing state has in seeking such a condition for a foreign judgment to be enforced. The reciprocity, which can be regarded as a condition prescribed by the state with a purely psychological motive, leads to an inequality in favour of defendant between the parties to the enforcement proceedings. Because, when taken together with other conditions for enforcement under Art.54 of CPIL, the defendant, whose interests can be adequately protected via other conditions, is provided with unnecessary protection which seriously affect the outcome of enforcement proceedings. For this reason, the application of such condition to enforce a foreign judgment, which is purely based on the origin of judgment in question, may also cause serious problems in terms of human rights. Especially considering the claimant’s right to a fair trial pursuant to Art.6(1) of the European Convention on Human Rights (ECHR), the application of this condition may cause a violation of that right of the claimant, who wants to enjoy a private right based on a foreign judgments in the enforcing state. In this study, it has been examined whether the application of reciprocity as a condition to enforce a foreign judgment could indeed violate Art. 6(1) of the ECHR or in which cases such a violation may occur. In this context, it has been tried to analyze how the European Court of Human Rights (ECtHR) assess whether Art. 6(1) of the ECHR was actually violated by the Turkish courts via application of reciprocity in the light of case law of the ECtHR