As a rule, a court judgment does not need to be finalized in order to be enforced or subjected to enforcement proceedings. Finalization of a judgment refers to the exhaustion of ordinary legal remedies or the failure of the parties to appeal the court decision within the prescribed period. Although finalization is not a prerequisite for initiating enforcement proceedings based on a court judgment, there are certain exceptions to this rule. Judgments that cannot be subjected to enforcement proceedings without finalization include:
1-Judgments Related to the Real Rights of Immovable Property:
Judgments resulting in a change of ownership rights are considered related to the real rights of immovable property. It is not possible to enforce such judgments through execution proceedings before they become final. Examples of lawsuits concerning the real rights of immovable property include cases for the removal of a mortgage, registration lawsuits, ownership determination lawsuits, lawsuits related to easement rights, and cases for the cancellation or correction of fraudulent registration.
Since the fundamental issue in such cases is the assertion of ownership rights, if there is no dispute regarding who owns the property, the judgment may be subject to execution. For instance, a lawsuit for the prevention of interference serves as an example of this principle. In cases like the prevention of interference, it is crucial to determine whether there is an ownership claim. If there is no dispute over ownership, finalization is not required for the judgment to be enforced. It should also be noted that in judgments concerning the real rights of immovable property, supplementary provisions of the judgment cannot be executed before finalization.
“…According to Article 443/4 of the abrogated Code of Civil Procedure (HUMK), which must be applied under the Provisional Article 3 of Law No. 6100 on Civil Procedure (HMK), judgments regarding real rights over immovable property cannot be enforced unless they become final. Therefore, for the enforcement of supplementary provisions within the same judgment, finalization of the judgment is mandatory. On the other hand, judgments that do not concern the real rights of immovable property (those related to personal rights over immovable property) do not require finalization for enforcement…” (Court of Cassation, 8th Civil Chamber, 2016/21779 E., 2017/1149 K., 06.02.2017)
Furthermore, in cases filed alternatively (cumulatively), if the primary subject matter of the lawsuit concerns the real rights of immovable property, the judgment cannot be enforced before it becomes final.
2-Judgments Related to Family and Personal Law:
Although judgments related to family and personal law cannot be enforced before they become final, there are exceptions to this rule. One such exception is the alimony granted as a precautionary measure during or before a divorce case. However, judgments regarding pecuniary and non-pecuniary compensation claims arising from divorce, child custody or visitation rights, rejection of paternity, and paternity lawsuits must become final before they can be enforced. Likewise, court rulings on the payment or annulment of poverty and child support cannot be enforced before they become final.
“…According to Article 350(2) of the Code of Civil Procedure No. 6100, decisions regarding personal law, family law, and real rights related to immovable property cannot be executed unless they become final. In this case, the enforcement of a judgment regarding child custody requires finalization…” (General Assembly of the Court of Cassation, 2013/8-2200 E., 2015/1223 K., 17.04.2015).
“…According to Article 443/4 of the Code of Civil Procedure No. 1086 (HUMK), provisions related to family and personal law cannot be enforced unless they become final. The provisions specified in this article do not cover all matters included in the Personal Law and Family Law sections of the Civil Code. Instead, they refer to judgments that directly affect an individual’s personal status or family structure, as well as secondary (subsidiary) provisions related to these judgments. Examples include name, surname, and age corrections, the removal of custody, paternity lawsuits, lineage correction, divorce, and its subsidiary provisions…” (Kuru, B.: Handbook of Execution and Bankruptcy Law, Ankara 2013, pp. 923-924) (General Assembly of the Court of Cassation, 2017/1928 E., 2020/854 K., 10.11.2020).
It should also be noted that personal law covers not only natural persons but also legal entities. Therefore, in cases involving legal entities, such as commercial companies, where changes in registry records are required, finalization is also necessary.
3-Judgments Regarding the Enforcement of Foreign Court or Arbitral Awards:
As a rule, judgments rendered by foreign state courts do not automatically have legal effect under Turkish law. For a foreign judgment to be considered final and binding under Turkish law, it must go through the recognition and enforcement process. Article 57 of the International Private and Civil Procedure Law (MÖHUK) stipulates that such judgments cannot be subject to enforcement unless they have become final.
“…Rent determination judgments (Decision of Unification of Case Law No. 1979/1-3 dated 12.11.1979), judgments related to negative declaratory actions (Article 72 of the Enforcement and Bankruptcy Law), and decisions regarding the enforcement of foreign court judgments cannot be executed before they become final…” (8th Civil Chamber of the Court of Cassation, 2016/640 E., 2016/9159 K., 26.05.2016).
4-Judgments Rendered in Negative Declaratory or Restitution Lawsuits:
A “negative declaratory action” is a lawsuit filed by the debtor to prove that they do not owe a debt, while a “restitution action” is a lawsuit filed after the debtor has paid the debt under the threat of enforcement. Neither the restitution action nor the negative declaratory action can be subject to enforcement before they become final. Similarly, litigation costs, attorney’s fees, and damages related to the case cannot be subject to enforcement before they become final.
“…Therefore, as of the date of the complaint, since the judgment subject to enforcement has not yet become final, even if the negative declaratory action has turned into a RESTITUTION ACTION, the enforcement of this judgment before it becomes final is not possible. The court should have ruled to accept the complaint, instead of rejecting the request with written justification…” (Court of Cassation, 12th Civil Chamber, 2018/5448 E., 2019/1883 K., 12.02.2019 T.)
5- Court of Accounts Judgments:
It is not possible for these decisions to be enforced before they become final. The reason for this is the characteristics of the administrative litigation system, the desire to protect public authority, and the need to maintain the balance between the administration and the individual.
6-The sections of criminal judgments related to compensation and litigation costs:
Criminal conviction judgments cannot be enforced before they become final, in accordance with Article 4 of Law No. 5275 on the Enforcement of Penal and Security Measures. Therefore, compensation, litigation costs, and attorney fees ordered as part of the conviction decision cannot be enforced unless the judgment becomes final.
7-Judgments related to all ships, regardless of their flag or registration, and the real rights associated with them:
As can be seen, it has been regulated that the enforcement of all judgments related to ships, not limited to real rights, requires the finalization of the judgment.
8-Judgments related to the acceptance of a claim for rightful ownership (Istihkak case).
A claim filed to determine the ownership of a disputed movable or immovable property is called an Istihkak case. In the case of the acceptance of an Istihkak claim, the ownership of the property will change, and therefore, the court judgments related to it cannot be enforced before they become final. However, in the case of the rejection of the claim, it is not necessary for the decision to become final in order for it to be enforced.
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