Türkiye Barolar Birliği Dergisi 143.Sayı

332 Yabancı Mahkeme Kararlarının Tenfizinin Mütekabiliyet Şartına Bağlanması ile ... m.54(a)’da düzenlenen mütekabiliyet ile AİHS arasındaki ilişkinin ortaya konması, AİHS’nin Türk mahkemelerince ihlal edilmesinin ön- lenmesi bakımından yararlı olacaktır. Anahtar Kelimeler: Mütekabiliyet, Yabancı Mahkeme Kararları- nın Tenfizi, Avrupa İnsan Hakları Sözleşmesi, Adil Yargılanma Hakkı, Mülkiyet Hakkı, Aile Hayatına Saygı Hakkı Abstract: The reciprocity is accepted as one of the conditions that must be met for the enforcement of foreign judgments pur- suant to Art.54 of Turkish Code on Private International Law and International Civil Procedure numbered 5718 (CPIL). The reciprocity does not objectively take into account the interests of the parties to the enforcement proceedings, nor it is completely uncertain abo- ut 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 de- fendant between the parties to the enforcement proceedings. Be- cause, when taken together with other conditions for enforcement under Art.54 of CPIL, the defendant, whose interests can be ade- quately protected via other conditions, is provided with unneces- sary protection which seriously affect the outcome of enforcement proceedings. For this reason, it has been questioned whether it is appropriate to seek reciprocity as a condition to enforce a foreign judgment in Turkish private international law doctrine for years. The application of such a condition to enforce a foreign judgment, which is purely based on the origin of judgment in question, may also ca- use serious problems in terms of human rights. Especially conside- ring the claimant’s rights contained in the European Convention on Human Rights (ECHR), the application of this condition may cause a violation of a related Conventional right of the claimant, who wants to enjoy a private right based on 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 inde- ed violate the Conventional rights, or in which cases such a violation may occur. In this context, it has been tried to be analyzed how the European Court of Human Rights (ECtHR) assess whether a right contained in the ECHR such as Art. 6(1) of the ECHR, Art.8 of the ECHR and Art.1 of First Protocol of the ECHR was actually violated by the Turkish courts via application of reciprocity in the light of case law of the ECtHR. Thus, introducing the relationship between the reciprocity prescribed by the Art. 54/a of the CPIL and the ECHR wo- uld be helpful in order to prevent possible violations of some of the rights, in particular the claimant’s rights contained in the ECHR by Turkish courts. Moreover, that would be helpful to prevent Turkey’s possible conviction before the ECtHR due to application of recipro- city in a manner incompatible with ECHR as well. Keywords: Reciprocity, Enforcement of Foreign Judgments, European Convention on Human Rights, Right to a Fair Trial, Right of Property, Right to Respect for Family Life