Introduction

Judgments rendered by courts are binding upon the parties by virtue of their content; yet, unless enforced, they retain only normative and abstract binding force. Put differently, while a judgment produces legal consequences, it does not in itself generate a tangible effect. Enforcement, in this sense, signifies the process by which a judicial decision is rendered practically operative and effectively implemented vis-à-vis the parties. Finality, by contrast, refers to the stage at which a judgment becomes unalterable and acquires the authority of res judicata either because ordinary legal remedies have been exhausted or because they are no longer available.

Under the Turkish judicial system, pursuant to Articles 350 and 367 of the Code of Civil Procedure No. 6100 (”CCP”), the mere filing of an appeal before the regional appellate court or the Court of Cassation does not automatically stay the enforcement of a first-instance judgment. Accordingly, where a court of first instance grants the claim, the claimant may proceed with enforcement unless the defendant secures a stay of execution. However, in the second paragraphs of these provisions, the legislature departs from this general rule by introducing a requirement of finality for judgments concerning personal status, family law, and rights in rem over immovable property.

Difficulties arise in cases structured as alternative pleading under the CCP, where multiple claims are advanced within the same lawsuit in a principal–subsidiary relationship. In such cases, the principal claim may fall within the categories subject to the requirement of finality -namely, matters relating to personal status, family law, or rights in rem over immovable property- whereas the subsidiary claim may not. This gives rise to the question of which claim should govern the determination of whether finality is required for purposes of enforcement.

The Criterion of Finality in Determining Enforceability

The General Assembly of Civil Chambers of the Court of Cassation (”GACC”) emphasizes that, in determining whether a judgment must attain finality before enforcement, the decisive consideration is not the formal designation of the lawsuit, but rather the concrete effect produced by the judgment at the conclusion of the proceedings. Accordingly, in a case structured as alternative pleading where the principal claim concerns a right in rem over immovable property and the subsidiary claim seeks damages, if the court’s ruling is confined solely to compensation for loss and does not affect the immovable itself, the requirement of finality does not apply for purposes of enforcement.

In one decision, the GACC addressed a dispute initially brought as an action for cancellation and registration of title, which was subsequently converted through amendment into a claim for pecuniary compensation. The Court stressed that enforceability must be determined not by reference to the original characterization of the lawsuit, but by the operative part of the judgment. Observing that the ruling concerned solely the recovery of a monetary claim and did not affect any alteration in the land registry, the Court concluded that the judgment did not constitute a decision relating to rights in rem over immovable property and could therefore be enforced through execution proceedings without attaining finality [1].

In another decision, where the judgment ordered the determination and cessation of unfair competition together with pecuniary and non-pecuniary damages, the GACC underlined that the ruling did not alter the parties’ personal or family status, nor did it produce any modification in the commercial registry. Characterizing the decision as a performance judgment directly affecting the parties’ patrimonial sphere, the Court held that such judgments are not subject to the requirement of finality and may be enforced without awaiting the exhaustion of appellate remedies [2].

Similarly, in a further ruling concerning non-pecuniary damages arising from violations of personality rights, the GACC emphasized that, although the claim was grounded in the provisions of the Turkish Civil Code relating to personal law, the judgment did not affect any change in the parties’ personal or family status or in any public register. The compensation awarded was deemed to constitute a performance judgment affecting solely the parties’ assets. Accordingly, such monetary awards were found not to be subject to the requirement of finality and capable of enforcement prior to becoming final [3].

The approach adopted by the GACC has likewise been endorsed by the Civil Chambers of the Court of Cassation. In particular, the 8th Civil Chamber has expressly held that even where a lawsuit is brought seeking cancellation and registration of title, together with a related claim for payment of the sale price, if the court dismisses the claim concerning title and grants only the monetary claim, the resulting judgment cannot be regarded as one relating to rights in rem over immovable property. Since such rulings do not produce any alteration in the land registry and merely order the payment of a sum of money, they are characterized as performance judgments and may be enforced through execution proceedings without the requirement of finality [4].

Analysis

When the foregoing explanations and decisions are considered together, it becomes evident that, in determining whether finality is required for the enforceability of a court judgment, the decisive criterion is not the formal designation of the lawsuit or the initial legal characterization of the claim, but rather the concrete effect produced by the operative part of the judgment. In other words, regardless of the legal grounds upon which the lawsuit was originally based, what ultimately governs is the nature of the change brought about by the judgment in the legal sphere of the parties.