Decision Taken for the Protection of Right in Question: Interim Injunction

In a state of law, individuals have to apply to the courts and seek their rights through remedy in order to protect or have their rights. There is always the possibility that the right in question, which is tried to be protected or obtained by filing a lawsuit, is lost, transferred, damaged, disposed of, or destroyed before the litigation process is concluded. In such a case, it will not make sense to win the case, because the right in question will be impossible or very difficult to obtain.

The interim injunction is a legal remedy that serves to protect the right to be obtained by filing a lawsuit, until the case is concluded. If requested and the necessary conditions are fulfilled, the judge shall rule an interim injunction and ensure the protection of the right in question throughout the trial.

In this bulletin, we focused on what the interim injunction is, for what purpose it is used, what the conditions are for issuing an interim injunction, and how it should be requested.

1) What is an Interim Injunction?

Since it is not clear when the trial will conclude, the decision of the court to protect the right that is the subject of the lawsuit in this process is called an interim injunction. If this legal remedy, which is described as temporary legal protection, is used, only the right that is the subject of the case can be protected; otherwise, the seizure of another asset or money of the debtor who is not related to the case is not an interim injunction. If a certain amount of money of the debtor is seized in order to secure the payment of a debt, it is called a precautionary attachment, not an interim injunction. These two remedies, which are often confused in practice, are very different from each other, and even the laws in which they are regulated are not the same. However, it can be said that both are remedies to guarantee the consequence of the case.

The interim injunction is defined in the Article 389 of the CCP as follows;

“In cases where there is a concern that to have the right will become significantly more difficult or completely impossible due to a change in the current situation, or that an inconvenience or serious damage will arise due to delay, an interim injunction may be given on the subject of the dispute. “

2) What Decisions Can the Judge Rule as an Interim Injunction?

It is possible for the judge to rule a wide variety of decisions as an interim injunction. There are no restrictions on this issue. The judge rules the most appropriate measure for the protection of the subject of the case and decides accordingly. For example, it is possible to rule an interim injunction to prohibit the transfer of the immovable, to suspend the decision of the general assembly, to do or not to do something, or to entrust the property to the trustee.

In Article 391 of the CCP, this situation is expressed as follows; “The court may decide on all kinds of cautions to annihilate the inconvenience or prevent the damage, such as keeping the property or right subject to the caution or depositing it in a trustee, or doing or not doing something.”

3) What are the Conditions for Issuing an Interim Injunction?

The certain conditions is sought in order for the court to issue an interim injunction decision. First of all, it should be impossible or very difficult for the person requesting interim injunction to obtain the right in question due to a change that may occur in the litigation process. The existence of an inconvenience or the possibility of a serious damage due to the delay until the resolution of the case also requires the issuance of an interim injunction.

In order for the judge to rule an interim injunction, the claimant must also approximately prove the potential for justification in the case. The request for interim injunction by a person who is clearly found to be wrong at first glance will not be accepted by the court.

In addition to these conditions, in order to be able to give an interim injunction, a security must be deposited by the requester. The person requesting the interim injunction is obliged to provide a guarantee against the possible damages that the other party and third parties may suffer due to this, if it is proved wrong. However, there are some exceptions to this rule. The persons listed below may request interim injunction without providing any guarantee;

  • Those whose request is based on an official document,
  • Those whose request is based on a certain evidence
  • Beneficiaries of legal aid

In these cases, and also in cases where the circumstances and conditions require, the court may decide for an interim injunction without providing any guarantee, by clearly showing the justification.

4) When And How Should an Interim Injunction Be Requested?

Interim injunction can be requested before or after a lawsuit has been filed. If a request is made before filing a lawsuit, it can be requested from the competent court on the merits of the case, and from the court where the main case is heard, if a claim is made after a lawsuit has been filed. If an interim injunction is to be requested while filing a lawsuit, it is sufficient to include the request in the petition. In addition, the party requesting interim injunction must clearly state the reason and type of interim injunction on which it is based.

5) How Does the Court Rule an Interim Injunction?

Under normal circumstances, the court hears both parties and comes to a decision on interim injunction. However, in cases where it is necessary to immediately protect the rights of the requester, the judge may decide on an interim injunction without hearing the other party. This becomes important in later appealing to an interim injunction. In its interim injunction decision, the court includes the following matters;

  • The name, surname and place of residence of the person requesting the injunction, the legal representatives, if any, and the counter party; and the Turkish Republic identification number of the requester,
  • The clear and concrete reasons and evidences for the caution,
  • On what and what kind of caution is decided without leaving any room for hesitation,
  • What amount and what type of guarantee the requester will provide.

6) Implementation of the Interim Injunction

If the interim injunction is decided by the court, this decision is not automatically implemented. The interim injunction must be requested within one week from the date of its issuance. The application request must be directed to the enforcement office of the court that made the decision or the place where the property or right is the subject of the interim injunction. The court, by stating in its decision, may also assign the editor-in-chief in the implementation of the caution. The interim injunction, the application of which is not requested within 1 week, is automatically cancelled, even if a lawsuit is filed within the legal period.

If the interim injunction decision is given before the filing of the lawsuit, the person requesting the interim injunction is obliged to file the case on the merits within two weeks from the date of requesting the enforcement of this decision, to have the document showing that he has filed the lawsuit filed with the officer who implemented the decision, and to receive a document in return. Otherwise, the measure will be cancelled automatically. These transactions are called works that complete the interim injunction, and here the deadlines are important.

For the implementation of the interim injunction, force may be used if necessary. Regarding the use of force, all law enforcement officers and village headmen are obliged to help her and obey the orders of the officer who will carry out the application, upon the written application of the same officer.

The officer applying the interim injunction makes an official report. In this report, the subject of the injunction and its location are presented; All kinds of claims regarding the injunction are recorded in this report. The officer applying the measure shall notify a copy of this report to the parties who has not been present during the caution and to the third party depending on the situation.

Anyone who does not comply with the order regarding the implementation of the interim injunction or who violates the interim injunction is punished with disciplinary imprisonment from one month to six months.

7) Amendment Or Cancellation of the Interim Injunction

If the person against whom an interim injunction decision has been made or against whom this injunction has been applied, shows the guarantee that will be accepted by the court, the court may decide to amend or cancel the caution, depending on the situation. In addition, in case of a change in circumstances or conditions, upon request, the court may decide to amend ot cancel the injunction. Unless the interim injunction is cancelled or amended, its effect will continue until the final decision of the court finalizes.

8) Interim Injunction in Negative Declaratory Actions

The issue of whether an interim injunction can be given in negative declaratory actions determined according to whether the case is filed before or after the enforcement proceedings. If the lawsuit has been filed before the enforcement proceeding, it can request an interim injunction by depositing guarantee. However, if the case has been filed after the enforcement proceeding, it will no longer be possible to request interim injunction in this case. After this point, only the money deposited in the enforcement cashier in return for a guarantee can be prevented from being paid to the creditor. Below, you can find the examples of Supreme Court decisions on the subject.

“The court that hears the negative declaratory case filed before the enforcement proceeding may, upon request, issue an interim injunction regarding the suspension of the enforcement proceedings in return for a guarantee not less than fifteen percent of the receivable.

In the negative declaratory action filed after the enforcement proceeding, the court cannot rule to halt the proceedings by means of interim injunction. However, the debtor may request from the court not to deposit the money in the enforcement cashier to the creditor through interim injunction, in return for covering the damages arising from the delay and in return for a guarantee not less than fifteen percent of the receivable.

If the case is concluded in favor of the creditor, the interim injunction is cancelled. In the event that the provision regarding this matter becomes final, the creditor shall receive the damages arising from the late collection of the receivable due to the interim injunction from the guarantee provided. The damage suffered by the creditor is estimated and ruled in the same lawsuit. This damage cannot be determined as less than twenty percent.”[1]

8) Appeal against the Interim Injunction Decision

The interim injunction decisions given without hearing the other party can be appealed. If both parties have been heard and an interim injunction decision has been made, then the decision cannot be appealed.

If the other party is present during the implementation of the precautionary measure, they can submit their objections to the interim injunction to the court with a petition, within one week as of the implementation of the measure, or within one week from the notification of the minutes regarding the implementation of the measure, if they are not present. The subject of objections to the interim caution is limited to the following issues;

  • The terms of the interim injunction,
  • The authority of the court that makes the decision
  • The deposit anticipated to be deposited

Third parties whose interests are clearly violated due to the implementation of the interim injunction may also object to the terms of the interim injunction and the guarantee within one week after they have learned about the interim injunction. These persons have no right to appeal to the jurisdiction of the court.

The objector has to clearly show the reasons for the appeal and attach all the proof on the basis of the objection to the petition. The Court invites the interested parties to listen; If they do not come, it rules the decision by examining the file. Upon objection, the court may amend or cancel the interim injunction.

Against the decision on the objection, legal action may be taken. This application is first examined and finalized.

The fact that an objection has been made to the interim injunction decision or that a legal action has been taken against the decision rendered upon the objection cannot prevent the implementation of the interim injunction.

“Since it is clearly regulated in Article 362/1-f of the CCP that the decisions rendered by the regional court of appeal regarding temporary legal protections cannot be appealed, the decisions made by this court as a result of the rejection of the interim injunction request or the objection to the interim injunction decision given by accepting it are final and cannot be appealed. .”[2]

“In the action for the annulment of this disposition, which was filed for the dispositions whose annulment is requested, in the concrete case, an interim injunction was given in the form of a provisional attachment in order not to endanger the creditor’s recovery of the receivables in case the case is accepted.
According to the provision of the 265/final paragraph titled objection and appeal against the precautionary seizure decision of the  EBL, It has been stated that an appeal can be made against the decision rendered upon objection to the provisional attachment and that the Regional Court of Justice will first examine this application and its decisions are final.”[3]

9) A Claim for Compensation Due to an Unfair Interim Injunction

If it is understood that the party in favor of which an interim injunction is made is wrong at the time of the request for interim injunction, or if the injunction is cancelled automatically or upon objection, it is liable to compensate the damage suffered by the other party due to the unjust interim injunction. The other party should apply to the court where the main case is decided for compensation for the damage suffered due to an unfair interim injunction. A 1-year final term is stipulated in the Law for the compensation claim.

The right to file a compensation claim expires after one year from the finalization of the judgment or the cancellation of the interim injunction.

Conclusion

The way to ensure that the right that is tried to be obtained by filing a lawsuit is protected until the case is concluded and the judgement is finalized, is to request an interim injunction from the court. The interim injunction is determined by the subject matter of the case and can be very diverse. For example, an interim injunction such as an annotation to the land registry may be given to prevent the sale of the real estate subject to the lawsuit, or an interim injunction may be ruled to prevent the letter of guarantee to be foreclosed.

If an interim injunction decision is not taken, in cases where winning the case will not make sense, this method should be applied and the process should be followed closely. Because if it is not followed properly, the request for interim injunction given by the court is automatically cancelled.

You can contact the Solmaz Law and Consultancy Team for your legal questions and problems related to the interim injunctions.

References

KURU, Baki, 2016, İstinaf Sistemine Göre Yazılmış Medeni Usul Hukuku, Legal Yayıncılık, İstanbul.

PEKCANITEZ, Hakan/ATALAY, Oğuz/ÖZEKES, Muhammet, 2013, Medeni Usul Hukuku, Yetkin Yayıncılık, Ankara.

15th Civil Chamber of the Supreme Court, 2021/3618 E., 2021/1187 K.

17th Civil Chamber of the Supreme Court, 2020/3277 E., 2021/3035 K.

 9th Civil Chamber of the Supreme Court, 2021/2740 E., 2021/6513 K.

[1] 9th Civil Chamber of the Supreme Court, 2021/2740 E., 2021/6513 K.

[2]15th Civil Chamber of the Supreme Court, 2021/3618 E., 2021/1187 K.

[3]17th Civil Chamber of the Supreme Court, 2020/3277 E., 2021/3035 K.