Parties with conflicting rights and interests demand immediate enforcement of the court decision. However, this is not always possible in all circumstances. Enforcement of court decisions is ensured through enforcement. As a rule in Turkish law, when a decision is made by the court, the enforcement of this decision can be requested immediately. With a court decision, you can immediately apply to the enforcement office and request that an enforcement order be sent to the other party. However, immediate enforcement cannot be requested for the implementation of every decision, it may be necessary to wait for the finalization of the decision. In our article, these decisions which cannot be enforced before they are finalized,
1. Is Immediate Enforcement of the Court’s Decision Possible?
A court decision can be enforced as soon as the decision is made. This is the rule in Turkish Law. Only some decisions cannot be requested immediately; In order to request the enforcement of such decisions, their finalization must be awaited.
2. What Does the Finalization of the Court’s Decision Mean?
The finalization of the court decision depends on the parties not objecting to this decision. If the decision has been appealed, it must now be re-examined by the Court of Cassation and/or the District Court of Justice in order for the court decision to become final.
The finalization of the decision written by the court on the back of the letter and signed by the judge is called the “declaration of finalization” in practice. Before starting the execution of the writ, it should be requested that this statement be attached to the writ by applying to the court.
3. How is the Court Decision Implemented?
As a result of the lawsuit, the right party requests the enforcement of the court decision with a written enforcement proceeding from the enforcement office. Stamped and signed copies of court decisions given to the parties are called verdicts. [1] Only the enforcement of the judgment can be requested, not every decision made by the court.
Proceedings of execution with a judgment start with the application made to the executive director in the enforcement office. In order to apply for enforcement with a writ, the person must have a verdict or one of the other documents considered as a writ in the law. Upon the request of the applicant with these documents, the executive director sends an executive order to the other party to comply with the court decision and to pay the debt, after making the necessary examination.
4. How Are Injunctions and Injunctions Decisions Applied?
It is not possible to file a lawsuit from the enforcement office for the enforcement of every decision given by the court. Only final decisions made by the courts can be enforced. Implementation of interim injunction and precautionary attachment decisions is not possible. [2] Enforcement of these decisions must be requested from the court that issued the decision. Court and clerk personnel notify the necessary authorities and ensure the implementation of the interim injunction and precautionary attachment decision. Interim decisions (such as the decision to make a discovery, requesting an expert report) by the court cannot be requested to be enforced through enforcement.
5. What are the decisions that cannot be enforced before they are finalized?
In Turkish law, there is no need to wait for the finalization of a decision to request enforcement. From the moment the court decision is made, it can be requested to be implemented by taking it under enforcement proceedings.
Decisions that cannot be enforced before they are finalized;
- Writs on immovable property and real rights on immovable properties,
- Writs related to family and personal law (Although they are related to family law, some alimony provisions are not required to be finalized),
- Regulations on the enforcement of foreign court decisions,
- Articles on the determination of the rental price,
- Court of Accounts writs containing provisions regarding compensation, [3]
- The part of the criminal court decisions regarding the litigation expenses,
- Performance of the part related to compensation and litigation expenses in negative declarations,
- Execution of the part of the decision regarding the acceptance of the objection case regarding the litigation expenses,
- Writs on all ships regardless of their flag and registration, and their rights in rem [4] ,
- Execution of the decisions of the Insurance Arbitrator,
- Decisions to expel from the cooperative,
- Decisions regarding the determination of the compulsory insurance period of the employees with the service contract (SGK.
- TTK m. 35/4 and art. Enforcement of court decisions regarding registration, amendment and cancellation in the trade registry pursuant to 36/3,
- Decisions made in cases related to precautionary lien or lien applications filed against the administration [5]
- Article 4 of the Law on the Execution of Security Measures,
- Decisions made by enforcement courts on objections and complaints.
Decisions that cannot be demanded before they are finalized will be discussed in detail below.
When can enforcement of decisions taken in real estate cases be requested? [6]
It is necessary to wait for the finalization of the judgment for cases that will change the property right of an immovable, such as title cancellation and registration cases, expropriation cases, possession cases, removal of pledge, correction of unfair entry. replevin cases etc. and for the payment of any compensation and other monetary claims contained in these provisions.A Supreme Court Decision states, “… Pursuant to Article 367/2 of the HMK, the provisions regarding immovables and the real rights attached to them cannot be implemented until they are finalized. The article is a whole and the appendices in the sentence are subject to the same rule. Although it is clear that all the receivables in the writ will become due on the date the writ is finalized, it will not be possible to follow up the annexes before the writ is finalized. The finalization and execution of these articles only depends on the finalization of the judgment as a whole. Therefore, before the judgment on the merits of the judgment becomes final, the part of the judgment regarding the receivable of money cannot be subject to enforcement and enforcement proceedings.” [7]
What is meant by real rights here are the rights of ownership, pledge, usufruct right, superstructure right and right of residence . Rent is not a real right. Therefore, there is no need, for example, to wait for the finalization of the decision regarding the eviction of the lessee from the leased property for enforcement.
In case of cancellation and registration of title deed, a compensation decision and payment of this compensation may be requested after the finalization of the decision. “ In the concrete case, when the following judgment is examined, the plaintiff filed a lawsuit for cancellation and registration of the title deed, the cancellation and registration of the title deed was requested in the petition, if it was not accepted, the compensation was decided and a temporary request was made. Although the court ruled for compensation , the decision cannot be enforced before it becomes final, since the case is basically about the same real estate .” [8]
Enforcement of Decisions in Cases such as Divorce, Pedigree, Custody, Child Surrender [9]
Decisions made as a result of divorce cases, paternity cases, pedigree cases, child delivery and personal relations with the child cannot be executed before they are finalized . [10] Likewise , the provisions of pecuniary and non-pecuniary damages , custody, establishing a personal relationship with the child and delivery of the child in the divorce case cannot be executed before they are finalized . [11] The Almighty considers these receivables as essential in accordance with the principle of the integrity of the decree. The compensation awarded as a result of a separate lawsuit filed after the finalization of the divorce decision does not have to be finalized in order to be enforceable.
Enforcement of Alimony Decisions:
Decisions on alimony can be enforced before they become final. [12] Provisions regarding the measure and aid alimony can be applied before they are finalized . However, the Court of Cassation considers it necessary to finalize the divorce decision in order to enforce the poverty and participation alimony in the divorce case. [13]
Enforcement of Legal Entity Decisions:
The Court of Cassation considers the provisions in cases related to the prevention of unfair competition, protection of trademark rights, termination and liquidation of legal entities among its decisions on personal law. Therefore, the provisions given in such cases must be finalized in order to be implemented. [14]
Enforcement of foreign court decisions in Turkey:
In case of objection to the enforcement decision of foreign court decisions, the enforcement of the decision is suspended. Therefore, it is not possible to implement the decision in Turkey before it becomes final. [15]
Implementation of the decisions regarding the determination of the rental price :
According to the case law of the Supreme Court, it has been accepted that the decision regarding the determination of the rental price must be final in order for the rent difference receivable determined in the case of determination of the rental price to be executed. [16]
Payment of the part of the criminal court decisions regarding the litigation expenses :
Convictions rendered by criminal courts cannot be executed before they become final. The litigation expenses, compensation and attorney’s fees determined in the decision regarding the conviction cannot be executed before the conviction is finalized . If the decision to defer the announcement of the verdict includes the compensation condition, this compensation may be requested to be paid immediately. [17]
Requesting compensation and litigation expenses in negative clearance cases:
It is not possible to apply the determination provisions alone. If enforcement refusal compensation, litigation expenses or attorney’s fees are awarded together with the determination decision, enforcement of only this part of the writ may be requested from the enforcement office.
If the debtor is entitled to compensation in the negative clearance action, he can demand the payment of this compensation only after the verdict given in the negative clearance action is finalized. [18] In the event that the negative clearance action turns into a lawsuit again, the payment of compensation and other monetary rights cannot be demanded without waiting for the finalization of the verdict. [19]
Payment of the part related to the litigation expenses in the decision regarding the acceptance of the take-back action :
The owner wins the repossession case by proving his ownership. Therefore, the enforcement of the decision given in this case, which determines the ownership right of an immovable, cannot be demanded before it becomes final. [20]
Enforcement of Insurance Arbitrator Decisions:
As a rule in Turkish law, there is no need to wait for the finalization of arbitral awards in order to be enforced. [21] However, the decisions of the insurance arbitrator cannot be implemented until they are finalized. Because the application made to the Insurance Arbitration Commission suspends the execution of the decision. [22]
Consumer Arbitration Committee decisions can be implemented immediately before they become final.
Decisions regarding the determination of the compulsory insurance period of employees with a service contract (application against SSI :
In order for the decision of the SSI to determine the compulsory insurance period of the workers working within the scope of the employment contract, the decision must be finalized. However, in order for the decision to be enforced against the employer, it is not required to be final. [23]
Enforcement of court decisions regarding registration, amendment and cancellation to be made in the trade registry:
Against the decision of the trade registry directorate on this matter, upon the proposal of the trade registry director and upon the objection of the applicants for registration, amendment or cancellation to the trade registry, the decisions regarding the registration by the commercial court cannot be revoked. court decisions are implemented before they become final. [24] (Decisions taken pursuant to TCK art.35/4 and art.36/3).
6. Can the Immediate Enforcement of Additional Decisions such as Compensation, Attorney’s Fees, Trial Expenses Be Requested in a Decision that cannot be enforced before it is finalized?
It should be emphasized that the text is a whole . All receivables such as compensation, interest, litigation expenses, attorney’s fees in the court decision become claimable when the verdict is finalized. For this reason, such additional receivables included in the decisions that cannot be executed before they are finalized can be requested to be paid only after the finalization of the verdict. [25]
7. What Can Be Done If Enforcement Proceedings Have Begun and Execution Decision Has Been Announced About the Decision that cannot be enforced before it is finalized?
If a decision that cannot be enforced before it is finalized is enforced by the executive director and an executive order is sent to the debtor, the debtor can always file a bankruptcy case by filing a lawsuit with the enforcement courts. lawsuit [26] As a result of the complaint, the execution made due to the fault of the executive director is canceled by the Enforcement Courts. [27]
In any case, in such cases, we believe that it would be more appropriate to apply to the Enforcement Court within 7 days, which is the legal complaint period, from the notification of the enforcement decision. In some of its decisions, the Supreme Court stipulated that a complaint must be filed within 7 days for the annulment of the proceedings . [28]
In summary; If you implement an unenforceable decision before it is finalized, the other party may file a complaint with the enforcement court and cancel your enforcement proceeding and you may have to pay a counter attorney’s fee. Again, if an enforcement proceeding has been sent to you regarding a decision that cannot be enforced before it is finalized, and you do not know that this is an erroneous transaction and you do not make the necessary complaint, you may have to pay money or money. While doing a job that you do not actually owe, you will be able to prove that you are not indebted at the objection or objection stage and take a decision in your favor.
As Solmaz Law and Consultancy team, we remind you that we are here to inform you about all the details of the execution proceedings and to carry out the necessary actions on your behalf. Our team will be pleased to provide you with legal support for all your legal questions and problems that you cannot find the answer to in our article.
Kind regards.
REFERENCES
[1] PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, 2015 , Enforcement and Bankruptcy Law , Yetkin Publications, Ankara, p.318.
2PEKCANITEZ/ATALAY/SUNGURTEKIN ÖZKAN/ÖZEKES, supra, p. 317.
3 ÖZBEK, Mustafa Serdar, “ Execution of Writs that cannot be executed before they are finalized ”, Başkent University Faculty of Law Journal , vol:2, issue:1, year:2016, pp.46-47.
4 832 numbered Turkish Court of Accounts, Article 64.
5 Law on the Enforcement and Implementation of the Turkish Commercial Code m.31/a.
6 IYUK No. 2577 28/1.
7 HMK m.350/2; 367/2.
Supreme Court 8 12th Civil Chamber, E. 2018/8182, K. 2019/10658 T., 19.6.2019; Supreme Court 2nd Civil Chamber, E. 2018/4085, K. 2018/10203, T. 18.10.2018.
9 12th Civil Chamber of the Supreme Court, E.2020/1193, K.2020/9038, T.22.10.2020.
10TMK m.8-494; HMK m.350/2; 367/2).
11 ERCAN(1), İsmail, 2016, Execution and Bankruptcy Law , Kuram Kitap Umuttepe Publications, Kocaeli, p.228.
12 HMK m.350/1; 367/1.
13 8th Civil Chamber of the Supreme Court of Appeals, E.2015/16421, K.2015/18638, T.20.10.2015.
14 12th Civil Chamber of the Supreme Court, E.2018/7775, K.2019/8815, T.22.05.2019.
15 ÖZBEK, supra, p.50.
16MÖHÜK m.57/2.
17 Supreme Court Decision of the Supreme Court dated 12.11.1979 and numbered 1979/1-3; 12th Civil Chamber of the Supreme Court of Appeals, E.2018/3472, K.2018/8015, T.13.09.2018; ERCAN, age, p.229; 3rd Civil Chamber of the Supreme Court, E.2000/12114, K.2001/582, T.02.10.2001; PEKCANITEZ/ATALAY/SUNGURTEKIN ÖZKAN/ÖZEKES, age, p. 321.
18 ERCAN(1), supra, p.230.
19 BULUR, Alper, Enforcement and Bankruptcy Law , Monopol Publishing House, Ankara, 2020, p.143.
20ERCAN(2), Ismail, Enforcement and Bankruptcy Law Handbook for Practitioners, Seçkin Publishing, Ankara, p.817.
21 ERCAN(1), supra, p.229.
22ERCAN(1), age, p.231.
23 ÖZBEK, supra, p.52; Article 30 of the Insurance Law.
24 İLKİZ, Hüsnü Göksel, “ The Condition of Finalization in the Execution of Writs ”,(access: https://legesegitim.com/ilamlarin-icrasinda-kesinlesme-sarti-av-husnu-goksel-ilkiz/ , access date:28.01.2021) ; Labor Courts Law m.7/4.
25 FIRST, move
26ÖZBEK, age, p.69.
27 General assembly of law offices, E.2011/12-177, K.2011/300, T. 11.5.2011, in accordance with the decisions of IBK dated 28.11.1956 and numbered 15/15; ÖZBEK, age, p.69.
28 12th Civil Chamber of the Supreme Court, E.2009/1780, K.2009/9842, T.05.05.2009.