Enforcement of Judicial Decisions and the Problem of Finalization

Parties with conflicting rights and interests want the court’s decision to be enforced immediately. But this is not always possible under all circumstances. Enforcement of court decisions is ensured through compulsory 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 the court decision, you can immediately apply to the enforcement office and request that an enforcement order be sent to the other party. However, enforcement proceedings cannot be demanded immediately 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 requested to be enforced before they are finalized, are explained together with the examples that have been the subject of the Supreme Court decisions.

1. Is It Possible to Enforce a Court Decision Immediately?

A court decision can be enforced as soon as it is decided. This is the rule in the Turkish Law. Only some decisions cannot be demanded immediately; In order to demand the enforcement of such decisions, their finalization must be awaited.

2. What Does the Finalization of the Court’s Decision Mean?

The finalization of a court decision depends on the parties not objecting to this decision. If the decision has been appealed, it must now be reviewed by the Supreme Court and/or the Regional 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 writ and signed by the judge, is called the “finalization statement” in practice. Before the writ is enforced, it should be requested that this statement be added to the writ by applying to the court.

3. How is the Court Decision Enforced?

The party who is justified as a result of the lawsuit requests the enforcement of the court decision with a written execution proceeding from the enforcement office. Stamped and signed copies of the court decision given to the parties are called writs.[1] Not every decision made by the court, but only the enforcement of the verdict can be demanded.

Proceedings of enforcement with a judgment begin with an application made to the executive director in the enforcement office. In order to be able to apply for enforcement with a verdict, the person must have a verdict or one of the other documents that are considered to be in the nature of a verdict 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 order and pay the debt after the necessary examination.

4. How Are Provisional Attachment and Interim Injunction Decisions Enforced?

It is not possible to initiate proceedings from the enforcement office for the enforcement of every decision given by the court. Only the final decisions made by the courts can be enforced. It is not possible to enforce the interim injunction and provisional attachment decisions.[2] It is necessary to request the enforcement of these decisions from the court that made the decision. Court and clerk personnel notify the necessary authorities and ensure the enforcement of the interim injunction and provisional attachment decision. Enforcement of interim decisions (such as the decision to make a reconnaissance, or requesting an expert report) given by the court cannot be demanded 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 the enforcement of a decision. From the moment the court decision is made, it can be requested to be implemented by placing it under a writ of execution proceeding.

Decisions that cannot be enforced before they are finalized;

  • Writs regarding immovable property and real rights on immovable property,
  • Writs on family and personal law (Although they are related to family law, certain alimony provisions are not required for finalization),
  • Regulations on the enforcement of foreign court decisions,
  • Writs regarding 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,
  • Execution of the part related to compensation and litigation expenses in negative declaratory ases,
  • Execution of the part related to the judicial expenses in the decision on the adoption of the replevin case,
  • Writs regarding all ships and the real rights related to them, regardless of their flag and registration[4],
  • Execution of decisions of the Insurance Arbitrator,
  • Decisions on exclusion from the cooperative partnership,
  • Decisions on the determination of compulsory insurance periods of employees with a service contract(enforcement against SSI.
  • ENFORCEMENT of court decisions regarding registration, amendment and cancellation to be made in the trade registry pursuant to Article 35/4 and Article 36/3 of the TCC,
  • Decisions made in cases related to provisional attachment ot attachment practices brought against the administration[5]
  • Article 4 of the Law on the Execution of Security Measures,
  • Decisions made by enforcement courts on appeals and complaints.

 

We will discuss in detail below the decisions that cannot be requested to be enforced before they are finalized.

When can it be requested to enforce the decisions taken in real estate cases?[6]

It is necessary to wait for the finalization of the judgment for the cases that will make changes to the property right of an immovable, such as title cancellation and registration cases, expropriation cases, possessory actions, the release of pledge, correction of wrongful entry, replevin cases etc. and for the payment of all kinds of compensation and other monetary claims contained in these provisions. A decision of the Supreme Court Decision rules that, “… Pursuant to Article 367/2 of the HMK, the provisions on real estate and related real rights cannot be enforced until they are finalized. The writ is a whole and the appendices in the writ are subject to the same rule. While it is clear that all receivables in the writ will become due on the date the writ is finalized, it will not be possible for the annexes to be subject to further proceeding before the writ is finalized. The finalization and execution of these items only depends on the finalization of the verdict 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 execution and enforcement proceedings.”[7]

 What is meant by real rights here are the rights related to the real estate such as ownership, pledge, usufruct right, right of superstructure and right of residence. Rent is not a real right. Therefore, for example, there is no need to wait for the finalization of the decision regarding the eviction of the tenant from the leased property to be enforced.

In the case of cancellation and registration of title deed, the judgment of compensation and payment of this compensation may be requested after the decision is finalized. In the concrete case, upon the examination of the prosecuted verdict, it has been understood that the claimant filed a lawsuit for cancellation and registration of the title deed, in the petition of the lawsuit, the title deed cancellation and registration was requested, and if it is not accepted, a decision for compensation was made and a tentative demand was made. Although the court has ruled for compensation, basically the case cannot be put into enforcement proceeding with a judgement before the verdict is finalized, since the case is related to 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 enforced until they are finalized.[10]Likewise, the provisions of pecuniary and non-pecuniary compensation, custody, establishing a personal relationship with the child and delivery of the child, which are ruled in the divorce case, cannot be executed before they are finalized.[11] The Supreme considers these receivables as essential, in accordance with the principle of the integrity of the writ. Compensations that are awarded as a result of a separate lawsuit filed after the finalization of the divorce decree do not need to be finalized in order to be enforced.

Enforcement of Alimony Decisions:

Decisions regarding alimony can be enforced before they become final.[12] Provisions on measures and aid alimony can be enforced before they become final. However, the Supreme Court deems it necessary to finalize the judgment on divorce in order for the poverty and participation alimony to be enforced in a divorce case.[13]

Enforcement of Legal Entity Decisions:

The Supreme Court considers the provisions given in cases regarding the prevention of unfair competition, protection of trademark rights, termination and liquidation of legal persons among the decisions regarding personal law. For this reason, they must be finalized in order for the provisions given in such cases 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. For this reason, it is not possible to enforce the decision in Turkey before it becomes final.[15]

Implementation of the decisions to determine the rental price:

With the case law of the Supreme Court, it has been accepted that the decision regarding the determination of the rental price must be finalized in order for the rent difference receivable determined in the case of determination of the rental price to be enforced.[16]

Payment of the part of the criminal court decisions regarding the litigation expenses:

Convictions rendered by criminal courts cannot be enforced before they become final. The litigation expenses, compensation and attorney’s fees determined in the decision regarding the conviction cannot be enforced before the conviction is finalized. If the condition of compensation is included in the decision to postpone the announcement of the verdict, this compensation may be requested to be paid immediately.[17]

Requesting the payment of compensation and litigation expenses in negative declaratory actions:

It is not possible to apply the declaratory provisions alone. If execution denial compensation, litigation expenses or attorney’s fees have been ruled together with the determination decision, only the enforcement of this part of the judgment can be requested from the enforcement office.

If the debtor is entitled to compensation in the negative declaratory action, she/he may request the payment of this compensation only after the judgment rendered in the negative declaratory action is finalized.[18] In the event that the negative declaratory action turns into a replevin case, it cannot be demanded to pay compensation and other monetary rights without waiting for the finalization of the judgment.[19]

Payment of the part related to the litigation expenses in the decision regarding the acceptance of the action of recovery:

The owner wins theaction of recovery by proving her/his right to property. Therefore, it cannot be demanded that the decision rendered in this case, which determines the ownership right of an immovable, be enforced before it becomes final.[20]

Enforcement of the decisions of the Insurance Arbitrator:

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]

Decisions of the Consumer Arbitration Committee can be implemented immediately before they become final.

Decisions on the determination of compulsory insurance periods of employees with a service contract(enforcement against SSI:

In order for the SSI to implement the decision regarding the determination of the compulsory insurance period of the workers working under the employment contract, the condition of finalization of the decision is sought. However, the condition of finalization of the decision is not required for the implementation of the decision against the employer.[23]

Enforcement of court decisions regarding registration, amendment and cancellation to be made in the trade registry:

Decisions made by the commercial court on registration upon the proposal of the trade registry manager, and upon the objection of the persons applying for registration, amendment or cancellation to the trade registry, against the decision of the trade registry directorate on this matter, cannot be enforced before the court’s decisions are finalized.[24](Decisions made pursuant to art.35/4 and art.36/3 of the TCC).

6. Can the Enforcement of Additional Decisions such as Compensation, Attorney’s Fee, and Trial Expenses in a Decision That Cannot Be Enforced Before Finalization Be Requested Immediately?

It should be emphasized that the writ is a whole. All receivables, such as compensation, interest, litigation expenses, attorney’s fees, included in the court’s decision, become claimable once the writ is finalized. For this reason, such additional receivables included in the decisions that cannot be enforced before they are finalized may be requested to be paid only after the original judgment becomes final.[25]

7. What Can Be Done If Enforcement Proceedings Have Begun and An Enforcement Order Has Been Announced Regarding a Decision That Cannot Be Enforced Before It Has Been Finalized?

In the event that a decision that cannot be requested to be enforced before it is finalized is put into execution by the executive director and an executive order is sent to the debtor, the debtor can always file a complaint with the Enforcement Courts for the cancellation of the proceeding.[26] As a result of the complaint, the execution made as a result of 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 order. In some of its decisions, the Court of Cassation has stipulated that filing a complaint within 7 days is necessary in order to cancel the proceedings.[28]

In summary; If you execute a decision that cannot be enforced before it is finalized, the other party can cancel your enforcement proceedings with a complaint to the enforcement court and you may have to pay a counter attorney’s fee. Again, if an executive order 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 proceeding and you do not file the necessary complaint, you may have to pay money or perform a job that you do not actually owe, while at the appeal or appeal stage you will be able to prove that you are not indebted and obtain a decision in your favour.

As the Solmaz Law and Consultancy team, we remind you that we are here to inform you about all the details of the enforcement 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.

Best Regards.

REFERENCES

[1] PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, 2015, İcra İflas Hukuku, Yetkin Yayınları, Ankara, s.318.

2PEKCANITEZ/ATALAY/SUNGURTEKİN ÖZKAN/ÖZEKES, a.g.e., s. 317.

3 ÖZBEK, Mustafa Serdar, “Kesinleşmeden İcra Edilemeyecek İlamların Kesinleşmeden Önce İcraya Konulması”, Başkent Üniversitesi Hukuk Fakültesi Dergisi, cilt:2, sayı:1, yıl:2016, s.46-47.

4 832 sayılı Sayıştay Kanunu 64. Madde.

5 Türk Ticaret Kanununun Yürürlüğü ve Uygulama Şekli Hakkında Kanun m.31/a.

6 2577 sayılı İYUK 28/1.

7 HMK m.350/2; 367/2.

8 12nd Civil Chamber of the Supreme Court, E. 2018/8182, K. 2019/10658 T., 19.6.2019; 2nd Civil Chamber of the Supreme Court, E. 2018/4085, K. 2018/10203, T. 18.10.2018.

9 12nd 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, İcra İflas Hukuku, Kuram Kitap Umuttepe Yayınları, Kocaeli, s.228.

12 HMK m.350/1;367/1.

13 8th Civil Chamber of the Supreme Court, E.2015/16421, K.2015/18638, T.20.10.2015.

14 12nd Civil Chamber of the Supreme Court, E.2018/7775, K.2019/8815, T.22.05.2019.

15 ÖZBEK, a.g.e., s.50.

16MÖHUK m.57/2.

17The Supreme Court Judgment Unification Decision dated 12.11.1979 and numbered 1979/1-3;12nd Civil Chamber of the Supreme Court, E.2018/3472, K.2018/8015, T.13.09.2018; ERCAN, a.g.e., s.229; 3rd Civil Chamber of the Supreme Court,  E.2000/12114, K.2001/582, T.02.10.2001; PEKCANITEZ/ATALAY/SUNGURTEKİN ÖZKAN/ÖZEKES, a.g.e., s. 321.

18 ERCAN(1), a.g.e., s.230.

19 BULUR, Alper, İcra ve İflas Hukuku, Monopol Yayınevi, Ankara, 2020, s.143.

20ERCAN(2), İsmail, Uygulamacılar İçin İcra ve İflas Hukuku El Kitabı, Seçkin Yayıncılık, Ankara, s.817.

21 ERCAN(1), a.g.e., s.229.

22ERCAN(1), a.g.e., s.231.

23 ÖZBEK, a.g.e., s.52; Sigortacılık Kanunu m.30.

24 İLKİZ, Hüsnü Göksel, “İlamların İcrasında ‘Kesinleşme Şartı’”,(erişim: https://legesegitim.com/ilamlarin-icrasinda-kesinlesme-sarti-av-husnu-goksel-ilkiz/, erişim tarihi:28.01.2021); İş Mahkemeleri Kanunu m.7/4.

25 İLKİZ, a.g.e.

26ÖZBEK, a.g.e., s.69.

27General assembly of civil chambers, 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, a.g.e., s.69.

28 12nd Civil Chamber of the Supreme Court, ,E.2009/1780, K.2009/9842, T.05.05.2009.

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