Introduction
In Turkey, when a debtor fails to fulfill their obligations, creditors have the legal right to recover their claims through the enforcement system.
This process is governed by the Turkish Enforcement and Bankruptcy Law (EBL) and is carried out via Enforcement Offices under judicial supervision.
Enforcement law aims to protect not only the creditor’s rights but also to safeguard the debtor’s fundamental rights, ensuring a balance between the parties.
1. Purpose of Enforcement Law
- Protection of Rights: Ensures the execution of court decisions and the collection of receivables.
- Economic Stability: Maintains trust in commercial and contractual relationships.
- Balance Between Parties: Protects creditors without violating the debtor’s constitutional rights.
The principle of legal certainty and the right to a fair trial are fundamental in the enforcement process.
2. Types of Enforcement Proceedings
According to the EBL, the method of enforcement varies depending on the nature of the claim and supporting documents.
2.1 Ordinary (Unsecured) Enforcement
- Definition: Initiated without a court judgment.
- Scope: Generally applies to monetary claims or security interests.
- Process: The debtor is served a payment order → If not contested within 7 days, the proceedings become final.
- Advantage: Faster than going to court.
2.2 Enforcement Based on a Court Judgment (Judicial Enforcement)
- Definition: Based on a court decision, arbitral award, or document with the force of a judgment.
- Process: The debtor is served an enforcement order → Failure to comply leads to asset seizure.
- Example: Collection of alimony awarded in a divorce case.
2.3 Enforcement of Negotiable Instruments
- Scope: Applies to checks, promissory notes, and bills of exchange.
- Feature: Debtor’s objection period is only 5 days.
- Advantage: Faster collection process.
2.4 Bankruptcy Proceedings
- Scope: Applies to merchants and commercial companies.
- Purpose: Liquidates all assets of the debtor to satisfy creditors equally.
3. Stages of Enforcement Proceedings
- Filing the Request: The creditor applies to the Enforcement Office.
- Payment/Enforcement Order: Official notice is sent to the debtor.
- Objection or Payment: The debtor may object within the legal period or pay the debt.
- Finalization of Proceedings: If no objection is filed or if it is overruled, asset seizure follows.
- Seizure (Attachment): The debtor’s movable/immovable assets and receivables are seized.
- Sale: Seized assets are sold via auction or direct sale.
- Distribution of Proceeds: Collected funds are distributed to the creditor(s).
4. Rights of the Debtor
- Right to Object (EBL Art. 62): Stops proceedings until resolved.
- Negative Declaratory Action: Proving non-existence of debt.
- Third-Party Claim: Claiming ownership of seized goods.
- Challenging Service of Process: Annulment in case of irregular notification.
5. Rights and Advantages for the Creditor
- Right to Seizure: Power to attach debtor’s assets.
- Right to Sell Assets: Convert seized property into cash.
- Interruption of Statute of Limitations: Filing enforcement proceedings stops time limits.
- Right to Request Bankruptcy: Applicable in commercial debts.
6. Enforcement Law in Light of Court of Cassation Decisions
The Turkish Court of Cassation (Yargıtay) emphasizes procedural accuracy:
- 12th Civil Chamber, 2022/3417 E., 2022/7536 K.: All enforcement actions are null if the payment order was improperly served.
- 12th Civil Chamber, 2019/13242 E., 2020/5012 K.: Debtors can suspend enforcement by providing security during negative declaratory action.
7. Key Practical Tips
- Choose the correct type of enforcement proceedings.
- Request seizure within the statutory period.
- Ensure all notifications are legally valid.
- Keep all procedural steps documented.
- Seek professional legal assistance to avoid rights loss.
Conclusion
Enforcement law in Turkey is a balanced legal mechanism ensuring that creditors can collect their debts while safeguarding debtors’ rights.
Due to the complexity of the procedures, working with an experienced enforcement lawyer can prevent mistakes, accelerate the process, and secure your legal position.
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