1. Introduction
In Turkish enforcement practice, the istihkak davası (third-party ownership claim) plays a critical role in protecting individuals and companies whose property has been wrongfully seized for another’s debts. When a foreign element enters the picture—such as international contracts, foreign documents, or cross-border ownership structures—the complexity of these proceedings increases dramatically. Questions of applicable law, document authentication, and translation accuracy can make or break a case.
This article provides an in-depth examination of the foreign-element dimension of istihkak proceedings under Turkish law. It addresses three pillars that determine success:
- Proof of ownership (mülkiyetin ispatı),
- Country of document origin (belge ülkesi ve tasdik), and
- Translation integrity (tercüme güvenilirliği).
2. The Nature of the İstihkak Claim
The istihkak davası is regulated primarily by Articles 96 to 99 of the İcra ve İflas Kanunu (İİK). It enables a third person to claim that a property seized during enforcement proceedings actually belongs to them, not the debtor. It is not a mere objection—it is a mini-trial on ownership, where the third party must demonstrate legitimate and provable title.
Under normal conditions, the law presumes that the person in possession of a movable is its owner. In enforcement, this means that if property is found in the debtor’s house, warehouse, or factory, it is presumed to belong to the debtor. The claimant bears the burden of proof to overturn that presumption.
When foreign companies, exporters, or leasing entities are involved, this burden often hinges on documents originating abroad—contracts, invoices, bills of lading, certificates of origin, and more.
3. When Does a Foreign Element Arise?
A case has a “foreign element” when at least one of the following occurs:
- The owner is a foreign national or a foreign company.
- The ownership documents are issued abroad.
- The property crosses borders (e.g., imported machinery or goods in transit).
- The contract or invoice is governed by foreign law or drafted in a foreign language.
- The transaction was executed through international banking systems or logistics operators.
In these situations, courts must not only assess factual possession but also determine which law governs ownership—a question answered by Turkish conflict-of-laws principles (Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun – MÖHUK).
4. Governing Law: Lex Rei Sitae and MÖHUK Article 21
Under Article 21 of MÖHUK, ownership and other real rights over movables are governed by the law of the country where the property is located (lex rei sitae).
Thus:
- If the goods are physically in Turkey when seized, Turkish law applies to determine who owns them.
- If they were in transit, ownership may be governed by the law of the country of destination.
This rule ensures predictability but can disadvantage foreign parties who rely solely on contractual rights created abroad. For example, a retention-of-title clause valid under Swiss or German law might not automatically protect the foreign seller if Turkish law governs the asset’s location.
5. Burden of Proof and Procedural Steps
Under İİK Articles 96–97, the process unfolds as follows:
- Notification of claim — A third party asserts ownership before the enforcement office (İcra Dairesi).
- Objection period — The creditor or debtor may contest this within seven days.
- Referral to court — If contested, the matter goes to the İcra Hukuk Mahkemesi (Enforcement Court).
- Filing obligation — The third party must file the istihkak davası within seven days after notification, or the claim lapses.
- Presumption of ownership — Possession equals ownership unless the claimant proves otherwise.
- Possible compensation — If the court finds the claim frivolous or in bad faith, the claimant may face monetary penalties.
For a foreign claimant, this compressed timeline makes document preparation and authentication crucial well before any seizure occurs.
6. The Evidentiary Core: Proving Ownership Across Borders
The claimant must show:
- How they acquired the property,
- Why the debtor has it,
- That the debtor’s possession is temporary or subordinate, and
- That all documents are genuine and admissible under Turkish law.
Typical evidentiary sets include:
- Sales or leasing agreements,
- Commercial invoices,
- Bills of lading or CMR waybills,
- Packing lists with serial numbers,
- Bank payment records (SWIFT, MT103),
- Customs declarations or delivery reports,
- Correspondence confirming non-transfer of ownership.
However, documents issued abroad raise two interrelated questions:
- Authenticity — can the Turkish court trust the document’s origin?
- Comprehensibility — can it be read and interpreted accurately in Turkish?
7. Document Country and Authentication
7.1 Apostille Convention
Turkey is a party to the 1961 Hague Apostille Convention. Documents originating from other member states must carry an apostille certificate confirming the authenticity of the signature and seal. The apostille replaces full diplomatic legalization.
Examples:
- A notarized sales agreement from France → needs apostille from French authority.
- A commercial registry extract from Germany → needs apostille before use in Turkey.
7.2 Consular Legalization for Non-Hague States
If the document comes from a country not party to the Apostille Convention, it must undergo consular legalization:
- Notarization in the originating country,
- Approval by that country’s foreign ministry,
- Legalization by the Turkish consulate.
7.3 e-Apostille (Digital Apostille)
Turkey now recognizes electronic apostilles (e-Apostil). Some states issue electronic certificates, enabling rapid verification online—a crucial time-saver in enforcement contexts where seven-day deadlines apply.
7.4 The “Country of the Document” Rule
The country of issuance defines the path of authentication. For instance, a Swiss invoice and a Qatari bill of lading follow different legalization processes. Lawyers must map these early in the case to avoid procedural rejection.
8. Translation Pitfalls: When Good Evidence Fails
Even properly legalized documents can fail in court if translations are inaccurate.
Common pitfalls include:
8.1 Terminological Mismatch
Legal terms like “retention of title,” “lease-to-own,” or “security interest” often lack exact Turkish equivalents. A careless translation may distort the ownership structure entirely. For example:
- “Retention of title” rendered as “mülkiyetin devrinin ertelenmesi” is fine,
- But translating it as “satışın askıya alınması” misleads the judge.
8.2 Certification Defects
Translations must be performed by sworn translators (yeminli tercüman) and typically notarized. Courts are strict; an uncertified translation—even if accurate—may be disregarded.
8.3 Inconsistent Terminology
When multiple documents use inconsistent Turkish renderings for the same term (“lessee” translated once as “kiracı,” another time as “malik”), credibility suffers. Consistency across the file is essential.
8.4 Ambiguous or Missing Dates
Translation errors in dates or serial numbers can create fatal discrepancies between invoices, shipping records, and customs entries.
9. Strategic Use of Translation as Advocacy
Translation is not merely mechanical—it is part of advocacy. A well-designed translation strategy includes:
- Creating a bilingual glossary for all recurring legal and commercial terms,
- Preparing a translator’s explanatory note for technical terms (e.g., “ROT clause,” “CMR delivery”),
- Ensuring identical terminology across all filings and exhibits,
- Filing both the original and translated versions simultaneously with a notarized translator statement.
Such discipline can turn foreign documentation from a weakness into persuasive evidence.
10. Typical Foreign-Element Scenarios
10.1 Retention-of-Title Sales (ROT)
Foreign sellers often retain ownership until full payment. Turkish courts require proof that:
- The clause exists in writing,
- It was communicated before delivery,
- The goods can be individually identified, and
- The seller did not waive the right.
If these are documented and apostilled, the claim stands a fair chance—even under Turkish substantive law.
10.2 Cross-Border Leasing
Leasing equipment to a Turkish entity requires:
- A clear leasing agreement,
- Delivery and acceptance reports,
- Proof of continued ownership by lessor,
- Insurance showing lessor as beneficiary.
10.3 Goods in Transit or at Customs
When goods are seized while in transit or in bonded warehouses, the claimant should invoke İİK Article 99, which governs third-party possession. The burden may shift to the creditor, provided the warehouse or carrier acknowledges custody on behalf of the claimant.
10.4 Inter-Group Ownership
Multinational structures with related companies (e.g., a parent in Switzerland and a subsidiary in Turkey) often face skepticism. Courts scrutinize intercompany invoices and pricing for signs of collusion. Transparent documentation and arm’s-length terms are essential.
11. Practical Checklist
| Phase | Action Items | Deadline / Risk |
|---|---|---|
| Before seizure | Prepare apostilled copies of key contracts, invoices, and shipping documents. | Avoid last-minute legalization. |
| Upon seizure | Notify enforcement office in writing within 7 days of learning of seizure. | Delay forfeits claim rights. |
| At court | Submit notarized translations with originals attached. | Uncertified translation = inadmissible. |
| During hearing | Explain possession logic (e.g., storage, consignment, repair). | Overcome “debtor possession” presumption. |
| Post-decision | If rejected, consider appeal within 10 days under İİK 363. | Late filing = decision final. |
12. Common Mistakes in Foreign İstihkak Claims
- Assuming contract law = ownership law.
Ownership is governed by lex rei sitae, not by the contract’s chosen law. - Submitting documents without apostille.
Turkish enforcement offices cannot recognize unauthenticated foreign documents. - Failing to explain possession.
“The goods were in debtor’s factory for delivery” is not enough; the reason and duration must be documented. - Relying on non-notarized translations.
Courts value formality; informal translations are routinely ignored. - Ignoring compensation risk.
Filing an unsubstantiated istihkak claim can lead to financial penalties for bad faith.
13. The Role of Expert Reports and Witnesses
In complex cases—especially involving machinery, equipment, or serialized goods—courts may appoint experts to verify identity and ownership. Providing technical catalogues, photos, and maintenance logs strengthens credibility.
Witnesses (e.g., warehouse managers, drivers) should be prepared to testify on custody arrangements, emphasizing that the debtor’s control was temporary.
14. Electronic Evidence and Cross-Border Communication
Emails, SWIFT confirmations, and electronic invoices can be used if properly authenticated. Under HMK Article 199, electronic evidence is admissible if its integrity can be verified (e.g., certified email, timestamped server logs).
For foreign companies, using KEP (Registered Electronic Mail) or certified e-signature for Turkish correspondence helps build a trustworthy evidentiary trail.
15. Conclusion
Foreign-element istihkak proceedings in Turkey demand more than ownership documents—they require a strategy integrating substantive law, procedural deadlines, and evidentiary precision.
To prevail, the claimant must:
- Identify the applicable ownership law (lex rei sitae),
- Authenticate every foreign document via apostille or consular channels,
- Submit sworn, consistent translations, and
- Build a coherent story explaining why the debtor held but did not own the goods.
In practice, winning an istihkak davası with a foreign dimension depends less on the value of the property and more on how effectively the claimant anticipates the intersection of law, language, and procedure.
1. Introduction
In Turkish enforcement practice, the istihkak davası (third-party ownership claim) plays a critical role in protecting individuals and companies whose property has been wrongfully seized for another’s debts. When a foreign element enters the picture—such as international contracts, foreign documents, or cross-border ownership structures—the complexity of these proceedings increases dramatically. Questions of applicable law, document authentication, and translation accuracy can make or break a case.
This article provides an in-depth examination of the foreign-element dimension of istihkak proceedings under Turkish law. It addresses three pillars that determine success:
- Proof of ownership (mülkiyetin ispatı),
- Country of document origin (belge ülkesi ve tasdik), and
- Translation integrity (tercüme güvenilirliği).
2. The Nature of the İstihkak Claim
The istihkak davası is regulated primarily by Articles 96 to 99 of the İcra ve İflas Kanunu (İİK). It enables a third person to claim that a property seized during enforcement proceedings actually belongs to them, not the debtor. It is not a mere objection—it is a mini-trial on ownership, where the third party must demonstrate legitimate and provable title.
Under normal conditions, the law presumes that the person in possession of a movable is its owner. In enforcement, this means that if property is found in the debtor’s house, warehouse, or factory, it is presumed to belong to the debtor. The claimant bears the burden of proof to overturn that presumption.
When foreign companies, exporters, or leasing entities are involved, this burden often hinges on documents originating abroad—contracts, invoices, bills of lading, certificates of origin, and more.
3. When Does a Foreign Element Arise?
A case has a “foreign element” when at least one of the following occurs:
- The owner is a foreign national or a foreign company.
- The ownership documents are issued abroad.
- The property crosses borders (e.g., imported machinery or goods in transit).
- The contract or invoice is governed by foreign law or drafted in a foreign language.
- The transaction was executed through international banking systems or logistics operators.
In these situations, courts must not only assess factual possession but also determine which law governs ownership—a question answered by Turkish conflict-of-laws principles (Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun – MÖHUK).
4. Governing Law: Lex Rei Sitae and MÖHUK Article 21
Under Article 21 of MÖHUK, ownership and other real rights over movables are governed by the law of the country where the property is located (lex rei sitae).
Thus:
- If the goods are physically in Turkey when seized, Turkish law applies to determine who owns them.
- If they were in transit, ownership may be governed by the law of the country of destination.
This rule ensures predictability but can disadvantage foreign parties who rely solely on contractual rights created abroad. For example, a retention-of-title clause valid under Swiss or German law might not automatically protect the foreign seller if Turkish law governs the asset’s location.
5. Burden of Proof and Procedural Steps
Under İİK Articles 96–97, the process unfolds as follows:
- Notification of claim — A third party asserts ownership before the enforcement office (İcra Dairesi).
- Objection period — The creditor or debtor may contest this within seven days.
- Referral to court — If contested, the matter goes to the İcra Hukuk Mahkemesi (Enforcement Court).
- Filing obligation — The third party must file the istihkak davası within seven days after notification, or the claim lapses.
- Presumption of ownership — Possession equals ownership unless the claimant proves otherwise.
- Possible compensation — If the court finds the claim frivolous or in bad faith, the claimant may face monetary penalties.
For a foreign claimant, this compressed timeline makes document preparation and authentication crucial well before any seizure occurs.
6. The Evidentiary Core: Proving Ownership Across Borders
The claimant must show:
- How they acquired the property,
- Why the debtor has it,
- That the debtor’s possession is temporary or subordinate, and
- That all documents are genuine and admissible under Turkish law.
Typical evidentiary sets include:
- Sales or leasing agreements,
- Commercial invoices,
- Bills of lading or CMR waybills,
- Packing lists with serial numbers,
- Bank payment records (SWIFT, MT103),
- Customs declarations or delivery reports,
- Correspondence confirming non-transfer of ownership.
However, documents issued abroad raise two interrelated questions:
- Authenticity — can the Turkish court trust the document’s origin?
- Comprehensibility — can it be read and interpreted accurately in Turkish?
7. Document Country and Authentication
7.1 Apostille Convention
Turkey is a party to the 1961 Hague Apostille Convention. Documents originating from other member states must carry an apostille certificate confirming the authenticity of the signature and seal. The apostille replaces full diplomatic legalization.
Examples:
- A notarized sales agreement from France → needs apostille from French authority.
- A commercial registry extract from Germany → needs apostille before use in Turkey.
7.2 Consular Legalization for Non-Hague States
If the document comes from a country not party to the Apostille Convention, it must undergo consular legalization:
- Notarization in the originating country,
- Approval by that country’s foreign ministry,
- Legalization by the Turkish consulate.
7.3 e-Apostille (Digital Apostille)
Turkey now recognizes electronic apostilles (e-Apostil). Some states issue electronic certificates, enabling rapid verification online—a crucial time-saver in enforcement contexts where seven-day deadlines apply.
7.4 The “Country of the Document” Rule
The country of issuance defines the path of authentication. For instance, a Swiss invoice and a Qatari bill of lading follow different legalization processes. Lawyers must map these early in the case to avoid procedural rejection.
8. Translation Pitfalls: When Good Evidence Fails
Even properly legalized documents can fail in court if translations are inaccurate.
Common pitfalls include:
8.1 Terminological Mismatch
Legal terms like “retention of title,” “lease-to-own,” or “security interest” often lack exact Turkish equivalents. A careless translation may distort the ownership structure entirely. For example:
- “Retention of title” rendered as “mülkiyetin devrinin ertelenmesi” is fine,
- But translating it as “satışın askıya alınması” misleads the judge.
8.2 Certification Defects
Translations must be performed by sworn translators (yeminli tercüman) and typically notarized. Courts are strict; an uncertified translation—even if accurate—may be disregarded.
8.3 Inconsistent Terminology
When multiple documents use inconsistent Turkish renderings for the same term (“lessee” translated once as “kiracı,” another time as “malik”), credibility suffers. Consistency across the file is essential.
8.4 Ambiguous or Missing Dates
Translation errors in dates or serial numbers can create fatal discrepancies between invoices, shipping records, and customs entries.
9. Strategic Use of Translation as Advocacy
Translation is not merely mechanical—it is part of advocacy. A well-designed translation strategy includes:
- Creating a bilingual glossary for all recurring legal and commercial terms,
- Preparing a translator’s explanatory note for technical terms (e.g., “ROT clause,” “CMR delivery”),
- Ensuring identical terminology across all filings and exhibits,
- Filing both the original and translated versions simultaneously with a notarized translator statement.
Such discipline can turn foreign documentation from a weakness into persuasive evidence.
10. Typical Foreign-Element Scenarios
10.1 Retention-of-Title Sales (ROT)
Foreign sellers often retain ownership until full payment. Turkish courts require proof that:
- The clause exists in writing,
- It was communicated before delivery,
- The goods can be individually identified, and
- The seller did not waive the right.
If these are documented and apostilled, the claim stands a fair chance—even under Turkish substantive law.
10.2 Cross-Border Leasing
Leasing equipment to a Turkish entity requires:
- A clear leasing agreement,
- Delivery and acceptance reports,
- Proof of continued ownership by lessor,
- Insurance showing lessor as beneficiary.
10.3 Goods in Transit or at Customs
When goods are seized while in transit or in bonded warehouses, the claimant should invoke İİK Article 99, which governs third-party possession. The burden may shift to the creditor, provided the warehouse or carrier acknowledges custody on behalf of the claimant.
10.4 Inter-Group Ownership
Multinational structures with related companies (e.g., a parent in Switzerland and a subsidiary in Turkey) often face skepticism. Courts scrutinize intercompany invoices and pricing for signs of collusion. Transparent documentation and arm’s-length terms are essential.
11. Practical Checklist
| Phase | Action Items | Deadline / Risk |
|---|---|---|
| Before seizure | Prepare apostilled copies of key contracts, invoices, and shipping documents. | Avoid last-minute legalization. |
| Upon seizure | Notify enforcement office in writing within 7 days of learning of seizure. | Delay forfeits claim rights. |
| At court | Submit notarized translations with originals attached. | Uncertified translation = inadmissible. |
| During hearing | Explain possession logic (e.g., storage, consignment, repair). | Overcome “debtor possession” presumption. |
| Post-decision | If rejected, consider appeal within 10 days under İİK 363. | Late filing = decision final. |
12. Common Mistakes in Foreign İstihkak Claims
- Assuming contract law = ownership law.
Ownership is governed by lex rei sitae, not by the contract’s chosen law. - Submitting documents without apostille.
Turkish enforcement offices cannot recognize unauthenticated foreign documents. - Failing to explain possession.
“The goods were in debtor’s factory for delivery” is not enough; the reason and duration must be documented. - Relying on non-notarized translations.
Courts value formality; informal translations are routinely ignored. - Ignoring compensation risk.
Filing an unsubstantiated istihkak claim can lead to financial penalties for bad faith.
13. The Role of Expert Reports and Witnesses
In complex cases—especially involving machinery, equipment, or serialized goods—courts may appoint experts to verify identity and ownership. Providing technical catalogues, photos, and maintenance logs strengthens credibility.
Witnesses (e.g., warehouse managers, drivers) should be prepared to testify on custody arrangements, emphasizing that the debtor’s control was temporary.
14. Electronic Evidence and Cross-Border Communication
Emails, SWIFT confirmations, and electronic invoices can be used if properly authenticated. Under HMK Article 199, electronic evidence is admissible if its integrity can be verified (e.g., certified email, timestamped server logs).
For foreign companies, using KEP (Registered Electronic Mail) or certified e-signature for Turkish correspondence helps build a trustworthy evidentiary trail.
15. Conclusion
Foreign-element istihkak proceedings in Turkey demand more than ownership documents—they require a strategy integrating substantive law, procedural deadlines, and evidentiary precision.
To prevail, the claimant must:
- Identify the applicable ownership law (lex rei sitae),
- Authenticate every foreign document via apostille or consular channels,
- Submit sworn, consistent translations, and
- Build a coherent story explaining why the debtor held but did not own the goods.
In practice, winning an istihkak davası with a foreign dimension depends less on the value of the property and more on how effectively the claimant anticipates the intersection of law, language, and procedure.
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