The declaration of property is the debtor’s verbal or written notification to the enforcement office of his/her property, rights and receivables, both his/her own and third parties’ property, rights and receivables, and their types and qualities, how he/she makes a living, and accordingly how he/she can pay the debt.
The debtor is obliged to declare only the goods, rights and receivables sufficient for his/her debt, and is not obliged to declare all his/her goods, rights and receivables.
In the proceeding through general attachment, if the debtor does not object to the payment order within 7 days or does not pay the debt, he/she must make a declaration of property within this 7-day period. If the debtor has objected to the debt within 7 days, he/she is not obliged to declare his/her assets until the removal or cancellation of the objection is decided. In the case of specific attachment of bills of exchange, the debtor must make a declaration of property within 10 days from the notification of the payment order.
If the property declaration made by the debtor is untrue, he/she shall be penalised according to Article 338 of the BEC.
Article 338 of the BEC: “Anyone who makes the declaration required by this Law in an untrue manner shall be sentenced to imprisonment from three months to one year upon the complaint of the creditor.”
HOWEVER, THE OFFENCE WILL NOT BE COMMITTED IF THE CREDITOR KNOWS THE GOODS NOT SHOWN IN THE DECLARATION BEFORE THE DECLARATION.
YARGITAY Criminal General Assembly, Esas: 2009/16-15, Decision: 2009/138, Decision Date: 26.05.2009:
“Decision: The dispute to be resolved by the Criminal General Assembly of the Court of Cassation centres on whether the offence of making a false statement attributed to the defendant has occurred or not.
Some of the actions of the debtors who are subjected to enforcement proceedings through foreclosure are regulated as violations that require sanctions in various articles of the Enforcement and Bankruptcy Law. In this sentence, the debtor’s making the required declaration in an untrue manner is sanctioned under Article 338 of the Enforcement and Bankruptcy Law.
Article 338, which regulates the offence of making false declaration of property, stipulates that anyone who makes the declaration required by this Law in an untrue manner shall be punished upon the creditor’s complaint.
As it can be seen, with this provision, making the declaration required to be notified to the execution office in accordance with Article 74 of the PDPL in an untrue manner is regulated as an independent offence. This offence, which protects the legal benefit of public trust, is committed by fulfilling an obligation arising from the law in accordance with the conditions of the law, but in an untrue manner, and the type of offence is based on fault liability. Untruthful reporting means that the debtor shows the goods, receivables and rights belonging to others as if they belong to him or conceals the goods, receivables and rights belonging to him. However, in order for this offence to occur, the notification must be made by the debtor himself and with the knowledge that it is untrue, and at the same time, this notification must also include the matters specified in Article 74 of the PDL.
In the aforementioned article, the content of the declaration of property; …. is explained as the debtor’s notification to the enforcement office in writing or verbally of the nature and qualifications of the amount sufficient for his debt in the goods and receivables and rights both in his possession and in the possession of third parties, and all kinds of earnings and incomes and the means of livelihood according to his lifestyle and how he can pay his debt accordingly.
As it is understood from the text of the article, in order to be able to speak of a notification that complies with the law in terms of its content, the debtor must include in this declaration
a) His goods, receivables and rights in an amount sufficient for his debt by showing their type, nature and characteristics,
b) All kinds of earnings and income,
c) Livelihoods according to the way of life,
d) The manner in which he/she can pay his/her debt must be notified.
When the concrete case is examined in the light of these explanations; for a receivable of 6.500 Liras, A…. 1. Civil Court of First Instance on 10.10.2006 dated 10.10.2006 and numbered 142-142 d.work, a precautionary attachment was placed on the movable and immovable properties of the debtor M… Ç… and his rights and receivables from third parties in accordance with Article 257 of the PDL, and on 10.10.2006, pursuant to the precautionary attachment decision, the debtor was registered at A…. Land Registry Directorate where the debtor is registered and A….. for placing a precautionary attachment on the traffic records of the vehicles registered in his name Traffic Registration Supervision Branch Directorate, both letters were delivered to the creditor’s attorney by hand, a precautionary attachment was placed on the immovables registered in the name of the debtor on 10.10.2006, the precautionary attachment was converted into an executive attachment on 13.10.2006 by the creditor’s attorney, and the debtor was notified of the payment order numbered sample 10, 14.11. 2006, the debtor made a declaration of property to the enforcement directorate on the same day, and in this declaration, he accepted the debt and stated that he had no movable or immovable property registered in his name, that his house was rented, that he made a living by shepherding, that his monthly income was 300 Lira, and that the petition for declaration of property was placed in the file on 14.11.2006,
With the petition dated 27.12.2006, the creditor’s attorney claimed that the debtor made a false declaration by concealing these immovables in the declaration of property, although it was determined that the debtor had 18 pieces of immovable property according to the title deed record sent, and requested punishment.
Although the date on which the letter dated 10.10.2006 regarding the precautionary attachment of 18 immovables belonging to the debtor was transferred to the file cannot be determined precisely due to the lack of a remittance on the answer to the letter, the letter regarding the precautionary attachment was taken by the creditor’s attorney and submitted to the land registry office, a precautionary attachment was placed on the immovables registered in the name of the debtor on the same day, the precautionary attachment was placed on the immovables registered in the name of the debtor on 13. 10.2006, the precautionary attachment was converted into an execution attachment and the debtor was notified of the payment order numbered sample 10, the acceptance that the immovables belonging to the debtor were known by the creditor before the property declaration by interpreting the doubt arising regarding the date on which the letter dated 10.10.2006 was transferred to the file in favour of the defendant is the natural result of universal rules of law.
In this respect, although the reversal of the Special Chamber is correct in principle, considering the above determinations in the concrete case, it should be understood that the goods not reported by the creditor in the declaration of property should be accepted to be known before the declaration, and if the goods not shown in the declaration by the creditor are known, the imputed offence will not occur, and it should be decided to approve the judgement of resistance.” 03.12.2021
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