There is no legal regulation in our law that requires enforcement proceedings to be filed in a single file for debts covered by the same judgment. However, there is no legal regulation stipulating that separate enforcement proceedings can be initiated for rights covered by a judgment.
Article 1 of our Turkish Civil Code states, “The law shall apply to all matters it addresses, both in letter and spirit. If there is no applicable provision in the law, the judge shall decide in accordance with customary law; if this is not the case, the judge shall rule according to the rule he would have enacted if he were the legislator.” Furthermore, Article 2, titled “Conduct with Honesty,” states, “Everyone must comply with the rules of honesty in exercising their rights and fulfilling their obligations. The legal order does not protect the blatant abuse of a right.” Article 4, titled “Discretionary Power of the Judge,” states, “In matters to which the law grants discretionary authority or mandates consideration of the exigencies of the situation or justifiable reasons, the judge shall decide in accordance with law and equity.”
Abuse of rights; It refers to the act of committing unlawful acts by exceeding the limits of a legally existing right or by citing that right as justification, or the exercise of a right by diverting it from its intended purpose, even though it falls within the limits of the authority granted by law. Although the judgment is a unified whole, the creditor’s initiation of two separate proceedings based on the same judgment, without a valid and legal basis, resulting in damages to the debtor, constitutes a clear abuse of right.
In this case, since there is no provision in the law stipulating that separate proceedings can be initiated for rights granted by a judgment, the judge must fill the gap in the law, in accordance with the above-mentioned legal articles, within the framework of objective principles of good faith.
The relevant Court of Cassation decision is as follows:
Republic of Turkey, Court of Cassation, 8th Civil Chamber, Case No. 2017/16221, Case No. 2017/16244, Case No. December 6, 2017
“At the end of the trial in the case discussed above between the parties… the 24th Enforcement Civil Court ruled to dismiss the complaint. Upon the debtor’s attorney’s appeal against the court’s decision… the 20th Civil Chamber of the Regional Court of Justice ruled to dismiss the appeal. This time, upon the debtor’s attorney’s appeal of the Regional Court of Justice’s decision, the Chamber reviewed the case file and considered its merits.
DECISION
The debtor’s attorney requested the annulment of the payment order, stating that multiple legal proceedings had been initiated against his client based on the same judgment and that, due to the judgment’s comprehensive nature, separate legal proceedings could not be initiated against each plaintiff.
The court dismissed the complaint. Upon the debtor’s attorney’s appeal against the judgment, the Regional Court of Justice granted the appeal on the grounds that there was a voluntary common cause between the plaintiffs and that separate judgments had been issued against each plaintiff. The appeal was rejected on the merits, and this time, the debtor’s attorney filed an appeal.
Article 29 of Code of Civil Procedure No. 6100, titled “Obligation to Act Honestly and Tell the Truth,” states that parties must act in accordance with the principle of honesty. Parties are obligated to provide truthful explanations regarding the facts underlying the case. Paragraph 1 of Article 327, titled “Liability for Trial Expenses Due to Violation of the Principle of Honestly,” states that a party who has caused unnecessary prolongation or incurred expenses due to a violation of the principle of honesty may be ordered to pay all or a portion of the litigation expenses, excluding the judgment and court fees, even if a decision is rendered in their favor.
Article 1 of Code of Civil Procedure No. 4721, titled “Application and Sources of Law,” states that the Law applies in letter and spirit to all matters it addresses. If there is no applicable provision in the Law, the judge shall apply according to customary law. If there is no such rule, the judge shall apply according to customary law. If he were to impose a judgment, he would make his decision accordingly. A judge shall utilize scientific opinions and judicial decisions when making his decision. In Article 2, titled “Behaving Honestly,” everyone must comply with the rules of honesty when exercising his rights and fulfilling his obligations. The legal order does not protect the blatant abuse of a right. In Article 4, titled “Discretionary Power of the Judge,” the judge shall decide in accordance with law and equity in matters for which the law grants discretionary power or orders the consideration of the requirements of the situation or justifiable reasons. In Article 33, titled “Application of Law,” it is stated that “The judge shall apply Turkish law ex officio.” In Article 36, titled “Freedom to Seek Rights,” of the 1982 Constitution No. 2709, it is stated that everyone has the right to claim and defend themselves before judicial authorities as plaintiff or defendant, by making use of legitimate means and procedures, and to a fair trial.
Article 77 of the Turkish Code of Obligations No. 6098, which simplifies Article 61 of the Code of Obligations No. 818, titled “Debt Relationships Arising from Unjust Enrichment,” states that anyone who, without just cause, becomes enriched from the assets or labor of another person is obligated to repay this enrichment. This obligation arises particularly if the enrichment is based on a cause that is not valid, has not occurred, or has ceased.
In this particular case, it appears that the creditor’s attorney initiated multiple legal proceedings based on the same judgment.
In this context, there are no legal provisions stipulating that separate legal proceedings can be initiated for rights granted by a judgment. In this case, the dispute must be resolved by taking into account Articles 1, 2, 4, and 33 of the Turkish Civil Code, Article 36 of the Constitution, Article 61 of the Code of Obligations and 77 of the new Turkish Code of Obligations, and Article 29 of the Code of Civil Procedure.
Generally, Article 2 of the Turkish Civil Code is not applicable to objections and complaints regarding enforcement law. However, considering the other legal articles mentioned above, objective rules of good faith should not be disregarded, limited to these types of cases. Abuse of a right can also be defined as the act of committing unlawful acts by exceeding the limits of a legally existing right or by citing that right as justification, or as the exercise of a right by diverting from its intended purpose, even within the limits of the powers granted by law. According to Article 2 of the Turkish Civil Code, everyone must comply with the rules of honesty when exercising their rights and fulfilling their obligations. The legal order does not protect the blatant abuse of a right. In other words, when exercising their rights and paying their debts, a rights holder must adhere to objective principles of good faith, act honestly, and avoid harming others. Even if the rights holder does not intend to harm anyone else, if their actions clearly violate the principles of good faith and cause harm to others, or if there is an excessive imbalance between the benefit provided to the rights holder and the harm caused to others, this can be considered an abuse of right. The Constitution, the Code of Civil Procedure, the Turkish Civil Code, and the Turkish Code of Obligations all require rights holders to act within objective principles of good faith when exercising their rights, stating that contrary conduct cannot be protected by the legal system.
Even if a creditor exploits a loophole in the law, initiating separate legal proceedings for the rights in a judgment, demanding additional attorney fees, resulting in unjust enrichment, or imposing additional litigation costs on the plaintiff debtor, constitutes an abuse of right and cannot be protected by the legal system. The judge must fill the gap in the law within the framework of objective principles of good faith, as outlined in the above-mentioned legal articles. Although the judgment was complete, it was determined that the creditor, by initiating two separate proceedings without a valid and legal basis, failed to comply with the principle of honesty stipulated in the law, causing the debtor to suffer damages.
Since the creditor’s conduct cannot be protected by the legal order in the face of the aforementioned legal provisions, it was necessary to overturn the Regional Court of Justice’s decision to reject the appeal on the merits and overturn the first-instance court’s decision.
CONCLUSION: The Regional Court of Justice’s decision is overturned… For the reasons stated above, the decision of the 24th Enforcement Civil Court, dated October 21, 2016, numbered 2016/847-834, should be implemented by reference to Article 364/2 of the Enforcement and Bankruptcy Code (ÇİK) amended by Law No. 5311, and Article 371/1-ç. It was unanimously decided on 06.12.2017 that the decision be REVERSED in accordance with article 373/1, that a copy of the decision be sent to the Regional Court of Justice and the file be sent to the first instance court, and that the advance fee be returned to the appellant upon request.”