IN JUDGMENTS ISSUED BY JUDICIAL COURTS
THE REQUIREMENT OF APPLICATION TO THE ADMINISTRATION BEFORE ENFORCEMENT PROCEEDINGS
NOT EXISTING – ENFORCEMENT PROCEEDINGS
CAN NOT BE INITIATED BEFORE THEY BECOME FINAL
Summary: In the concrete case, the judgment subject to enforcement proceedings is about a debt and, since it is not among those mentioned above, it does not need to become final in order to be subject to enforcement proceedings. For these reasons, while the complaint should have been rejected, its acceptance with the aforementioned reasoning is incorrect.
Republic of Turkey Supreme Court
8th Civil Chamber
E: 2013/8237 K: 2013/13579 K.T.: 26.09.2013
CASE: Upon the request of the appellant for appellate review of the Court decision dated and numbered above, the file related to this matter was sent from the local court to the Chamber. After hearing the report prepared by the Examining Judge for the case file and reading and examining all the documents in the file, the matter was considered as follows:
DECISION: The debtor’s attorney stated that the creditor’s attorney initiated enforcement proceedings against his client based on the judgment of the Mardin 2nd Civil Court of First Instance, case number 2012/289 and decision number 2012/755, and that the creditor, pursuant to Article 58 of Law No. 6352, amending Article 28 of Law No. 2577… According to the second paragraph, the creditor requested that the enforcement proceedings be cancelled because the legal obligation was not fulfilled and the proceedings were initiated without a written application to the Administration, demanding payment of the debt and initiating enforcement proceedings if payment was not made after the 30-day legal waiting period. The court accepted the request and decided to cancel the enforcement order. The judgment was appealed by the creditor’s attorney. The request is based on a complaint under Article 16 of the Enforcement and Bankruptcy Law, by way of Article 41 of the Enforcement and Bankruptcy Law.
Article 28/2 of the Administrative Procedure Law No. 2577, as amended by Article 58 of Law No. 6352. Article 28/2 of the Law contains the following provision: “…In cases where the subject matter is the payment of a certain amount of money, the amount awarded, as well as the attorney’s fees and litigation expenses awarded in all kinds of cases, shall be deposited into the bank account number that the plaintiff or their attorney will notify the defendant administration in writing, within the framework of the procedures and principles specified in the first paragraph, from the date of this notification. If payment is not made within the periods specified in the first paragraph, it shall be enforced and executed in accordance with general provisions…”
However, according to Article 1 of Law No. 2577; the resolution of disputes falling within the jurisdiction of the Council of State, Regional Administrative Courts, Administrative Courts and Tax Courts is subject to the procedures shown in this Law, and the aforementioned amendment to Article 28/2 of the Law cannot be applied to the enforcement of judgments given by the judicial courts. Furthermore, according to Article 443/1 (Article 367/1 of the Code of Civil Procedure) of the Code of Civil Procedure, which should be applied by reference to Article 3 of the Provisional Law No. 6100, an appeal does not suspend the execution of the decision. In other words, as a rule, the fact that the decision has not become final does not prevent its execution. Exceptions to this rule are also regulated in the laws. Judgments concerning immovable property and related real rights, family and personal law (Article 443/4 of the Code of Civil Procedure). The following sections of criminal judgments regarding compensation and litigation costs (Article 4 of Law No. 5275 on the Execution of Criminal and Security Measures),
rent determination judgments (Decision No. 1979/1-3 dated 12.11.1979 on Unification of Jurisprudence), judgments regarding negative determination lawsuits (Article 72 of the Enforcement and Bankruptcy Law),
decisions regarding the enforcement of foreign court judgments (Article 41/2 of the Private International Law Act), Court of Accounts decisions (Article 64 of Law No. 832 on the Court of Accounts),
decisions given in lawsuits related to attachment or provisional attachment applications filed against the administration (Article 28/1 of Law No. 2577 on Administrative Procedure),
judgments regarding the acceptance of ownership claims due to their nature as determinations of ownership cannot be enforced before they become final. In the concrete case, the judgment subject to enforcement proceedings is about a debt and, since it is not among those mentioned above, it does not need to be final in order to be subject to enforcement.
For these reasons, while the complaint should have been rejected, its acceptance on the aforementioned grounds is incorrect.
CONCLUSION: With the acceptance of the appeal of the creditor’s attorney, the Court’s decision is REVERSED for the reasons explained above, in accordance with Articles 366 of the Enforcement and Bankruptcy Law and 428 of the Code of Civil Procedure,
the parties may request a correction of the decision within 10 days from the notification of the Supreme Court Chamber’s decision, in accordance with Articles 388/4 (Article 297/ç of the Code of Civil Procedure) and 366/3 of the Enforcement and Bankruptcy Law,
the decision was made unanimously on September 26, 2013.