Enforcement Courts Trial Procedure in Turkey

Enforcement Courts Trial Procedure in Turkey

I. Enforcement Court

Enforcement courts are specialized courts established to resolve disputes within the scope of enforcement and bankruptcy law, aiming to protect the rights of creditors or debtors. The establishment, duties, and powers of enforcement courts are based on Article 142 of the Constitution. The judge of the enforcement court examines complaints and objections regarding the procedures of the enforcement and bankruptcy offices under its jurisdiction, and conducts inspections and audits of these offices.

II. Procedure for Applying to the Enforcement Court

Applications for complaints, delayed objections, and requests such as lifting objections can be made in writing or orally. Requests falling within the jurisdiction of the enforcement court can be submitted through a written petition or electronically (via the UYAP system).

Applications to the enforcement court can be made by the parties or relevant third parties involved in the enforcement process or bankruptcy case. For example, participants in the auction process, who have submitted bids, can also request the annulment of the auction.

III. Simplified Procedure under the Code of Civil Procedure

Enforcement court requests will be examined under the simplified procedure of the Code of Civil Procedure. In simplified procedures, there is no response to the response petition, and the deadline for submitting a response petition is a maximum of two weeks. There will be no separate preliminary examination and oral hearing.

1. Hearing

The enforcement court will decide whether the dispute should be resolved through a hearing or by reviewing the case file.

a. Situations where the judge decides whether to open a hearing

The enforcement court judge may decide on complaints about delayed objections, objections to claims, complaints against decisions made during bankruptcy, and complaints about the irregularity of notifications based on the documents without holding a hearing. The decision to open or not open a hearing is at the discretion of the judge.

In cases where a hearing is not necessary, the enforcement court must make a decision within ten days for requests, objections, or complaints.

b. Cases requiring a hearing

In cases involving general attachment, conversion of a pledge or mortgage into cash, or requests for the removal of objections containing eviction, a hearing must be held to make a decision. Similarly, objections to notifications of attachment, requests for annulment of auctions, and complaints about decisions made during bankruptcy require a hearing.

2. Jurisdictional Examination

The judge of the enforcement court will examine whether the dispute falls within its jurisdiction. The judge is not bound by the “legal qualification” mentioned in the petition, and will make legal qualifications on its own. The use of terms such as objection, complaint, and claim by the party making the request does not matter; the judge must make a qualification according to the purpose of the applicant.

If the judge finds that the request requires a trial, the request should be rejected. The examination of the enforcement court is narrow in scope, and generally, written documents are evaluated.

3. Examination of the Time Period

After deciding on whether to hold a hearing and whether the dispute falls within its jurisdiction, the enforcement court must conduct an examination of the time period. Almost every type of dispute falling within the jurisdiction of the enforcement court is subject to a time limit. For example, requests not covered by the complaint within seven days, or objections specific to the enforcement through bills of exchange within a 5-day period, must be made. Requests for lifting objections and eviction are subject to a 6-month period.

4. Legal Interest

The enforcement court will also investigate whether there is legal interest in the request. For example, if a complaint is made about the delayed enforcement procedure, and the action is taken, there will be no legal interest in the examination.

5. Examination of the Merits

After the examination of hearing, jurisdiction, time, and legal interest, the judge of the enforcement court can proceed to the merits of the case.

In enforcement courts, as a general rule, witnesses cannot be heard. The court cannot rely on the oath evidence. Expert examination cannot be conducted on commercial ledger records. As a rule, the examination will be based on written evidence. Therefore, the enforcement court is a narrowly specialized court. The decisions of the enforcement court do not constitute a definitive judgment in terms of substantive law.

In the examination carried out in enforcement courts, expert examination is also limited. Expert examination may be ordered for issues such as denial of signature, non-seizability, incompetence, calculation of interest, and rent calculation. However, expert examination cannot be ordered for objections related to forgery or tampering.

Discovery examinations are possible to the extent required by the dispute in enforcement courts. For example, in cases of residency-non-seizability claims, a discovery can be conducted.

The enforcement court can issue “precautionary measures” specifically provided for in the law regarding disputes falling within its jurisdiction. For example, a decision to suspend the enforcement can be considered a precautionary measure.

In terms of the issue of delaying the case, there is also a limited situation in the enforcement court. For instance, the existence of an action for negative determination does not necessarily require a delay in the enforcement court.

Issues such as waiver, acceptance, settlement, related to procedural matters can also be applied in the enforcement court.

The enforcement court will examine only requests and objections of the parties. The court cannot make a decision beyond the claims and objections of the parties.

Together with the decision, if the justified party has been represented by an attorney, the attorney’s fees will also be awarded according to the Attorney Minimum Fee Tariff.

It is not necessary to wait for the decision of the enforcement court to enforce and execute the decision. The decisions of the enforcement court do not prevent other enforcement procedures except for the sale. Hasty procedures can still be carried out.

Memduh Remzi BAL
Attorney at Law | Lawyer in Turkey

Landlord Tenant Attorney Services


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