Complaint Procedures In Turkish Execution Law – Atty. Ozan Soylu
1. What is complaint in Turkish execution law and in which cases is it applied?
In Turkish law, complaint is a special application method in execution and bankruptcy law, and all kinds of transactions of execution and bankruptcy offices constitute the subject of complaint. The transactions that can be subject to complaint may be positive actions of the execution officer (seizure, sale, etc.), as well as negative actions such as not performing a job, not fulfilling a request, or leaving it in abeyance.
The point to be noted is that what is meant by transaction is the behavior of the execution office in the face of a concrete event. The mere expression of thought or possible behavior of the execution officer cannot be accepted as a transaction to be subject to complaint.
2. What are the reasons for complaint?
The reasons for complaint are:
- The transaction being contrary to the law
- The transaction not being suitable for the incident
- Failure to fulfill a right
- Leaving a right in unjustified abeyance
In a Turkish Supreme Court decision, it was ruled that “(…) The common conclusion from Articles 85 and 79 of the Execution and Bankruptcy Law is that the execution director is not given discretion regarding the implementation of seizure. Article 85 of the Execution and Bankruptcy Law only gives the execution director discretion in determining ‘the amount sufficient for the receivables’. (…)” Thus, the limits of the execution director’s discretion were determined.
3. How long is the complaint period and when does it start?
The complaint period is seven days as a rule, according to Article 16/1 of the Execution and Bankruptcy Law, and starts from the date the transaction subject to complaint is learned. If the transaction subject to complaint has been notified to the complainant, the period starts from the date of notification. However, if it was learned earlier than the notification date, it is natural that the period will start from the date of learning.
The point to be noted is that the learning date stated by the complainant is essential. The opposite of this date can only be proven by the other party with a written document. The opposite of the declared learning date cannot be proven by witness testimony.
4. In which cases can the complaint be without a time limit?
Two exceptions to the general rule that the complaint period is seven days are regulated in Article 16/2 of the Execution and Bankruptcy Law. In these two cases, the complaint is not subject to a time limit:
- Complaint to be made due to failure to fulfill a right or leaving it in unjustified abeyance
- Complaint against transactions contrary to public order
In a Turkish Supreme Court decision, it was ruled that “(…) Complaints about the account table prepared contrary to the judgment are not subject to a time limit. (…)” Thus, it was stated that the complaint based on the reason of being contrary to the judgment is not subject to a time limit.
5. What procedure is followed in complaint proceedings?
Complaint is not a lawsuit in the sense of civil procedure law, but a way specific to execution law, and therefore it has two parties, not plaintiff and defendant, but complainant and complained (counter party). The complaint can be made with a petition, or it can be made verbally by having the complaint statement recorded by the execution court.
The point to be noted is that in cases where there is no provision to the contrary, the execution court decides whether it is necessary for the execution office that made the transaction subject to complaint to make an explanation and whether a hearing is necessary.
6. What decisions can the execution court make as a result of the complaint?
If the execution court finds the reasons for complaint justified, it decides to accept the complaint. In case of acceptance of the complaint, the execution court can make three types of decisions according to the reasons for complaint:
- Annulment (cancellation) of the transaction subject to complaint
- Correction of the transaction subject to complaint
- Ordering the execution of the work that the execution officer did not do without reason or left in unjustified abeyance
7. What does the annulment of the transaction subject to complaint mean and what are its consequences?
As a result of the annulment decision, the transaction subject to complaint becomes invalid from the date it was made. That is, the annulment decision is retroactive to the date the transaction was made. Therefore, the transactions made depending on this transaction are also considered annulled.
The point to be noted is that apart from the annulment of the transaction subject to complaint, the execution court cannot perform the correct transaction by taking the place of the execution officer.
Examples include the annulment of payment or execution orders not prepared in accordance with the execution request, or the cancellation of the auction.
8. What does the correction of the transaction subject to complaint mean and what are its examples?
In some cases, the execution court does not completely annul the transaction, but corrects it. In this case, the decision of the execution court takes effect from the moment it is made. It is not retroactive like the annulment decision.
Examples include the correction of the file calculation made by the execution directorate, the correction of the amount seized in wage seizure, the correction of the notification date in case of improper notification of the payment order.
9. Who can be a party to the complaint and what are the points to be considered regarding the adversary?
Anyone who claims to have been harmed by the action of the execution directorate can apply for the complaint. The complainant can be the parties to the execution (creditor and debtor) and their heirs, as well as third parties (such as those claiming ownership, those participating in the auction).
The point to be noted is that the execution directorate cannot be accepted as an adversary in the complaint. If the judge deems it necessary, he/she may request an explanation from the execution office that made the transaction subject to complaint.
In a Turkish Supreme Court decision, it was ruled that “(…) The parties to the execution and third parties are obliged to apply to the execution court through the complaint method for the annulment or amendment of all transactions made by the execution directorate. An application made to the same directorate on this matter does not produce any results. (…)” Thus, the importance of determining the correct addressee of the complaint was emphasized.
10. What is the effect of the complaint on the execution proceedings?
According to Article 22 of the Execution and Bankruptcy Law, the complaint does not stop the execution unless the execution court decides. In other words, the complaint application does not automatically stop the execution proceedings.
11. What are the common mistakes made in practice regarding complaints?
Common mistakes made in practice are:
- Making decisions based on documents in cases where a hearing should be held
- Acceptance of main or auxiliary intervention requests in the execution court
- Evaluating complaint and objection requests as a whole
- Being mistaken about the stage until which a complaint can be made
- Direct rejection of applications regarding the new decision given by the execution directorate by reversing its own decision
The point to be noted is that in complaints and objections, issues such as judicial remedy, duty, authority, party capacity, execution capacity, legal representative, execution authority, power of attorney capacity, expense advance, foreign security, legal benefit, final judgment, execution condition should be considered ex officio.
12. Can legal remedies be sought against decisions given as a result of complaints?
Legal remedies can be sought against decisions given as a result of complaints. However, in case of rejection or acceptance of the complaint, compensation or fine cannot be adjudicated since there is no regulation in the law.
The point to be noted is that showing the execution directorate as an adversary does not give the execution directorate the right to appeal against the decision, nor can expenses and attorney fees be adjudicated against it.
For more help or consultation on this matter, you can contact us.