Decisions That Cannot Be Enforced Without Finalization in Turkish Law
In this article, we will discuss the decisions that need to be finalized before they can be enforced according to the <a href=”https://www.mevzuat.gov.tr/mevzuatmetin/1.5.6100.pdf”>Civil Procedure Law</a> (HMK). We will provide information on which decisions made in certain cases need to be finalized before enforcement. Additionally, we will examine the exceptions to this rule.
<h2>What is Finalization of a Decision?</h2>
Finalization of a decision means that the court’s decision has exhausted all means of appeal or has not been appealed and that the trial has ended in all aspects. After this stage, the decision becomes final and binding for everyone.
<h2>Which Decisions Cannot Be Enforced Without Finalization?</h2>
As a rule, court decisions can be enforced without finalization. However, there are some exceptions. Below is a list of decisions that cannot be enforced without finalization:
<strong><span style=”color: #000000;”>Decrees regarding the immovable property and real rights:</span></strong> Decisions made in cases related to the ownership of immovable property, such as cancellation and registration of the title deed, cannot be enforced without finalization. (<a href=”https://www.mevzuat.gov.tr/mevzuatmetin/1.5.6100.pdf”>Civil Procedure Law</a> 367/2)
<span style=”color: #000000;”><strong>Decrees related to family and personal law:</strong></span> Decisions made in cases such as divorce, custody, modification of personal relations, and name change cannot be enforced without finalization. <span style=”color: #000000;”><strong>However, decisions made in alimony cases are an exception.</strong></span> Decisions in alimony increase cases and decisions to cancel alimony after the poverty alimony case do not need to be finalized.
<span style=”color: #000000;”><strong>Parts of criminal verdicts related to compensation and court costs:</strong></span> Decisions related to compensation and court costs in criminal cases cannot be enforced without finalization.
<span style=”color: #000000;”><strong>Decisions in rent determination cases:</strong></span> Decisions in rent determination and rent adjustment cases cannot be enforced without finalization. <span style=”color: #000000;”><strong>However, the enforcement of the decision in the eviction case does not require finalization.</strong></span>
<span style=”color: #000000;”><strong>Decrees regarding negative declaratory actions:</strong></span> A negative declaratory action is a lawsuit aiming to determine that a right or legal situation does not exist. Decisions in these cases cannot be enforced without finalization. (<a href=”https://www.mevzuat.gov.tr/MevzuatMetin/1.3.2004.pdf”>Execution and Bankruptcy Law</a> Article 72)
<span style=”color: #000000;”><strong>Decisions regarding the enforcement of foreign court judgments:</strong></span> To enforce decisions made by foreign courts in Turkey, these decisions must first be recognized and enforced in Turkey. These decisions cannot be enforced without finalization. (<a href=”https://www.mevzuat.gov.tr/MevzuatMetin/1.5.5718.pdf”>International Private and Procedural Law</a> Article 41/2)
<span style=”color: #000000;”><strong>Court of Accounts decisions:</strong></span> Decisions made by the Court of Accounts cannot be enforced without finalization.
<span style=”color: #000000;”><strong>Decisions in cases related to attachment or provisional attachment applications against the administration:</strong></span> Decisions made in cases against the administration cannot be enforced without finalization.
More detailed information about decisions that cannot be enforced without finalization will be provided below.
<h2>Decrees Regarding Immovable Property and Real Rights</h2>
<span style=”color: #000000;”><strong>Decrees regarding immovable property and real rights</strong></span> include court decisions that affect the ownership, use, or other real rights of immovable property. Decisions made in these types of cases <span style=”color: #000000;”><strong>cannot be enforced without finalization.</strong></span>
<h3>Which Cases Fall Under This Scope?</h3>
<span style=”color: #000000;”><strong>Title Deed Cancellation and Registration Cases:</strong></span> These are cases that seek the cancellation of a title deed or registration in the name of another person.
<span style=”color: #000000;”><strong>Title Deed Cancellation and Registration Cases Due to Deceit:</strong></span> These cases are filed when the deceased person made fraudulent transactions to evade inheritance.
<span style=”color: #000000;”><strong>Title Deed Cancellation and Registration Cases Due to Abuse of Authority:</strong></span> These cases are filed when an agent abuses their authority and unjustly transfers the immovable property.
<span style=”color: #000000;”><strong>Inheritance Law Cases:</strong></span> Decisions made in cases related to the distribution of inheritance, cancellation, or correction of inheritance certificates also fall under this scope.
<span style=”color: #000000;”><strong>Property Regime Cases:</strong></span> Decisions made in cases related to the distribution of property acquired during marriage are considered decrees regarding immovable property.
<span style=”color: #000000;”><strong>Cases Arising from the Condominium Law:</strong></span> Decisions made in cases related to condominium are also included in the decrees regarding immovable property.
<h4>Why Can’t They Be Enforced Without Finalization?</h4>
The main reason why decisions made in cases regarding immovable property and real rights cannot be enforced without finalization is that such decisions directly affect ownership and other real rights. Enforcing an unfinalized decision could disrupt public order and lead to rights violations. Therefore, finalization is required in these types of cases.
<h2>Situations Where Decrees Related to Family and Personal Law Cannot Be Enforced Without Finalization</h2>
Most decisions made in cases related to family and personal law cannot be enforced without finalization. The reason for this is that such decisions directly affect the family and its members and can lead to irreversible consequences.
<h3>There are some exceptions:</h3>
Alimony and precautionary alimony: During a divorce or separation case, alimony and precautionary alimony ruled for one of the spouses or children can be enforced without finalization.
Material and moral compensation arising from illegal acts against a person: During a divorce or separation case, material and moral compensation for illegal acts committed by one spouse against the other can be enforced without finalization.
Protective measures for the child: In cases of emergency situations concerning the protection of the child, precautionary measures ruled by the family court can be enforced without finalization.
Aside from these exceptions, decisions made in cases related to family and personal law should wait for finalization. Otherwise, initiating enforcement proceedings may be illegal and lead to rights violations.
<h2>Parts of Criminal Verdicts Related to Compensation and Court Costs</h2>
In criminal cases, when the defendant is convicted, the court may also rule on compensation and court costs. This ruling aims to compensate the victim for the damage caused by the defendant and cover the trial costs, alongside the criminal penalty.
However, the ruling on compensation and court costs is considered part of the criminal penalty and cannot be enforced without finalization.
<h4>Why Can’t They Be Enforced Without Finalization?</h4>
In criminal cases, public order is essential. Enforcing an unfinalized decision could disrupt public order and lead to rights violations.
The calculation of compensation and court costs can be complex. Therefore, the decision must be finalized, and all parties must have used their rights of appeal.
The defendant may provide security or appeal. In such cases, enforcement proceedings may be postponed or canceled.
There are exceptions where compensation and court costs can be enforced without finalization. For example, if the victim has an urgent need or there is a risk of the defendant fleeing, the court may decide to enforce the decision without finalization.
To enforce compensation and court costs:
The decision in the criminal case must be finalized.
The victim or prosecutor must submit the necessary documents to the enforcement office to initiate enforcement proceedings.
The enforcement office will decide whether to initiate the proceedings after review.
<h2>Decisions in Rent Determination Cases</h2>
Rent determination cases are filed when the tenant and the landlord cannot agree on the rent amount. In these cases, the court decides what the rent amount should be.
<h3>Can Decisions in Rent Determination Cases Be Enforced Without Finalization?</h3>
No, decisions in rent determination cases cannot be enforced without finalization. The reason is that rent determination cases are declaratory in nature. Declaratory cases aim to determine the existence or non-existence of a debt. Decisions in such cases do not create a monetary debt.
Decisions in rent determination cases include a determination of what the rent amount between the tenant and the landlord should be. This determination does not give the tenant the right to initiate enforcement proceedings. The tenant must file a separate lawsuit to collect the rent amount.
<h2>Decrees Regarding Negative Declaratory Actions</h2>
A negative declaratory action aims to determine that a right or legal situation does not exist. In these cases, if the court accepts the plaintiff’s claim, it rules that the right or legal situation subject to the lawsuit does not exist.
<h3><strong>Can Decrees Regarding Negative Declaratory Actions Be Enforced Without Finalization?</strong></h3>
No, decrees regarding negative declaratory actions cannot be enforced without finalization. The reason is that negative declaratory actions are declaratory in nature. Declaratory cases aim to determine the existence or non-existence of a debt. Decisions in such cases do not create a monetary debt.
A decision in a negative declaratory action <strong>only determines that the right or legal situation subject to the lawsuit does not exist.</strong> This determination does not give the plaintiff <strong>the right to initiate enforcement proceedings.</strong> The plaintiff must file a separate lawsuit against the person violating their right or legal situation.
<h2>Decisions Regarding the Enforcement of Foreign Court Judgments</h2>
For decisions made by foreign courts to be enforced in Turkey, an enforcement decision must first be obtained. An enforcement decision is a decision given by the competent Turkish court stating that the foreign court decision can be enforced in Turkey.
<h3>Can an Enforcement Decision Be Enforced Without Finalization?</h3>
No, an enforcement decision cannot be enforced without finalization. The reason is that an enforcement decision is a decree. Decrees can be enforced only after finalization.
<span style=”color: #000000;”><strong>For the enforcement decision to be finalized:</strong></span>
<ul>
<li><span style=”color: #000000;”><strong>No objections must have been made against the decision, or the objections must have been rejected.</strong></span></li>
<li><span style=”color: #000000;”><strong>The decision must have been duly served.</strong></span></li>
<li><span style=”color: #000000;”><strong>All judicial remedies against the decision must have been exhausted.</strong></span></li>
</ul>
<h2>Court of Accounts Decisions</h2>
The Court of Accounts is a high court that audits and judges the financial transactions of public administrations. The decisions made by the Court of Accounts are of great importance for public administrations and public officials.
<h3>Can Court of Accounts Decisions Be Enforced Without Finalization?</h3>
No, Court of Accounts decisions cannot be enforced without finalization. The reason is that Court of Accounts decisions are administrative in nature. Administrative acts are unilateral acts made by an administration that directly produce legal consequences. As a rule, administrative acts are <strong>subject to judicial review.</strong> If a judicial review finds an administrative act illegal, the act is annulled.
Court of Accounts decisions are also administrative acts and are subject to judicial review. The Council of State Administrative Litigation Divisions reviews the legality of Court of Accounts decisions. If the Council of State Administrative Litigation Divisions finds a Court of Accounts decision illegal, it annuls the decision.
<h2>Decisions in Cases Related to Attachment or Provisional Attachment Applications Against the Administration</h2>
<span style=”color: #000000;”><strong>Decisions in cases related to attachment or provisional attachment applications against the administration,</strong></span> as a rule, <span style=”color: #000000;”><strong>cannot be enforced without finalization.</strong></span> The reason these decisions cannot be enforced without finalization is due to the characteristics of the administrative litigation system, the protection of public authority, the balance between the administration and the individual, and the principle of legal security in enforcement law.
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Decisions That Cannot Be Enforced Without Finalization in Turkish Law
