Unjust Enforcement in Turkish Law

Without judgment and with judgment, debtors can sue creditors in the event of unjust enforcement proceedings.

 

”(…) In the case subject to the lawsuit, the defendant Ismail initiated enforcement proceedings against the plaintiff, who also appeared as a joint debtor, and the main debtor Hüseyin Gürkan, who is not a party to the lawsuit, by duly putting into enforcement the promissory notes given to him against his debt. As a result of the trial conducted upon the plaintiff’s objection to the signature on the promissory note, it was determined that the signature did not belong to the plaintiff, and the enforcement proceedings against him (…) 4th Civil Chamber 2006/9873 E., 2007/8004 K.

 

In the Enforcement and Bankruptcy Law, there is no general regulation preventing the abuse of enforcement procedures such as unjust enforcement. In other words, there is no general provision in the legislation that prevents the abuse of rights or the rule of honesty. However, within the framework of enforcement compensations, certain regulations exist for cases where the creditor’s unjust and malicious enforcement is found unjust in the objection of the debtor or third parties.

 

Debtors or third parties who suffer damage due to unjust enforcement can file a material and moral compensation lawsuit against the creditor who initiated the unjust enforcement. Material and moral compensation lawsuits can be initiated by the party or third parties subjected to unjust enforcement.

In other words, the element of injustice in the enforcement process is generally evaluated in the context of the enforcement processes involving the parties and relevant third parties. Therefore, the act carried out by the enforcement officer alone does not constitute injustice that would hold the opposing party liable in the enforcement process.

 

However, to discuss liability for compensation due to unjust enforcement, the damage or danger of damage resulting from the unjust enforcement must be proven. In other words, it must be proven that the enforcement is unjust and that the debtor or third parties have suffered damage.

On the other hand, even if the parties or relevant third parties have been subjected to unjust enforcement, if there has been no intervention by the enforcement body regarding the relevant action or if no damage has occurred as a result of this intervention, it is generally not possible to discuss liability for compensation.

 

” (…) It was decided to annul the enforcement on the grounds that the due date of the promissory note, which was the basis of the enforcement, was changed from 2009 to 2008, and the decision became final on 28/05/2011. Taking into account the settled decisions of the Supreme Court, it was ruled that unjust enforcement and unjust attachment constituted an unjust act according to the principles and rules of liability law, and material and moral compensation claims were partially accepted (…) 13th Civil Chamber 2015/9067 E., 2016/18448 K.”

 

“Material Compensation in Unjust Enforcement Lawsuits”

A material compensation lawsuit aimed at remedying the material damage caused to the assets due to unjust enforcement is filed in cases where the debtor is subjected to unjust enforcement.

The purpose of this lawsuit is to compensate the debtor’s concrete damage to their assets. However, for a compensation lawsuit, there must be a real victimization due to unjust enforcement and a causal link showing that this enforcement caused damage to the assets. The proof of this situation is the responsibility of the party initiating the lawsuit.

 

” (…) Due to unjust enforcement, the plaintiff claimed material compensation on the grounds that interest had to be paid during other enforcement proceedings against him and that bank loan interest was also paid.
There is no appropriate causal link between the unjust enforcement carried out by the defendants and the material damage alleged and ruled by the court. The plaintiff’s claim for material compensation must be rejected. The court’s acceptance of this claim was found inappropriate and requires reversal (…) 4th Civil Chamber 2013/8548 E., 2014/4964 K.”

 

“Moral Compensation in Unjust Enforcement Lawsuits”

A moral compensation lawsuit filed due to unjust enforcement seeks to remedy the distress experienced by the debtor or third parties due to an unlawful act or action and to compensate for the moral damage to their personal values.

Therefore, for moral compensation to be requested, there must be moral damage suffered due to unjust enforcement and a causal link between this damage and the unjust enforcement.

 

Furthermore, while filing a moral compensation lawsuit due to unjust enforcement, the degree of fault and economic and social status of the parties should be considered to determine the amount of moral compensation.

When determining the amount of moral compensation, courts should ensure that there is a reasonable ratio between the act violating personal rights and the amount of compensation, that it does not lead to enrichment of one party, and that it alleviates the distress proportionate to the moral damage.

 

” (…) In the concrete case; although it is understood that the enforcement is unjust, it is not proven that the defendant is severely at fault and malicious. The mere fact that the defendant initiated unjust enforcement against the plaintiff is not an event that would disturb the plaintiff’s inner peace. According to Article 58 of the Turkish Code of Obligations, which regulates the conditions for moral compensation, this unjust act by the defendant cannot be considered an act constituting an attack on the social, physical, and personal values of the individual. Furthermore, the plaintiff did not suffer severe moral damage due to unjust enforcement. In this case, (…) 4th Civil Chamber 2016/9905 E., 2018/6408 K.”

 

“How Does the Statute of Limitations Work in Unjust Enforcement Lawsuits?”

In material and moral compensation lawsuits filed due to unjust enforcement, the statute of limitations is 2 years from the date of learning of the unjust enforcement and 10 years from the initiation of unjust enforcement in any case. Therefore, a debtor who learns about unjust enforcement and does not object within two years will not have the right to file a compensation lawsuit.

 

” (…) Moreover, the statute of limitations for filing a lawsuit to compensate for the damage suffered due to unjust attachment is 1 year (Note: It is 2 years in the new Code of Obligations), and the negative determination decision that the plaintiff is not indebted to the defendant due to the invalid promissory notes became final on 02/06/2011. Since the enforcement proceedings initiated by the plaintiff to compensate for the damage suffered due to unjust attachment were started on 06/08/2012, after

the 1-year statute of limitations had passed from the date of the finalization of the decision on the invalidity of the attachment, the lawsuit was dismissed due to the statute of limitations (…) 4th Civil Chamber 2016/2173 E., 2016/3855 K.”

 

“Which Court is Competent in Unjust Enforcement Lawsuits?”

In compensation lawsuits arising from unjust enforcement, the competent court is the Civil Court of First Instance according to Article 2/1 of the Code of Civil Procedure. According to this law, the Civil Court of First Instance handles claims for compensation for material damages arising from unjust enforcement and enforcement proceedings, regardless of the value or amount of the lawsuit.

Moreover, it deals with claims for compensation for moral damages in areas concerning personal existence. However, if at least one party is a merchant, the competent court is the Commercial Court of First Instance. Thus, the authority and jurisdiction in compensation lawsuits arising from unjust enforcement are determined.

 

” (…) The plaintiff initiated enforcement proceedings without judgment against the defendant Municipality to collect a monetary receivable, and in the lawsuit filed to annul the objection made by the defendant Municipality to this enforcement, the competent court is the general competent courts within the judicial jurisdiction.
Therefore, the court should have decided to transfer the case to the general competent courts within the judicial jurisdiction due to lack of jurisdiction, instead of dismissing the case for lack of jurisdiction on the grounds that administrative courts are competent in resolving the dispute (…)” 9th Civil Chamber 2013/16996 E., 2014/4008 K.

 

“Which Court is Authorized in Unjust Enforcement Lawsuits?”

In material and moral compensation lawsuits arising from unjust enforcement, the authorized court is the court of the place where the person subjected to unjust enforcement resides. It is important to emphasize this point because according to Article 7/1 of the Code of Civil Procedure, if there are multiple defendants, and a common authorized court has been determined regarding the subject matter of the lawsuit, the case will be heard in this court.

 

”(…) If it is concluded that the dispute is heard in the Labor Court in Afyonkarahisar and that the enforcement is initiated in the competent enforcement office,
it should be decided to reject the debtor’s objection to jurisdiction and to examine the dispute on the merits. If it is determined that the enforcement office where the enforcement is carried out is not competent, since there is no valid enforcement initiated in the competent enforcement office, the case should be dismissed due to lack of procedural requirement (…) 5th Civil Chamber 2022/10177 E., 2022/13156 K.”

 

“How Does the Procedure Work in Unjust Enforcement Lawsuits?”

Since there is no special regulation, the mentioned compensation lawsuit is a typical compensation lawsuit based on tort provisions. Therefore, the lawsuit process proceeds similarly to standard compensation lawsuits in terms of stages such as submitting petitions, preliminary examination, and investigation.

As a result, the procedural process to be followed in this lawsuit is the written trial procedure, as it does not comply with one of the summary trial provisions specified in Article 316 of the Code of Civil Procedure.

 

”(…) After completing the necessary procedural actions in the preliminary examination hearing, it was necessary to proceed to the investigation hearing. Despite this mandatory regulation of the law, proceeding to the investigation hearing without conducting a preliminary examination and a preliminary examination hearing and deciding on the merits was found inappropriate and requires reversal (…) 11th Civil Chamber 2013/7410 E., 2013/21829 K.”

 

 

For more help or consultation on this matter, you can contact us.