Wage Garnishment Process in Turkish Law – Atty. Ozan Soylu

Wage garnishment in Turkish law is a complex process governed by the Enforcement and Bankruptcy Law. This legal mechanism allows creditors to collect debts directly from a debtor’s salary or wages. The process involves specific rules regarding the garnishable amount, typically limited to one-fourth of the debtor’s net income. Employers play a crucial role in implementing garnishment orders, while debtors have certain rights and protections. Understanding the intricacies of wage garnishment is essential for both creditors and debtors navigating this aspect of Turkish debt collection law.

How is wage and salary garnishment implemented?

When the creditor requests the garnishment of the debtor’s salary or wage, the enforcement office sends a notification to the employer. This notification informs the employer that the debtor’s wage has been garnished, that the earned wage must be reported to the enforcement office within a week at the latest, and that the garnished wage amount must be deducted from the debtor’s wage and sent to the enforcement office until the debt is paid off.

Which article of law is applied in the garnishment of wages and salaries?

Article 355 of the Enforcement and Bankruptcy Law is applied in the garnishment of wages and salaries. This article regulates the procedure for notifications to be made from enforcement offices for deductions from the salaries and wages of debtor officials or employees and the obligations of the addressee.

What is the minimum amount that should be garnished in wage and salary garnishment?

According to Article 83 of the Enforcement and Bankruptcy Law, at least one-fourth of wages and salaries must be garnished. The enforcement officer must garnish at least one-fourth of the wage in any case, but when determining the maximum limit of the wage to be garnished, they should consider the needs of the debtor and their family.

a. How should the concept of “family” be interpreted in wage and salary garnishment?

The concept of “family” in wage and salary garnishment should be interpreted broadly. It should include not only the spouse and children under a certain age but also relatives whom the worker is legally obliged to help (even if they don’t live together) within the scope of this concept. For example, an unrecognized child born out of wedlock, a person living together without marriage, the debtor’s unemployed mother, stepchildren, and relatives such as aunts or mothers-in-law who permanently stay in the debtor’s house can be considered part of the debtor’s family.

How is the 1/4 ratio calculated in salary garnishment?

In salary garnishment, the 1/4 ratio is calculated based on the net salary received by the debtor. Net salary is the amount remaining after tax and social security deductions are subtracted from the gross salary. One-fourth (1/4) of the remaining net salary is deducted for garnishment. For example, if the debtor’s net salary is 20,000 TL, 5,000 TL of it (20,000 / 4 = 5,000) will be deducted for garnishment, and the remaining 15,000 TL will be paid to the debtor.

Can the amount left to the debtor in wage and salary garnishment be below the minimum wage?

In the face of the definitive expression of Article 83 of the Enforcement and Bankruptcy Law, the enforcement officer must garnish the one-fourth part even if the wage left to the debtor falls below the minimum wage. This situation creates a result that contradicts the definition and function of the minimum wage.

What is the scope of the discretionary power granted to the enforcement officer in wage and salary garnishment?

The enforcement officer has the authority to determine the amount necessary for the debtor and their family to make a living. However, in practice, it is generally satisfied with the garnishment of one-fourth of the income, and no serious effort is made for a healthier determination.

What factors should the enforcement officer consider when using their discretionary power in wage and salary garnishment?

When determining the amount necessary for the debtor and their family to make a living, the enforcement officer should consider the social, health, and educational situations of the debtor and their family members. Additionally, the debtor’s family situation, the health condition of themselves and their family, and rental expenses should also be taken into account.

Can an expert be consulted in wage and salary garnishment?

Yes, an expert opinion can be obtained while trying to determine the amount that can be garnished within the framework of the discretionary power granted to the enforcement officer.

What information is included in the notification sent by the Enforcement Office for wage and salary garnishment?

The notification includes the name and surname of the creditor, their representative if any, the debtor, the debtor’s position in the workplace, and the amount of the debt. Additionally, it requests to be informed whether the garnishment has been executed, the amount of the debtor’s salary or wage, to deduct and send the garnished amount, and to report any changes in the debtor’s situation.

What are the legal ways to get rid of salary garnishment?

The most effective way to completely get rid of salary garnishment is to pay off the debt. Besides that:

1. Objecting to the garnishment decision: If you think the garnishment is improper, you can object by applying to the enforcement court.
2. Requesting installment payments: You can arrange for the debt to be paid in installments by agreeing with the creditor.
3. Requesting concordat: If you are unable to pay your debts, you can request concordat from the court.
4. Applying for debt restructuring: You can benefit from the restructuring opportunities offered by the government for public debts.
5. Filing a complaint of non-garnishability: If you think your salary is an income that should not be garnished, you can apply to the enforcement court.

How is the procedure applied in case of multiple salary garnishments?

In case of multiple salary garnishments, the “queue system” is applied in Turkish law. This system works as follows:

1. The first garnishment request received is applied with priority.
2. Garnishment requests received after the deduction for the first garnishment has started are placed in queue.
3. No deduction is made for the next creditor in line until the deduction for the previous garnishment is completed.
4. A maximum of 1/4 of the salary can be deducted for each garnishment. In other words, the total deduction rate cannot exceed 1/4.
5. When one garnishment is completed, the deduction for the next garnishment in line begins.

This system prevents the entire salary of the debtor from being garnished and ensures that they receive the necessary income to sustain their life.

Can a complaint be filed against wage and salary garnishment?

Yes, a complaint can be filed against wage and salary garnishment. The creditor, debtor, and/or a member of the debtor’s family can file a complaint against the process that determines the amount that needs to be revealed for the livelihood of the debtor and their family. In particular, a complaint can be filed based on the reason that the process is not suitable for the incident.

When does the debtor’s right to complain in wage and salary garnishment expire?

Complaints regarding wage and salary garnishment are subject to a legal 7-day period. However, since the complaint of non-garnishability is related to public order, the complaint on this matter is not subject to a time limit.

What are the employer’s obligations in wage and salary garnishment?

After learning that a garnishment has been placed on the salary or wage, the employer must immediately make a deduction on the salary or wage at the rate specified in the notification and fulfill this amount to the enforcement office to meet the debt in the follow-up file. Additionally, if there is a change in the debtor’s salary or wage or the nature of their position, this situation must be immediately reported to the enforcement office by the employer.

What are the employer’s obligations upon receiving notification from the enforcement office?

The employer is obliged to report that the garnishment has been executed and the amount of the debtor’s salary and wage within a week at the latest. Additionally, they must deduct the garnished amount as per the enforcement office’s notification and send it to the office immediately until the debt is paid off.

What should the employer do if there is a change in the debtor’s situation?

If there is a change in the official’s salary, wage, or position, or if they need to receive a salary from another branch, or if their service is terminated, the employer is obliged to immediately report this situation to the enforcement office.

What sanctions are applied to employers who do not comply with the enforcement office’s notification?

The money that employers did not deduct or send by the first means is taken from their salaries or other assets by the enforcement office without the need for a court decision. Additionally, criminal proceedings can also be initiated according to Article 357 of the Enforcement and Bankruptcy Law.

What happens if the employer changes in wage and salary garnishment?

If the debtor’s employer changes after the garnishment is placed on the salary and wage and deductions have started, the new employer should immediately report this situation to the enforcement office. The garnishment continues with the new employer.

Is it possible to garnish retirement pensions?

After the enactment of the Social Insurance and General Health Insurance Law No. 5510, garnishment of retirement pensions is not possible as a rule. The law, by considering the Pension Fund, Bağ-Kur, and Social Insurance institutions under one roof, has prohibited the garnishment of income, pensions, and allowances to be obtained from the Social Security Institution. However, according to Article 88, garnishment is possible for receivables that need to be followed up and collected, and alimony debts.

Is it possible to garnish income obtained from the individual pension system?

If the retirement share to be obtained by a retired person subject to the Individual Pension Savings and Investment System Law No. 4632 is paid to them in part or in full, it is possible to garnish the entire amount. However, if the participant has not yet retired, it is not possible to garnish the funds taken by the pension company on their behalf in any way.

Is it possible to garnish the entire salary and wage with the debtor’s consent in wage and salary garnishment?

No, it is not possible. The one-fourth ratio expressed in Article 83 of the Enforcement and Bankruptcy Law is related to public order. In this respect, even if the debtor consents, the entire salary they receive cannot be garnished.

Is it possible to participate in wage and salary garnishment?

It is not possible to participate in wage and salary garnishment. According to Article 83 of the Enforcement and Bankruptcy Law, if more than one creditor of the debtor has requested garnishment on the salary or wage, the garnishments should be put in order, and deductions for other creditors’ receivables should not be made until the deduction of the previous garnishment is completed.

Is it possible to waive in advance in wage and salary garnishment?

It is not possible to waive in advance in wage and salary garnishment. According to Article 83a of the Enforcement and Bankruptcy Law, agreements made in advance stating that non-garnishable goods and rights can be garnished are invalid. However, it is possible for the debtor to make a declaration of will allowing the garnishment of their entire salary or wage during the garnishment or at a later stage.

Is there a special regulation regarding the garnishment of alimony debts?

Yes, there are special regulations regarding alimony debts. Alimony based on court orders cannot be garnished in any way. Alimony not based on court orders can be partially garnished. Both alimony based on court orders and not based on court orders can be garnished entirely if they are in the nature of accumulated alimony.

Is it possible to garnish future receivables in wage and salary garnishment?

Yes, it is possible to garnish future receivables. Garnishment can also be applied to salary and wage receivables that have not yet arisen but are likely to arise in the future.

Is the priority principle valid in wage and salary garnishment?

The garnishment holder creditor does not have any priority over other creditors. However, in wage and salary garnishment, as garnishments are put in order according to Article 83 of the Enforcement and Bankruptcy Law, this situation constitutes an exception to the priority principle.

Can Article 89 of the Enforcement and Bankruptcy Law be applied in the garnishment of wages and salaries?

No, Article 89 of the Enforcement and Bankruptcy Law, which regulates the procedure for garnishment of goods and receivables with third parties, cannot be applied in the garnishment of wages and salaries. Each rule in the Enforcement and Bankruptcy Law is a special rule regulating special situations, and their application conditions should be kept separate from each other.

What is the criminal liability of a person who makes a false statement?

According to Article 338/I of the Enforcement and Bankruptcy Law, a person who makes a false statement is punished with a light imprisonment sentence from one month to six months by the enforcement court upon the complaint of the creditor.

What course of action should the creditor take if the third party makes a false statement?

The creditor should file a lawsuit in the nature of ‘cancellation of objection’ against the third party’s false statement.

If the creditor is proven right as a result of this lawsuit, they should obtain the rights they would have obtained if the false statement had not been made.

What kind of sanction is suggested in case the third party makes a false statement?

It is suggested that third parties who lose the case should be imposed a compensation of not less than forty percent of the receivable. This is considered important both to prevent those with bad intentions and to ensure compliance with the systematic uniqueness of the Enforcement and Bankruptcy Law.

How is the situation of a public official who makes a false statement evaluated?

Although the false statement of a public official can be considered as the crime of misconduct in office, according to Law No. 7126, if there are separate provisions for special cases in special laws, they are applied. In this case, the public official who makes a false statement should be tried according to the special rule of Article 338/I of the Enforcement and Bankruptcy Law.

 

 

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