Enforcement of a Judgment — Procedure and the Enforcement Order

What is enforcement based on a judgment and how is it commenced? Learn about the enforcement order, avenues of recourse, monetary claims and the delivery of movables and immovables, and the current special system for handing over a child, under İİK Arts. 24-41.

The compulsory execution of court judgments is one of the fundamental requirements of the rule of law. Where a court judgment has been given in the creditor's favour but the debtor nevertheless fails to perform, the creditor may have recourse to enforcement based on the judgment and secure its execution through the power of the state. The Enforcement and Bankruptcy Law No. 2004 (İİK) governs enforcement based on a judgment in Arts. 24-41. This article examines comprehensively the definition of enforcement based on a judgment, judgments and documents having the force of a judgment, the enforcement order, avenues of objection, the enforcement of monetary claims, the delivery of movables and immovables, and the handing over of a child.

What Is Enforcement Based on a Judgment and How Does It Differ from Enforcement Without a Judgment?

Enforcement based on a judgment rests on a court judgment or on a document treated as having the force of a judgment under İİK Art. 38. Judgments for money and security may as a rule be enforced before becoming final. Judgments concerning the law of persons, matters of personal status in family law and rights in rem over immovables, together with decisions for which the statute expressly requires finality, are exceptions. It cannot be generalised that every monetary ancillary provision in a judgment must become final at the same time as the personal status provision; the operative part of the judgment and settled practice are examined.

What Is a Judgment, and Which Documents Have the Force of a Judgment?

A judgment is the decision given by a court at the conclusion of proceedings determining the dispute between the parties. As a rule a judgment need not have become final in order to be enforced; an appeal does not of itself halt enforcement (HMK Art. 367/1; İİK Art. 36). However, decisions concerning the law of persons, family law and rights in rem over immovable property may as a rule not be executed until they become final (HMK Art. 367/2). Judgments on personal status such as divorce and custody fall within this group; for alimony and for the monetary ancillary provisions of a personal status judgment, the operative part and the special enforcement rules are examined separately. İİK Art. 72/5 on negative declaratory judgments and the other cases in which special statutes require finality are also reserved.

Documents having the force of a judgment are documents that the statute accepts may be enforced as a judgment. İİK Art. 38 lists settlements and admissions made before a court, notarial deeds in the form of an official record containing an unconditional admission of a monetary debt, appeal and cassation guarantees, and guarantees given at the enforcement office. Other documents are given the force of a judgment by special statutes. Whether a mediation agreement document has the force of a judgment is determined by the conditions in HUAK Art. 18 as to signature and the annotation of enforceability; not every agreement document has that force of itself. The enforcement of arbitral awards is subject to the provisions of the Code of Civil Procedure on finality and enforceability.

For a notarial deed in the form of an official record to have the force of a judgment it must contain an unconditional admission of a monetary debt. “Unconditional” means that the debt is not subject to any condition. Notarial deeds containing an admission of debt subject to a condition do not have the force of a judgment and cannot form the basis of enforcement proceedings on a judgment.

What Is an Enforcement Order and What Does It Contain?

An enforcement order is the notification sent to the debtor in enforcement based on a judgment and is governed by İİK Art. 32. It differs in nature from the payment order in enforcement without a judgment. The enforcement order warns the debtor to perform the obligation set out in the judgment within 7 days, failing which the judgment will be enforced by compulsion.

The content of the enforcement order varies according to the type of obligation in the judgment. For a monetary debt it contains the creditor's and debtor's particulars, the court, date and number of the judgment, the heads awarded and the seven-day warning to pay. Service is effected under Law No. 7201. The consequence of defective service is not in every case the annulment of the proceedings; the date of actual knowledge under Art. 32 of the Service Law and the relevant complaint route are assessed.

What Avenues of Objection Are Open to the Debtor?

In enforcement based on a judgment, a general objection to the enforcement office does not halt the proceedings. The debtor must raise allegations of discharge, deferral or limitation arising before the judgment during the proceedings themselves. For discharge, deferral and limitation arising after the judgment, a stay of enforcement may be sought from the enforcement court under İİK Art. 33; and for inactivity in the proceedings and limitation of the judgment, under Art. 33/a. A discrepancy between the enforcement order and the judgment is a matter for complaint.

How Is a Monetary Claim Enforced on a Judgment?

A judgment containing an award of money or security is submitted to the enforcement office with an application for enforcement, and enforcement order form 4 or 5 is sent to the debtor. The debtor is notified to pay the debt and costs in the judgment within seven days, and to have recourse to the statutory route if there is an allegation of discharge, deferral or limitation arising after the judgment. If payment is not made in time, attachment and sale follow upon the creditor's application.

Interest may be claimed only within the framework of the operative part of the judgment and the applicable substantive law. If the judgment made no award of interest, the enforcement office cannot add interest of its own motion for the period before the proceedings. For the part of a monetary debt that fell due by the judgment, interest after the date of the judgment is determined according to the nature of the judgment and by Law No. 3095 and any special provisions; there is no rule that “if the judgment is silent, statutory interest automatically applies for the whole period”.

How Is the Delivery of Movables Enforced?

In a judgment for the delivery of a movable, the enforcement office orders the debtor to deliver the property within seven days. If delivery is not made, the movable is taken wherever it is found and given to the creditor. If the property is not in the debtor's possession and a third party claims ownership, the provisions on claims to property may apply.

If the movable cannot be found, the value stated in the judgment is collected. If no value is stated in the judgment, or if a dispute arises, the enforcement officer assesses the value at the market rate at the date of attachment under İİK Art. 24 and may consult an expert if necessary. A complaint lies against the enforcement officer's valuation. It cannot be said that the enforcement court determines the value at first instance.

How Is the Eviction and Delivery of an Immovable Enforced?

Eviction and delivery of an immovable apply where the court has ordered the debtor to vacate a particular immovable and deliver it to the creditor (İİK Art. 26). From service of the enforcement order the debtor is allowed time to vacate the immovable. The time allowed varies according to the nature of the judgment. In judgments for the eviction and delivery of an immovable the debtor is allowed 7 days from service of the enforcement order. If the debtor does not vacate within that period, the enforcement office evicts the immovable by compulsion and delivers it to the creditor (İİK Art. 26/2). During the eviction, the delivery, safekeeping and, where necessary, sale of the goods in the immovable are carried out in accordance with the notification, time and cost conditions of İİK Art. 26 and related provisions; an allegation that the goods belong to a third party is assessed separately.

Where persons other than the debtor (tenants, family members and the like) are present in the immovable, their position is assessed separately. If the judgment is directed only against the debtor and the third parties have an independent legal basis (a lease, for example), a separate action against them may be required.

How Is the Handing Over of a Child and the Establishment of Personal Contact Enforced?

Following Law No. 7343, judgments and interim orders concerning the handing over of a child and the establishment of personal contact with a child are no longer executed by the enforcement office under İİK Arts. 25-25/b. These matters are carried out by the Ministry of Justice's judicial support and victim services directorates under Art. 41/A et seq. of the Child Protection Law, having regard to the best interests of the child and with expert support. The costs are met from the Ministry of Justice's budget; there is a special application mechanism, including disciplinary detention, for breach of the obligation.

Stay of Enforcement and Postponement of Execution

An appeal does not of itself halt enforcement. Under İİK Art. 36 the debtor obtains a suitable period from the enforcement office and, after providing security — such as depositing the money or goods awarded with an official authority, an acceptable pledge or guarantee, or sufficient attachment — requests a stay of enforcement from the appellate or cassation court. The former description of “a note from the court of first instance” that applied before Law No. 7343 is out of date. Security is not fixed in every file at the claim plus three months' interest; the enforcement officer's calculation and the nature of the obligation govern.

Limitation and Time Limits

Under İİK Art. 39 the right to enforce a judgment is as a rule time-barred ten years after the last step taken. For a claim established by an admission of debt or by a judgment, the ten-year period in TBK Art. 156/2 is also taken into account. The starting point is not in every case the date the judgment became final; a decision enforceable before becoming final and the last enforcement step are distinguished. For periodic obligations, the maturity date of each instalment and the special five-year limitation period may apply.

The period for requesting the sale of attached movable or immovable property is as a rule one year from the attachment, under İİK Art. 106. The costs of safekeeping and valuation must also be deposited within that period.

Practice in the Light of Court of Cassation Decisions

The enforcement office is bound by the operative part of the judgment; it may not extend or narrow it or re-decide the substantive dispute. Judgments on personal status and rights in rem over immovables that cannot be enforced before becoming final, and the exceptions in special statutes, are determined by reference to the particular judgment. In the debtor's defences of discharge, deferral and limitation, the conditions in İİK Arts. 33 and 33/a as to time, forum and documents apply; not every bank record or witness statement has the same evidential weight.

Since decisions on the handing over of a child and on personal contact are no longer carried out by the enforcement office, the former İİK practice cannot be presented as the current method. The current procedure is carried out by the judicial support and victim services directorates under Art. 41/A et seq. of the Child Protection Law.

Frequently Asked Questions

Can every judgment be enforced before becoming final?

As a rule yes; judgments on personal status, rights in rem over immovables and those listed in special statutes are exceptions.

Does the enforcement office carry out the handing over of a child?

No; the judicial support and victim services directorate does.

What is the period for requesting a sale?

As a rule one year from the attachment, for both movables and immovables.

Does an appeal automatically halt enforcement?

No; security and a stay of enforcement order under İİK Art. 36 are required.