Bank Account Used By The Lawyer For Professional Purposes Cannot Be Seized
12th Civil Chamber 2018/15328 E. , 2018/13845 K.
“Case Law Text”
COURT :Execution Law Court
Upon the request of the creditor to examine the above-dated and numbered court decision on appeal within the due date, the file related to this matter was sent to the department from the neighbourhood, and after the report prepared by the Examining Judge … for the case file was listened to and all the documents in the file were read and examined, the matter was discussed and considered:
In his complaint, the debtor lawyer stated that the bank account at the … Bank … Branch, where the money deposited on behalf of his clients due to his profession as a lawyer and the payments made due to his profession were seized, and that this situation is contrary to Article 82/2 of the BEC and requested the removal of the seizures.
The court decided to accept the complaint on the grounds that it is not possible to place a lien on the account subject to the complaint in accordance with the legal regulations; the judgement was appealed by the creditor’s attorney.
According to the principles of the Execution and Bankruptcy Law and the Law of Enforcement and Bankruptcy, since the main thing is to ensure that the creditor obtains his receivable, as a rule, it is possible to attach all the debtors’ property. There must be a legal regulation in order for a property not to be seized. Since non-seizure is an exceptional case, the regulations in this direction should be interpreted narrowly.
Furthermore, Article 90/4 of the Constitution of the Republic of Turkey, which is a higher norm, stipulates that international treaties duly put into force regulating fundamental rights and freedoms have the force of law and must be observed in disputes.
Accordingly, Article 1 of Protocol No. 1 to the European Convention on Human Rights stipulates that “… Every natural and legal person shall have the right to the peaceful enjoyment of the possessions which he possesses. No one shall be deprived of his property except in the public interest and in conformity with the general principles of international law and the conditions required by law … “.
Article 1 of the Additional Protocol on the right to property was ratified by the Grand National Assembly of Turkey and the Law ratifying it reads as follows: “…Every natural or legal person has the right to respect for the inviolability of property. Any person may be deprived of his property only in the public interest and within the conditions prescribed by law and the general principles of the law of States …”.
In the light of all these explanations, in the face of the acceptance of the conditions of “actually being used for his/her profession” for non-forfeiture, the non-forfeiture of an account used by the lawyer in his/her profession should only be determined by determining its actual situation. The burden of proof in this regard falls on the debtor. In other words, the debtor must prove that the seized account is used for expenses arising from his/her profession. Otherwise, the complaint shall be rejected.
It is indisputable that the debtor who creates a pool account by mixing money that cannot be seized with money that can be seized will not be in good faith. Such behaviour would result in a violation of Article 6 § 1 of the ECHR and Article 1 of Additional Protocol No. 1 to the ECHR, as well as being an abuse of right, it is certain that it cannot be protected by law. In this case, the debtor should be considered as a waiver of the right not to be sequestrated if the money that cannot be seized and the money that can be seized are collected in the same account and mixed together.
In the concrete case, when the nature of the expenditures made by obtaining the garnished account statements are examined, it is understood that the garnished account, which contains money such as tax payments, execution payments, fees, etc., which are necessary for the lawyer’s profession, as well as personal expenditures such as dues, stationery, health services, food, invoices … are also made from this account, and it is understood that the garnished account is a pool account and is not used only as necessary for the necessity of the profession. As a result of the evaluation in line with the above-mentioned principles, it is inappropriate to make a judgement to accept the complaint while a judgement should be made to reject the complaint.
CONCLUSION:
With the acceptance of the creditor’s appeal objections, the court decision is (DISMISSAL) in accordance with Article 366 of the EBL and Article 428 of the HUMK for the reasons written above, the prepaid fee may be refunded upon request, and it was unanimously decided on 19/12/2018, with the decision correction path being open within 10 days from the notification of the judgement.
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