The Mayor Does Not Have To Use An Executive Vehicle And Can Be Seized
12th Civil Chamber
Principal Number: 2019/7271
Decision Number: 2019/9780
“Case Law Text”
COURT :Enforcement 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 relevant file, and after listening to the report prepared by the Examining Judge … for the case file and after all the documents in the file were read and examined, the necessity of the matter was discussed and considered:
In the application of the debtor to the execution court; it is understood that the vehicle with license plate 01 KB 476 belonging to the Municipality, which was seized, was allocated to the public with the decision of the municipal council, and for this reason, the debtor requested the removal of the seizure on the vehicle, the court decided to accept the case, and the creditor appealed the decision.
In Article 15/last of the Municipal Law No. 5393; “The property of the municipality actually used in public service and the taxes, duties and fees collected by the municipality cannot be seized”. According to this article, in order for the municipality’s complaint of non-seizure to be accepted, it is mandatory that the encumbrances are actually used in public service.
According to the Enforcement and Bankruptcy Law and the principles of the law of execution and bankruptcy, since the main thing is to ensure that the creditor obtains its receivables, as a rule, it is possible to attach all the property of the debtors. There must be a legal regulation in order for a property not to be seized. Since non-seizure is an exceptional situation, the regulations in this direction should be interpreted narrowly.
Accordingly, it is undisputed that in order for a movable or immovable property belonging to the debtor municipality not to be seized, that property must actually be used in public service. However, in order to accept that a property is actually used in public service, that property must be suitable for the purpose of carrying out public service.
In the concrete case, it is understood that the vehicle belonging to the debtor municipality, which is subject to the complaint of unseizability, is the office vehicle of the mayor. In the light of the principles explained above, it should be emphasized whether the mayor must have an office vehicle in order for the municipality to carry out public service and whether a vehicle allocated as an office vehicle is actually used in public service.
Article 4 of the Vehicle Law No. 237 regulates who will be allocated an office vehicle, and the mayor is not one of those who will be allocated an office vehicle in accordance with the aforementioned law.
On the other hand, the use of the vehicle as an office vehicle does not mean that it is actually used in public service, nor is it necessary for the mayor to have an office vehicle in order to carry out public service. Because the duties of the municipalities are explained in Article 14 of the Law No. 5393 and it is not obligatory for the mayors to have an office vehicle in order to fulfill these duties.
Therefore, it is inappropriate for the court to rule for the acceptance of the complaint with the written justification instead of dismissing it.
CONCLUSION :
With the acceptance of the creditor’s appeal objections, it was unanimously decided on 10/06/2019, for the reasons written above, in accordance with Article 366 of the BEC and Article 428 of the HUMK, the prepaid fee shall be refunded upon request, and the way of decision correction shall be open within 10 days from the notification of the judgment.
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