Conditions Of Validity Of The Commitment
T.C.
COURT OF CASSATION
19th CRIMINAL CHAMBER
CASE NO. 2016/13073
DECISION NO. 2017/2290
DATE OF DECISION: 16.3.2017
The defendant … was sentenced to up to three months of coercive imprisonment pursuant to Article 340 of the Enforcement and Bankruptcy Law No. 2004 for violating the payment condition. The decision of the Alanya 1st Enforcement Criminal Court dated 13/02/2014 and numbered 2013/957 Case, and the decision of the Alanya 2nd Enforcement Criminal Court dated 30/10/2014 and numbered 2014/1084, which sentenced the same defendant to up to three months of coercive imprisonment pursuant to Article 340 of the Enforcement and Bankruptcy Law No. 2004, The Ministry of Justice’s letter dated 31/07/2016 and numbered 94660652-105 -07-4589-2016-KYB dated 31/07/2016, which contains a request for annulment in the interest of the law, was sent to our chamber with the notification letter of the Supreme Court of Appeals Prosecutor’s Office dated 02/09/2016 and numbered KYB.2016-333621 and was read.
According to the file, the defendant is indebted in the execution case file numbered 2012/9339 of the Alanya 2nd Enforcement Directorate, During the seizure on 12/02/2013, the defendant pledged to pay the entire debt by 30/04/2013, but upon breaching this pledge, the Alanya 1st Enforcement Criminal Court sentenced him to coercive imprisonment with its decision dated 13/02/2014 and numbered 2013/957, 2014/104, and the decision became final without any appeal, subsequently, on 14/05/2014, during another attachment, he again made a commitment to pay the entire debt by 14/06/2014, However, upon breaching the commitment again, he was sentenced to coercive imprisonment by the Alanya 2nd Enforcement Criminal Court’s decision dated 30/10/2014, Case No. 2014/1084, Decision No. 2014/1484, and the defendant’s appeal against this decision was also rejected.
1) As stated in the decision of the Criminal General Assembly of the Supreme Court dated 29/09/2009 and numbered 2009/16 -188 Case No. 2009/205, the total amount of coercive imprisonment for the same debt relationship cannot exceed three months, yet the court decided on two separate instances of coercive imprisonment for up to three months in writing,
2- ) Pursuant to Article 340 of Law No. 2004, , for the offense of breach of commitment to be established, the total debt amount, accrued and future interest, attorney’s fees, execution fees, and expenses must be clearly specified in the commitment document, along with the amount on which the debtor’s commitment is based. In the present case, the two separate commitment documents dated February 12, 2013, and May 14, 2014, issued in the same enforcement case file, there is no clarity regarding the interest that will accrue from the date of the commitment to the payment date, nor does it include a statement of waiver of the creditor’s right to interest that will accrue until the final payment date. For these reasons, since the amount of accrued and future interest is not separately indicated in the commitment document, there is uncertainty, and therefore both commitments are deemed invalid. Since the elements of the crime attributed to the defendant are not present, an acquittal should be granted. However, the appeal was rejected in writing without considering that the appeal should be accepted, it was deemed inappropriate, and in accordance with Article 309 of the Criminal Procedure Code No. 5271, a request was made to overturn the aforementioned decision in the interest of the law, and the matter was discussed and considered:
CONCLUSION: Upon examination of the request for annulment in the interest of the law based on reason (2), the content of the notice of appeal filed by the Chief Prosecutor’s Office of the Court of Cassation is deemed appropriate, and therefore, the decision of the Alanya 1st Criminal Enforcement Court’s decision dated 13/02/2014, Case No. 2013/957, Decision No. 2014/104, and its decision dated 17/11/2014, Case No. 2014/141, are hereby SET ASIDE in accordance with Article 309/4-d of the Criminal Procedure Code, The detention orders issued against the defendant in both cases are lifted. There is no basis for a decision on the request for reversal in the public interest (reason no. 1) based on the grounds for reversal. The decision was made unanimously on March 16, 2017.
T.C.
COURT OF APPEAL
19th CRIMINAL CHAMBER
CASE NO: 2017/1481
DECISION NO: 2017/2585
DATE OF DECISION: 22/03/2017
>BREACH OF PAYMENT COMMITMENT, FAILURE TO EXPLICITLY STATE INTEREST.
The defendant … was sentenced to three months of coercive imprisonment pursuant to Article 340 of the Enforcement and Bankruptcy Law No. 2004 for the offense of breaching the payment condition. The objection to the decision of the Enforcement Criminal Court dated 19/04/2016 and numbered 2015/276 Case, 2016/114 was rejected. The file of the case, which was sent to our chamber with the letter dated 25/01/2017 and numbered … from the Ministry of Justice, containing the request for annulment in the interest of the law, was read out with the notice dated 03/02/2017 and numbered KYB…. was forwarded to our chamber and read.
In the aforementioned notification;
According to the file, in order for the crime of breach of commitment to be established in accordance with Article 340 of Law No. 2004, the total amount of debt, accrued and accruing interest, attorney’s fees, enforcement fees, and expenses must be determined together and the amount on which the debtor’s commitment is based must be clearly indicated in the commitment record. Although the accrued interest is stated as 641,426.15 Turkish Liras in the payment commitment dated 03/07/2014, there is no clarity regarding which periods this interest covers, whether it includes interest accrued from the date the enforcement proceedings became final until the commitment date, and interest that will accrue from the commitment date until the final payment date. there is no statement of waiver of the interest that will accrue until the final payment date, and due to the lack of clarity regarding the amount of interest that has accrued and will accrue, as these amounts are not separately stated in the commitment document, the commitment is deemed invalid. Since the elements of the crime attributed to the defendant are not present, the objection should have been accepted, but it was rejected in writing, which is not appropriate. Therefore, in accordance with Article 309 of the Criminal Procedure Law No. 5271, a request was made to overturn the aforementioned decision in the interest of the law, and the matter was discussed and considered.
Since the content of the notice based on the request for annulment in the interest of the law by the Chief Public Prosecutor’s Office of the Court of Cassation is deemed appropriate, … The decision of the Enforcement Criminal Court dated 25/05/2016 and numbered 2016/36 is annulled in accordance with Article 309/4-d. The coercive detention imposed on the offender for violating the payment condition was lifted, and the decision was made unanimously on 22/03/2017.
Criminal Chamber 2014/13014 E., 2014/13251 K.
In reference to the request for reversal in the public interest dated 05.05.2014 and numbered 2014/8857-30083 by the General Directorate of Criminal Affairs of the Ministry of Justice, the Supreme Court Prosecutor’s Office issued a notice dated 21.05.2014 and numbered KYB. 2014/182797;
Following the trial of the defendant N.. G.. for the offense of violating the payment condition, the appeal against the decision of the Bolu 1st Enforcement Criminal Court dated 24/10/2013 and numbered 2013/607 case, 2013/1172 was accepted, and the acquittal decision was overturned. Upon examination of the file containing the decision of the Bolu 2nd Criminal Court of First Instance dated 21/11/2013 and numbered 2013/632, regarding the defendant’s punishment with up to three months of coercive imprisonment in accordance with Article 340 of the Enforcement and Bankruptcy Law No. 2004;
1- As stated in the decision of the Criminal General Assembly of the Court of Cassation dated February 20, 2001, with case number 2001/8-19 and decision number 2001/26, for the crime of breach of promise to be established, the total amount to be paid must be determined numerically, and the parties must agree on this amount, If this amount is not determined, it cannot be established for which amount the commitment was made and on which amount the acceptance was based, and therefore no criminal liability arises in the event of a breach of the payment condition. In the present case, although the actual debt amount was 7,154.83 Turkish Liras, it was incorrectly calculated as 7,166.68 Turkish Liras in the debtor’s favor in the commitment record dated February 14, 2013, rendering the payment commitment legally invalid.
2- The notice of service of the payment order to the debtor defendant dated 18/12/2012 is invalid because it does not meet the conditions of Articles 9 and 23 of the Notification Law No. 7201 due to the failure to provide a valid address suitable for legal review,
3- The notification dated February 22, 2013, regarding the service of the acceptance notice to the debtor defendant is invalid because it was served contrary to Article 18 of the Notification Law No. 7201, which requires that the notification be served at the factory address,
In this case, since the objection was rejected without considering that the alleged crime did not occur, it was deemed inappropriate to issue a written ruling, and therefore, in accordance with Article 309 of the Criminal Procedure Law No. 5271, the aforementioned decision was requested to be overturned. The file sent to our Chamber was examined, and the necessary deliberations were made:
Based on the contents of the reviewed file, since the considerations in the notice are deemed appropriate, the decision of the Bolu 2nd Criminal Court of First Instance dated November 21, 2013, and numbered 2013/632, is overturned in accordance with Article 309 of the Criminal Procedure Code No. 5271, Since a decision may be made in this regard in accordance with Article 309/4-d of the Criminal Procedure Code, it was decided by unanimous vote on July 3, 2014, that the defendant’s sentence of coercive imprisonment shall not be enforced and that the file shall be referred to the Supreme Court Prosecutor’s Office.
1. The details of the debt must be listed individually in the execution attachment record.
2. The payment dates and amounts must be clear and understandable.
3. The approval and signature of the creditor or their representative is required.
4. If the commitment is taken by the court clerk, the “commitment notice” must be served before the first payment date.
5. A collection notice must be filed in the enforcement file for payments made to the creditor or attorney.
6. The principal debt in the enforcement file must be above the minimum wage.
7. The debtor must write by hand that they accept the commitment and sign it with the words “I accept.”
8. When calculating installments, the interest calculations between them must be done correctly.
9. The commitment document must be signed with a wet signature in the enforcement file.
10. A commitment penalty must be imposed within 90 days of the installment not being paid.
T.C.
COURT OF APPEALS
19th CRIMINAL CHAMBER
CASE NO: 2017/1481
DECISION NO: 2017/2585
DECISION DATE: 22/03/2017
>BREACH OF PAYMENT COMMITMENT, FAILURE TO CLEARLY SPECIFY INTEREST.
The defendant …, accused of breaching the payment condition, was sentenced to 3 months of coercive imprisonment in accordance with Article 340 of the Enforcement and Bankruptcy Law No. 2004. The objection to the decision of the Enforcement Criminal Court dated 19/04/2016 and numbered 2015/276 Case, 2016/114 was rejected. The file of the case, which was sent to our chamber with the letter of the Ministry of Justice dated 25/01/2017 and numbered …, containing the request for annulment in the interest of the law, was read out with the notice of the Supreme Court Prosecutor’s Office dated 03/02/2017 and numbered KYB…. was forwarded to our chamber and read.
In the aforementioned notification;
According to the file, in order for the crime of breach of commitment to be established in accordance with Article 340 of Law No. 2004, the total amount of debt, accrued and accruing interest, attorney’s fees, enforcement fees, and expenses must be determined together in the commitment record, and the amount on which the debtor’s commitment is based must be clearly indicated. Although the accrued interest was stated as 641,426.15 Turkish Liras in the payment commitment dated 03/07/2014, there is no clarity regarding which periods this interest covers, whether it includes interest accrued from the date the enforcement proceedings became final until the commitment date, and interest that will accrue from the commitment date until the final payment date. there is no statement of waiver of the interest that will accrue until the final payment date, and due to the lack of clarity regarding the amount of interest that has accrued and will accrue, as these amounts are not separately stated in the commitment document, the commitment is deemed invalid. Since the elements of the crime attributed to the defendant are not present, the objection should have been accepted, but it was rejected in writing, which is not appropriate. Therefore, in accordance with Article 309 of the Criminal Procedure Law No. 5271, a request was made to overturn the aforementioned decision in the interest of the law, and the matter was discussed and considered.
Since the content of the notice based on the request for annulment in the interest of the law by the Chief Public Prosecutor’s Office of the Court of Cassation is deemed appropriate, … The decision of the Enforcement Criminal Court dated 25/05/2016 and numbered 2016/36 is annulled in accordance with Article 309/4-d. The decision to revoke the coercive detention imposed on the offender for violating the payment condition was made unanimously on March 22, 2017.
COURT OF APPEAL 11th Criminal Chamber
Case No.: 2014/2326
Decision No.: 2014/2512
Pursuant to the request for reversal in the public interest submitted by the General Directorate of Criminal Affairs of the Ministry of Justice on 09/12/2013 under No. 2013/18498/75000, the Supreme Court Prosecutor’s Office issued a notice on 25/12/2013 under No. KYB.2013/398784;
Following the trial of the defendant … for violating the terms of payment, the 5th Enforcement Criminal Court issued a decision dated 26/01/2012 and numbered 2011/684 Esas, 2012/29, acquitting the defendant. The appeal against this decision was accepted, and the defendant was sentenced to up to three months of coercive imprisonment. Upon review of the file containing the decision of the 6th Enforcement Criminal Court dated 14/06/2012 and numbered 2012/70 Amended Case;
It was noted that the total amount of debt to be paid, along with all its accessories, should have been calculated and clearly stated in the minutes dated February 3, 2011, which contained the defendant’s commitment. Furthermore, the statement of the creditor’s attorney indicating that the defendant had waived the collection costs and the interest accrued up to the date of the commitment was also absent. Therefore, considering that the aforementioned commitment is legally invalid and that the crime attributed to the defendant did not occur, it was deemed inappropriate to accept the objection in writing instead of rejecting it. Pursuant to Article 309 of the Criminal Procedure Law No. 5271, the aforementioned decision was requested to be overturned, and the file sent to our Chamber was examined and the necessary deliberations were made:
Considering the content of the reviewed file and the reasoning in the notice of appeal filed in the interest of the law, it is deemed appropriate to overturn the decision of the 6th Enforcement Criminal Court dated June 14, 2012, and numbered 2012/70, pursuant to Article 309 of the Criminal Procedure Code No. 5271, Since a decision may be made in this regard in accordance with Article 309/4-d of the Criminal Procedure Code, it was decided by unanimous vote on February 13, 2014, that the defendant’s custodial sentence shall not be enforced and that the file shall be referred to the Supreme Court Prosecutor’s Office.
CASSATION COURT 12th Civil Chamber
CASE NO: 2013/34807
DECISION NO: 2014/921
Upon the creditor’s request for an appeal review of the court decision dated and numbered above within the prescribed time limit, the relevant file was forwarded to the chamber from the local court. After hearing the report prepared by the Review Judge for the case file and reviewing all the documents in the file, the matter was discussed and considered:
DECISION
On April 27, 2011, a foreign exchange proceeding was initiated against the debtor based on various promissory notes with different maturities and amounts. On May 17, 2011, the debtor appeared at the enforcement office, acknowledged the debt subject to the proceeding, and made a commitment to pay it in installments, which he also signed in the presence of the enforcement officer. Upon the creditor’s representative’s request to accept the payment commitment and send a payment commitment to the debtor, it is understood that the enforcement office sent the notice dated June 10, 2011, to the debtor.
Subsequently, the debtor applied to the enforcement court requesting the cancellation of this notice and the payment commitment, and the court accepted the complaint and decided to cancel the acceptance notice dated June 10, 2011.
Article 111 of the Enforcement and Bankruptcy Code, titled “Payment in Installments,” states as follows: “If the debtor undertakes to pay the debt in regular installments before the creditor’s request for sale and immediately pays the first installment, the enforcement proceedings shall be suspended. However, this is subject to the following conditions: the debtor must have sufficient property seized, each installment must not be less than one-fourth of the debt, the installments must be paid monthly, and the term must not exceed three months. During the term of the agreement or agreements entered into by the debtor and the creditor at the enforcement office for the installment payment of the debt, the time limits set forth in Articles 106 and 150/e shall not apply. However, if the total term of such agreement or agreements exceeds ten years, the time limits shall resume from the date of such excess. If one of the installments is not paid on time, the enforcement proceedings and time limits shall continue from where they left off.
In the present case, since there is a payment commitment in accordance with the provision of the aforementioned article, and since the finalization of the enforcement proceedings is not required to make a payment commitment, the court’s decision to accept the complaint instead of rejecting it is incorrect.
CONCLUSION: The creditor’s appeal is accepted, and the court’s decision is reversed in accordance with Articles 366 of the Enforcement and Bankruptcy Code and 428 of the Code of Civil Procedure for the reasons stated above. The advance fee shall be refunded upon request, and the decision may be appealed within 10 days of the notification of the judgment. The decision was made unanimously on January 16, 2014.
PAYMENT COMMITMENT MADE DURING ATTACHMENT:
The payment commitment made during attachment is not legally valid for the following reasons. Because the place of attachment is not the enforcement office (where the enforcement director is located). The place of attachment and the enforcement office have two different legal meanings and consequences.
Firstly, you cannot forcibly bring anyone to the enforcement office to obtain a payment commitment. There is no legal basis for this. You must go to the seizure location with the seizure officer and the creditor or their representative, and sometimes with the police. In this case, the place of attachment is not a place created at the debtor’s request, but a place that exists legally by force of law. In this case, the commitment that the debtor is required to make of their own free will is transformed into a commitment made in an environment where the debtor’s property is forcibly seized to the extent permitted by law in exchange for the debt. In this case, it cannot be said that the debtor made the commitment of their own free will. At the very least, a debtor who voluntarily comes to the enforcement office cannot be considered to be acting freely. In this case, a document that should be obtained through independent will is obtained under the pressure of seizure. In this form, the payment commitment ceases to be a right granted to the debtor to make payments in installments at a later date and becomes a right that the creditor can exercise during seizure and is entirely at the creditor’s discretion.
Baki Kuru’s Handbook of Enforcement and Bankruptcy Law states that commitments made during seizure are valid. Commitments made during seizure give the debtor the opportunity to prevent the seizure of their property, and this situation is considered an advantage for the debtor. Since the enforcement director is represented by an authorized enforcement officer during the seizure, and since the phrase “to be made at the enforcement office” is understood to mean in the presence of the enforcement director, there is no legal objection to it being made in the presence of an officer authorized by him, i.e., during the seizure. Indeed, some decisions of the 16th and 17th Civil Chambers of the Supreme Court in 2004 also support this view.