Enforcement Of Judgments
JUDGMENTS THAT CANNOT BE ENFORCED BEFORE BECOMING FINAL
As a general rule, a court judgment does not need to become final in order to be enforced. However, there are some exceptions to this rule. In the exceptional circumstances listed below, it is not possible to enforce a judgment before it becomes final.
The clarification procedure regulated in Articles 305 and 306 of the Code of Civil Procedure does not affect finality. In other words, even if clarification is requested for a judgment that has become final due to the exhaustion of appeal and (if applicable) decision correction procedures, it is possible to enforce the decision without waiting for the outcome of the clarification request.
Additional costs such as litigation costs, damages, and interest in judgments that cannot be enforced before becoming final cannot be enforced before the judgment becomes final.
A decision that requires finality for enforcement must be final on the date of enforcement. Even if a judgment that was not final on the date of enforcement becomes final later, the enforcement may be canceled through a complaint. Of course, this situation will not prevent the judgment from being enforced again after the decision becomes final.
The enforcement director must verify whether a judgment can be enforced before it becomes final. If a judgment that requires finality to be enforceable is enforced before it becomes final, an application may be made to the enforcement court for the cancellation of the judgment enforcement by way of complaint without any time limit.
Judgments that require finalization before they can be enforced include:
1-Judgments relating to real estate
2-Judgments relating to family and personal law
3-Judgments relating to the enforcement of foreign court or arbitral awards
4-Judgments in negative determination or recovery (repossession) cases
5-Court of Accounts judgments,
6-Judicial costs in the decision accepting the claim (Finality is not required if the claim is rejected.)
6-Judgments concerning all ships, regardless of their flag or registration status, and related rights in rem.
1-Judgments Related to Real Property
In practice, interpretation errors are encountered in determining whether a decision is related to real property. If the court’s decision will result in a change in ownership rights, there is no doubt that the case is related to real property. Examples of this include title cancellation and registration lawsuits and preemption lawsuits.
In lawsuits for the removal of interference, the situation varies depending on whether there is a claim of ownership rights. If the lawsuit is a lawsuit for the removal of interference filed due to ownership rights, the decision must be final. However, if the defendant does not claim any ownership, there is no dispute as to who owns the property, and therefore, no final decision is required in such interference prevention lawsuits. For example, if the tenant has occupied or used additional space in violation of the lease agreement and an action for removal of interference has been requested for this space, since there is no dispute regarding property rights, finality will not be required for the enforcement of such decisions.
In a case requesting the removal of a note in the land registry, if the note in question is of a property right nature, the case will still be considered related to the real estate itself, and the judgment must be final before its enforcement can be requested.
In judgments concerning the real property itself, the provisions included as an annex to the judgment cannot be enforced without becoming final. For example, in a case for cancellation of title and registration, it is not possible to enforce the annexed provisions concerning litigation costs and attorney’s fees until the part of the judgment concerning cancellation of title becomes final.
According to the Court of Cassation, judgments rendered in rent determination cases cannot be enforced before they become final, even if they do not relate to the real property itself.
2-) Judgments Related to Family and Personal Law
Judgments related to family and personal law (Turkish Civil Code, Articles 8-494) cannot be enforced before they become final. This means that judgments that create changes in a person’s legal status directly related to their person or family structure, such as name correction, surname correction, age correction, removal of custody, paternity suits, lineage correction, divorce, and judgments that are supplementary to these, as well as judgments that are supplementary to these judgments, cannot be enforced. Legal entities are also considered within the concept of a person.
Judgments concerning child custody and the establishment of personal relations with the child cannot be enforced until they become final.
Judgments issued by intellectual and industrial property (civil) courts to prevent unfair interference with a registered design through product imitation constitute an infringement of a registered right pertaining to a person’s rights; therefore, such judgments cannot be enforced before they become final.
The section of the judgment related to the divorce must become final in order to enforce the collection of the material and moral compensation awarded in connection with the divorce. Compensation and interest, which are considered additions, cannot be claimed until this part of the judgment becomes final. However, the situation is slightly different for alimony. That is to say;
In the case of provisional alimony, appealing a ruling on the payment of alimony does not suspend the enforcement of the judgment. In fact, even with security, it is not possible to suspend the enforcement of the judgment (Tehir-i icra) for alimony receivables. However, according to the Court of Cassation, as in the case of material and moral compensation, finality is required for enforcement proceedings for poverty and contribution alimony. While the issue of poverty alimony is debatable, since participation alimony is a contribution paid for the joint child and the joint child/children will remain with the party awarded custody while the decision is under appeal, it means that the party awarded custody will be deprived of this participation alimony, which is necessary for the maintenance of the minors, until the decision becomes final, which, in our opinion, is not very equitable.
As is known, alimony awarded by the court for the spouse during the proceedings is not poverty alimony but provisional alimony, and requiring finality for the provisional alimony to be claimed would be contrary to the spirit of the provisional measure. However, alimony awarded for the period after divorce and ordered to be paid to the spouse is no longer provisional but poverty alimony, and just as this ruling cannot be enforced until it becomes final, a court decision to terminate the aforementioned alimony cannot be enforced until it becomes final.
If the divorce decree orders the termination of alimony, since the divorce ruling cannot be enforced before it becomes final, the part concerning the termination of alimony cannot be enforced until the decree becomes final; that is, alimony must be paid until the divorce decree becomes final.
Although they are included in family law, cases concerning contribution shares are not appendices to the divorce decree but are separate judgments concerning alimony. Therefore, judgments concerning contribution shares do not need to be finalized before they can be enforced. Similarly, the value of jewelry awarded in the divorce decree is not an annex to the divorce decree but an independent claim separate from the divorce case, and therefore, the judgment can be enforced without becoming final.