The Absence Of A Requirement To File A Pre-Enforcement Application With The Administrative Authority In Judgments Issued By Judicial Authorities
JUDGMENTS ISSUED BY CIVIL COURTS
NO REQUIREMENT TO FILE A PRE-ENFORCEMENT CLAIM WITH THE ADMINISTRATION
– DECISIONS FOR WHICH ENFORCEMENT PROCEEDINGS
CANNOT BE INITIATED UNTIL THEY BECOME FINAL
Summary: In the present case, the judgment subject to enforcement pertains to a claim, and since it does not fall under the categories mentioned above,
it does not need to become final to be subject to enforcement. For these reasons, the complaint should have been dismissed;
accepting it on the grounds cited is erroneous.
Republic of Turkey
Court of Cassation
8th Civil Chamber
E: 2013/8237 K: 2013/13579 Date: 09/26/2013
CASE: Upon the appellant’s request for an appellate review of the Court decision
dated and numbered as above within the prescribed time limit, the relevant file
was forwarded from the local court to the Chamber. After hearing the report
prepared by the Review Judge regarding the case file and reviewing all documents
in the file, the matter was deliberated:
DECISION: The debtor’s counsel, on behalf of the creditor’s counsel, initiated an enforcement proceeding based on the judgment of the Mardin 2nd Civil
Civil Court’s judgment No. 2012/289 (Case No.) and 2012/755 (Decision No.),
and that, pursuant to Article 28(2) of Law No. 2577, as amended by Article 58 of Law No. 6352,
the creditor was required to file a written application with the relevant administrative authority
to request payment of the debt, and that if payment was not made after the 30-day statutory
waiting period, enforcement proceedings should have been initiated;
however, the proceedings were initiated without fulfilling this legal requirement, and since the underlying judgment
was executed without a finality notation, the creditor requested that the enforcement proceedings be
cancelled. The court accepted the request and ruled to cancel the enforcement order;
the judgment was subsequently appealed by the creditor’s attorney.
The appeal is based on a complaint under Article 16 of the Enforcement and
Bankruptcy Code (EBC), as referred to by Article 41 of the EBC.
Pursuant to Article 58 of Law No. 6352, as amended, Article 28/2 of the Administrative
Judicial Procedure Code No. 2577 provides that “… In cases where the subject matter
requires the payment of a specific amount of money, the amount awarded, as well as
the attorney’s fees and litigation costs in all types of cases, shall be paid into the bank
account number to be notified in writing by the plaintiff or their attorney to the defendant
administration, effective from the date of such notification,”
and litigation costs shall be deposited into the bank account number
notified in writing by the plaintiff or their attorney to the defendant administrative authority,
within the procedures and principles specified in the first paragraph,
effective from the date of such notification. In the event of failure to make payment
within the timeframes specified in the first paragraph, enforcement and execution
shall be carried out in accordance with general provisions …” However, pursuant to Article 1 of Law No. 2577; the Council of State,
the resolution of disputes falling within the jurisdiction of Regional Administrative Courts,
Administrative Courts, and Tax Courts is subject to the procedures set forth in this Law, and the
amendment regarding Article 28/2 of the Law cannot be applied in the enforcement of judgments
issued by judicial courts.
Furthermore, pursuant to Article 443/1 of the Code of Civil Procedure (HUMK)
(corresponding to Article 367/1 of the Code of Civil Procedure), which must be applied
by reference to the transitional Article 3 of the Code of Civil Procedure No. 6100,
an appeal does not suspend the enforcement of the decision. In other words, as a general rule, the fact that a decision has not become final does not prevent
its enforcement. Exceptions to this rule are also regulated by law.
Judgments concerning real property and related property rights, as well as family and personal law (Article 443/4 of the
HUMK). The portions of criminal judgments concerning compensation and litigation costs
(Article 4 of Law No. 5275 on the Enforcement of Criminal Sentences and Security Measures),
Rent determination judgments (Unified Case Law No. 1979/1-3 dated November 12, 1979
Decision No. 1979/1-3 dated November 12, 1979), judgments in negative determination cases (Article 72 of the Enforcement and Bankruptcy Code), decisions regarding the enforcement of foreign court
judgments (Article 41/2 of the Law on the Enforcement of Foreign Judgments), Court of Accounts Decisions (Article 64 of the Court of Accounts Law No. 832
Court of Accounts Law No. 832, Article 64), Decisions rendered in cases involving
attachment or provisional attachment proceedings against the administration
(Administrative Courts Law No. 2577, Article 28/1),
and judgments regarding the acceptance of a claim for ownership
cannot be enforced until they become final.
In the present case, the judgment subject to enforcement pertains to a claim and, since it does not fall
under the categories mentioned above, it does not require finality to be enforceable. For these
reasons, the complaint should have been dismissed; its acceptance on the aforementioned grounds is erroneous.
CONCLUSION: Upon accepting the creditor’s counsel’s appeal, the Court’s decision is hereby
REVERSED pursuant to Article 366 of the Enforcement and Bankruptcy Code (EBC) and Article 428 of the Code of Civil Procedure (CCP) for the reasons explained above;
pursuant to Articles 388/4 (HMK Art. 297/c) and Article 366/3 of the Enforcement and Bankruptcy Code,
a motion for correction of the judgment may be filed within 10 days from the service of the Court of Cassation’s decision;
it was decided unanimously on September 26, 2013.