Provisional Measures and Provisional Attachment Institutions

  1. Provisional Measure Order

Provisional measures are regulated in Articles 389-400 of the Code of Civil Procedure (“CCP“). The issuance of a provisional measure order is subject to two fundamental conditions. These are: (i) the likelihood that obtaining the right of the requesting party that requires protection will become significantly more difficult or completely impossible due to a change that may occur in the current situation, and (ii) the likelihood of inconvenience or serious damage occurring due to delay until the resolution of the dispute between the parties. A provisional measure order may be requested from the court before the main action is filed, together with the action, or even whilst the proceedings are ongoing. If the conditions are met, a provisional measure order may be requested from the court with jurisdiction and competence over the merits before filing an action, and after filing an action, only from the court hearing the case. A provisional measure order may be issued if the requesting party establishes its claim on a prima facie basis.

 

  1. Provisional Attachment Order

Provisional attachment is regulated in Articles 257-269 of the Enforcement and Bankruptcy Code (“EBC“). A provisional attachment order may be requested for a monetary debt that is not secured by a pledge and has matured. In order to request a provisional attachment order arising from a debt that has not yet matured, one of the following conditions must have been fulfilled: the debtor not having a specific place of residence, the debtor concealing or absconding with their assets, the debtor preparing to abscond or absconding, or engaging in fraudulent transactions that violate the creditor’s rights in order to evade their debt.

 

Similar to provisional measures, it may be requested before filing an action, as well as when filing a debt action or during the proceedings. Before filing an action, it may be requested from courts with jurisdiction and competence over the merits, and after filing an action, from the court hearing the case.

 

  1. Implementation of Provisional Measure and Provisional Attachment Orders

Whilst the procedures envisaged for the implementation of provisional attachment and provisional measure orders show similarities, there are differences at some important points. On the other hand, the acceptance of both provisional measure and provisional attachment requests will not automatically produce results. The relevant matters will be briefly explained below.

 

    1. Security

The party requesting a provisional attachment or provisional measure order is, as a rule, obliged to provide security to cover the potential damages of the opposing party or third parties should they be found to be in the wrong.

 


  • Time Limit Envisaged for Requesting the Execution of the Order

  • Pursuant to CCP Article 393/1, the time limit envisaged for requesting the execution of a provisional measure order is one week.

  • Pursuant to EBC Article 261, the time limit envisaged for requesting the execution of provisional attachment orders is ten days.

 

 


  • Competent Authority to Which Implementation Will Be Requested

  • Pursuant to CCP Article 393/2, the implementation of a provisional measure order may be requested from the enforcement office within the judicial district of the court that issued the order or where the property subject to the measure is located. If specified in the court decision regarding the measure, the registry director may also be authorised to implement the measure.

  • Pursuant to EBC Article 261/1, to execute provisional attachment orders, application must be made to the enforcement office located within the judicial district of the court that issued the order.

 


  • Supplementary Proceedings

  • In the event that a provisional measure order is issued without filing an action on the merits, the requesting party is obliged to file their action regarding the merits within two weeks from the date on which the implementation of the measure was requested, and to present the document proving that the action has been filed to the officer implementing the measure request and obtain a document in return. Pursuant to CCP Article 397, if the action on the merits is not filed within the two-week period, the provisional measure order will automatically lapse. Again, pursuant to CCP Article 397, the duration of the provisional measure is, unless otherwise stated, until the final decision becomes final.

  • If the provisional attachment order was obtained before filing an action or commencing enforcement proceedings, the requesting party must make a request for enforcement or file an action within seven days from the implementation of the attachment, or if not present during the execution of the attachment, from the service of the provisional attachment minutes upon them. If the debtor objects to the payment order after enforcement proceedings have been initiated, the requesting creditor must resort to the removal of the objection or file an action for the annulment of the objection within seven days from the service of this objection. If the provisional attachment was requested during the proceedings, a request for enforcement must be made within one month from the service of the decision rendered by the court on the merits. The provisional attachment order becomes null and void in cases where the creditor exceeds the legally envisaged time limits, withdraws from the request for enforcement, the file is removed from proceedings during the action and is not renewed after dismissal, or they are found to be in the wrong in the action.

 

    1. Right of Objection

Both provisional measure and provisional attachment orders may be objected to before the court that issued the order. It is envisaged that an appeal may be lodged against the court’s decision regarding the objection pursuant to CCP Article 341.

 


  • Minutes

  • The officer implementing the provisional measure prepares minutes in which the subject of the measure, its location, and all kinds of claims regarding the measure are recorded. A copy of these minutes is served on the parties not present during the measure and, depending on the circumstances, on third parties.

  • Pursuant to the provisional attachment order, minutes are prepared showing the items to which the attachment procedure has been applied and the values of these items. These minutes are served within three days to the creditor, debtor, and, where necessary, third parties who were not present during the attachment.

 

 

 

  1. General Information Regarding the Execution of Orders

  • It has been stipulated that force may be used by the authority that will implement the measure for the implementation of the provisional measure order, and disciplinary imprisonment of up to six months may be applied to the person who opposes.

  • The attachment provisions regulated in EBC Articles 79-99 are applied by analogy to the execution of provisional attachment orders.

 

  1. Conclusion

The mechanisms of provisional measures and provisional attachment show similarities to each other and are therefore frequently confused. However, these institutions contain significant differences in terms of subject matter and method of implementation. In particular, it is observed that whilst the provisional attachment route should be used for monetary debts, the provisional measure route is sometimes resorted to and courts also issue decisions accordingly. Within the scope of this article, these institutions that are confused in practice have been addressed in general terms, and their important points and differences have been emphasised.

 

 

Kind regards,

Bozoğlu İzgi Avukatlık Ortaklığı