Provisional Attachment in Turkey
Introduction
Provisional attachment is a temporary legal measure used to protect a creditor’s claim. It helps stop the debtor from hiding or getting rid of their property. Especially in commercial relations, this temporary protection provided to the creditor against the possibility of the debtor’s transfer, concealment or evasion of its assets guarantees the collection of the receivable in the future. This measure is explained in Articles 257 to 268 of the Enforcement and Bankruptcy Law and is especially important for money-related debts.
In addition provisional attachment and provisional injunction are distinct legal institutions. A provisional injunction is a temporary legal protection requested from the court to ensure the protection of a right during the course of a lawsuit. Unlike provisional attachment, a provisional injunction can be applied to any type of right to prevent it from being harmed during the course of the lawsuit.
Conditions for Provisional Attachment
To get a provisional attachment order, the following basic conditions must be met:
a) The Claim Must Be for Money
Provisional attachment is only possible for monetary claims. The claim must be due (the payment date must have passed). However, in some cases, provisional attachment can be requested even if the claim is not due yet. These cases include when the debtor has no fixed residence, is hiding or taking away their property to escape their obligations, is preparing to escape, has already escaped, or is doing fraudulent actions that harm the creditor’s rights.
b) The Claim Must Not Be Secured by a Pledge
A pledge claim is a claim where the creditor has a legal right over the debtor’s or a third party’s movable or immovable property. If the claim is secured by a pledge, provisional attachment cannot be used. However, in this case, the creditor can begin the enforcement process by selling the pledged property.
c) The Claim Must Be Supported by a Document or Court Decision
To get a provisional attachment order, the creditor must present a document that proves the validity of the claim. These documents can include an invoice, contract, promissory note (such as a check or bond), court decision, or foreign court or arbitration decision.
It is enough if the document makes the creditor’s claim seem reasonable. At this stage, the court does not investigate whether the claim is real, but only assesses if the creditor’s claim is reasonable and credible.
d) Obligation to Provide Security
The creditor requesting the provisional attachment must provide a security to cover any damages the debtor or third parties may suffer if the attachment is later found to be unjustified. However, if the claim is based on a final court decision, no security is required. If the claim is based on a document similar to a court decision, whether security is needed is at the discretion of the court.
Process of Obtaining a Provisional Attachment Order
According to Article 50 of the Enforcement and Bankruptcy Law, the competent court will issue the provisional attachment order. The court with authority over the location is determined by the enforcement office in charge of the debt.
Since the claim involves money, the case will be handled by either the civil court of first instance or the commercial court of first instance. However, depending on the nature of the debt, the specific court to request it from may change. If the debt arises from a commercial case, the creditor must apply to the commercial court.
Once the order is given, the creditor must request the enforcement office to carry it out within 10 days. If not, the order will become invalid. The creditor must apply to the enforcement office in the area where the court that issued the order is located.
The debtor can object to the reasons for the provisional attachment, the court’s jurisdiction, or the security. If the attachment is done in their presence, the 7-day period starts from the date it was applied. If it was done without their presence, it starts from the date they receive the attachment report. Third parties whose rights are affected can also object within seven days after they learn about the provisional attachment.
Conclusion
Provisional attachment is an effective measure to secure the creditor’s claim. While it protects the creditor’s rights, it also limits the debtor’s ability to use or transfer their property.
The requirement for providing security is meant to prevent dishonest requests, but the possibility of damaging the debtor’s financial reputation should also be considered. For this reason, provisional attachment should be used carefully and fairly.