The Draft Compulsory Enforcement Law: Enforcement Of Judgments And Provisional Attachment

The Enforcement and Bankruptcy Law No. 2004 (the "EBL"), adopted from Switzerland in the early years of the Republic of Türkiye, has undergone numerous amendments from the very beginning. The legislator has finally opted for a more fundamental change. The new law intended to replace the EBL is titled the Compulsory Enforcement Law and a draft of this law (the "Draft CEL") has recently been released for public consultation.

The Draft CEL was prepared by the Academic Commission on Enforcement and Bankruptcy Law ("Commission") established by the Ministry of Justice on February 9, 2025. The Commission comprises academicians, judges, prosecutors, clerk members, enforcement directors and lawyers specializing in various fields. The Commission completed its work in approximately seven months and submitted the Draft CEL for public review. The legislative roadmap will be determined at the end of this feedback process, which will continue until January 31, 2026.

Allowing sufficient time for public input during drafting a new law has been appreciated and supported by many practitioners and academics. However, significant criticism has also been voiced regarding the problems that may arise if the Draft CEL is enacted in its current form.

The Draft CEL introduces changes in numerous areas ranging from the organisation of enforcement bodies and the judicial supervision of enforcement officers' actions, to the types of available enforcement proceedings and the judgments subject to enforcement. These amendments are based on the perception that the balance that should be maintained between the creditor and the debtor has shifted in favor of the creditor as a result of the changes made to the EBL over years. For this reason, the Commission aimed to re-establish this balance and remove enforcement law's "creditor-friendly" image.

This article addresses the amendments on what is called by the Commission as "the core subject of enforcement law in its narrow and technical sense": the enforcement of court judgments, together with related provisions.

1. Enforcement of Judgments (Draft CEL, Article 53)

Under the current regime, the judgments rendered by courts of first instance are, as a rule, enforceable [EBL Arts. 36 and 40]. First-instance judgments that are exceptionally not enforceable are specified in different laws¹.

To balance the interests of the creditor and the debtor, the EBL, on one hand, grants the creditor the right to enforce the first-instance judgment while on the other hand allowing the debtor to protect their assets from enforcement proceedings until the judgment becomes final by depositing security not less than the judgement amount [EBL Arts. 33 and 36].

In practice, however, a significant number of first-instance judgments are overturned or amended on appeal. Although this system appears to offer a fair solution in theory, in reality, it results in an unfair burden for the debtor as they must deposit security to avoid enforcement of a judgment later overturned.²

The Commission therefore proposes fundamental change of this system adopted by the EBL and removing the enforceability of first-instance judgments.

Only the following judgments are enforceable according to the Draft CEL³:

1. First-instance judgments that are final upon delivery or that have become final due to the absence of an appeal;
2. First-instance judgments affirmed by a regional court of appeal;
3. Judgments rendered by a regional court of appeal either acting as a first-instance court or replacing the first-instance judgment;
4. Judgments rendered by the Court of Cassation acting as a first-instance court .

With this amendment, the rule and exception within enforcement law have been reversed.
As an exception to the general rule, the following first-instance court judgments are immediately enforceable upon delivery:

1. All types of alimony awards,
2. Damages for bodily injury and loss of support,
3. Employee claims arising from employment relationship,
4. The eviction and delivery of a vessel, irrespective of whether its flag or registry,
5. Interim measures granted under Article 169 of the Turkish Civil Code⁴,
6. Provisional payment orders issued under Article 76 of the Turkish Code of Obligations⁵.

2. Provisional Attachment (Draft CEL, Article 453)

Restricting the enforceability of first-instance court judgments increased the importance of the provisional attachment. Under this proposed system, the creditor faces the risk that the debtor, who lost in the first instance, may dissipate assets during the long period until enforcement proceedings are allowed (i.e. until the decision of the regional court of appeal).

Thus, provisional attachment becomes the only remedy available to a creditor seeking to secure their claim in the interim. The draft CEL maintains the existing structure of provisional attachment.

Accordingly, if no provisional attachment has been obtained earlier:

• The creditor shall promptly apply to the same court that rendered the judgement,
• The court shall issue a provisional attachment order without hearing the debtor and
• In doing so, the court shall not require the creditor to deposit security.

As a general rule, since it takes effect by registration and does not physically prevent the debtor's use of the relevant assets, the Commission views the provisional attachment mechanism as the most reasonable tool to maintain the balance between the creditor and the debtor.

The Commission also has involved the Court of Cassation as the appellate authority in the provisional attachment system to ensure uniform and consistent case law. Under the current system, decisions of the regional courts of appeal on provisional attachment are final [EBL, Art. 258]. The Draft CEL provides that if a decision on the acceptance or rejection of a provisional attachment is issued directly (for the first time) by the regional court of appeal, such decision may be appealed.

3. Postponement of Enforcement (Draft CEL, Article 55)

As noted above, at present, debtors can postpone enforcement until the judgment becomes final by depositing security at least equal to the judgment amount [EBL, Art. 36].

In the new system proposed by the Draft CEL, where judgments are generally not enforceable, the role of the postponement of enforcement has naturally diminished and is now mainly relevant during appeals.

The conditions for obtaining a postponement of enforcement and the rules governing its application are largely preserved. However, the authority responsible for evaluating the conditions for a postponement has changed.

Currently, the debtor applies to the enforcement court for a postponement [EBL, Art. 36]. Under the Draft CEL, a request for a postponement shall generally be submitted directly to the enforcement and bankruptcy office. However, if the security offered by the debtor is not cash, the asset itself, or a bank guarantee; but rather an attachment or pledge in favor of the creditor, the enforcement and bankruptcy officer shall refer the matter to the enforcement court.

4. Documents Equivalent to Judgments (Draft CEL, Article 59)

An important change is the expansion of the scope of documents considered to have the nature of a judgment.

Under the EBL, only notarial deeds containing unconditional and formal acknowledgement of a monetary debt can be eligible for the enforcement proceeding for judgments [EBL, Art. 38].

The draft CEL removes this monetary requirement, recognizing that notarial deeds involving non-monetary obligations such as the delivery of movable property may also serve as enforceable documents.

5. Enforcement of Judgments Involving Reciprocal Obligations (Draft CEL, Article 64)

The draft CEL introduces a new regulation for the enforcement of judgments involving reciprocal obligations, aiming to eliminate inconsistent practices.

Accordingly, upon service of the enforcement order, the debtor may, within two weeks, apply to the enforcement court with a petition requesting the suspension of enforcement⁶, claiming that the creditor has not performed or offered to perform the counter obligation. Unless the creditor proves otherwise, the court shall order the suspension of enforcement.⁷

6. A New Concept: Enforcement Compensation (Draft CEL, Article 78)

Under the EBL, judgments ordering the performance or non-performance of an act may trigger coercive execution and penal sanctions if the debtor fails to comply [EBL, Art. 331]. However, coercive enforcement is sometimes impossible and the penalties imposed on the debtor do not directly benefit the creditor.

Under the Draft CEL, the creditor may apply to the enforcement court to claim compensation from the debtor for each day the violation continues, in an amount of no less than one thousand Turkish Lira per day and not exceeding a total of one million Turkish Lira.

The relevant draft provision also emphasizes that if the creditor's loss exceeds this ceiling, they retain the right to bring a separate action for the excess under general legal provisions.

7. Time Limits

The Draft CEL aims to extend the time periods granted to debtors, taking into account practical difficulties faced by those required to comply with judgments involving large sums. Accordingly:

• The period for seeking suspension of enforcement has been extended from seven days to two weeks [EBL, Art. 33 / Draft CEL, Art. 61]
• The period for payment of a monetary debt or provision of security following a payment order has been extended from seven days to two weeks [EBL Art. 32 / Draft CEL Art. 68]
• The period for the eviction and delivery of immovable property has been extended from seven days to one month [EBL, Art. 26 / Draft CEL, Art. 71]
• The period granted to the debtor for the establishment or relinquishment of an easement pursuant to a judgment has been extended from seven day to two weeks [EBL Art. 31 / Draft CEL, Art. 75]

Evaluation

The perception of the EBL as "creditor-friendly" largely stems from provisions tailored to banks and credit institutions. It is therefore not entirely accurate to claim that the EBL generally gives all creditors an advantage over debtors.

The Commission's intention to enhance debtors' protection appears to be driven rather by a practical concern—namely, the high reversal rate of first-instance judgments by higher courts.

Improving the accuracy and quality of first-instance judgments is a long-term structural project. The legislator, through the Draft CEL, seems to pursue a short-term, pragmatic solution by making most first-instance judgments non-enforceable.

However, this approach will likely increase the number of provisional attachment requests, creating an additional burden on both courts and enforcement offices.

Footnotes

1. For example, negative determination and restitution cases (Art. 72 of the EBL) and decisions on rights in rem relating to immovable property (Art. 350/2 and Art. 367/2 of the Civil Procedure Code "CPC")

2. The reasoning of Art. 53 of the Draft CEL.

3. If the judgments listed above concern matters of law of persons, family law, or rights in rem over immovable property, they may not be enforced before becoming final. This rule is essentially a repetition of the provisions of Code of Civil Procedure, Article 350/2 and Article 367/2.

4. Turkish Civil Code No. 4721, Article 169 – Upon the filing of a divorce or separation action, the judge shall, ex officio, adopt the necessary interim measures for the duration of the proceedings, particularly regarding the spouses' accommodation, maintenance, management of their property, and the care and protection of the children.

5. Turkish Code of Obligations No. 6098, Article 76 – If the injured party presents convincing evidence supporting the validity of their claim and if their economic situation so requires, the judge may, upon request, order the defendant to make a provisional payment to the injured party. Any provisional payments made by the defendant shall be credited against the adjudicated compensation; if no compensation is awarded, the judge shall order the plaintiff to return the provisional payments received, together with legal interest.

6. The Commission has reviewed these concepts to prevent terminological confusion arising from the interchangeable use of terms such as "suspension of enforcement" and "postponement of enforcement" in the EBL. Following its review, the Commission has reorganized these terms in the Draft CEL, assigning each to its proper procedural context.

• Under Article 55 of the Draft CEL, the temporary suspension of enforcement proceedings due to the pendency of appellate review is referred to as "postponement of enforcement" (icranın ertelenmesi).
• termination of enforcement proceedings on the grounds that the reciprocal performance has not yet been rendered or offered (Article 57),, or, where the debtor has been granted additional time to perform (Article 61), is designated as "suspension of enforcement" (icranın geri bırakılması).

7. This provision is consistent with Article 97 of the Turkish Code of Obligations, which governs reciprocal obligations: "The party seeking the performance of a contract imposing reciprocal obligations must have performed or offered to perform their own obligation, unless, according to the terms and nature of the contract, they have the right to perform at a later time."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.