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Legal Remedy Against Decisions About Precautionary Attachment

July 2014 - Litigation & Dispute Resolution. Legal Developments by Baspinar & Partners Law Firm.

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In this article, we have reviewed the legal opinion and information about rejection of precautionary attachments and decisions considering Code of Civil Procedure ("Code") numbered 6100 and Court of Appeal Assembly of Civil Chambers Precedent Decision numbered 2013/1 E. 2014/1 K. 

Precautionary attachments are stated in article 389 of the Code: "In case of worrying about difficulties or impossibilities to obtain a right because of possible changes of the situation or having inconvenience or loss because of delay, precautionary attachments decision can be given on the subject of the dispute." A precautionary attachment is requested from authorized court about merits before bringing an action. After bringing an action, it is requested from the court which tries a suit. The judge may make a decision for precautionary attachments without hearing the counter party in case of obligations for protection of the rights of claimer. (Art. 390)

Article 391/3 of the Code states the possibility to go for legal remedies against refusal decisions of precautionary attachments claim: "In case of rejection of precautionary attachments claim, it is possible to go for legal remedies. This claim is investigated primarily and concluded definitely." The possibility to go for legal remedies against decision made on objection to precautionary attachments decision is stated in article 394/5 of the Code: "(5) It is possible to go for legal remedies against decision about objection. This claim is investigated primarily and concluded definitely. Going legal remedies do not stop application of precaution.

Associating the jurisprudence is requested from Court of Appeal due to divergences between departments of Court of Appeal and it is requested to associate the jurisprudences between departments about possibility of appeal against decisions made on objections in case of rejection or approval of precautionary attachment claim which are temporal protection measures stated in the articles mentioned above. As some of the departments have an opinion of impossibility of appeal, some of them have an opinion of possibility. The separation between departments is caused because of provisional article 3 of the Code:

 

"Application of the provisions about appeal of the Code numbered 1086 continues up to date of inauguration of Regional Courts of Justice which will be published on the Official Gazette according to provisional article 2 of Law numbered 5235 and dated 26/9/2004.

 

For the decisions that an appeal is made before Regional Courts of Justice, article 427 - 454 of the Law numbered 1086 before it is amended by the Law 5236 dated 26/9/2004 shall continue to be apply until the decision becomes final."

 

However, it is not possible to appeal for refusal decision of Court of First Instance for precautionary attachment and decision made on objection in case of approval of these claims is decided by the decision numbered 2013/1 K. and 2014/1 E.

 

The justification of the Decision is as mentioned below in brief;

 

"A new legal remedy which was not stated in the abrogated HUMK[1] numbered 1086, is stated in article 391/3 and 394/5 of HMK[2]. It is stated clearly with the regulations in article 341 of HMK "appealable (first appeal) decisions" and in article 362 of HMK "un-appealable decisions" that aforementioned legal remedy is first appeal.

 

However, application of first appeal provisions are delayed until inauguration date of Regional Courts of Justice with temporal article 3 which is added later to HMK, because Regional Courts of Justice which are the authorities to investigate first appeals, are not constituted yet. For this reason, some transition provisions are stated.

 

The base of the divergence caused to association of jurisprudence and dispute in application is about application of legal remedies stated in article 391 and 394 of HMK according to temporal provision in question.

 

In this respect, considering that the intention with the phrase "legal remedy" in article 391 and 394 of HMK is first appeal; the mention of provisional article 3 is only includes provisions of HUMK about appeal and decisions about precautionary attachment are not final decisions; and also there is not any regulation about this subject, it is reached a conclusion that these kinds of decisions cannot be investigated in the scope of appeal."

 

As it is seen in the decision, impossibility to appeal against decision made by Court of First Instance on objection in case of rejection or approval of the claims for precautionary attachment is decided. The effect of the decision on provision is cohesiveness of the associated jurisprudence decisions and decisions of Supreme Court Assembly on Supreme Court departments and court of first instances.



[1] Previous Code of Civil Procedure

[2] Current Code of Civil Procedure