I. General Overview
All procedures and transactions in enforcement offices must be carried out as stipulated by the legislation. Complaints to the enforcement court can be filed against actions taken by enforcement officers. Briefly, this process is referred to as “complaint about the actions of the enforcement officer.”
Complaint proceedings have their unique legal route. Technically, it is not a lawsuit. The action subject to the complaint must be an enforcement officer’s action, but the complainant is not the enforcement officer.
Enforcement courts are the legal oversight authorities for actions taken by enforcement offices. To file a complaint about the actions of the enforcement officer in the enforcement court, there must be valid reasons for the complaint.
II. Reasons for Complaint
According to the law, the reasons for complaining about the actions of the enforcement officer are listed as contravention of the law, finding the action inappropriate to the situation, failure to fulfill a right, and leaving it without a valid reason.
1. Contravention of the Law
Enforcement actions that violate the mandatory provisions of the specific law on enforcement, as well as other laws related to enforcement law, can be subject to a complaint.
- Irregularity in notification.
- Seizure of an amount exceeding ¼ of the employee’s wages.
- Conducting non-judicial execution for a non-executory claim based on a judgment.
- Conducting a sale auction with incomplete conditions.
- Sending a payment order contrary to the enforcement request.
- Sending an enforcement order that is not suitable for the judgment.
These are examples of enforcement officer actions that violate the law.
2. Finding the Action Inappropriate to the Situation
The law sometimes grants enforcement officers discretionary powers. For example, when seizing the debtor’s assets, the enforcement officer should act in a way that protects the debtor’s rights. In cases where the enforcement officer is given discretionary power, the officer must make a decision suitable for the situation. Otherwise, a complaint can be filed against the decision.
- Seizure of more than ¼ of an employee’s wages.
- Seizure of assets that cannot be seized.
- Seizure of a property characterized as a family residence.
Finding the action inappropriate to the situation can be a reason for complaint.
3. Failure to Fulfill a Right
Enforcement officers must carry out their actions in accordance with the requests of the parties and the law. Failure to fulfill a valid right in accordance with the law may be subject to a complaint.
- Rejection of the enforcement request.
- Stopping the execution despite an overdue objection.
- Rejection of the seizure request.
- Rejection of the request to lift the seizure.
- Failure to prepare a schedule of claims.
Failure to fulfill a right can be a reason for complaint.
4. Leaving a Right Prolonged
Enforcement offices must conclude requests within the specified periods in the laws. If the procedure regarding a submitted request is not carried out within the required time frame, a complaint can be filed. In this case, the enforcement court may order the enforcement office to carry out the action.
- Not being done on time or within the required period.
- Failure of the enforcement officer to carry out the seizure request within three days.
Leaving a right without a valid reason can be cited as a reason for complaint.
A person who suffers damage due to the late action can file a compensation lawsuit against the administration.
III. Complaint Period
7-day period
As a general rule, the complaint period for actions subject to a complaint starts from the date of learning about the enforcement officer’s action. For enforcement through bills of exchange, the complaint period is five days.
The complaint period is a limitation period. The enforcement court resolutely examines whether the complaint is within the time limit. If the complaint is not made within the specified period, the complaint is rejected. If the last day of the complaint period falls on an official holiday, the period ends at the end of the working hours of the following business day.
The complaint period starts from the date of learning about the action. However, the first day is not included in the calculation of the period.
If the learning date does not start with a notification, the statement of the complainant is essential. The enforcement court cannot investigate when the complaint was learned. However, if the party complained against objects to the learning date, an investigation can be conducted in this case.
Unlimited Complaint
The complaint period is not limited to seven days for enforcement officer actions that violate public order. Failure to fulfill a right or leaving a right without a valid reason and actions against public order are subject to an unlimited complaint. Enforcement officer actions severely violating public interest fall under this category.
Determining which enforcement officer actions are subject to an unlimited complaint needs to be evaluated separately for each case.
- Making an enforceable court decision or trial expenses the subject of enforcement before the decision becomes final is subject to an unlimited complaint.
- Failure to execute non-judicial enforcement for unenforceable claims.
- Conducting non-judicial execution for a claim subject to a judgment without enforceable court decision.
- Enforcement request not being in compliance with the procedure.
- Incomplete information in the enforcement request.
- No Turkish Lira equivalent in the enforcement request for a foreign currency claim.
- Not attaching the original document or a certified copy of the document by the creditor, even though the claim is based on a one-year document.
- Starting enforcement against an ordinary partnership without legal personality.
- Continuing the execution without serving the payment order despite non-delivery.
- Serving a payment order that is not in compliance with the enforcement request.
- Sending a payment order to a person not mentioned in the enforcement request as a debtor.
- Sending a payment order for a different enforcement method than the one chosen by the creditor.
- Seizure of property owned by the state.
- Seizure of non-material damages.
- Issuing an enforcement order contrary to the judgment without finalization.
- Including unenforceable decisions in the enforcement without finalization.
- Initiating enforcement by issuing a promissory note against the consumer.
These are examples of reasons that have been recognized by court decisions as grounds for an unlimited complaint.
IV. Effect of the Complaint on Enforcement Proceedings
Initiating a complaint about the actions of the enforcement officer does not stop the execution of the enforcement process on its own. However, the court may, on its own or upon the request of the complaining party, decide to temporarily suspend the execution of the action.
The enforcement court sends the decision to temporarily suspend the enforcement action to the enforcement office. The enforcement proceedings are halted as they are. In this case, the deadlines do not run.
V. Examination and Decision on the Complaint
Technically, filing a complaint about the actions of the enforcement officer is not a lawsuit. The parties are the complainant and the party complained against. However, the provisions of the Code of Civil Procedure regarding the simplified trial procedure will be applied to the extent appropriate.
The enforcement court may conduct its examination of the complaint through a hearing or make a decision based on the file alone, according to its discretion. The Supreme Court holds the view that some grounds for complaint should be examined through a hearing.
If the court decides that the complaint should be examined through a hearing, a summons must be sent to the party complained against to hear their side.
If the examination by the enforcement court results in accepting the complaint, the court will make a decision on the action subject to the complaint itself. However, in complaints based on leaving a right without a valid reason, the court will suffice with ordering the action to be taken.
VI. Fees, Expenses, and Attorney’s Fees for Complaints about the Actions of the Enforcement Officer
According to Article 13 of the Fees Act, complaints about the actions of the enforcement officer are exempt from fees. However, if you apply for a complaint through the UYAP Citizen or Lawyer system, you need to pay an application fee and prepayment fee. This error in the UYAP system needs to be corrected.
According to the General Assembly of the Supreme Court, although a complaint about the actions of the enforcement officer is not a lawsuit, it is subject to the provisions of the Code of Civil Procedure regarding the advance of expenses. However, there are different opinions in various decisions of the Supreme Court.
If the complaint about the actions of the enforcement officer is examined only through the file, the party complained against should not be burdened with litigation costs and attorney’s fees. Similarly, if the party complained against is not responsible for the enforcement officer’s action and does not defend the validity of the action, they should not be held responsible for litigation costs and attorney’s fees. The Supreme Court is of the opinion that “there is no culpability that cannot be attributed” against which attorney’s fees should not be awarded.
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