Precautionary attachment (ihtiyati haciz)

Scope

The creditor of a monetary debt that is due and not secured by a pledge may have the debtor’s movable and immovable property, receivables and other rights, whether held by the debtor or by a third party, provisionally attached (İİK Art. 257). For a debt not yet due, this route is available only if the debtor has no fixed place of residence, or if the debtor is preparing to conceal or remove assets or to flee, or is carrying out fraudulent transactions for that purpose. The decision is issued by the competent court; the creditor presents the claim and, where necessary, the evidence that will persuade the court as to the ground for attachment (Art. 258). The creditor, who is liable for the damage arising if found to be in the wrong, as a rule provides security; no security is required if the claim is based on an enforceable judgment (ilam) (Art. 259).

Practical significance

The periods below are according to the text of the law in force and may change. If the creditor does not request the enforcement office to carry out the decision within ten days from the date of the decision, the decision lapses automatically (Art. 261). A creditor who has obtained precautionary attachment before a lawsuit or proceedings must, within seven days from the execution of the attachment (or, if the attachment was carried out in the creditor’s absence, from service on the creditor of the attachment record), submit an enforcement request or file a lawsuit; otherwise the attachment becomes void (Art. 264). The debtor may object, within seven days, to a decision issued without being heard, on the grounds for attachment, the court’s territorial jurisdiction and the security; third parties whose interests are affected may, within seven days from the date they learn of the attachment, object only to the grounds for attachment or the security (Art. 265). In international arbitration, requesting precautionary attachment from a court is not regarded as contrary to the arbitration agreement; unless the parties agree otherwise, the arbitral tribunal may also issue a precautionary attachment order, but this order does not bind third parties and cannot be of a nature that must be carried out by compulsory enforcement bodies (Law No. 4686 on International Arbitration Art. 6).

Concepts often confused

Precautionary attachment is confused with final (executory) attachment. Attachment (İİK Art. 78 et seq.) is imposed in proceedings that have become final, for the purpose of collection, and leads to sale; precautionary attachment, on the other hand, is a temporary measure that protects the debtor’s assets before the claim has become final. If the debtor does not object to the payment order in time, or the objection is removed or annulled, the precautionary attachment turns automatically into final attachment (Art. 264). An interim injunction (Code of Civil Procedure (HMK) Art. 389 et seq.) protects the right that is the subject of the dispute; for monetary claims, as a rule, precautionary attachment is resorted to. For public receivables, precautionary attachment is applied without a court decision, by decision of the competent superior of the creditor public administration (Law No. 6183, Art. 13).