The Enforcement and Bankruptcy Code establishes specific time periods to regulate the rights of the parties and organize the enforcement procedures in the field of enforcement law. These time periods are divided into two main categories: “time periods set for the concerned parties” and “time periods set for the enforcement authorities.” Both types of deadlines are critical in ensuring the effectiveness of enforcement proceedings and the realization of justice.
A) Time periods set for the concerned parties:
The time periods set for the concerned parties are those that apply to the parties of the enforcement and third parties. These periods are of a nature that bars the right if the necessary legal action is not performed within the specified period. For example, if the debtor does not object to the payment order that was served to them within the designated period, the enforcement becomes final, or if the creditor does not request the sale of the seized property within the required time, the seizure is lifted. Since these time periods are related to public order, they are directly taken into consideration by the concerned parties (enforcement office, examination authority).
B) Time periods set for the enforcement authorities:
The certainty of time periods applies to those set for the concerned parties, but the time periods set for enforcement authorities cannot be considered certain. Therefore, the time periods determined for these authorities do not carry a peremptory nature; even if the time period is exceeded, the action remains valid. However, if the enforcement authorities exceed the set time periods and cause harm to the concerned parties, they have the right to file a compensation lawsuit against the Ministry of Justice in accordance with Article 5 of the Enforcement and Bankruptcy Law (İİK).
Article 5 of İİK: Compensation claims arising from the faults of the enforcement and bankruptcy office officials can only be filed against the administration. The state retains the right of recourse against the officials who were at fault in causing the damage. These cases are heard in the judiciary courts.
The time periods determined in the Enforcement and Bankruptcy Law are strictly defined, and any contracts changing these periods are considered invalid. Since these time periods relate to public order, it is mandatory for the concerned parties to directly observe them. However, the debtor who benefits from the expiration of any time period may waive this right. The debtor’s waiver of the time period binds the parties in the enforcement file; it does not affect third parties. (Article 20 of İİK)
Article 20 of İİK: Any contracts changing the time periods set by this law are null and void. However, the debtor who has the right to benefit from the expiration of a period may waive this right. This waiver does not affect third parties.
An example of this situation is as follows: Although the debtor must object to the payment order within the specified period for the seizure of the debtor’s property, the seizure process can still be carried out during this period with the debtor’s consent. However, if this waiver affects the rights of third parties, the waiver will not have any effect on third parties, and the seizure imposed due to the waiver becomes invalid.
CALCULATION OF TIME PERIODS
The method for calculating time periods is governed by Article 19 of the Enforcement and Bankruptcy Law (İİK). According to this provision, time periods are calculated in days, months, and years. Accordingly:
a) For time periods determined in days, the first day is not included in the calculation. For example, if a payment order is served to the debtor on 19.09.2024, the objection period will start on 20.09.2024, not 19.09.2024. Therefore, the debtor must file an objection to the payment order within 7 days, by 26.09.2024 at the latest. Although the first day is not considered in time periods calculated in days, if the law explicitly states that the first day will be included, the calculation will include the first day. For example, according to Article 52 of the İİK, which stipulates that “a debtor whose wife or husband, or a relative by blood or marriage, dies, the enforcement proceeding will be suspended for three days, including the day of death,” the first day will also be counted in the time calculation.
b) For time periods determined in months and years, the period starts from the same day of the month or year in which the period began and ends on the same day of the ending month or year. For example, a one-year period starting on 01.05.2024 will end on 01.05.2025, and a three-month period starting on 01.05.2024 will end on 01.08.2024.
c) If the last day of a time period coincides with a public holiday, the time period will end on the following day and at the holiday closing time. (İİK Article 19/3-4). However, public holidays that fall within the time period are included in the calculation. For example, if a payment order is served to the debtor on 13.06.2024, and even though it coincides with the Kurban Bayramı holiday from 16.06.2024 to 19.06.2024, the 7-day objection period for the payment order will start on 14.06.2024 and end on 20.06.2024. Therefore, public holidays within the time period do not affect the running of the period. Days off in the afternoon such as the days before Ramadan and Kurban Bayram, and 28 October, are considered working days. If the last day of a time period falls on one of these days, the time period will end at noon on that day.
The law does not provide a general rule regarding when time periods begin, and the start date of a time period differs based on the circumstances; factors such as announcement, notification, occurrence of an event, publication, or the completion of an action play a key role in determining the start of the period. Finally, it should be noted that since enforcement offices are not courts, and since enforcement courts deal with urgent matters, judicial recess provisions do not apply to enforcement offices and enforcement courts.
SUPREME COURT DECISIONS:
“…Although the decision was notified to the party appealing on 17/08/2017, the appeal petition was filed and registered on 05/09/2017 after a certain period had passed. The rules of judicial holiday (HMK Article 102/104) do not apply in enforcement offices and enforcement courts (Enforcement and Bankruptcy Law (İİK) Article 18/1). Therefore, if a deadline under the İİK coincides with a judicial holiday, the period will end on the last day of the judicial holiday at the holiday hour; the deadline cannot be extended by another week after the judicial holiday ends…” (Supreme Court 12th Civil Chamber, 2017/7898 E., 2018/8570 K., 24.09.2018)
“…The provision of Article 19 of the Enforcement and Bankruptcy Law concerning the calculation of deadlines applies to all deadlines set both by the law itself and by enforcement and bankruptcy organs. Judicial holiday rules (HMK Articles 102-104) do not apply in enforcement (and bankruptcy) offices and enforcement courts (İİK Article 18/1; HMK Article 103/1-h); that is, enforcement (and bankruptcy) offices and enforcement courts are normally operational during judicial holidays. Therefore, the provision of HMK Article 104 does not apply to deadlines in the İİK. That is, if a deadline in the İİK coincides with a judicial holiday, the deadline will end at the holiday hour on the last day of the holiday; it cannot be extended by one week from the end of the judicial holiday (HMK Article 104) (Kuru, Baki: Enforcement and Bankruptcy Law Handbook, Ankara 2013, p. 145)…” (Supreme Court General Assembly, 2017/1853 E., 2021/1529 K., 30.11.2021)
“…Article 19/3 of the İİK clearly states, “If the last day of a deadline falls on a public holiday, the period ends on the day following the holiday.” In a proceeding initiated by seizure of a promissory note, the underlying check was dated 08.12.2008, and both the place of issue and payment were Eskişehir. According to Article 708/1 of the Turkish Commercial Code (TTK), the underlying checks must be presented to the relevant bank within 10 days. The last day for presenting the check was 18.12.2008, which did not coincide with a public holiday. However, the check was presented on 19.12.2008, instead of the required 18.12.2008. In this case, the creditor lost the right to apply under the relevant law, and the check is considered an ordinary transfer…” (Supreme Court 12th Civil Chamber, 2009/19553 E., 2010/1278 K., 21.01.2010)
“…Article 19 of the İİK states: ‘In deadlines designated in days, the first day is not counted. If the last day of a period coincides with a public holiday, the period ends on the day following the holiday. The period is considered to end at the holiday hour of the last day.’ Enforcement proceedings were conducted against the debtor through a seizure procedure for negotiable instruments, and a payment order was sent to the debtor. The payment order was notified to the debtor on 31.07.2007. The debtor objected, stating that the instrument was not a negotiable instrument. According to the law, the first day of notification is not counted, and since the last day of the objection period (5.8.2007) coincided with a public holiday (Sunday), the objection made on the following day (6.8.2007) is within the legal 5-day period of İİK Article 168/5. Therefore, the rejection of the objection based on a lapse of time is incorrect and the main issue should have been examined…” (Supreme Court 12th Civil Chamber, 2008/14846 E., 2008/18385 K., 24.10.2008)
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