STAY OF EXECUTION (POSTPONEMENT OF ENFORCEMENT)

What is a stay of execution?

A stay of execution, also known as the postponement of enforcement, is a legal remedy that allows the debtor to halt the progression of enforcement proceedings in judgment enforcement cases. As is known, the enforcement of local court decisions generally does not require finalization, meaning that even if an appeal is filed, enforcement proceedings may continue. Since the judgment has not yet become final, continuing the enforcement proceedings poses a risk to the debtor. Therefore, Article 36 of the Enforcement and Bankruptcy Law (İİK) provides the debtor with the opportunity to suspend the enforcement proceedings until the judgment becomes final. The primary purpose of this provision is to prevent the debtor from suffering damages due to enforcement proceedings in case the judgment is annulled or reversed.

Decisions that may be subject to a stay of execution:

The purpose of Article 36 of the Enforcement and Bankruptcy Law (İİK) is to provide the debtor, who has appealed the decision, with the option of not making a payment before the judgment becomes final. Therefore, only decisions that can be subject to judgment enforcement fall within the scope of a stay of execution.

Although stays of execution apply to judgment enforcement cases, a stay of execution cannot be granted for judgments related to alimony. This is specifically regulated under Article 36/4 of the İİK, which states, “No such period shall be granted for alimony provisions.” This provision makes it clear that even by providing security, the enforcement of an alimony judgment cannot be suspended.

Additionally, pursuant to Article 367 of the Code of Civil Procedure (HMK), it is also established that a stay of execution cannot be granted for alimony decisions. Indeed, the Court of Cassation’s rulings align with this principle:

Court of Cassation 8th Civil Chamber, 2017/10449 E., 2017/15408 K., 16.11.2017 T. “…In an enforcement proceeding initiated based on an interim decision regarding alimony, the creditor submitted the court’s decision on the removal of the debtor’s objection to the enforcement file and requested the continuation of the proceedings. The debtor, having appealed the decision on the removal of the objection with a request for a stay of execution, applied for a mehil vesikası (a grace period certificate). In response, the creditor’s attorney requested the annulment of the issuance of the mehil vesikası.The court rejected the creditor’s complaint, leading the creditor’s attorney to file an appeal with the regional court. The Regional Court of Appeals ruled that, pursuant to Article 36/4 of the Enforcement and Bankruptcy Law (İİK), no stay of execution can be granted for alimony claims. Although the alimony debt in question originated from an interim alimony ruling in a non-judgment enforcement proceeding, it was emphasized that alimony claims—whether subject to judgment enforcement or non-judgment enforcement—are intended to cover essential living expenses. Therefore, alimony claims are treated differently from other debts and are exempt from the stay of execution procedure. Based on this reasoning, the court upheld the first-instance decision rejecting the request for an appeal against the denial of a stay of execution.The creditor’s attorney subsequently appealed the decision. Although the Regional Court of Appeals justified its decision by referencing a ruling rejecting the appeal at the first-instance level, upon review of the case file, no such decision was found. Moreover, despite correctly stating in the section on evidence evaluation and reasoning that, according to Article 36/4 of the İİK, no stay of execution can be granted for alimony judgments, the ruling itself contradicted this conclusion. Due to this inconsistency, the decision of the Regional Court of Appeals had to be overturned.…”

How does the stay of execution procedure work?

The stay of execution process begins with the proper notification of the enforcement proceeding to the debtor and ends with the enforcement court’s decision to suspend enforcement. The steps to be followed in this process are as follows:

Initiation of the Process: The process starts with the proper notification of the judgment enforcement proceeding to the debtor.
Requesting an Annotation Document (Derkenar): Upon receiving the enforcement notification, the debtor must request an annotation document (derkenar) from the issuing authority, proving that the judgment has been appealed (through istinaf or temyiz) with a request for a stay of execution. The derkenar document confirms that an appeal has been filed. If an appeal is lodged without specifically requesting a stay of execution, it will not be possible to obtain a suspension of enforcement.
Filing the Stay of Execution Request: The request for a stay of execution can be included in the appeal (istinaf) petition or submitted separately as a distinct request. If included in the appeal petition, the phrase “stay of execution requested” must be explicitly stated. If submitted separately, the petition must mention that an appeal has been filed against the local court’s judgment but that the creditor has initiated enforcement proceedings based on this judgment.
Submitting the Annotation Document (Derkenar) to the Enforcement File: The debtor must submit the derkenar document to the enforcement file. In practice, court clerks may also upload this document to the enforcement file through the UYAP system. The debtor must monitor whether the derkenar document has been properly submitted to the enforcement file.
Providing a Financial Guarantee: After submitting the derkenar document, the debtor must request the enforcement office to calculate a three-month projected enforcement cost (kapak hesabı). The amount specified in this calculation must be deposited as a cash guarantee at the enforcement office or secured through a bank guarantee letter. If a bank guarantee letter is obtained, the original must be submitted to the enforcement office.
Requesting a Grace Period Certificate (Mehil Vesikası): Once the derkenar document is submitted and the three-month enforcement cost is deposited, the debtor must request a mehil vesikası from the enforcement office. The mehil vesikası is a document issued by the enforcement office, granting the debtor time (90 days) to obtain a stay of execution decision from the enforcement court. Within this 90-day period, the debtor must file a lawsuit in the enforcement court, submitting the derkenar, enforcement cost receipt, guarantee letter/bank receipt, and mehil vesikası, and formally request a stay of execution. In practice, some enforcement offices may directly apply to the enforcement court for the stay of execution, but the debtor is responsible for monitoring this process.
Court Decision on the Stay of Execution: If the enforcement court grants a stay of execution, the enforcement proceedings will be suspended during the appellate review (istinaf or temyiz). This suspension is known as a stay of execution. Since the debtor provided a guarantee to halt the enforcement process, if the appellate court overturns the local court’s decision, the debtor can reclaim the deposited guarantee. However, if the appellate court rules against the debtor, enforcement proceedings become final. If the request for a stay of execution is denied, the debtor has the right to object to the rejection. However, since the decision on this objection is final, if the ruling is against the debtor, the enforcement proceedings will become definitive.

How should the guarantee letter be structured?

After the enforcement office completes the three-month projected enforcement cost (kapak hesabı), the debtor must submit a guarantee equal to the amount specified in the projected cost. It is also possible to submit the guarantee in the form of a guarantee letter. However, if there are any deficiencies or errors in the guarantee letter, the request for a stay of execution will be rejected by the enforcement court judge. Therefore, attention must be paid to certain details in the guarantee letter.

First, it should be stated that the guarantee letter is provided to suspend the enforcement proceedings and must be unconditional and indefinite. The guarantee letter should include the following details: the relevant enforcement office, the main case number, the debtor’s full name, and the information of the local court file. Since the amount specified in the projected cost (kapak hesabı) is guaranteed by the bank, it is important that the guarantee letter reflects the current date of the projected enforcement cost.

The court responsible and authorized for stay of execution decisions:

With the Law No. 7343 on Amendments to the Enforcement and Bankruptcy Law and Certain Other Laws, dated November 30, 2021, the phrase “Regional Court of Appeals or Court of Cassation” in the first paragraph of Article 36 of Law No. 2004 has been replaced with “the enforcement court where the proceeding is being carried out.” With this amendment, the competent and authorized court for decisions regarding the stay of execution, also known as the postponement of enforcement, is the enforcement court where the proceeding is taking place.