Wage attachment regulated under Article 83 of the Enforcement and Bankruptcy Code (İİK) is a type of attachment in which a certain portion of the debtor’s salary, who is working for wages, is deducted in order to collect a debt in a finalized enforcement proceeding. This type of attachment ensures that the creditor, who is unable to collect their debt through this method, can recover it through legal means.
Required Conditions for Wage Attachment in Turkish Law
As can be understood from the definition, the implementation of a wage attachment on the debtor’s salary is subject to certain conditions. One of these conditions is the existence of a finalized enforcement proceeding. Indeed, the execution of the attachment is contingent upon the finalization of the debt, and if there is an objection filed within the prescribed period against the enforcement proceeding initiated on behalf of the debtor or if the notification procedures have not been completed, the proceeding will not be finalized, making it impossible to carry out the attachment on the debtor’s salary.
Another condition is that the debtor must be employed as a worker or civil servant, as wage attachment can only be applied in such cases. Wage attachment cannot be carried out for debtors who are self-employed or working on their own account. Whether the debtor works in the public or private sector does not affect the application of the attachment.
Wage Attachment in Turkish Law and Employer’s Obligations
Wage attachment differs from other types of attachment. In the case of wage attachment, the employer company or institution is also involved in the legal relationship between the creditor and the debtor. The employer company or institution, which is a third party in the enforcement proceedings, becomes the subject of the enforcement action as long as the debtor’s employment relationship continues.
The inclusion of the employer company or institution in this relationship occurs when, at the request of the creditor, an attachment order for the debtor’s salary is sent to the employer company or institution. The attachment order notifies the employer that the debtor’s salary is being attached and requests the employer to inform the enforcement office about the debtor’s salary amount and whether there are any other attachments. The employer is given a 7-day period from the delivery of the order to respond. Within this period, the employer is required to inform the enforcement office whether the debtor is still employed, the salary amount if the debtor is working, and any other existing attachments. If the debtor continues to work at the relevant workplace, the employer is obligated to deduct 1/4 of the debtor’s salary and pay it to the relevant enforcement file. If the employer fails to provide the necessary responses within the legal time frame or does not deduct from the employee’s salary, they will be held liable for the debt, and upon the creditor’s request, the employer may be added to the file as the debtor. It should be noted that the employer’s liability is limited to the amount they failed to deduct from the debtor’s salary or wages.
Amount and Rate of Wage Deduction in Wage Attachment According to Turkish Law
According to Article 83/2 of the Enforcement and Bankruptcy Code (İİK) “However, the amount to be attached cannot be less than one-quarter of these amounts.” and Article 35 of the Labor Law “More than one-quarter of the monthly wages of workers cannot be attached or transferred to others. However, the amount determined by the judge for the family members that the worker is obligated to support is not included in this amount. The rights of alimony creditors are reserved,” the rate of deduction that can be made in wage attachment is one-quarter (1/4) of the worker’s salary. This deduction includes not only the salary that the employer is obliged to pay to the worker every month but also additional payments such as bonuses, premiums, profit-sharing wages, and holiday pay. However, for payments such as severance pay, notice pay, and annual leave pay made by the employer to the worker, there is no one-quarter (1/4) limitation, and the entire amount of these wages can be attached, as they are not considered part of the regular salary payment. On the other hand, compensation paid or to be paid to the worker or their family due to occupational diseases or work accidents cannot be attached. Similarly, wages paid as temporary incapacity or short-term work allowance cannot be attached. The only exception to this rule applies to alimony claims.
According to Article 83 of the Enforcement and Bankruptcy Code (İİK), after the amount deemed necessary by the enforcement director for the subsistence of the debtor and their family is deducted from the wages and salary subject to partial attachment, the remaining portion can be attached. However, Article 83/2 of the same law states that the amount to be attached cannot be less than one-quarter of the salary or wages. Furthermore, the law stipulates that one-quarter (1/4) of the debtor’s salary or wages can always be attached. Accordingly, even if the entire salary is not sufficient for the debtor and their family’s subsistence, the enforcement officer is obligated to attach one-quarter (1/4) of the salary. When determining the maximum limit of the amount to be attached, the enforcement officer will consider the debtor’s and their family’s needs. The enforcement officer may make this determination themselves, or they may consult an expert for assistance. According to the legal regulation in Article 83/2 of the İİK, if there are multiple attachments on the salary, they are ordered in a sequence. The attachment of the subsequent creditor cannot begin until the attachment of the earlier creditor is completed. (Court of Cassation, 12th Civil Chamber, 2015/24174 E., 2016/1687 K., 21.01.2016).
The Case of Multiple Salary Attachments in Turkish Law
If there are multiple finalized enforcement proceedings and salary attachments for the debtor, the order of salary attachments is determined based on the dates of service of the garnishment orders sent to the employer and the nature of the claims in the related enforcement files. As a rule, the garnishment order with the earliest date will take precedence in the order. However, since alimony claims are prioritized, if one of the garnishment orders relates to alimony, it must be placed at the top of the list, regardless of the date of service. It should also be noted that this exception applies to the monthly payment amounts. For accumulated alimony debts, the order is determined based on the date of service of the garnishment order, similar to other claims.
“The ranking of salary attachments made by the court, in accordance with Article 83/2 of the Enforcement and Bankruptcy Law (İİK), states that when there are multiple attachments on a salary, the attachments are prioritized based on the attachment date, and payments cannot be made to subsequent creditors until the claims of the earlier attachment are fully satisfied. This ranking is determined by the institution that pays the salary.” (Court of Cassation, 23rd Civil Chamber, 2016/7284 E., 2020/840 K., 11.02.2020)
Can Retirement Pensions Be Seized under Turkish Law?
According to Article 93 of the Social Insurance and General Health Insurance Law No. 5510, retirement pensions can only be seized for certain types of debts. The types of debts that allow for the seizure of a retirement pension are alimony claims and premium claims of the Social Security Institution. Additionally, the seizure of the retirement pension is also possible with the consent of the debtor.
When does wage garnishment end under Turkish law?
Wage garnishment deductions will cease once the full remaining amount of the debt under the enforcement proceedings is paid. However, if there are wage garnishments from other enforcement files for the debtor, even if the first enforcement file is closed, wage deductions will continue for the other enforcement files.
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