Interim injunction and provisional attachment are temporary legal protection established to protect rights during judicial proceedings. Their purpose is to prevent loss of rights by maintaining a balance of interests between the parties. Their operation is limited by rules on jurisdiction, duration, security, and liability; abuse is prevented, and temporary protection is ensured until the final judgment.
Introduction
In modern legal systems, the protection of rights often requires lengthy judicial processes, during which the right itself may risk being harmed or rendered unenforceable. To address this, temporary measures are needed to safeguard rights until final legal protection is secured. Interim injunctions and provisional attachments are the most significant mechanisms providing such temporary legal protection.
What is Interim Injunction?
There is no single, universally accepted definition of an "interim injunction" in legal doctrine, though similar formulations are widely used. The most comprehensive definition describes it as a judicial order—usually granted without hearing the opposing party and based on prima facie evidence—designed to prevent risks that may arise during the continuation of proceedings, thereby offering temporary protection until a final judgment on the merits is delivered.
Thus, an interim injunction is not a separate lawsuit but a procedural tool that preserves rights temporarily.
Under Article 390(3) of the Law No. 6100, Code of Civil Procedure ("CCP"), an interim injunction may only be granted if the applicant substantiates the claim with prima facie evidence. The Court of Cassation defines it as "a form of temporary protection which, until the judgment becomes final, prevents new disputes over the subject matter of the case."1
Purposes of Interim Injunction
The primary purpose of interim injunctions is to prevent unlawful acts or harmful conduct by the party subject to the order. Legal doctrine, however, recognizes broader functions. Interim injunctions are generally classified into three categories, widely adopted in German, Swiss, and Turkish law2:
1. Purpose of Security: This is the central function.3 Interim injunctions ensure the enforceability of rights by preserving the existing legal status, preventing unlawful interference that could render the final judgment ineffective.
2. Purpose of Performance: In exceptional cases, interim injunctions may provide temporary performance of an obligation, though not permanent enforcement. This occurs particularly in family law (e.g., interim maintenance orders).4
3. Purpose of Regulation: Regulatory injunctions structure the legal relationship between parties for the duration of the proceedings, ensuring temporary legal balance. For example, under Article 169 of the Law No. 4721, Turkish Civil Code ("TCC"), children may be temporarily placed with one parent during divorce proceedings.
Areas of Application of Interim Injunction
UnlikeCCP the former Code of Civil Procedure No. 1086, Article 389 of the CCP does not list specific scenarios for interim injunctions. Instead, it establishes the general principle that an injunction may be granted "in cases where delay would be detrimental."5 Accordingly, interim injunctions may be soughtInterim injunctions may be applied across all areas of private law; however, they are particularly commonly sought in proceedings governed by the TCC, in disputes concerning intellectual and industrial property rights, and in commercial litigation, especially in situations where urgent and temporary protection is required.
Proper Venue in Interim Injunction
According to Article 390(1) of the CCP, interim injunctions may be requested from the competent court before a lawsuit is filed. Once the action is initiated, however, applications must be made to the court hearing the main case.
What is Provisional Attachment?
A provisional attachment is a judicial order temporarily seizing a debtor's assets to secure the creditor's monetary claim. It constitutes a specific form of temporary protection applicable exclusively to monetary claims.
Purpose of Provisional Attachment
Provisional attachments protect creditors by preventing the dissipation of a debtor's assets pending enforcement.6 As emphasized in Article 257 of the Law No. 2004, Enforcement and Bankruptcy Law ("EBL"), attachments may be requested even for debts not yet due or unsecured monetary debts. Their aim is not immediate satisfaction of the creditor but securing future enforceability of the judgment.
Areas of Application of Provisional Attachment
While an interim injunction can apply to both pecuniary and non-pecuniary disputes, provisional attachment is limited to monetary claims. Other temporary protection mechanisms must be used where non-monetary rights are at stake.7
Proper Venue in Provisional Attachment
Under Article 50 of EBL, a request may be submitted either to the court at the debtor's residence or at the location of the property to be attached. This rule clarifies jurisdiction in practice.
Similarities and Differences Between Interim Injunction and Provisional Attachment
- Similarities
Both types of protection constitute temporary legal injunctions rather than independent lawsuits. They are generally based on prima facie evidence, and it is not mandatory to hear the opposing party. Neither provides definitive legal protection; they are provisional in nature, although they must be grounded in a court decision. Such injunctions may be requested before or during the main proceedings or enforcement proceedings. Security may be required when the injunction is granted, and the requesting party is liable for damages if the injunction is ultimately found to be unjustified.
- Differences
While an interim injunction may be granted in relation to non-monetary claims, a provisional attachment applies exclusively to monetary claims. Interim injunctions may aim to secure the performance of an act, the provision of security, or serve a regulatory function; in contrast, the primary purpose of a provisional attachment is to secure a specific monetary claim. The conditions for issuing each injunction, their duration, and their scope of effect differ significantly from one another.
The Institution of Security
- Interim Injunction and Security
Article 395 of the CCP allows modification or lifting of an injunction if the opposing party provides adequate security. The judge must balance the parties' interests, and mere provision of security does not guarantee modification unless justified by circumstances.
- Provisional Attachment and Security
Under Article 87 of the CCP, creditors must provide collateral to cover potential damages if the attachment is found unjustified. This requirement is mandatory, and courts cannot waive it—even if parties agree otherwise. The Court of Cassation confirms this principle.
Liability Arising from Wrongful Interim Injunction and Provisional Attachment
If an interim injunction or provisional attachment is later deemed unfounded, the applicant must compensate damages (CCP Article 399; EBL Article 259/1, 4). This liability deters abuse of provisional measures and protects the rights of the opposing party. Damages may include losses caused by restrictions on the debtor's property or costs incurred to lift an unjust order.
Effectiveness Period of the Interim Injunction
If requested before the main action, Article 397(1) of the CCP requires filing the principal lawsuit within two weeks. Otherwise, the injunction automatically lapses.
Hearing the Opposing Party
Article 390(2) of the CCP permits ex parte injunctions if necessary to protect the applicant's rights. However, under Article 394(1) of the CCP, the opposing party retains the right to object to such measures.
Conclusion
Interim injunctions and provisional attachments are indispensable instruments of temporary legal protection in Turkish law. They safeguard rights during litigation, ensuring that eventual judgments are not undermined. Their effectiveness, however, depends on correct application and the careful balancing of interests, with the security mechanism serving as a key safeguard. Distinguishing between these measures and applying them appropriately is crucial for achieving the intended balance between protecting claimants and preventing undue harm to opposing parties.
With thanks to Seray Çakır for her contributions to this article.
References
Akkaya, T. (2024, 04). İcra ve İflas Hukukunda İhtiyati Haciz Hakkındaki Mahkeme Kararlarına ve İhtiyati Haczin İnfazına Karşı Konulması. Retrieved from https://www.lexpera.com.tr/literatur/kitaplar/f-inceleme-978-625-432-805-3/1
Korkmaz, R. (2020, 01). Haksız İhtiyati Tedbir ve İhtiyati Hacizden Kaynaklanan Tazminat Davası. Retrieved from LexPera: https://www.lexpera.com.tr/literatur/kitaplar/a-benzer-yonleri-978-625-7953-10-8/1
Özekes, M. (1999). İcra ve İflas Hukukunda İhtiyadi Haciz.
Özekes, M. (1999). İcra ve İflâs Hukukunda İhtiyati Haciz.
Yargıtay 1. Hukuk Dairesi'nin 2012/6146 E., 2012/5724 K. Sayılı Kararı. (2012, 05 17). Retrieved from LexPera: https://www.lexpera.com.tr/ictihat/yargitay/1-hukuk-dairesi-e-2012-6146-k-2012-5724-t-17-5-2012
Footnotes
1. (Yargıtay 1. Hukuk Dairesi'nin 2012/6146 E., 2012/5724 K. Sayılı Kararı, 2012)
2. (Korkmaz, 2020, p. 30)
3. (Özekes M. , 1999, p. 56)
4. (Özekes M. , 1999, s. 57)
5. (Korkmaz, 2020, p. 32)
6. (Özekes M. , 1999, p. 15)
7. (Özekes M. , 1999, s. 101)
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