The immunity of the domicile1 within the scope of protecting individuals' private lives, is explicitly stated in international treaties2 and the Constitution of the Republic of Türkiye,3 and is protected at the highest level within the hierarchy of norms. A violation of the immunity of the domicile as protected by the Constitution, can disrupt the individual's peace and tranquility. For this reason, the Turkish Penal Code (TPC) No. 5237 also defines the violation of individuals' right to the inviolability of the home as a crime and penalizes it.4 From this perspective, a warrant is required by law to enter and search a home. Constitutional rights are safeguarded not only in criminal law but also in enforcement law. In this context, when entering a debtor's home for the purpose of attachment, utmost care and attention must be paid to protecting the debtor's private life.
The current Enforcement and Bankruptcy Law (EBL) grants the bailiff/enforcement officer the authority to use force when necessary. While it is accepted that the bailiff/enforcement officer's authority to use force includes forcibly entering a domicile, this has often been argued in legal doctrine as a provision that violates the Constitution. Similarly, in German law, the bailiff's authority to use force has been discussed with respect to the immunity of the domicile. In a 1979 ruling, the German Constitutional Court evaluated the enforcement officer's powers under the German Code of Civil Procedure (ZPO §758a) stating that intervention in a domicile should only occur with a court order in terms of the immunity of the domicile. Following this decision, a provision was introduced in the German Code of Civil Procedure (ZPO §758a), effective January 1, 1999, which required a warrant for search in a domicile, thus resolving the debates surrounding this issue. Even though the relevant article of the law states that the judge has the final say over a residence attachment, the clause that states that this provision does not apply if the decision to attach the house would compromise the attachment's success is ambiguous. In our opinion, this regulation is appropriate. The Turkish legislator, with the new regulation, requires a court order for the attachment of a domicile in each individual case, except for precautionary attachment orders.
Article 79/a has been added to the EBL by Article 1 of Law No. 7445. This regulation essentially binds the ability of the bailiff to perform attachment in the house during the attachment phase to a certain procedure. With the said amendment, it has been legalised that the intervention to the residence can only be made with a judge's ruling. With this amendment to the EBL, the legal inconveniences and discussions on whether or not the attachment in the dwelling is subject to a judge's decision have been put an end to. In this study, in general terms, the new regulations regarding the attachment of the residence with the amendments made within the scope of the "Law on the Amendment of the Enforcement and Bankruptcy Law and Certain Laws" published in the Official Gazette dated 5 April 2023 and numbered 32154, and the practical implications of these regulations will be discussed. Considering that the legislator has excluded only precautionary attachment from the scope, it can be said that Article 79/a of the EBL will be applied in terms of definitive attachment, provisional attachment, interim attachment, additional attachment and completion attachment types other than precautionary attachment.5
The main purpose of the aforementioned regulation is to protect the right to shelter, which is one of the basic human needs of individuals, as well as their private lives. In this respect, while introducing the regulation under Article 79/a of the EBL, the legislator aimed to protect the right of persons to live in their residences in peace and security, away from the interference of others, without any court order. Within this framework, in the context of foreclosures to be carried out in the dwelling, it is ensured that the procedure requiring intervention in private life and especially in the privacy of the dwelling is carried out under the guarantee6 of the judge.7
Although the main purpose of the amendment is to protect the housing right, which is one of the most fundamental and sublime rights, and the privacy of private life, some criticisms have been expressed both in the doctrine and in practice. Foremost among these criticisms, the amendment has been criticized on the grounds that the attachment of the residence with the permission of the judge will make the attachment of the residence impossible, that the amendment will increase the workload of the enforcement offices and enforcement courts, that it will give the debtor time to evade the property from the creditor, that there is a danger for the creditor party and the party's attorney not to reach its receivable on time, and that the amendment will disrupt the balance of rights and interests of the creditor and debtor to the detriment of the creditor.
Article 79/a of the EBL stipulates that "if the bailiff determines that the place where the attachment is requested is a residence, he/she decides to make an attachment in this place and immediately submits this decision for the approval of the enforcement court", and the law imposes an ex officio investigation duty on the bailiff to determine whether the address requested for attachment is whether it is a residence or not.
In practice, the creditor requesting the attachment adds the words "residential address" to the address in the attachment request if the attachment address is a residence. If the bailiff finds that the attachment address is a residence, he decides to make the attachment at that address and immediately submits the decision to the enforcement court for approval. The competent enforcement court is not the enforcement court of the address where the residence is located, but the enforcement court of the enforcement office where the enforcement proceedings are filed.8 The court must give its decision on the approval of the attachment order within three days of the date on which the file is submitted to it. The time limits laid down in the EBL for the enforcement authorities are of a regulatory nature and the measures taken are valid even if they are not taken within the time limit. 9 In this context, the three-day period set by the law for the enforcement body to take a decision does not constitute a forfeiture of rights. Since this period is regulatory in nature, even if the enforcement court decides after three days, the decision is valid. 10
In this context, is it possible for the enforcement court to conduct discovery to determine whether the place requested to be seized is a residence or not? In our opinion, the fact that the enforcement court will make a decision within three days and that the examination is carried out through the file is an indication that it is not possible to conduct discovery. In addition, the acceptance that the determination will be made through discovery within the scope of each enforcement file is not in accordance with the economy of the proceedings, as it will cause more expenses than necessary. 11
Pursuant to the second paragraph of Article 79/a of the Enforcement and Bankruptcy Code, the aforementioned decisions are final and closed to legal remedies. Therefore, it is not possible to apply the legal remedy of appeal against the decisions rendered by the enforcement court in the event that the enforcement court approves the attachment decision or revokes the decision regarding the attachment at the residence. Although the lack of an open legal remedy against the decision of the enforcement court and the fact that the debtor is not granted the right to be heard legally during the examination to be made by the court will bring some disputes and is open to criticism, considering the fact that it will give the debtor time to evade the creditor and that it carries the danger of not reaching its receivables in time for the creditor party and the party's attorney, it is in our opinion that it is appropriate not to apply for a legal remedy against the relevant decision. The contrary opinion would be contrary to the spirit of the law of enforcement proceedings.
If it is understood that the place to be seized upon the court's approval decision is not a dwelling, the attachment shall continue as it is. During the attachment process carried out upon the attachment decision issued regarding a place that is accepted not to be a residence, if it is understood that this place is a residence and the court does not have an approval decision regarding the attachment at that place, the attachment process is terminated if the debtor does not consent to the attachment. In this case, in order to foreclose the attachment at the residence, a new attachment decision must be taken by the bailiff and this decision must be submitted to the approval of the Enforcement Court. In other words, in this case, the continuation of the attachment is subject to the debtor's consent. In general terms, this is the process regarding attachment at the residence. However, the fact that there are some drawbacks in return for the law in practice reveals the need for secondary legislative regulation.
First of all, in the implementation of the relevant article of the law, there is uncertainty as to how and in what manner the bailiff will determine that the place to be seized is a residence. Again, the fact that the Enforcement Court will carry out the approval examination through the file, that there is no objection authority against the court's decision, although the debtor is not heard, and that the decision is final brings some inconveniences. The fact that the amendment does not specify how the court will conduct the examination, which type of proof and evidence will be relied upon, and the place where the enforcement court will conduct the approval examination in case of appeal are the most justified criticisms of the regulation by the practitioners.
As a result, we are of the opinion that any legal regulation regarding the right to the immunity of domicile within the scope of the protection of the private life of individuals should be clear, detailed, and closed to interpretation. Although the legislator has made a regulation regarding the protection of this divine right with the latest legal regulation, considering the problems encountered in practice, it is our opinion that the amendment of the article of the law is not sufficient, on the contrary, it creates other drawbacks.
Footnotes
1 In dictionary housing is defined as 'a house, apartment, etc. in which people live; abode, residence'. 5 April 2023 dated and 32154 numbered Official Gazette 'Law on the Amendment of the Enforcement and Bankruptcy Law and Certain Laws', the definition of housing is mentioned as the most important and intimate place where the right to shelter, which is one of the basic human needs of individuals, is embodied and where they maintain their private life.
2 Article 12 of the Universal Declaration of Human Rights states: 'No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks on his honour and reputation. Everyone has the right to be protected by law against such interference and encroachment.' Article 8 of the European Convention on Human Rights entitled 'Protection of Private and Family Life':' Everyone has the right to respect for his private and family life, home and correspondence.' Article 17 of the United Nations Covenant on Civil and Political Rights is related to the inviolability of housing and the text of the article is as follows 'No one shall be subjected to arbitrary or unlawful interference with his private and family life, home or correspondence; nor shall his honour or reputation be subjected to unlawful attacks.
3 The domicile of an individual shall not be violated. Unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorized by law in cases where delay is prejudicial, again on these grounds, no domicile may be entered or searched or the property seized therein. The decision of the competent authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours. The judge shall announce his decision within fortyeight hours from the time of seizure; otherwise, seizure shall be automatically lifted.
4 Article 116 / f. 1 of the TPC: A person who enters a person's dwelling or its annexes against his/her consent or who does not leave it after entering it with consent shall, upon the complaint of the victim, be sentenced to imprisonment from six months to two years.
5 İnönü Üniversitesi Hukuk Fakültesi Dergisi, Seyhan Selçuk – İnÜHFD 14(2): 412-425 (2023) İCRA VE İFLÂS KANUNU'NUN 79/a MADDESİ UYARINCA KONUTTA HACİZ
6 'In terms of interference with private life, taking the creditor's request as the basis for obtaining a receivable and putting the bailiff in the position of the person who fulfils this request would mean putting the creditor's request and the bailiff's decision in front of a constitutional rule that can only be implemented with the guarantee of a judge. This situation is incompatible with the binding nature and supremacy of the Constitution, as well as the criteria for the protection of fundamental rights. The discretion of the bailiff, who does not have the security and independence of a judge, can never replace the judgement of a judge.' Naklen ÖZEKES, Muhammet: İcra Hukukunda Temel Haklar ve İlkeler, Adalet, Ankara 2009, s.164.
7 For a similar approach, PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet: İcra ve İflâs Hukuku, B.9, Onikilevha, İstanbul 2022, s.22; ÖZEKES, s.163.
8 Arslan/Yılmaz/Taşpınar Ayvaz ve diğerleri, s.160. İstinabe hâlinde, istinabe olunan icra dairesinin bağlı olduğu icra mahkemesinin yetkili olduğuna ilişkin bkz. Selçuk, s.421.
9 Kuru, s.143; Arslan/Yılmaz/Taşpınar Ayvaz ve diğerleri, s.126; Pekcanıtez/Atalay/Sungurtekin Özkan ve diğerleri, s.79; Görgün/Börü/Kodakoğlu, s.45.
10 Borçlunun Konutunda Haciz Yapılması (İİK M. 79/a) Ybhd Yıl 9 - Sayı 2024/1, S.327-367
11 Pursuant to the principle of economy of proceedings, the proceedings should be completed with reasonable expenses (Köksoy, 2016,s.64 vd.).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
