PRECAUTIONARY MEASURES AND THEIR TYPES

INTERIM INJUNCTION

1. A) The Concept and Types of Precautionary Measures

Provisional measures are a subcategory of temporary legal protection. They are temporary legal protections intended to protect the plaintiff or defendant against potential harm to their legal standing or the subject matter of the lawsuit, either before the trial begins or at the latest during the trial itself, until a final judgment is reached.

The general purpose of precautionary measures is to prevent the right or subject matter of a lawsuit from being jeopardized or damaged until the main legal protection is established. The only authority responsible for issuing precautionary measure orders is the court. The court is not subject to any limitations in terms of being able to order any kind of precautionary measure that would prevent the main legal protection from being established.

According to Article 389 of the Code of Civil Procedure; in cases where there is concern that obtaining the right will be significantly more difficult or completely impossible due to a possible change in the current situation, or that a disadvantage or serious harm will arise due to the delay, a precautionary measure may be ordered regarding the subject matter of the dispute.

 

The party requesting the preliminary injunction must provide security to cover potential damages that the other party and third parties may suffer if their request is deemed unfounded. The security deposit is generally set at 15%.

The court may order a preliminary injunction without hearing the other party. In this case, based on the right to a fair hearing, the party who has not been heard must personally submit an objection petition to the court within one week. This one-week period is a forfeiture period, and filing an objection after this period is not possible. If the objection is rejected, there is a right to appeal. An appeal does not suspend the enforcement of the injunction. The decision resulting from the appeal is final.

In addition to the parties involved,  third parties whose rights have been violated  after the precautionary measure has been implemented also have the right to appeal within one week. Unlike the parties, who have the right to object to the court's jurisdiction, third parties whose rights have been violated cannot object to the court's jurisdiction.

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The party requesting a preliminary injunction must clearly state the grounds and type of injunction on which it relies and approximately prove the merits of the case.

 

TWO BASIC CONDITIONS FOR PRECAUTIONARY MEASURES

1. The request for a precautionary measure must be based on an existing right
2. There must be a reason requiring the precautionary protection of the thing that is the subject of this right

 

A precautionary measure only provides temporary legal protection regarding the property or right that is the subject of the dispute. Therefore, for monetary claims, it is generally possible to request a precautionary attachment rather than a precautionary measure. The only exception to this rule is alimony payments.

Precautionary measures are divided into three categories according to their purpose: precautionary measures for security purposes, precautionary measures for performance purposes, and precautionary measures for regulatory purposes.

Provisional measures taken as a security measure protect the right in question. By protecting the right, they make it possible to enforce it as a result of the litigation.

Examples : Decisions preventing the transfer of ownership, safekeeping of disputed property.

Provisional measures aimed at ensuring performance are a temporary measure to secure the enforcement of the disputed right . While the measure does not aim for definitive performance, it guarantees the execution of the claim.

Example: Interim alimony

Provisional measures for regulatory purposes are taken to maintain legal peace. They provide a temporary arrangement until a final judgment is reached.

Example: Temporary arrangement of child custody while divorce proceedings are ongoing.

Another point to remember is that a preliminary injunction is not a type of lawsuit. A preliminary injunction can be requested from the court with jurisdiction and authority over the main case before the lawsuit is filed; after the lawsuit is filed, it can only be requested from the court where the main case is being heard.

The initiation of a request for a preliminary injunction necessitates certain supplementary procedures. If a preliminary injunction is requested during the lawsuit, no supplementary procedures are required; however, if a preliminary injunction is requested before the lawsuit is filed:

• 1- The party requesting the injunction must file the main lawsuit within 2 months from the date of the request.
• The plaintiff must present the document proving that a lawsuit has been filed to the officer enforcing the decision and obtain a document confirming that a lawsuit has been filed.

If a precautionary measure has been granted, within one week . If it is not enforced within one week, the requested measure is automatically lifted.

The enforcement of the precautionary measure is requested from the enforcement office  located within the jurisdiction of the court that issued the decision, or where the property or right subject to the measure is located . The court may also assign the clerk of the court to oversee the enforcement of the measure, provided it states in its decision.

 

A precautionary measure can be challenged in 3 different situations

• It is possible for the party against whom an interim injunction was issued in their absence to appeal the decision. However, the party who was heard when the interim injunction was issued does not have the right to appeal.

-If the parties fail to appear when summoned to present their objections, the case is not dismissed. The judge will make a decision based on the case file.

 

1-Neither objections nor precautionary measures suspend execution.

2-An appeal is possible due to a change in circumstances, but legal recourse is not available.

3- It is possible to object to the modification of the precautionary measure with collateral or to the placement of collateral, but this legal remedy is not available.

 

COMPENSATION LAWSUIT ARISING FROM UNJUSTIFIED PRECAUTIONARY MEASURE

If the party in whose favor a preliminary injunction was granted is found to have been in the wrong at the time of requesting the injunction, and the injunction is automatically lifted or lifted upon appeal, the party is liable to compensate for the damages incurred due to the wrongful preliminary injunction. This compensation must primarily be paid from the security deposit provided by the party requesting the injunction.

If no lawsuit is filed within one month of the judgment becoming final or the precautionary measure being lifted, the security deposit is returned.

The right to file a compensation claim is time-barred for one year from the date the judgment becomes final or the injunction is lifted.

 

The Supreme Court's 14th Civil Chamber's ruling, numbered 2013/10720 and 2013/14165, concerns a request for a preliminary injunction. The requesting party sought a preliminary injunction on the properties subject to a sales promise agreement, and the Civil Court of First Instance granted the request, issuing a preliminary injunction on March 22, 2013. The attorney for the party against whom the preliminary injunction was applied requested an appeal against this decision. The Supreme Court, recalling the general principles regarding preliminary injunction decisions and objection processes, points out the necessity of a preliminary injunction when there is a change in the current situation and this change makes it impossible to obtain the right or causes serious harm. The Supreme Court, stating that an appeal against preliminary injunction decisions must first be made to the local court, ruled that the objection in question does not constitute an appeal and should be examined in a general court. Therefore, it was unanimously decided to reject the appeal, return the petition and its attachments to the relevant court, and refund the advance fee if requested.