Provisional Injunction and Provisional Attachment

Protect Your Rights: 7 Steps to Precautionary Measures and Precautionary Seizure. Legal processes are generally requiring a long and complex trial process. Before this process is completed, the risk of the existing rights of the right owners being lost or damaged is being found. For the prevention of these kinds of situations and for the protection of rights, protective measures such as “provisional injunction” and “provisional attachment” are being applied in our legal system. These two concepts, although they are often being confused with each other, are containing important differences in terms of their purposes and legal basis. In this article, what provisional injunction and provisional attachment are, the fundamental differences between them, how these decisions are being taken, and the ways of objection will be examined in detail.

1. Protective Measures in Our Legal System

During the trial process, the possibility of one of the parties engaging in actions that will affect the outcome of the lawsuit negatively is being found. For example, situations such as a debtor’s escaping their assets or getting rid of an item that is constituting the subject of a lawsuit can cause the decision that will be given at the end of the lawsuit to become meaningless. For the elimination of these kinds of risks, legal mechanisms called protective measures are being found in our legal system.

2. Provisional Injunction: A Legal Security Shield

Provisional injunction is being regulated within the scope of the Code of Civil Procedure (HMK). It is a decision that is being given to prevent any change being made on an asset or a right that is constituting the subject of a lawsuit until the end of the lawsuit.

• Its Purpose: Its purpose is to ensure that the decision that will be given at the end of the lawsuit is enforceable. For example, against the sale of a real estate, a provisional injunction decision can be taken to prevent the sale.
• Its Conditions:
  • The Probability of Rightfulness: The applicant must convince the court that they are in the right in the subject of the lawsuit.
  • The Possibility of Damage Due to Delay: If a provisional injunction decision is not being taken, the possibility of the loss of a right or a serious damage occurring must be found.

3. How is a Provisional Injunction Decision Being Taken?

For a provisional injunction decision to be taken, an application must be made to the authorized court with a petition.

• The Authorized Court: The Civil Court of First Instance or the Law Court has the authority to give a provisional injunction decision.
• The Process: When it is being concluded by the court that the necessary conditions are being found, a decision can be given without the opposing party being heard (secretly). This situation is necessary for the measure to reach its purpose.
• Security Being Shown: The applicant can be asked to deposit a security to cover the possible damages that the opposing party can suffer due to the measure.

4. Provisional Attachment: The First Step for the Collection of a Receivable

Provisional attachment is a protective measure that is being regulated within the scope of the Enforcement and Bankruptcy Law (İİK). It is expressing the temporary attachment of a debtor’s assets for the purpose of securing the collection of monetary receivables.

• Its Purpose: Its purpose is to prevent the collection of a debt from becoming difficult or impossible. For example, in situations where the debtor is trying to sell or hide their assets, a provisional attachment decision can be taken upon the request of the creditor.
• Its Conditions:
  • The Existence of a Monetary Receivable: A provisional attachment decision can only be requested for monetary receivables.
  • Security Being Shown: The creditor must deposit a security to cover the possible damages that the debtor can suffer due to the attachment.

5. How is a Provisional Attachment Decision Being Taken?

An application must be made to the authorized court for a provisional attachment decision to be taken.

• The Authorized Court: Generally, the Enforcement Law Court and the Civil Court of First Instance are authorized to give a provisional attachment decision.
• The Process: A provisional attachment decision is being requested with a petition that is being supported with documents (such as a promissory note or a check) that are convincing the court that the creditor is in the right.

6. The Differences Between Provisional Injunction and Provisional Attachment

These two protective measures are different from each other in many aspects. The knowing of these differences is important for the correct legal way to be chosen.

• Legal Basis: Provisional injunction is being regulated in the HMK, while provisional attachment is being regulated in the İİK.
• Its Purpose: Provisional injunction is being used for the protection of all rights other than monetary receivables. Provisional attachment is only being applied for monetary receivables.
• Area of Application: While provisional injunction is preventing the transfer or use of an asset, provisional attachment is directly ensuring the attachment of the asset.

7. Ways of Objection to Decisions

Provisional injunction and provisional attachment decisions can be given by the court without the opposing party being heard. This situation is giving rise to the right to object to the decision.

• The Reason for the Objection: The objection is being made on the grounds of the decision being unlawful, its conditions not having been met, or the security not being sufficient.
• Place of Objection: An objection against a provisional injunction decision is being made to the court that has given the decision, and an objection against a provisional attachment decision is also being made to the court that has given the decision.

Legal Support and Professional Help

Provisional injunction and provisional attachment processes are containing time constraints and complex legal regulations. Legal support being taken from a lawyer in this process is of vital importance for the protection of rights and the taking of correct steps. The correct preparation of application petitions, the collection of necessary documents, and the follow-up of the legal process are being ensured by a lawyer.

Protect Your Rights: 7 Steps to Precautionary Measures and Precautionary Seizure. Provisional injunction and provisional attachment are two of the most important legal tools that are being used to prevent a loss of rights from being experienced at the end of a lawsuit. The knowing of the differences between these two concepts is of vital importance for the determination of which protective measure will be applied to in which situation. Although the process is being seen as complex, it can be possible for rights to be protected and a fair result to be reached with expert legal support.