12th Law Office
Main Number: 2019/7271
Decision Number: 2019/9780
“Text of Justice”
COURT: Enforcement Court
Upon the creditor’s appeal, the file related to this matter was sent to the relevant office within the time limit of the court decision with the above-mentioned date and number. In the debtor’s
application to the enforcement court, it was understood that the vehicle with license plate number 01 KB 476, which was subject to seizure, was allocated to the public by a municipal council decision, and therefore, the removal of the seizure on the vehicle was requested. The court accepted the case, and the creditor objected to the decision.
Article 15/final of the Municipal Law No. 5393 states that “Municipal property actually used in public service and tax, fee, and wage revenues collected by the municipality cannot be seized.” According to this article, in order for the municipality’s request for exemption from seizure to be accepted, it is mandatory that the seized property be actually used in public service.
According to the Enforcement and Bankruptcy Law and the principles of enforcement law, the main purpose is to ensure that the creditor receives their claims; as a rule, it is possible to seize all of the debtor’s assets. There must be a legal regulation for an asset not to be seized. Since exemption from seizure is an exceptional situation, regulations in this direction should also be interpreted narrowly.
Accordingly, for a movable or immovable asset belonging to the debtor municipality not to be seized, it is an indisputable condition that the asset is actually used in public service. However, for an asset to be accepted as actually used in public service, it must be found to be suitable for the purpose of performing public service. In the specific
example, it is understood that the vehicle belonging to the debtor municipality, which is the subject of the exemption from seizure complaint, is the official vehicle of the mayor. In light of the principles explained above, it should be emphasized whether the mayor’s official vehicle is necessary for the municipality to perform its public service and whether a vehicle assigned as an official vehicle is actually used in public service.
Article 4 of the Vehicles Law No. 237 regulates the persons to whom official vehicles are to be assigned, and the mayor is not among the persons to whom official vehicles are to be assigned under the said law.
On the other hand, the use of the vehicle as an official vehicle does not mean that it is actually used in public service, and it is not mandatory for the mayor to have an official vehicle to perform public service. Since the duties of municipalities are specified in Article 14 of Law No. 5393, it is not mandatory for mayors to have an official vehicle to perform these duties.
In this case, the court’s decision to accept the complaint with written justification is erroneous rather than rejecting it.
CONCLUSION:
With the acceptance of the creditor’s objections, for the reasons stated above, it was unanimously decided on 10/06/2019 to overturn the court’s decision in accordance with Articles 366 of the EBL and 428 of the HUMK, to refund the previously paid fee upon request, and to allow for correction within 10 days of notification of the decision.