Precautionary attachment (İhtiyati Haciz): how foreign creditors freeze Turkish debtor assets before they are moved.

1. When Precautionary Attachment Is Available (İİK Art. 257)

Precautionary attachment (ihtiyati haciz) is the Turkish emergency measure that freezes a debtor's assets before the creditor holds a judgment or even a payment order. Article 257 of the Enforcement and Bankruptcy Law (İİK No. 2004) sets out two very different gateways, and the difference decides whether an application is arguable at all.

Where the debt has fallen due. The creditor of a money debt that is not secured by a pledge and that has fallen due may have provisionally attached the debtor's movable and immovable property, and their receivables and other rights, whether these are in the debtor's own hands or in the hands of a third party. Three conditions are doing the work here, and each is a real filter: the claim must be for money, it must be unsecured by a pledge, and it must be due.

Where the debt has not yet fallen due. Article 257(2) permits attachment only in two situations, and the list is exhaustive:

1. the debtor has no definite domicile; or
2. the debtor, with the intention of escaping their obligations, is preparing to conceal or remove their assets, or to flee, or actually flees, or engages in fraudulent transactions violating the creditor's rights with that intention.

Article 257(3) adds a consequence that is easy to miss and useful to know: where attachment is granted on this basis, the debt becomes due only as regards the debtor. Acceleration is a by-product of the measure, not a general result.

In practice, the second gateway is where cross-border files live. A foreign supplier facing a Turkish buyer who has begun transferring stock, changing its registered address, or moving receivables to an affiliate is describing exactly the fact pattern in Article 257(2)(2) — and the application stands or falls on the documents evidencing that conduct, not on the strength of the underlying invoice.

2. Security, and the Separate Trap for Foreign Creditors (İİK 259, MÖHUK 48)

Because attachment is granted without hearing the debtor, the law prices the risk. Under Article 259(1) the creditor requesting precautionary attachment is liable for all damages the debtor and any third party suffer if the attachment turns out to have been unjustified, and is obliged to provide security. The article fixes no percentage; the amount is set by the court.

Two statutory exceptions matter commercially:

• Article 259(2): where the claim rests on a court judgment (ilam), no security is required.
• Article 259(3): where the claim rests on a document in the nature of a judgment, the court assesses whether security is necessary at all.

Article 259(4) allows the damages action to be heard in the very court that ordered the attachment, which keeps the debtor's counter-claim close and makes the risk concrete rather than theoretical.

The separate foreigner requirement. Creditors routinely confuse the Article 259 security with a different obligation. Under Article 48(1) of the Act on Private International and Procedural Law (MÖHUK No. 5718), foreign natural and legal persons who file a suit, intervene in a suit, or initiate enforcement proceedings before a Turkish court must provide the security determined by the court to cover litigation and enforcement costs and the counterparty's loss. Note that enforcement proceedings are expressly within scope.

Article 48(2) provides the way out, and it is narrower than the common shorthand suggests: the court exempts the claimant, intervener or enforcement applicant from security on the basis of reciprocity. Reciprocity commonly arises from a multilateral instrument such as the 1954 Hague Convention on Civil Procedure or a bilateral judicial assistance treaty, but the statutory test is reciprocity itself — so the question to answer before filing is whether reciprocity exists with the creditor's own state, not merely whether a particular convention is famous.

Security is typically satisfied in cash into the court's account or by an unconditional guarantee letter from a Turkish bank.

3. The Ten-Day Rule: Executing the Decision (İİK Art. 261)

Obtaining the decision is not the achievement; executing it is. Article 261 is unforgiving and it is the provision that most often destroys an otherwise good application.

The creditor is obliged to request execution of the decision from the enforcement office within the judicial district of the court that granted it, within ten days from the date on which the decision was granted. Failing that, the precautionary attachment decision lapses automatically (kendiliğinden kalkar).

Read the trigger carefully. The ten days run from the date of the decision — not from its service, not from the day counsel received a copy, and not from the day the client approved the next step. Applications filed on a Friday and forwarded for internal approval over two weeks are lost before anyone has done anything wrong on the merits.

Article 261 also specifies that precautionary attachment decisions are executed in accordance with the rules on how attachment is carried out in Articles 79 to 99, and that complaints concerning the execution go to the enforcement court to which the executing office is attached.

4. Reaching Bank Accounts and Third-Party Receivables (İİK Art. 89)

Bank balances and trade receivables are not seized by turning up at a branch. They are reached through the garnishment notice (haciz ihbarnamesi) mechanism in Article 89, which runs as a three-stage sequence with its own deadlines.

The first notice. Where a receivable or other claim not embodied in a bearer or endorsable instrument, or a movable belonging to the debtor and held by a third party, is attached, the enforcement officer notifies the third party that the debt may from then on be paid only to the enforcement office, that payment to the enforcement debtor is not valid, and that the movable may be delivered only to the enforcement office — failing which the third party will have to pay its value to the office.

The third party's seven days. If the third party contends that it owes nothing, that it does not hold the asset, that the debt was already paid or the asset consumed or lost without fault, that the asset does not belong to the debtor, that it was pledged to them, or that the receivable was paid to the debtor or to the debtor's order, it must notify the enforcement office in writing or orally within seven days of service.

Silence is expensive. If the third party does not object within seven days, the asset is deemed to be in their hands, or the debt deemed owed by them, and a second notice tells them so. The second notice gives a further seven days to object on the same grounds. If they neither object to the second notice nor pay or deliver, a further notification gives fifteen days to pay, deliver, or file a negative declaratory action (menfi tespit davası) — and if they file one, they must deliver proof of it to the enforcement office within twenty days of that notification, in which case enforcement against them stops until that judgment becomes final. A third party who brings and loses that action is ordered to pay damages of not less than twenty per cent of the subject matter.

Why one notice can freeze a whole bank. Under the seventh paragraph, as amended in 2012, the garnishment notice is served on a branch or on the head office in a manner covering all branches, and the head office served in that way is obliged to make a declaration covering all its branches or units. Since 2018, notices and replies may also be transmitted through UYAP and integrated systems using a secure electronic signature, and service in that manner takes the place of service. This is the practical basis of the nationwide electronic freeze.

5. The Seven-Day Rule Creditors Miss (İİK Art. 264)

A frozen account buys time, not rights. Article 264 sets out what the creditor must do next, and the trigger is again precise.

A creditor who obtained precautionary attachment before filing suit or starting enforcement must, within seven days of the application of the attachment — or, where the attachment was carried out in the creditor's absence, from service of the attachment record on the creditor — either file an enforcement request (attachment or bankruptcy) or file a lawsuit.

The cascade continues:

• If the debtor objects to the payment order, the objection is served on the creditor immediately, and the creditor must within seven days of that service either ask the enforcement court to lift the objection or file a lawsuit. If the enforcement court rejects the request to lift, the creditor must file suit within seven days of pronouncement or service of that decision.
• Where the attachment was imposed during a pending claim action, or the creditor filed suit under the first paragraph, the creditor must make an enforcement request within one month of service of the judgment on the merits.

The sanction is stated plainly: if the creditor lets these periods pass, waives the action or the enforcement request, allows the enforcement request to lapse through expiry of the statutory periods, fails to renew a struck-out case within one month, or loses the case, the precautionary attachment becomes void.

The reward is equally plain. If the debtor does not object in time, or the objection is definitively lifted by the enforcement court or annulled by the court, the precautionary attachment automatically converts into an executory attachment — the freeze becomes a seizure without a fresh application.

6. The Debtor's Counter-Moves (İİK Arts. 265 and 266)

Objection to the decision (Art. 265). A debtor who was not heard may object to the grounds on which the attachment rests, to the court's jurisdiction, and to the security, by applying to the court within seven days — running from the application of the attachment where it was carried out in their presence, and otherwise from service of the attachment record. Third parties whose interests are harmed may likewise object within seven days of learning of the attachment, on the grounds or on the security.

The court examines only the grounds raised. The objector must attach every document relied on. After hearing whichever party appears, the court may vary or lift its decision; if neither appears, it decides on the papers. An appeal (istinaf) lies against the decision on the objection: the regional court of appeal examines it as a priority and its decision is final. Critically for the creditor, appeal does not stay execution of the precautionary attachment.

Buying the freeze off (Art. 266). The debtor may ask the court to lift the attachment on condition of depositing money, or a pledge, shares or bonds acceptable to the court, or by providing an immovable pledge or a valid bank guarantee. Once enforcement proceedings have begun, this power passes to the enforcement court. For a solvent debtor this is often the fastest route out — and for the creditor it converts a contested freeze into secured cover, which is usually a good outcome rather than a defeat.

7. What Precautionary Attachment Does Not Give You

Three limits are routinely overstated in commercial correspondence, and getting them wrong damages credibility with the other side's counsel.

• It creates no priority. Article 268 states it directly: precautionary attachment confers no other right of priority. Where assets attached under Article 261 are attached by another creditor before the precautionary attachment has become an executory attachment, the precautionary attachment holder participates in that attachment automatically and provisionally under the conditions of Article 100. The same article records that where a precautionary or executory attachment precedes a pledge, no attachment — including one for a public receivable — may participate in the attachment ranking ahead of the pledge. The costs of the precautionary attachment are taken from the sale proceeds.
• It does not lead to a sale. Article 108 provides that a creditor holding a provisional attachment cannot request sale, and that the periods in Article 106 do not run in their favour; provisionally or precautionarily attached goods may be sold only in the situations in the final paragraph of Article 113. Freezing is not liquidation.
• It does not license over-attachment. Article 85 caps attachment at the amount sufficient to cover the creditor's whole claim including principal, interest and costs, and states that attachment exceeding that amount cannot be carried out. Assets over which a third party has asserted a precautionary attachment or an ownership claim are attached last.

8. The Sequence, and Where Files Fail

Precautionary attachment is a deadline exercise wrapped around a documentary one. The table sets out the clock at each stage and the failure that recurs.

Two habits separate files that recover from files that merely make noise. Diarise the ten days from the decision date and the seven days from the attachment on the day the application is filed, before either event happens. And assemble the evidence of the debtor's conduct — transfers, address changes, stock movements, correspondence — before applying, because Article 257(2) is proved on documents, and a court asked to freeze assets without hearing the other side reads those documents closely.