Contact: Att. Alper Uzun; Erdem & Erdem (Turkey)
Introduction
As is known, a preliminary injunction is a provisional legal protection, aimed at the prevention of damages to a party in a dispute prior to the final determination of the merits of the legal case. The Code of Civil Procedure (“CCP”) No. 6100, which entered into force on 1st of October 2011, provides innovations to the preliminary injunction.
These innovations concern jurisdiction to impose a preliminary injunction and possible legal remedies against such decisions. In line with these innovations, other changes are provided in order to resolve problems and disambiguate some of the clauses regarding the preliminary injunction.
The Approach of the CCP to Provisional Legal Protections
It is observed that the notion of “provisional legal protection” is important in the CCP and that it is the first appearance of this notion in the code, although it is used frequently among legal scholars. Yet, Section 10 of the CCP is entitled “Provisional Legal Protections” and preliminary injunctions are addressed in Article No. 389 et seq. in this Section.
The legal justification of the CCP states that provisional protections are very important and some specific regulations are provided for this purpose, as final legal protection may require prolonged and detailed examination. It is emphasized that the State shall not only regulate and uphold the right to appeal legal remedies or the methods of legal protection, but it also has an obligation to assure the efficiency and applicability of these rights and methods by establishing a proportional and engaged solutions for the need for legal protection.
Provisions, Innovations and Their Legal Justifications Relating to Preliminary Injunctions
“Preliminary Injunction” is provided in the first Article below Section 10 of the CCP entitled, “Provisional Legal Protection”. Article No. 389 CCP stipulates the conditions for granting a preliminary injunction. Pursuant to this article, in order to grant a preliminary injunction, there must be a concern that an inconvenience or a serious damage would occur as a result of a delay, or a change in the current situation, which would cause a difficulty or impossibility related to the exercise of a right.
The Request for a Preliminary Injunction
Article No. 390 regulates the request for a preliminary injunction. Accordingly, before the main lawsuit is filed, a preliminary injunction can be requested from the court, which has authorization and competence to hear the main lawsuit. If the main lawsuit was already filed, a preliminary injunction must be requested from the court during the litigation procedure. In this respect, there is a difference between the CCP and Code No. 1086, which was annulled. As a consequence, preliminary injunction requests from courts which have no relation to the concrete case; vagueness and abuses regarding the authorization and competence of these courts, which may render preliminary injunctions, are prevented.
The Second Paragraph of Article 390 sets forth that, a judge may grant a preliminary injunction without listening to the other party, where there is an obligation to protect the rights of the claimant immediately. Although the right to be heard is an essential, unalienable right, it will be necessary to consider immediate provisional legal protections in some cases; this may mean that informing the other party could result in diminishing the effectiveness of provisional protections. Therefore, a judge has the discretion to grant a preliminary injunction, depending on the conditions of the concrete case, without the obligation to hear from the other party.
In the same Article, it is stipulated that the party who requests a preliminary injunction has to specify explicitly the grounds and the type of preliminary injunction in their petition, and has to prove why they are justified with respect to the merits of the main case. The aim of this provision is to ensure that the party requesting a preliminary injunction examines and clearly establishes the subject of, grounds for and type of injunction before making their request.
The Notion of “Approximate Proving”
The notion of “approximate proving”, which was acknowledged by legal scholars, is mentioned in the CCP with a special objective. As is known, if it is not clearly regulated by law or it is not necessitated by the situation, the judge must reach a complete proving for the case necessarily. Instead of a total conviction, a probable conviction is deemed to be enough with respect to reduced level of proof. An approximation is determined as sufficient for provisional legal protection since there are circumstances, such as not having enough time to listen to the other party, or to examine all evidence in detail.
In the case of an approximate proving, judge admits that the claim for preliminary injunction is most likely true, but he also shall not ignore the fact there is a slight possibility for the opposite situation. Thus, courts generally demand that the party requesting a preliminary injunction deposit a guarantee in consideration for the possibility that the requesting party might be wrong.
Guarantee
Pursuant to Article No. 392 CCP, the party who requests a preliminary injunction is obliged to provide a guarantee in order to pay the damages sustained by the other party or third parties, in case the preliminary injunction is later determined to be unjust. However, there is an exception to this rule. The court may decide not to take a guarantee, by stating its grounds explicitly; if the situation requires granting the decision without guarantee or the request is based on an official document, to prove the claim.
The Decision to grant an Injunction
Following the request, the court may grant any type of injunction that would remove the inconvenience or prevent the damage, such as maintenance or sequestration of a right or good, or doing or undoing something. In the legal justification of the CCP, it is emphasized that a decision, which would by its nature resolve the main dispute, shall not be rendered as a preliminary injunction.
There was no explicit term for the execution of a preliminary injunction in the abolished Law No. 1086. However, pursuant to Article No. 393 CCP, once granted, the orders for a preliminary injunction must be executed within one week as of the date of its rendering. Otherwise, even if the action was filed within the prescribed time, the decision on injunction is rescinded by itself.
The Legal Remedies and Objections against the Decision to grant an Injunction
One of the most important innovations brought by the CCP is in Article No. 394, which addresses objections to the granting of an injunction and the legal remedies attached to such an objection. The other party may object to the conditions of the preliminary objection, or to the venue of the court or to the guarantee at the same court that rendered the decision. The objection must be submitted within one week, as of the date of the injunction executed, if the parties attended the execution. If the parties did not attend the execution of the injunction, then the objection can be made within one week, as of date of notice of the execution notes, to the relevant parties. Similarly, third persons, whose interests are explicitly violated, may also object to the conditions of the injunction and to the guarantee, within one week as of the date that they learned the preliminary injunction.
The last decision which rendered after objection can also be appealed. This right for appeal is an innovation for our civil procedure law. This application will be examined primarily and the decision which will be rendered after the examination will be a final decision. The fact that there is an application of legal remedy does not prevent the execution of the injunction.
To Change or Lifting of the Preliminary Injunction
Pursuant to the CCP, the court can lift or change the preliminary injunction if the person against whom the preliminary injunction was ordered or executed deposits a guarantee, which shall be accepted by the court. Besides, it is also possible to lift or change a preliminary injunction without a guarantee, if it is determined that the circumstances are changed. In this case, it is possible to make an objection to the decision of the court following the above-mentioned procedure. It is also stated in the justification of the Code that a preliminary injunction serves to safeguard rights, not to punish or suppress the other party. For this reason, if the conditions, which made the preliminary injunction essential, change after the decision to grant it is rendered, it has to be lifted or changed according to this alteration. Otherwise, there will be negative results which will be incompatible for protecting the purpose of preliminary injunction and the balance of benefit of the parties’.
The Proceedings That Complete a Preliminary Injunction
If a preliminary injunction is granted before filing a lawsuit, the claimant must file the main lawsuit and receive a document that he filed the lawsuit within 2 weeks as of the date of his request for a preliminary injunction. Otherwise it is arranged that preliminary injunction will be released by itself, without a transaction. As the preliminary injunction is a provisional legal protection, the main claim must be converted to a lawsuit and submitted to the relevant court within the shortest time possible.
Unlike the annulled Code No.1086, effective period, or term, of a preliminary injunction is stated in the CCP. Accordingly, a preliminary injunction will remain in effect until the final decision of the court is rendered.
Unjust Injunction and Compensation
The party in whose favor a preliminary injunction is granted is obliged to indemnify the damages resulting from an unjust preliminary injunction where the preliminary injunction is determined to be unjust, or the rescission of the injunction occurs or a rescission of the injunction is granted following an objection being filed. This lawsuit will be time barred in one year following the finalization of the decision or the rescission of the injunction. Detailed information on this action is provided in our July 2011 Newsletter.
Conclusion
The CCP No. 6100, which entered into force on 1st of October 2011, provides new rules with respect to preliminary injunctions. The preliminary injunction, which is a temporal legal protection, is reformed by taking into consideration problems and ambiguities observed by legal scholars and in practice. In addition, two main innovations are provided by the CCP with respect to preliminary injunctions. These innovations are related to the jurisdiction of courts that grant preliminary injunctions and on the legal remedies, or right to object, to these decisions.
