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On the other hand, the doctrine and the precedents of the Court of
Appeal are of the opinion that a proportional fee shall be charged in
accordance with the nature of the award that will be enforced. Baki Kuru
supports the view that the claimant of the enforcement lawsuit shall pay the
application fee, one fourth of the proportional fee with regards to lawsuits
which are subject to proportional fees, and with regards to the lawsuits
which are subject to fixed fees, the fixed fee shall be paid by the claimant.
A decision of the Court of Appeal which makes reference to the said
opinion is as follows:
“On the other hand, for lawsuits pertaining to the enforcement of
foreign arbitral awards (like Turkish arbitral awards), judgment
and writ fee shall be charged in accordance with the nature of the
arbitral awards. In this case, the party requesting the enforcement
of the arbitral award shall pay the application fee and proportional
judgment and writ fee with regards to the cases which are subject
to proportional fee (Prof. Dr. Baki Kuru, Hukuk Muhakemeleri
Usulü, Altıncı Baskı, Cilt VI, 2001, sf. 6210, 6211). In the present
case, it is inexact that a fixed fee is charged without taking into
consideration the fact that a proportional fee should have been
charged.”
(Court of Appeal, 19th Civil Chamber, decision dated
15.9.2009 and numbered 2009/5703 E., 2009/8256 K.)
As is seen, the Court of Appeal decided that a proportional fee should
have been charged instead of a fixed fee.
Conclusion
The common practice with regards to the fees of enforcement lawsuits
is not yet entirely clear. According to UYAP system, a fixed fee is charged
and at a later stage the defendant of the enforcement lawsuit may request
the completion of the remainder, which is not a suitable practice. The
examination that shall be made by the enforcement judge is enforcement
conditions and obstacles, regardless of the value of the subject of lawsuit.
Consequently, considering the fact that the subject matter of the case is not
examined and the nature of the enforcement procedure, it will be relevant
and appropriate practice to adopt the provision concerning the collection of
a fixed fee with regards to enforcement lawsuits included in the Act of Fees.