When a block is placed on the account of a person who draws a pension from the social security system, the first question asked is almost always the same: is that step legally possible and, if not, how can it be reversed? In practice three distinct situations are intertwined under this heading — an attachment imposed by the enforcement office, a set-off carried out by the bank in respect of its own claim, and a deduction founded on a declaration of consent obtained from the debtor.
Under Turkish law, compulsory enforcement against retirement income is prohibited as a matter of principle. The exceptions to that prohibition set out in the legislation, the approach taken by the Court of Cassation, the clauses inserted into loan agreements and the fate of the pension once it has been credited to an account nevertheless give rise to a considerable variety of situations in practice.
In this briefing note we examine, in turn, the legal basis on which retirement income is protected, the situations in which that protection is withdrawn, whether the crediting of the pension to a bank account alters the outcome, and the authorities to which a person faced with an unlawful deduction may apply.
Can a Retirement Pension Be Attached?
The Rationale for the Protection
In enforcement law, exemption from attachment is a fundamental principle that keeps the debtor’s minimum means of subsistence outside the reach of compulsory enforcement. That principle prevents the creditor’s interest in recovery from being pursued to the point of destroying the debtor economically.
A retirement pension is the income, often the only regular income, that a person whose working life has come to an end receives from the social security system. The satisfaction of indispensable needs such as housing, food and health depends on that income; the daily life of both the pensioner and the persons they are required to support is built upon it.
This is also the point at which it differs from items such as rental income, commercial profit, interest or professional fees: a retirement pension is not an economic gain but a form of subsistence support grounded in social security. Taking that character as its starting point, the legislature has placed such income under the umbrella of exemption from attachment.
The Statutory Basis
The principal provision on the subject is Article 93 of the Social Insurance and Universal Health Insurance Act No. 5510:
Social Insurance and Universal Health Insurance Act No. 5510, Art. 93
“Income, pensions and allowances may not be attached, save for claims that must be pursued and collected under Article 88 and for maintenance debts. Requests for the attachment of income, pensions and allowances whose attachment is prohibited under this paragraph shall be rejected by the enforcement director where the debtor has given no consent.”
The conclusion that follows from the wording of the provision is clear: retirement pensions may not, as a rule, be attached. Accepting that income granted under the social security system is the rightholder’s basic means of subsistence, the legislature has prohibited such items from being made the subject of enforcement proceedings. The second sentence of the article further confers on the enforcement director a power of rejection, that is to say, it does not leave the operation of the protection solely to the initiative of the debtor.
The Statutory Exceptions to the Prohibition
- the article protects retirement income by way of a general prohibition, the legislature has not made that protection absolute. In the limited situations in which the interest of the creditor and the social order are taken into account, the route of attachment is open.
Maintenance Claims
Maintenance is the monetary expression of the obligation, arising from the law, to support and provide for one’s relatives; it is a personal right in which the social dimension predominates. The legislature has placed the maintenance creditor in a position superior to that of other creditors and has removed the protection of exemption from attachment in respect of that claim.
Indeed, the collection of maintenance is secured by the express wording in Art. 93 of Act No. 5510, “may not be attached, save for … maintenance debts”. Accordingly, an attachment applied to a retirement pension in respect of a maintenance claim is lawful; the debtor has no possibility of objecting to such an attachment.
Social Security Premium Debts
The second exception concerns premium claims that must be pursued and collected within the framework of Article 88 of the same Act. While Article 93 prohibits the attachment of pensions in general terms, it leaves outside that prohibition “claims that must be pursued and collected under Article 88”. That reservation opens the door to attachment in respect of the Institution’s premium claims.
An attachment at a limited rate may therefore be placed on a retirement pension by the Social Security Institution (SGK) on account of an SGK premium debt. The rate preferred by public bodies in practice is generally one quarter (¼) of the pension; it cannot, however, be said that this rate is expressly fixed in the legislation. The Court of Cassation likewise takes the view that, even in attachments founded on a public claim, no deduction may be made to an extent that would make the debtor’s subsistence impossible.
The Consent of the Debtor
The third exception is the debtor’s express and written approval of deductions being made from the pension. The legislature has treated such approval, given by the person of their own volition, as valid. For the consent to take effect, however, several conditions must be satisfied together: the declaration must be in writing and expressed with a clarity that leaves no room for doubt, it must have been given of free will without any pressure, and it must be possible to determine which claim it covers and at what rate. If one of these elements is missing, the declaration produces no legal effect; a deduction made on the strength of it becomes an unlawful act of attachment.
The Fate of Consents Obtained Under Pressure
Obtaining from the debtor a consent to the deduction of a given portion of the pension is a widespread practice. A significant proportion of these declarations are not, however, the product of genuinely free will; they are frequently signed as a result of the threat of enforcement, anxiety that a loan will not be renewed, or insistence on the part of the bank.
The reason for the existence of the rule on exemption from attachment is to keep the debtor’s basic means of subsistence intact. Consents given under the influence of threat, pressure or mistake are therefore treated as invalid on the ground of defective consent. Standard clauses inserted into loan agreements, and declarations obtained by having pre-printed forms completed at enforcement offices, are not accepted as valid where they contain elements that eliminate free will.
A person faced with such a situation may take the route of a complaint to the enforcement court and request that the deduction from their pension be brought to an end.
Consequences of the Pension Being Credited to a Bank Account
The Evidential Problem Created by Mixed Accounts
In practice, retirement pensions are transferred automatically to accounts opened with banks. Where amounts coming from other sources, such as rent, interest or commercial profit, are also paid into the same account, the character of the money in the account becomes uncertain.
When banks apply an attachment or a block to such mixed accounts, the step takes effect over the whole of the account; the protection of exemption from attachment, however, exists only in respect of the part deriving from the pension. The result is a breach of the principle of partial prohibition of attachment and a direct interference with the debtor’s basic means of subsistence.
It is therefore advisable for the pensioner to devote the account into which the income is paid solely to that payment and to gather other items of income in a separate account. Otherwise it becomes difficult to prove the claim of exemption from attachment; banks may also decline to lift the block by asserting that the account is of a mixed character.
Does a Pension Credited to an Account Become Savings?
Another question long debated in judicial practice is whether the pension loses its exemption from attachment once it has been credited to an account. Some older decisions expressed the view that money kept in an account for a considerable period had by then taken on the character of savings and could be made the subject of an attachment.
Recent decisions of the Court of Cassation have moved away from that approach. The higher court states expressly that the transfer of the pension to a bank account does not remove its social security character. Accordingly, so long as the source of the money can be established, the protection continues after it has been credited to the account.
In line with that case law, enforcement directorates and banks should not impose an attachment or a block where it is apparent that the amount in the account derives from a retirement pension. Steps taken to that effect may be set aside before the enforcement court by way of complaint.
Matters to Be Observed in Practice
- Where the source of the pension is documented, the person concerned may apply to the enforcement office or to the enforcement court and request that the step be lifted.
- Banks are required to set out clearly the legal basis for any automatic deduction or block they apply to a pension.
- The fact that the money has been credited to an account does not bring the protection to an end; so long as the source is a retirement pension, the exemption from attachment continues to exist.
- The account into which the pension is paid should be reserved for that payment alone, and the same account should not be used for different forms of income.
The Position as Regards the Retirement Gratuity
The Legal Character of the Gratuity
The retirement gratuity is a lump-sum payment made to public officials, or to those treated as insured under the Republic of Türkiye Retirement Fund Act No. 5434, when they acquire the right to retire. It is not a continuing item in the nature of an extension of the pension; it is an old-age benefit founded on past service that arises once and for all at the moment of retirement.
The gratuity is nonetheless a right that derives from the social security system, and in that respect it is regarded as an element of retirement income. Both in the literature and in judicial decisions it is accepted that the gratuity, like the pension, must be protected as part of the debtor’s security of subsistence.
Does the Gratuity Enjoy the Same Protection?
Article 93 of Act No. 5510 uses the expression “income, pensions and allowances”, and the word “gratuity” does not appear separately in the text. The case law of the Court of Cassation and the prevailing view in the literature are nevertheless to the effect that the gratuity too falls within the scope of the protection.
The practical consequence of that position is as follows: an attachment may not be placed on a retirement gratuity save in the exceptional cases of a maintenance debt, a premium debt or the valid consent of the debtor. In short, the gratuity enjoys protection at the same level as the pension and may be made the subject of an attachment only in the limited situations listed in the legislation.
Remedies Against an Unlawful Attachment
Reporting a Bank Block to the BDDK
One of the problems most frequently encountered in this field is the blocks placed by banks on pension accounts and the deductions they make. Some banks apply automatic set-off or deduct of their own motion from the pension account in order to collect a loan or credit card debt.
In the face of Article 93 of the Social Insurance and Universal Health Insurance Act No. 5510, however, the imposition of an attachment, a deduction or a block on a retirement pension is absolutely prohibited unless there is written approval from the debtor founded on their express and free will.
That provision is a mandatory rule binding not only the organs of enforcement but banks as well. Blocks and deductions carried out by banks are accordingly in clear breach of the legislation and must be lifted upon the objection of the person concerned.
Such conduct by banks falls within the supervisory remit of the Banking Regulation and Supervision Agency (BDDK). Those concerned may make an online application through the Agency’s official website and request that the unlawful step be examined and that the necessary action be taken.
Recourse to the Courts
Where an attachment or a block is placed on a pension unlawfully, several legal routes are available.
Complaint to the Enforcement Court (Art. 16 of the Enforcement and Bankruptcy Act)
If the attachment has been imposed by the enforcement office, the person concerned may apply to the enforcement court, complaining of the act of the enforcement officer, within 7 days of the date on which they learned of it.
The enforcement court examines the assertion that the pension may not be attached and may order the attachment to be lifted under Art. 93 of Act No. 5510. In practice this is one of the forms of application that produces a result most quickly.
Bringing an Action Before the Ordinary Courts
If the block or deduction has been applied directly by the bank without any enforcement proceedings, the person concerned may bring an action before the Civil Court of First Instance or, depending on the nature of the particular relationship, before the Consumer Court. In that action the lifting of the unlawful block, the repayment of the amounts deducted from the account and, where the conditions are met, pecuniary and non-pecuniary damages may be claimed. Where necessary, it is also possible to request an interim injunction so that the block is stopped immediately.
Specimen Complaint Petition
A specimen petition that may be submitted where an attachment has been placed on a pension unlawfully appears below.
ENFORCEMENT COURT
TO THE HONOURABLE JUDGE
COMPLAINANT (Debtor) : …………………. (National ID No……)
ADDRESS :
CREDITOR :
SUBJECT : Request for the lifting of the unlawful attachment placed on my retirement pension.
STATEMENT OF FACTS
1. I draw a retirement pension from the Social Security Institution. Following many years of working life, I currently support myself with this pension, which is paid regularly into my account each month; I have no other income.
Notwithstanding this, I have learned that an attachment has been applied, in file no. …./…. E. of the ……………………… Enforcement Office, to my pension account held with [name of bank]. As a result of the attachment applied, all or part of my pension has been blocked by the bank, and this directly disrupts my means of subsistence.
2. Article 93 of the Social Insurance and Universal Health Insurance Act No. 5510 provides that “Income, pensions and allowances granted under this Act may not be attached, save for maintenance debts.”
- Nor is there any declaration of consent given by me in relation to the attachment of my pension.
The attachment applied to my account is accordingly in clear breach of the statutory provision referred to above.
For the reasons set out above, it has become necessary for me to request, by way of complaint, the lifting of the unlawful attachment placed on my retirement pension by the enforcement directorate.
LEGAL GROUNDS : Art. 93 of the Social Insurance and Universal Health Insurance Act No. 5510, Art. 16 of the Enforcement and Bankruptcy Act and other relevant legislation.
EVIDENCE : Bank and SGK records
CONCLUSION AND REQUEST : For the reasons set out above, I respectfully request that the court order
- the lifting, by way of complaint, of the unlawful attachment placed on my pension;
- the setting aside of the deduction and account block carried out by the bank or the enforcement office.
Complainant
Independent Legal Assessment
In disputes concerning retirement income, what determines the outcome is often not the legal argument itself but the correct identification of who made the deduction and on what basis. The route to be followed against an act of the enforcement office differs from the route to be followed against a set-off made by a bank in respect of its own claim; where the wrong authority is chosen, loss of time limits and of rights may follow.
The second determinative factor is the question of proof. Where it cannot be established from the bank records that the source of the money in the account is a retirement pension, even a claim that is well founded in substance may come to nothing. In a particular file the following headings should be addressed as a priority:
- determining whether the deduction stems from an act of the enforcement office or from a set-off made by the bank of its own motion;
- checking whether the file contains a declaration of consent and, if so, examining its validity as regards scope and rate;
- separating the pension account from other items of income and documenting the source with a bank statement;
- calculating the seven-day period prescribed for a complaint by reference to the date of knowledge;
- verifying from the file whether the proceedings are founded on a maintenance or a premium claim;
- considering an application to the BDDK together with recourse to the courts where the block originates with the bank.
Independent Legal provides advisory services and conducts litigation throughout the entire process in disputes arising from enforcement proceedings, from the raising of a claim of exemption from attachment to the recovery of unlawful deductions.