Implementation of Articles 21 and 35 of the Notification Law

Notification is the communication made by authorized authorities. Since this notification is associated with legal consequences, it holds an important place in our legal system. The recipient becomes aware of the lawsuit/enforcement proceedings against them through the notification served to them, and therefore, the deadlines for response/payment/objection will start from the date of this notification. Therefore, it is crucial to pay attention to the procedure and form of the notification. Otherwise, the invalidity of a notification that is not made in accordance with the procedure may arise.

NOTIFICATION TO THE KNOWN ADDRESS (Law No. 7201, Article 10) - "Notification is made to the person to be served at their last known address. (Additional paragraph: 11/1/2011-Law No. 6099/3) If it is understood that the last known address is not suitable for notification or if the notification cannot be made, the place of residence address found in the address registration system of the recipient is accepted as the last known address, and the notification is made there."

IMPOSSIBILITY OF NOTIFICATION AND REFUSAL OF RECEIPT (Law No. 7201, Article 21) - "(Amended: 6/6/1985 - Law No. 3220/7) If the person to be served with the notification or any of the individuals who can be served with the notification according to the above articles is not present at the specified address or refuses to receive it, the serving officer delivers the document to be served to the headman or members of the village council or to the police chief or officers in exchange for a signature, and attaches an announcement containing the address of the recipient to the door of the building at the specified address. If the recipient is not present at the address, the information about the situation is also communicated to the nearest neighbor, if possible, or to the administrator or the caretaker, as well. The date on which the announcement is affixed to the door is considered the date of notification. (1) (Additional paragraph: 11/1/2011-Law No. 6099/5) The specified address is the address of the recipient in the address registration system, and even if the recipient has never resided at that address or has permanently moved away from that address, the serving officer delivers the document to be served to the headman or members of the village council or to the police chief or officers in exchange for a signature and attaches an announcement containing the address of the recipient to the door of the building at the specified address. The date on which the announcement is affixed to the door is considered the date of notification. (2)"

According to Article 21/1 of the Notification Law and Article 30/1 of the regulation, if the recipient is not present at the address, it is necessary to inquire about the reason for their absence and the name, surname, and title of the person making the statement must be written on the notification document. The regulation's Article 30 assigns the duty to the serving officer to "investigate" the reason why the person is not present at the address. Therefore, the serving officer should verify the reason for the recipient's absence, whether it is a temporary or permanent departure from the address, whether they will return to the address after the delivery hours, and if so, when they will return. Additionally, the outcome of this investigation should be documented on the notification document in accordance with Article 23/7 of the law and Article 35/f of the regulation, and the recipient should sign it. Otherwise, the notification process would be invalid. (Decision of the 12th Civil Chamber of the Court of Cassation, dated 22.02.2018, File No: 2018/742, Decision No: 2018/1844) Regarding legal entities, there is no obligation to conduct the investigation stated in Articles 30 and 31 of the regulation. This matter was emphasized in the decision of the 10th Civil Chamber of the Adana Regional Court of Justice, dated 16.07.2020, File No: 2020/949, Decision No: 2020/1017, stating that "... If the notification sent on behalf of a legal entity is made in accordance with Article 21/1 of Law No. 7201, there is no need for the serving officer to investigate the conditions stipulated in Articles 30 and 31 of the Notification Regulation. Because in the case of the recipient's absence at the address, it is necessary to investigate the reason for the absence and determine whether they will return to the address after the delivery hours for natural persons, but the nature and characteristics of legal entities do not require such an investigation, and the lack of such an investigation does not result in the invalidity of the notification. (There is a similar precedent in the decision of the 12th Civil Chamber, File No: 2014/16440, Decision No: 2014/18095.) According to page 184 of the Trade Registry Gazette dated 16.12.2015 and obtained from the website of the Trade Registry Gazette, the address where the notification was made is the registered address in the Trade Registry. On the other hand, the claim that notification should be made in accordance with Article 35 of the Notification Law is not valid for legal entities."

There are different interpretations in practice regarding the application of Article 21/2 of the Notification Law. Firstly, it should be noted that notification cannot be directly made to the recipient's address in the address registration system in accordance with Article 21/2. The first notification to be sent to the recipient should be sent without any annotation under Article 21/2. Another issue that has been subject to different interpretations in practice is whether, in case the first address where the notification is issued is not the address registered in the address registration system, it is necessary to first make a regular notification to the address registered in the address registration system in order to make a notification under Article 21/2. According to the decision of the 1st Civil Chamber of the Court of Cassation dated 19.01.2017, 2015/7312 E., 2017/399 K., "After the Notification Law was amended by Law No. 6099, which entered into force on 19.01.2011, a two-stage process has been adopted regarding notifications to be made to real persons. According to this amendment, direct notification to the recipient's address registered in the address registration system is not possible under the second paragraph of Article 21 of the Law. The first notification issued to the recipient will be made to the known or stated address. Therefore, there is no difference between the address initially notified and the recipient's (defendant's) address registered in the address registration system or any other address. Both addresses are considered as known addresses within the scope of Article 10/1 of the Notification Law. In case the notification sent to the notified address is returned unclaimed, taking into account Article 16/2 of the Regulation on the Implementation of the Notification Law, a notification will be made to the recipient's place of residence address registered in the address registration system in accordance with Article 21/2 of the Notification Law."

The different interpretations of Articles 10/2 and 21/2 of the Notification Law, which argue for directly issuing notifications to the recipient's place of residence address registered in the address registration system on the grounds that no other address is known, would restrict the recipient's right to defense, and therefore would be contrary to Article 36 of the Constitution titled "Right to Seek Justice" and the aforementioned provisions of the Notification Law.

OBLIGATION TO NOTIFY CHANGE OF ADDRESS: (Article 35 of the Notification Law) - "Any person who has been notified personally or to their address through the methods prescribed by law is obliged to promptly notify the relevant authority in writing in case of a change of address. Subsequent notifications will be made to the newly reported address. (Amended paragraph: 11/1/2011-6099/9 art.) If a person who has changed their address fails to notify the new address and the place of residence address cannot be determined in the address registration system, a copy of the document to be served will be affixed to the door of the building belonging to the old address, and the date of affixation will be deemed the date of service."

Another common issue encountered in practice is how to serve notifications to individuals who do not have an address registered in the address registration system. If the addressee does not have an address in the address registration system, the notification can be served to them in accordance with Article 35/2 of the Notification Law. However, another requirement in this case is that a previous notification has been served to them in accordance with the proper procedure. For example, let's assume that a payment order sent to a debtor has been properly served to their address registered in the address registration system. Later, when a notice related to an attachment is intended to be sent to the debtor as part of a lawsuit, but the debtor no longer has an address in the address registration system, in this situation, the notification can be made under Article 35/2. The decision of the 13th Civil Chamber of the Court of Cassation, dated 25.09.2019, with the file number 2016/18440 E., 2019/8793 K., also states that: "...According to the said article, the ability to serve notifications is subject to the condition that the addressee does not have a place of residence address in the address registration system. If the place of residence address is determined in the address registration system, the notification will be served in accordance with Article 21/2 of the Notification Law as amended by Law No. 6099. After the amendment made to the Notification Law by Law No. 6099, in order to serve a notification in accordance with Article 35 to individuals, it is necessary that the debtor does not have an address in the address registration system and, additionally, that they have been served a notification in accordance with the procedures prescribed by the law."

CONCLUSION

Notifications hold great importance in terms of legal procedures, and failure to comply with the procedural and formal requirements stipulated in laws and regulations can lead to a disputed validity of the notification and consequently the legal action. Therefore, notifications are a matter that competent authorities and parties must pay attention to. Although different interpretations of legal provisions are observed in practice, these discrepancies have been attempted to be overcome through judicial decisions.

Sinem Çiftci

REFERENCES

Law No. 7201 on Notification

Regulation on the Implementation of the Notification Law

Law No. 6099 on Notification and Amendments to Some Laws

Decision No. 2015/7312 E., 2017/399 K. of the 1st Civil Chamber of the Court of Cassation dated 19.01.2017

Decision No. 2016/18440 E., 2019/8793 K. of the 13th Civil Chamber of the Court of Cassation dated 25.09.2019

Decision No. 2018/742 E., 2018/1844 K. of the 12th Civil Chamber of the Court of Cassation dated 22.02.2018

Decision No. 2020/949 E., 2020/1017 K. of the 10th Civil Chamber of the Adana Regional Court of Justice dated 16.07.2020