Improper Notifications in Light of Court of Cassation Precedents

1. IMPOSSIBILITY OF SERVICE AND REFUSAL OF SERVICE: If the person to whom the notification will be made cannot be found at the address or refuses to accept the notification, the notification shall be made to the headman of that place. Additionally, a Form No. 2 shall be affixed to the door of the building, and the nearest neighbor/manager/porter shall also be informed. The irregularities in the notifications usually arise from non-compliance with Article 21/1 of the Notification Law and Article 30/1 of the regulation. According to these provisions, if the addressee cannot be found at the address, it is necessary to obtain a statement from the persons specified in the regulation regarding the reason for the absence at the address, and the name, surname, and title of the person making the statement must be written on the notification document. Otherwise, the notification process is considered invalid.

For example, in the decision of the 12th Civil Chamber of the Court of Cassation dated 22.02.2018, Case No. 2018/742 E., Decision No. 2018/1844 K., it was considered as an improper notification that the payment order was notified to the headman without verifying whether the addressee was temporarily or permanently absent from the address, whether they would return to the address after the delivery hours, and when they would return, without inquiring if the person being consulted had precise information about the situation. In another decision of the 12th Civil Chamber of the Court of Cassation dated 17.02.2020, Case No. 2020/825 E., Decision No. 2020/1370 K., the fact that the name and surname of the informed neighbor, who gave the information that the addressee was currently outside the address, was not present in the notification record was considered as an improper notification in accordance with Article 21/1 of the Notification Law.

2. NOTIFICATIONS TO PERSONS LIVING IN THE SAME RESIDENCE OR SERVANTS: According to Article 16 of Law No. 7201 on Notifications and Article 25 of the Regulation on the Implementation of the Notification Law, "If the person to whom the notification will be made is not present at the address, the notification shall be made to one of the persons living in the same residence as the addressee or to one of their servants." In a decision dated 14.10.2014, Case No. 2014/19749 E., Decision No. 2014/23677 K., the 12th Civil Chamber of the Court of Cassation deemed the notification made to the spouse without determining whether the addressee was present at the address as an improper notification.

3. AGE AND COMPETENCY REQUIREMENT: According to Article 20 of the Notification Law, the person to whom the notification will be made must be at least eighteen years old and must not have a clear incapacity. In a decision dated 30.06.2020, Case No. 2019/3083 E., Decision No. 2020/3000 K., the 21st Civil Chamber of the Court of Cassation declared the notification invalid because it was understood that there was no mention in the notification document that the recipient was not below the age of eighteen in appearance, and there was no evidence or record showing that they lived together under the same roof with the addressee.

4. NOTIFICATION TO OFFICIALS AND EMPLOYEES OF LEGAL ENTITIES: According to Article 21 of the Regulation on the Implementation of the Notification Law, "Authorized persons to receive notifications on behalf of legal entities shall be notified to one of the permanent employees or officials of the legal entity if they are not present at the workplace during regular working hours for any reason or if they are unable to personally receive the document at that time." However, in accordance with Article 17 of Law No. 7201 on Notifications and as stated in the regulation, notification cannot be made based on the aforementioned provision without determining that the addressee was not present during the notification.

In a decision dated 03.06.2013, Case No. 2013/14002 E., Decision No. 2013/20506 K., the 12th Civil Chamber of the Court of Cassation also stated that "... even if the sales announcement notification to the debtor company was delivered with the signature of the company's watchman M.Ç., since it was not investigated whether there was a person authorized to receive the document as stated in Article 21 of the regulation, and if there was no authorized person, this fact was not noted on the notification document, the notification is considered improper."

5. ADVERSARIAL RELATIONSHIP OF THE ADDRESSEE: According to Article 39 of the Notification Law, if individuals eligible to receive the notification have an adversarial interest in the case, the notification cannot be made to them on behalf of the addressee. The decision of the 12th Civil Chamber of the Court of Cassation dated 15.04.2019, Case No. 2019/5077 E., Decision No. 2019/6288 K., also supports this rule, stating that "in the specific case, the value appraisal report and the sales announcement were notified to the company representative, and since the person who received the notification on behalf of the debtor company was also a debtor in the same execution proceeding, the notification made to them is considered improper as it violates the prohibition of notifying adversaries according to Article 39 of the Notification Law."

6. NOTIFICATION TO MILITARY PERSONNEL: According to Article 14 of the Notification Law, except for non-commissioned officers, notifications to soldiers (erata) are made to the nearest superior officers, such as the battalion commander and the institution's supervisor. In cases where notifications need to be made to military personnel other than those mentioned above, such as in the unit or institution, the notification is arranged by the duty officer or officer.

In a decision dated 12.09.2013, Case No. 2013/10152 E., Decision No. 2013/12327 K., the 6th Civil Chamber of the Court of Cassation stated that "the lawsuit petition was notified with the annotation 'the addressee is in the military, and it was delivered with the signature of the mother residing with him,' and the judgment was also notified to the defendant with the same annotation. It is understood that the defendant was in the military at the time of the notification of the lawsuit petition. The manner in which notifications are to be made to military personnel is specified in Article 14 of the Notification Law and Article 19 of the Regulation. The lawsuit petition and the date of the hearing were notified to the defendant's mother. The notification made in this way is invalid. Therefore, after the notification of the lawsuit petition and the date of the hearing to the military unit of the mentioned defendant in accordance with the procedure, a decision should have been made regarding the merits of the case, and it was erroneous to render a decision as stated, thereby limiting the defense right."

7. NOTIFICATION TO DETAINEES AND CONVICTS: According to Article 19 of the Notification Law and Article 28 of the regulation, notifications addressed to detainees and convicts must be delivered to the prison address and should be made in person to them. This notification should be ensured by the prison director or, in their absence, by the managing officer. However, for those who are sentenced to one year or more of imprisonment, the notification should be made to the legal representative (guardian) of the convict according to Article 19 of the notification regulation. Therefore, it is necessary to investigate whether the convict is under guardianship, and if so, the notification should be made to the guardian after completing the legal process related to guardianship. If the person is not under guardianship, the notification should be made after the legal process of appointing a guardian is completed. For instance, a notification sent to the detainee's address in the Population Registration System (Mernis) before these processes are completed would be considered improper.

8. NOTIFICATION TO ATTORNEYS: In cases followed through an attorney, the notification must be made to the attorney for it to be considered valid. According to Article 11 of Law No. 7201 on Notifications, Article 41 of the Attorneyship Law, and Articles 62 and 68 of the Code of Civil Procedure (HUMK), in cases where the proceedings are conducted through an attorney, the notification must be made to the attorney. The improper notification of a sale announcement to the principal instead of the attorney is a sufficient reason on its own to annul the auction. (Decision of the 12th Civil Chamber of the Court of Cassation dated 10.07.2012, Case No. 2012/8760 E., Decision No. 2012/24211 K.)

9. PRACTICING PROFESSION OR CRAFT AT A SPECIFIC PLACE OR RESIDENCE: According to Article 17 of Law No. 7201 on Notifications, in the case of notifications to individuals who continuously practice their profession or craft at a specific place, it is necessary to search for the addressee first. If the addressee cannot be found, then the notification must be made to one of the permanent employees or officials at the same location. In the specific case, the addressee was not present at the time of delivery since they were involved in business matters during the delivery hours. Although the notification was made with the signature of an authorized person at the same address, it was later revealed that the person who received the notification was a trainee lawyer who, on the date of the notification, was interning under the supervision of another lawyer who was not representing the case in question. The person who received the notification was not a permanent employee, and it was observed that the notation "permanent employee" was not written on the notification document. Therefore, the notification is considered improper. (Decision of the 5th Civil Chamber of the Court of Cassation dated 21.11.2019, Case No. 2018/11061 E., Decision No. 2019/18709 K.)

Sinem Çiftci

References:

1. Law No. 7201 on Notifications
2. Regulation on the Implementation of the Notification Law
3. Decision of the 12th Civil Chamber of the Court of Cassation dated 10.07.2012, Case No. 2012/8760 E., Decision No. 2012/24211 K.
4. Decision of the 5th Civil Chamber of the Court of Cassation dated 21.11.2019, Case No. 2018/11061 E., Decision No. 2019/18709 K.
5. Decision of the 12th Civil Chamber of the Court of Cassation dated 14.10.2014, Case No. 2014/19749 E., Decision No. 2014/23677 K.
6. Decision of the 12th Civil Chamber of the Court of Cassation dated 03.06.2013, Case No. 2013/14002 E., Decision No. 2013/20506 K.
7. Decision of the 12th Civil Chamber of the Court of Cassation dated 15.04.2019, Case No. 2019/5077 E., Decision No. 2019/6288 K.
8. Decision of the 12th Civil Chamber of the Court of Cassation dated 22.02.2018, Case No. 2018/742 E., Decision No. 2018/1844 K.
9. Decision of the 12th Civil Chamber of the Court of Cassation dated 17.02.2020, Case No. 2020/825 E., Decision No. 2020/1370 K.
10. Decision of the 21st Civil Chamber of the Court of Cassation dated 30.06.2020, Case No. 2019/3083 E., Decision No. 2020/3000 K.
11. Decision of the 6th Civil Chamber of the Court of Cassation dated 12.09.2013, Case No. 2013/10152 E., Decision No. 2013/12327 K.