Irregular Service of process

Notification is the process of informing relevant parties of proceedings in a legal process in accordance with the form specified by law. The institution of notification is based on the right to a fair trial and the right to be heard. Therefore, when a notification is made in a manner contrary to the legal form, i.e., improperly, these two fundamental rights of the relevant person are violated. The relevant laws, primarily the Notification Law, regulate who should be notified and the steps to be followed if notification cannot be made.

According to Article 10 of the Notification Law, notification must be made at the "last known address" of the person to be notified. If notification to this address is not feasible or feasible, the person's "residential address recorded in the address registration system" will be accepted as the last known address. Articles 11-20 of the Notification Law make various distinctions regarding whom notifications can be made to. According to Article 22 of the Notification Law, it must be determined from the appearance of the person to be notified, other than the intended recipient, that they are not under 18 years of age and do not lack legal capacity.

The impossibility of notification or refusal to accept notification is regulated in Article 21. If either of these situations exists, the officer responsible for notification must deliver the document to the local headman, a member of the council of elders, or a police chief or officer, obtaining their signatures. Following this, the relevant notice will be posted on the door of the recipient's apartment, after informing the nearest neighbor/manager/doorman. It is important that the recipient's title is clearly and explicitly stated. However, if the opposite is true, and an investigation is conducted to determine the recipient's title, the irregular notification will be considered invalid. As can be understood from this, if an irregular notification occurs, there is a violation of legal form; therefore, it should not always be considered an invalid notification. The date the recipient learns of the irregular notification will be considered the date of notification. Therefore, as can be understood from this, improperly served notifications will not be considered invalid.[1]

If the addressee alleges irregular service of process, it is the court's duty to investigate this matter and render a decision. Otherwise, as stated earlier, the addressee's right to a fair hearing and a fair trial would be violated. Since the aim here is a sound judicial process, if the court determines that the service of process was irregular on its own initiative, it would be appropriate for the court to order a new notification to be sent to the addressee instead of continuing with the case.[2]

Relevant Supreme Court Decisions:

• Supreme Court of Appeals, 12th Civil Chamber, Case No. 2016/16007, Decision No. 2017/7913, Date: 23.05.2017

"The payment order issued to the complainant was sent for service to address "A1", and the server stated: "The address shown belongs to K2, and although the recipient appears to be at this address according to the Turkish Republic identity number verification, the recipient is not known at the address." It is understood that the notification was returned on September 29, 2015, with the annotation "returned with the approval of the neighborhood headman K3," and that subsequently, the notification was sent to the address registered in the population registration system on October 7, 2015, in accordance with Article 21/2 of the Turkish Code of Civil Procedure, with the "MERNIS address" written on the notification envelope. However, it is understood that no annotation was given on the notification envelope by the issuing authority within the scope of Article 16/2 of the Regulation; in this case, the notification officer's execution of the notification process in accordance with Article 21/2 of the Turkish Code of Civil Procedure is contrary to the aforementioned laws and regulations. (...) acceptance of the complaint of irregular notification (...)

• Supreme Court of Appeals, 12th Civil Chamber, Case No. 2020/2725, Decision No. 2020/9813, Date: 16.11.2020

“(…) It is seen that the notification was made with the annotation that the notification paper numbered 2 was posted on the addressee’s door and the nearest neighbor/doorman/manager … Yıldız was notified.” Upon examination of the notification, it is understood that the notification meets the conditions of Article 21/1 of the Turkish Code of Civil Procedure. Although the notification process was completed without clearly and unequivocally determining the status of the person whose statement was taken; given that the debtor stated that he did not know anyone named …, it is incorrect to decide that the notification was irregular without any investigation . It is understood that if the identity of the person named … is determined by conducting a police investigation , and if he is found to be a neighbor/doorman/manager, the cancellation of the notification would not be necessary . Therefore, the judgment based on an incomplete investigation is incorrect, and it is necessary to decide to overturn the decision of the regional court of appeal and reverse the decision of the first instance court. (…)”

• Supreme Court 12th Civil Chamber, Case No. 2016/9085, Decision No. 2017/2110, Date: February 16, 2017

“(…) Therefore, the court should have gathered evidence regarding the claims of the parties and allowed them to prove them. Given that the debtor stated that he did not have a neighbor named …, the statements of … who was identified as the neighbor and the notification officer should have been taken as witnesses to determine whether the neighbor mentioned in the notification receipt is the same neighbor and whether such a notification was made. The decision should have been made according to the conclusion reached, but the conclusion reached in writing with an incomplete investigation is incorrect.(…)”

• Supreme Court 12th Civil Chamber, Case No. 2020/3556, Decision No. 2020/10917, Date: 16.12.2020

“(…) It is seen that the notification was delivered with the annotation that “since the authorized person, … Ç., refused to sign, the relevant document was delivered to the relevant neighborhood headman.” In this case, it is understood from the explanation in the notification receipt that the notice containing the address of the headman to whom the notification document was delivered and stating that the recipient could receive the notification from the headman was not posted on the debtor's door. Therefore, it is clear that the aforementioned account closure notice was delivered contrary to the procedure stipulated in Articles 21/1 of the Notification Law and 31 of the Notification Regulation.(…)”

• Supreme Court of Appeals, 3rd Civil Chamber, Case No. 2022/4397, Decision No. 2022/7182, Date: September 29, 2022

“(…) In the specific case, the following note was added to the notification receipt regarding the service of process to the plaintiff’s attorney: “…the site management was asked. The site management verbally stated that the addressee resides at this address and was outside the address during delivery hours. They refused to provide their name and signature…” Since the site manager was contacted by the service officer, the name of the site manager should have been requested and written on the notification slip in order to fulfill the documentation requirement.

According to Article 21/1 of the Turkish Commercial Code, the notification to the plaintiff was irregular because the name of the manager to whom the notification was given was not provided, and it was merely stated as "site management" in the minutes. Since the two-week period stipulated in Article 207 of the Turkish Code of Civil Procedure for submitting the request to the competent court could not be considered to have started due to the irregular notification, it was decided to overturn the supplementary decision of the Bakırköy 2nd Civil Commercial Court, numbered 2015/112-847, dated January 14, 2019, regarding the case being deemed not filed (...)”

[1] Aslı Aras, “The Necessity of Taking Irregular Notification into Consideration Ex Officio in the Case or Enforcement Proceedings”, TBB Journal 2022 (158), p.195. http://tbbdergisi.barobirlik.org.tr/m2022-158-2025 (Access Date: 11/05/2023).

[2] Age, p.200.