Author: Ece Ozsu
Electronic notification to certain persons, including attorneys registered with the Bar Association, has become obligatory in accordance with the Article 7/a of the Notification Law numbered 7201 (“NL”). The procedures and principles regarding electronic notification are outlined in the Electronic Notification Regulation (“Regulation”) in the Official Gazette dated 6 December 2018 and numbered 30617.
Article 7/a of the NL and paragraph 6 of Article 9 of the Regulation contain the provision that “an electronically made notification shall be deemed to have been made at the end of the fifth day following the date on which the addressee’s electronic address is reached.” The Regulation clearly envisages that electronic notifications will be deemed to have been made at the end of this period whether they are opened by the addressee or not.
Unfortunately, while the statutory and regulatory language is clear, courts have unnecessarily muddied the waters. In numerous judicial decisions, courts have examined whether the legal periods for electronic notifications should be calculated from the date of delivery or from the time that the notification was opened. In this article, I will examine these decisions.
Decision of the Constitutional Court
In its decision published in the Official Gazette dated 04.03.2020 and numbered 31058, the Constitutional Court (“CC”) examined when the legal period for an individual application to the CC would start and assessed whether the individual application was made within the time limit.
In its decision, the CC had emphasized that an individual application should be made within thirty days within thirty days from the date on which the remedies are exhausted, and if no remedy is foreseen, from the date on which the violation is learned pursuant to the 5th paragraph of Article 47 of the Law numbered 6216 on the Establishment and Adjudication Procedures of the Constitutional Court. It continued by stating that the publication of the final reasoned decision is one of the forms of notice for purposes of the start of the time period, but that notice may take other forms. With these evaluations, Article 7/a of the NL titled “Electronic Notification” which contains the statement “the electronic notification shall be deemed to have been made at the end of the fifth day following the date on which it reaches the electronic address of the addressee” was taken into account as well as the definition regarding “evidence record” in Article 3 of the Regulation.
In this decision, the CC looked at the case of an applicant, who had declared that, on 20.01.2019 he was aware of the final decision regarding the trial process that was the subject of the application, and made an application to CC on 15.02.2019. However, it was recorded that the Applicant opened the notification of the reasoned final decision on 15.01.2019. The CC argued that the decision had been read by the Applicant’s attorney on 15.01.2019, that this constituted notice, and that the individual application period started from this date. The CC agreed, holding that the application was inadmissible due to expiration of time limit.
When an individual application arises, the CC has held that the legal period begins from the date when the party “learned” about the notification, instead of the date that they received it. To put it another way, decisions regarding individual applications made to the CC reveal that the 30-day legal application period begins when the notification made through UETS (National Electronic Notification System) is opened by the person concerned, thus creating a record, unless “learning” about the notification has taken place in another way. This approach clearly conflicts with the statutory and regulatory language.
However, it is not possible to state that the decision of the CC is applicable in terms of appeal applications made against chamber decisions of First Instance Courts and Regional Courts of Justice, since the time limit for application of legal remedy is subject to the condition of “notice” instead of “learning” or “exhausting the legal remedies”.
Decisions of the Civil Chambers of the Court of Cassation
Different civil chambers of the Court of Cassation have made different assessments on whether an electronic notification will be deemed to effective at the end of the fifth day following the date it was received, or on the date it was read.
Referring to Article 7/a of the Notification Law, the 10th Civil Chamber of the Court of Cassation held that an appeal request dated 30.04.2018 was made within the legal two-week period, since the notification was made five days after the notification made to the claimant's attorney electronically on 13.04.2018.[1]
On the other hand, the 9th Civil Chamber of the Court of Cassation, in its decision dated 18.09.2019, considered the question of whether the recipient had read an electronic notification in rejecting an appeal as untimely. In its opinion, the court considered the fact that the electronic notification was opened on the date it was delivered to the address to be relevant to the question of when the appellant received notice. This was despite the fact that, in a previous decision, the court had disapproved of this approach. However, in a later decision dated 03.12.2019, the 9th Civil Chamber, which did not consider the regulation in Article 7/a of the Notification Law, it made a factual error in its previous decision dated 18.09.2019 and it should be deemed to have been made at the end of the fifth day from the day the addressee reached the address of electronic notification. Decision dated 18.09.2019 was annulled.[2]
Another judicial decision is made by the General Assembly of the Court of Cassation, referring to Article 9 of the Regulation. The General Assembly made an evaluation and stated “UETS has forwarded the electronic notification to the electronic notification address of the addressee on 30.07.2019, in association with the time stamp, and the notification will be deemed to have been made at the end of the fifth day following the date on which the electronic notification reaches the electronic address of the addressee.”[3]
In the face of all these judgements, the 4th Civil Chamber of the Court of Cassation on 09.12.2020 analyzed Article 5, of the Regulation on the Procedures and Principles Regarding the Technical Criteria for the National Electronic Notification System prepared by the Ministry of Justice which is entitled “Evidence.” It its opinion, the court stated that an evidence record is created in the system at the time the notification is opened by the addressee. Under the regulations, the evidence record in question means that the notification was read by the recipient., The court also accepted that the notification was opened by the recipient on the date it was sent to the e-mail address. The appeal was rejected on the grounds that the legal period had expired.[4] As this decision conflicts with previous judgments of the 4th Civil Chamber of the Court of Cassation, the integrity of the precedent followed by the chambers of the Court of Cassation was undermined.
The General Assembly of the Court of Cassation re-examined the issues of the date of notice of the electronic notification and the beginning of the legal periods in a dispute on 24.11.2020. It made clear that the date of notice in an electronic notification is not the date that the electronic notification reaches the email account of the addressee or the date it is read but the end of the fifth day following the date when the notification reaches the electronic address of the addressee. The General Assembly of the Court of Cassation underlined that the possibility of delaying the results of the notification by not checking the registered e-mail account of the addressee has been eliminated.[5]
The General Assembly referred to the 2nd paragraph of Article 107/A of the Tax Procedure Law numbered 213, which is similar to the provision in the 4th paragraph of Article 7/a of the Notification Law, stating “…Notification in the electronic environment is deemed to have been made at the end of the fifth day following the date on which the notification reaches the electronic address....” In its decision, the General Assembly discussed an application made to the CC which alleged that the aforesaid provision is unconstitutional. In the judgement of the CC dated 19.09.2019 and numbered 2018/144, the CC held that the rule obliges the addressees to check their e-mail addresses periodically. If this obligation is complied with at least every five days, there will be no loss of right regarding the possibility of applying for legal remedies, and if the addressee checks his e-mail address daily, or at least more frequently than every five days, he will be informed of the notification before the date on which the notification will be deemed to have been made. Thus, the CC decided that the regulation is not unconstitutional.
Conclusion
The date on which an electronic notification will provide notice to the addressee is clearly regulated in the Notification Law and the Regulation. Despite this, the existence of conflicting judicial decisions regarding the date of notification and the beginning of the legal periods has undermined the principle of legal security and exposes individuals to the risk of loss of rights. An application was made to the First Presidency of the Court of Cassation by the Union of Turkish Bar Associations in order to avoid the previously stated danger and to ensure a consensus in the judiciary. In order to eliminate this confusion in practice and to prevent loss of rights, a unification of precedent is needed.[6]
[1] 10th Civil Chamber of the Court of Cassation, decision dated 25.09.2018 and numbered 2018/4120 E., 2018/6993 K.
[2] 9th Civil Chamber of the Court of Cassation, decision dated 03.12.2019 and numbered 2019/7836 E., 2019/21446 K.
[3] The General Assembly of Court of Cassation decision dated 14.01.2020 and numbered 2019/623 E., 2020/9 K.
[4] 4th Civil Chamber of the Court of Cassation decision dated 09.12.2020 and numbered 2020/1187E., 2020/4264 K.
[5] The General Assembly of Court of Cassation decision dated 24.11.2020 and numbered 2020/547 E., 2020/924K.
[6] https://d.barobirlik.org.tr/2021/etebligat/20210126_yargitay.pdf
