Author: Piraye Erdem
Introduction
The Decision of the Court of Cassation Great General Assembly on the Unification of Judgments (“Assembly”) dated 20.11.2020 and numbered 2019/2 E., 2020/3 K. (“Decision”) was published in the Official Gazette dated 20.04.2021 and numbered 31460 and resolved the differences in opinion and application among the Court of Cassation General Assembly of the Civil Chamber, 2nd Civil Chamber, 4th Civil Chamber and 12th Civil Chamber. This article discusses the Decision, the terms used throughout the Decision, and the dissenting opinions.
The Subject of the Unification of Judgments and the Relevant Terms
The Assembly stated that the subject of the unification of judgments is, as follows:
“In the event that the notification issued to the last known address of the addressee is returned and that the place of residence of the addressee registered at the address registry system is different from this address, whether or not it is sufficient to directly issue a notification pursuant to Article 21/2 of the Notification Law to the domicile of the addressee registered at the address registry system with the annotation “Central Population Administration System (“CPAS”) address,” or whether it is required to initially issue a normal notification to this address.”[1]
It would be appropriate to briefly explain the terms relevant to the Decision before delving into the details of the Decision.
Notification
Notification is the written documentation of a notification made to the addressee of a legal action.[2] An addressee is informed about a trial against them via notification. Therefore, judicial proceedings carried out without proper notification constitutes a violation of the right to be heard and right to a fair trial. Due to its importance in terms of the basic principles of civil procedure law, it is critical that the notification be made in accordance with Notification Law numbered 7201 (“NL”) and the procedure stipulated by the relevant legislation.
Address
The word “address” within the scope of the notification law covers the concepts of domicile, workplace, and place of residence. Pursuant to Article 10/1 of the NL, notice shall be made at the last known address of the addressee. If notice cannot be made to the last known address of the addressee, the domicile of the addressee shall be accepted as the last known address of the addressee, and notice shall be made to this address pursuant to Article 10/2 of the NL. The term last known address of the addressee is a broader term compared to the domicile of the addressee.
An electronic system called the “address registration system” has been formed for holding address records of Turkish Citizens and resident aliens in Turkey. The records in the databases of CPAS are associated with Turkish ID numbers in the address registry system, and the intention is to keep the address records current.
The Disagreement Between Civil Chambers of the Court of Cassation
The Court of Cassation General Assembly of the Civil Chamber stated that its opinion is parallel with the opinion of the 12th Civil Chamber. According to this opinion, in the event that the notification issued to the last known address of the addressee is returned, and that the domicile of the addressee registered at the address registry system is different than this address, it shall be sufficient to directly issue a notification pursuant to Article 21/2 of the NL to the domicile of the addressee registered at the address registry system with the “CPAS address” annotation. It is not required to initially issue a normal notification to this address.
The 2nd Civil Chamber and the 4th Civil Chamber stated that their opinion is similar and the judgments shall be unified in line with their opinion. According to this opinion, the notification shall first be made to the known address of the addressee. If notification cannot be made to the known address, the domicile of the addressee as listed in the address registration system shall be identified and a normal notification shall be made to this address without the CPAS annotation. If it is determined that the addressee is not domiciled at that address and the notification is returned, then a new notification shall be issued with the CPAS annotation stating that the last known address of the addressee is the address found in the address registry system pursuant to Article 21/2 of the NL.
Debrief of the Decision
The Decision states that a two-phased notification process is adopted by the Notification Law. Hence, in the first step, notification shall be made to the last known address of the addressee. If the notification is returned without reaching the addressee, in the second step, the post officer shall directly make notification to the CPAS address of the addressee pursuant to Article 21/2 of the NL with the “CPAS address” annotation on the notification envelope, together with the annotation that the notification is being made pursuant to Article 21/2 of the NL.
The situation in which the party demanding notification provides an incorrect address instead of the last known address of the addressee
During the sessions of the Assembly, the possibility of the party demanding notification maliciously and providing an irrelevant address instead of the last known address of the addressee was evaluated as a potential problem that might occur in practice.
The Assembly underlined that the precondition of issuing notification pursuant to Article 21/2 of the NL is that the notification shall initially be issued to the last known address, and that the notification be returned. According to the Assembly, if the authority issuing the notification issued it without exercising its supervisory authority, the notification shall be invalid, because the precondition of notification pursuant to Article 21/2 of the NL has not been met. Throughout the decision, it is stated that if a judgment is concluded with invalid notifications, various legal remedies can be applicable, and even this issue can be a basis for reversal in the appeal review.
The situation where some of the post officers go to the shown address and deliver the notification to the head of the local district
In the Decision, the situation in which some of the post officers go to the shown address and directly deliver the notification to the head of the local district without attending at the known address has been evaluated.
According to the Decision, due to the reasoning that some post officers follow such a method in practice, accepting a three-step notification method via first issuing a normal notification to the domicile of the addressee registered to the address registry system, and issuing a notification pursuant to Article 21/2 of the NL thereafter shall be contrary to the procedure and the laws. The Assembly emphasized that for issuing a notification pursuant to Article 21/2 of the NL, there shall be impossibility of notification and refusal of the notification, and that the post officer cannot prove that it was impossible to make notification without going to the actual door of the notification address.
The situation where right of information shall be provided by first issuing a normal notification to the CPAS address of the addressee
In the Decision, the opinion suggesting that as a requirement of right to a fair trial and right to be heard, in the event that the notification issued to the last known address of the addressee is returned, firstly, a normal notification shall be issued to the CPAS address before issuing a notification pursuant to Article 21/2 of the NL, has been evaluated.
The Assembly stated that the purpose of the Notification Law and the relevant legislation is to ensure that the notification reaches the addressee as soon as possible. Therefore, the application of the legislation down to the smallest detail is necessary. According to the Assembly, notification made with a procedure that is not stipulated by the NL violates the right to be heard. In addition, the Decision states that there are several rules in the legislation to prevent the negative consequences attached to the registered address. As examples for these rules, the mandate to update addresses is regulated under Articles 49 and 50 of Population Services Law numbered 5490, the restitution procedure regulated under Article 95 of Civil Procedure Law numbered 6100, and the delayed appeal regulated under Article 65 of Enforcement and Bankruptcy Law numbered 2004, can be provided.
It concludes that directly issuing a notification pursuant to Article 21/2 of the NL is not in violation of the right to be heard, and that there is no need to issue a normal notification to that address in the first step.
Dissenting Opinions
There are three dissenting opinions in the Decision. In the dissenting opinions, it is argued that in the first place, a notification shall be made via normal means to the address found at the address registry system as the known address, and if that notification cannot be made, a new notification shall be made pursuant to Article 21/2 of the NL. According to the dissenting opinions, issuing the second notification without further research, if notification cannot be made to the address shown as the known address of the addressee pursuant to Article 21/2 of the NL, breaches the right to access the courts and right of defense of the addressee.
Conclusion
The Assembly unified the judgments in line with the views of the Court of Cassation General Assembly of the Civil Chamber and the 12th Civil Chamber. According to the unified judgments, if the notification issued to the last known address of the addressee is returned, and the domicile of the addressee registered at the address registry system is different from this address, it shall be sufficient to directly issue a notification pursuant to Article 21/2 of the NL to the place of residence of the addressee registered at the address registry system with the “CPAS address” annotation. In that case, it is not required to initially issue a normal notification to this address. The Decision sets out that the Assembly adopted the two-step notification system and finalized the debates concerning the three-step notification system.
[1] Translated by the author: The Court of Cassation Great General Assembly on the Unification of Judgments numbered 2019/2 E., 2020/3 K. (OG, No. 31460, 20.04.2021).
[2] Arslan, Ramazan / Yılmaz, Ejder / Taşpınar Ayvaz, Sema: Medeni Usul Hukuku, Yetkin, Ankara 2017, p. 183.
