INTRODUCTION
In legal proceedings, proper service of process to the
parties constitutes one of the fundamental elements of the right to a fair
trial. In this context, service of process ensures that judicial acts are
communicated to the parties and is considered one of the most important
instruments of procedural law. Indeed, conducting service of process in
accordance with procedural rules is essential for enabling the parties to
effectively exercise their right to defense.
However, instances of improper service of process,
which are frequently encountered in practice, can hinder the orderly
progression of proceedings and lead to the loss of legal rights. Conducting
service of process in a manner contrary to the form and procedures prescribed
by law produces significant legal consequences, such as affecting the validity
of the service and, consequently, the commencement of procedural deadlines. In
this respect, improper service of process is not merely a procedural defect but
also a matter that directly impacts the fairness of the proceedings.
This study will examine the legal nature and
consequences of the concept of improper service of process in light of the
Court of Cessation’s decisions.
IMPROPER SERVICE OF PROCESS AND COURT OF CESSATION’S
RELATED DECISIONS
The addressees and the manner of service are
stipulated under the Notification Law. Under normal circumstances, service of
process is made to the principal addressee; however, in cases where the
addressee cannot be reached, Articles 13, 14, 16, 17, and 18 specify to whom
the service may be made. Article 20 of the Notification Law sets out that “If
the persons specified in Articles 13, 14, 16, 17, and 18 indicate that the
person to be served has temporarily gone elsewhere, the circumstance and the
full name of the declarant shall be recorded in the service minutes and signed
by the declarant, and the notification officer shall deliver the service
documents to these persons. These persons are obliged to accept the service
documents. If the person who indicates that the addressee has temporarily gone
elsewhere refuses to sign, the officer effecting the service shall note and
sign this statement. In this case, and in the event of refusal to accept the
service documents, the service shall be carried out in accordance with Article
21.” Service of process that is not conducted in accordance with these
prescribed procedures is considered improper service of process.
Improper service of process is set out under Article
21 of the Notification Law.
If neither the addressee nor any of the persons
eligible to receive the service in the addressee’s absence is present at the
indicated address, or if they refuse to accept the documents, the notification
officer shall deliver the service documents against a signature to the local
headman (muhtar) or a member of the local council of elders, or to law
enforcement officers. In addition, a notice containing the recipient’s address
shall be affixed to the door of the building at the indicated address. In case
of absence, the notification officer shall, to the extent possible, inform a
nearby neighbor, and if available, the building manager or doorman. The date on
which the notice is affixed to the door shall be considered the date of
service. As per this article;
1. The notification served to the
addressee’s last known address cannot be delivered because the addressee, or
persons authorized to accept service on their behalf, are not present at the
address, or refuse to accept service.
2. The notification has been delivered, against
signature, to the local headman, a member of the local council of elders, or a
law enforcement officer.
3. All of the foregoing circumstances (including the
reason for non-delivery at the address, the capacity and name of the person
notified, the authority to whom the notification was delivered, and the
identity of the person informed) must be clearly stated both on the document
containing the notification and on the notice affixed to the door.
4. One of the nearest neighbors, or, if available, the
building manager or doorman, must be informed to notify the addressee of the
notification.
5. The notice must be affixed to the addressee’s door.
If any of these requirements is not duly fulfilled,
the service shall be deemed improper pursuant to Article 21/1 of the
Notification Law.
It is of particular importance that the serving
officer is obliged to ascertain why the addressee is not present at the
address, and whether such absence is temporary. Notifications effected without
due consideration of these factors shall be deemed improper.
Related decisions are as follows:
Under the decision,
bearing the Basis number 2022/13402 and the Decision number 2023/5752,
of the 12th Civil
Chamber of the Court of Cessation, which reads as follows:
“The Regional Court of Appeal’s decision holding that the service was improper has been upheld, on the grounds that, pursuant to Article 35 of the Regulation on Notifications, no inquiry was made—by asking the persons listed in Article 30 of the same Regulation—into whether the addressee had left the address temporarily or permanently, the reason for the addressee’s absence, or whether the addressee would return to the notification address after the hours of delivery; that the signature of the neighbor who was allegedly informed was not obtained; and that, if such signature was refused, this fact was neither recorded nor duly documented. Accordingly, the service was not effected in compliance with Articles 21/1 and 23/7 of the Notification Law and Articles 30 and 35 of the Regulation on Notifications, and was therefore improper.”
Similarly,
under its decision, bearing the Basis number 2022/10122 and the
Decision number 2023/2877 concerning the third item mentioned above, the
12th Civil Chamber of the Court of Cassation upheld the Regional
Court of Appeal’s ruling, which reads as follows:
“Since
the name of the neighbor who was informed was not recorded on the notification
report, the notifications issued to the debtors were improper for not being
effected in accordance with Article 21 of the Notification Law and Article 30
of the Regulation; accordingly, the decision under review was found to be in
compliance with procedure and law, and the defendant’s appeal was dismissed on
the merits pursuant to Article 353/1-b-1 of the Code of Civil Procedure.”
Moreover, Article 35 of the Notification Law also
specifies the procedure to be followed in case of a change of address, and the
article reads as follows: “A person who has been served, or whose address
has been served, in accordance with the procedures prescribed by law is
obliged, upon changing their address, to immediately notify the competent
judicial authority that effected the service of the new address. In such case,
all subsequent notifications shall be made to the new address.” This
provision is also highly significant in the context of improper service. In
this regard;
The decision, bearing the Basis number 2023/3554 and
the Decision number 2023/4395, of the 12th Civil Chamber of
the Court of Cessation reads as follows:
“The creditor argued that the debtor’s MERSIS address
had been obtained from the UYAP system, and that after the notification sent to
this address was returned, service was effected to the same address in
accordance with Article 35 of the Notification Law; that in other cases filed
against the debtor, notifications were also served to this address; that the
debtor submitted a response within the prescribed period and did not provide
any declaration regarding a change of address; that the debtor bears the obligation
to keep the MERSIS records up to date; and that the MERSIS address was updated
after the date of the complaint. The creditor further argued that the debtor
became aware of the initiated debt enforcement proceedings on 20.05.2021 due to
the attachment made on the case in which the creditor was involved, and claimed
that the notifications were duly served, requesting annulment of the lower
court’s decision. However, it was determined that on the dates of notification,
the address registered in the trade registry of the debtor differed from the
notification address, and that the notifications served on 15.04.2021 and
20.05.2021 in accordance with Article 35 of the Notification Law were therefore
not proper; since the trade registry address is the relevant one, the claim
that the MERSIS address should be considered was found not to affect the
merits. Accordingly, the creditor’s appeal was dismissed with prejudice.”
In order to better understand improper service of
process, it is necessary to examine several decisions of the Court of Cassation
on different issues;
The decision, bearing the Basis number 2023/7558 and
the Decision number 2023/5536, of the 12th Civil Chamber of the
Court of Cessation reads as follows:
“The court found that the notification report did not contain any statement indicating that … was illiterate, that there was no concrete evidence, document, or witness testimony to the contrary, and that the notification was carried out in accordance with the proper procedure. Since the complaint of improper service was dismissed, the debtor’s appeal was also dismissed with prejudice on the grounds that, as of the date of notification of the payment order, the debtor’s objection to the debt, interest, and accessories was not filed in due time.”
Decision, bearing the Basis number 2022/12590 and the Decision number 2023/4264,
of the 12th Civil Chamber of the Court of Cessation reads as follows:
“It was determined that the notification was served directly to a permanent employee without first investigating whether the recipient was a person authorized to receive documents on behalf of the company, such as someone next in authority after the company officer or the document manager, and that the service was therefore improper. The complaint of improper service, submitted within the statutory period as of the date of knowledge indicated as 29.06.2021, was rightly accepted. Accordingly, the decision of the Court of First Instance was found to be in compliance with law and procedure, and the defendant’s appeal was dismissed with prejudice.”
Decision, bearing the Basis number 2016/9795
and the Decision number 2017/1346, of the 12th Civil Chamber of the
Court of Cessation reads as follows:
“It is understood that no annotation was made on the payment order notification document by the authority issuing the notification report, in accordance with Articles 23/1–8 of the Notification Law and Article 16/2 of the Regulation. The fact that the distributor carried out the service of the payment order on their own initiative pursuant to Article 21/2 of the Notification Law is contrary to the provisions of the aforementioned law and regulation. Therefore, it cannot be said that the said notification was duly effected.”
Decision, bearing the Basis number 2022/8938 and the Decision number 2023/2189,
of the 12th Civil Chamber of the Court of Cessation reads as
follows:
“Under Article 21/1 of the Notification Law, the
conditions set out in the Regulation regarding the addressee’s whereabouts and
whether they will return to the address after delivery hours apply to natural
persons; therefore, the court correctly did not consider the notification
improper on this ground. However, upon examining the notification document, it
was observed that the section explaining the subject of the service contained
the phrase “7/7 supporting document”, and did not indicate that the matter
served was a payment order. Although the creditor’s grounds of appeal were
unfounded, the court should have accepted the complaint for the reasons
explained; proceeding to a conclusion with the written justification was deemed
inappropriate. As a result, since the complaint was accepted, the decision of
the Court of First Instance was annulled for correction of its reasoning, and
the complaint of improper service was upheld”
Decision, bearing the Basis number 2023/7143 and
the Decision number 2023/7976, of the 12th Civil Chamber of the Court of
Cessation reads as follows:
Article 16, entitled “Notification to persons residing
in the same household or to servants”, of the Notification Law Nr. 7201
provides that: “If the person to be served is not present at the address, the
notification shall be made to a person residing in the same household or to one
of their servants.” Similarly, Article 25 of the Regulation on the
Implementation of the Notification Law provides: “If the person to be served is
not present at the address, the notification shall be made to a person residing
in the same household or to one of their servants.”
On the other hand, Article 39 of the Notification Law
provides that: “If persons who may lawfully be served under the provisions of
this Law are parties to the case as defendants, notifications cannot be served
on them on behalf of the addressee.”
In this present case, under Article 16 of the
Notification Law, the notification was received on behalf of the debtor by
another debtor, K2, who is also a party to the same debt enforcement
proceeding. Such service on behalf of the complaining debtor is contrary to the
prohibition on service to an opposing party under Article 39 of the
Notification Law. Therefore, the service of the sale notice is deemed improper.
Accordingly, the Court of First Instance should have upheld the debtor’s complaint and annulled the property auctions; proceeding to render a judgment as written was erroneous.
As can be seen from the aforementioned decisions,
improper service of process may occur for multiple reasons, not just a single
cause. Therefore, when examining a notification, it is crucial to consider all
of these factors in order to determine whether the notification in question
constitutes improper service.
Once improper service of process has been thoroughly
understood, the following question naturally arises: Is every instance of
improper service automatically invalid?
VALIDITY OF IMPROPER SERVICE OF PROCESS
If the addressee becomes aware of the notification,
even if it was effected improperly, the service shall be deemed valid. The date
on which the addressee declares that they have learned the content of the
improperly served notification shall be considered the date of service (Article
32/3 of the Notification Law).
Apart from the addressee’s oral declaration of having
received an improperly served notification, it may sometimes be inferred from
their conduct and behavior that they have become aware of it. If the addressee
takes action regarding the subject of the notification, even without explicitly
stating so, they shall be deemed to have learned of the service.
The 12th Civil Chamber of the Court of
Cessation ordered under the decision, bearing the Basis number 2019/11629
and the Decision number 2020/3376, as follows:
“In this present case, upon examining the notification report for the payment order served to … on 20.03.2018, there is no information regarding the identity of the neighbor to whom the notice was left. As such, this notification was not effected in accordance with Article 21/1 of the Notification Law Nr. 7201 and the provisions of the Regulation on Notifications, and is therefore improper. Furthermore, a review of the UYAP inquiry system shows that the debtor’s attorney, Att. …, submitted a power of attorney to the debt enforcement file on 04.05.2018, paid the associated fee on the same date, and the power of attorney was approved by the debt enforcement office on 07.05.2018. As of that date onward, the debtor’s attorney gained access to all documents available in the UYAP system, and the objection was filed after the statutory 7-day objection period, namely on 11.06.2018.
Accordingly, the Regional Court of Appeal should have
determined the date of notification as 07.05.2018, the date on which the power
of attorney submitted by the debtor’s attorney was approved, and should have
decided on the objection filed on 11.06.2018 regarding the impropriety of the
service of the payment order. Rendering judgment as written was therefore
erroneous. CONCLUSION: It is hereby ordered and adjudged unanimously on
01/06/2020 that the creditor’s appeal be upheld, and that for the reasons
stated above, the decision of the Regional Court of Appeal be REVERSED pursuant
to Article 371 of the Code of Civil Procedure Nr. 6100, as applied by reference
to Article 364/2 of the Debt Enforcement and Bankruptcy Law Nr. 5311, and that the
advance court fee be refunded upon request, and in accordance with Article
373/2 of the Code of Civil Procedure, the file be remitted to the 6th
Civil Chamber of the Regional Court of Appeal of ….” [1]
As can be seen from the decision, even if the service
of process is improper, the debtor’s attorney is deemed to have learned of the
notification once a power of attorney has been submitted to the file. The date
on which the power of attorney is approved is considered the date of knowledge.
CONCLUSION
Improper service of process is not merely a formal
defect; it is a significant procedural issue that directly affects the parties’
right to be heard and undermines the integrity of the proceedings. If a
notification is not effected in accordance with the formal requirements
prescribed by law, it is generally considered improper, directly impacting the
course of the proceedings and causing substantial potential losses of rights.
An examination of the Court of Cassation’s decisions
shows that improper service most often arises from issues such as to whom the
notification was addressed, the preparation of the notice, informing the
neighbor, deficiencies in the notification report, and the failure to
investigate the reason for the addressee’s absence. This clearly demonstrates
the necessity of meticulously observing the formal requirements of the service
of process.
On the other hand, even in the presence of improper
service, the statutory periods begin to run once the addressee becomes aware of
the content of the notification. This point should not be overlooked,
particularly in debt enforcement proceedings, as it may lead to potential loss
of rights.
Within this context, practitioners must evaluate
notification procedures with regard to both their formal and substantive
elements. In cases of alleged improper service, it is of great importance to
determine and prove the date on which the addressee became aware of the
notification, and to calculate the relevant deadlines accurately based on that
date.
In conclusion, service of process is of critical
importance with respect to the right to be informed, which constitutes a
fundamental element of the right to be heard. The ability of a person to
understand a dispute in a legal proceeding, to raise objections, and to present
their case depends on being properly informed in accordance with procedural
rules. Therefore, a notification that does not comply with the prescribed
procedures may constitute a violation of the right to be heard. Accordingly, it
is crucial for all parties involved in a legal proceeding to be fully aware of
the requirements for proper service and to ensure that all actions are
conducted in compliance with them.
Ahmet Berke Baştuğ, Legal Intern
References:
1. Decisions,
bearing the Basis number 2022/13402
and the Decision number 2023/5752, and the Basis number 2022/10122 and the
Decision number 2023/2877, and the Basis number 2023/3554 and the
Decision number 2023/4395, and the Basis number 2023/7558 and the Decision
number 2023/5536, and the Basis number 2022/12590 and the Decision number 2023/4264, and the Basis number 2016/9795 and the Decision number 2017/1346, and the Basis number 2022/8938 and
the Decision number 2023/2189, and the Basis number 2023/7143 and the
Decision number 2023/7976, and the Basis number 2019/11629 and the Decision
number 2020/3376, of the 12th Civil Chamber of the Court of
Cessation
