Review of the Joint Chambers of Court of Cassation’s Decision On the Legal Notice Procedure
Review of the Joint Chambers of Court of Cassation’s Decision On the Legal Notice Procedure
Pursuant to the decision of the Joint Chambers of Court of Cassation, dated 20.11.2020 and numbered 2019/2 E. 2020/3 K., if the notice sent to the last known address of the addressee is returned, and the place of residence registered in the address system is different from the last known address, it is sufficient to send the notice directly to the residence address registered in the system as per Article 21/2 of the Notification Law [“NL”] No.7201 by adding a “Mernis address” annotation. Therefore, there is no need to pursue the regular notification process to this address.
Summary of the Decision:
Decisions of the Joint Chambers of Turkish Court of Cassation are decisions in which a specific jurisprudence is determined to be applied in order to prevent the emergence of different applications by resolving the interpretation differences between the chambers of the Court of Cassation.
The Joint Chambers of Court of Cassation hereby concluded that there was a dissensus between chambers regarding the application of the Notification Law and different practices were maintained, thus interpretation differences regarding the subject matter of the decision needed to be uniformized.
The subject matter of the decision of the Joint Chambers dated 20.11.2021 and numbered 2019/2 E. 2020/3 K., is whether it is sufficient to directly issue a notification as per Article 21/2 of the NL by adding “Mernis address” annotation to the residence address registered in the system or, is it necessary to conduct a regular notification procedure to this address before applying Article 21/2.
At this point, it is important to mention Articles 10/2 and 21/2 of the NL which regulate “notification to the known address” and “impossibility of serving the notification and abstention from receiving notification”, respectively.
As per article 10/2 of NL:
“If the last known address reveals not to be suitable for notification or it is not possible to deliver a notification to that address, the addressee’s residence address registered in the system is deemed to be the last known address and the notification may be made to that address”
As per article 21/2 of NL:
“In cases where the addressee has never resided at the relevant address, or has even left that address permanently although the addressees residence address is still registered as such address in the system, the officer may deliver the document to be notified to municipal chief or one of councilors or, head of municipal police or officers by signature and affixes the notice containing the information to the door of the building at the relevant address. The date on which the notice is affixed to the door is considered the date of notification.”
In the justification of the decision of the Court of Cassation, it is stated that article 10/2 of the NL implies the cases where the known address is different from the address registered in the system and the dissensus between chambers also arises when these two addresses are different from each other. In such case, sending the legal notice to the last known address is determined to be the primary option. However, notification may be made to “Mernis address” as per above-mentioned Article 20/2 of the NL if the notice cannot be delivered to this address.
The Court emphasized in its justification that it would be against the intention of the legislator to pursue the usual notice means to “Mernis address” as the right to be heard is preferred over the right to trial within a reasonable time.
Thus, the three-staged notification process, which consists of: [i.] notice to the known address, [ii.] notice to the “Mernis address” pursuant to Article 10/2 of the NL, and [iii.] notice to the “Mernis address” pursuant to Article 21/2 of the NL, is reduced to two stages by way of jurisprudence for the cases where by “Mernis address” is the last known address.
Our Assessments:
According to the decision of the Joint Chambers of Court of Appeal, if the notification sent to the last known address of the addressee returns, and the residence address registered in the system is different from the last known address; a notice may directly be sent to the e residence address registered in the system with a “Mernis address” annotation pursuant to Article 21/2 of the NL. With that being said, whether it is an obligation to each time direct the notification to the addressee’s new address, when residency information acquired as per Article 10 of NL, must also be evaluated within the framework of the right to access to the court and the right to defense.
*You can find the full text of the decision on: https://www.resmigazete.gov.tr/eskiler/2021/04/20210420-6.pdf