Turkey: A Breakthrough in Turkish Litigation Practice: Proposed Amendments to Notification Law

Last Updated: 21 September 2010
Article by Akdogan | Uslas Attorneys At Law

Same as in most jurisdictions, "notification" constitutes an essential part of the Turkish legal system, particularly in terms of litigation. The first thing that any claimant/creditor should ensure while filing a lawsuit or initiating an execution proceeding is that the respondent/debtor has been served a due notice. Unfortunately, the latter is not always easy to do. Obstacles like delays/losses in the state-owned postal system, respondents/debtors who, deliberately, do not take delivery of notifications and further bureaucratic barriers usually retard and sometimes block (!) the relevant legal proceedings.

Since its enactment in 1959, Notification Law No. 7201 (the Law) has been subject to justifiable criticism. Accordingly, it was amended many times in the last half-century. However, technological developments in the last two decades have made the Law even more outdated than before. The provisions of the Law still reflect the long-standing traditions of Turkish law, which, from a procedural point of view, causes an inevitable slowness in proceedings. In the 21st century, there are still cases in Turkey where a creditor is obliged to send the same petition or payment order to fifteen different addresses of the recipient (i.e. the debtor or the defendant) in order to have made a due notification. The latter is simply not acceptable.

Considering the above, the Turkish government proposed the Draft Law No 1/742 amending the Law (the Draft Law) to the Parliament in October 2009. In an effort to catch up with the telecommunication era, the Draft Law introduces a number of novelties into the Law to meet expectations. The Draft Law, which is currently before the Parliament for discussion, aims to simplify and harmonize the notification procedure with respect to legal and natural persons. To this end, it adapts the provisions of the Law to the Civil Registration Services Law and the Turkish Identity Information Sharing System ("MERNIS") contemplated by the said law. Once enacted, the Draft Law will literally have revolutionized the Turkish litigation practice, which will also be an immense contribution to the protection of the right to a fair trial, as underlined in Article 6 of the European Convention on Human Rights.

Below you may find the main features envisaged by the Draft Law.

  • Acceleration of notification process

In order to better apprehend what the Draft Law introduces, its comparison with the current provisions of the Law is essential;

Current issues. Under the Law, in case a notification is to be made (through notary public, an execution office or court) to a natural person, it has to be sent to the "last-known address" of the recipient. This address may be the domicile (ikametgah), residence (mesken) or workplace (isyeri) address of the recipient. In the event the recipient is declared to be non-present at any of the above addresses, the sender and/or postal officer has to make a thorough address inquiry of the recipient by investigating his/her actual address before different establishments (e.g., telecommunication service provider, utility companies, police department etc.) until the notification duly reaches its recipient. Where the person, against whom a legal action is initiated, has the tendency to run off and thus change his/her address constantly, legal practitioners encounter many impediments to finalize the notification procedure. There are cases where a single notification cannot be made for more than a year. The Draft Law aims to put an end to this costly ordeal, which fatigues and sickens notification senders.

The Draft Law. The proposed amendments of the Draft Law contain solutions with the sole purpose of simplifying the time and money consuming notification procedure set forth under the Law. Accordingly, if the "last-known address" of the recipient is not convenient for notification or if no notification can be made to such address, the recipient's address registered in MERNIS is considered to be his/her "last-known address" and thus, the notification is made to such address. The sender or the postal officer does not have to perform a further address investigation. It is noteworthy that this solution is applicable even in the case where the recipient has permanently moved from its MERNIS address. To sum up, the Draft Law requires every Turkish citizen to have a registered MERNIS address convenient for notification. In case a person moves from his/her MERNIS address without changing his/her address registered on MERNIS, notifications made to the said (old) address are deemed to have been duly received by him/her.

As for legal persons, according to the Draft Law, their addresses registered in official registries are considered as convenient for notification.

  • Introduction of e-notification

In view of the day-to-day needs of business life and following its Italian, Spanish and Austrian counterparts, Article 2 of the Draft Law introduces a new Article 7/a entitled "E-notification" into the Law. Accordingly, in case the Draft Law is passed as it is now,

(i) If a natural or legal person provides an e-mail address that is "convenient for notification", this person will be able to be notified via e-mail.

(ii) E-notification of capital companies (i.e., joint stock companies and limited liability companies) will become compulsory.

(iii) E-notification will be deemed to be received at the end of the third day following the day it falls into the recipient's inbox.

Please be informed that a detailed regulation will also be issued in order to determine the implementation principles of the Draft Law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions