Circumstances of Impossible Service in the Light of Article 21 of the Notification Law

Introduction

It is not a realistic perspective for individuals to be present at their known addresses at all times in the ordinary course of life, and determining the fate of notifications made while no one is found at the address is important for the law of notification and civil procedure law.

The circumstances of impossible notification and refusal to receive (tebellüğden imtina) have been regulated under Article 21 of the Notification Law No. 7201. Within this scope, the circumstances of impossible notification, the circumstances of refusal to receive, and the notification method that must be followed in these situations will be examined.

1. Impossıble Notıfıcatıon

Impossible Notification is regulated under Article 21/1 of the Notification Law and can also be expressed as the state of not being found at the indicated address. There is impossible service if the notification officer, upon arriving at the address where the notification is to be made, cannot find anyone who can receive the notification, even though the address is correct, or if the addressee is not present at the address in cases where the notification must be served personally to them.

1.1 Temporary Absence Of The Addressee From The Address

The fact that the addressee has temporarily left the address does not, in principle, constitute an impossibility of service. The provisions governing this matter—Articles 20 and 21 of the Notification Law—are set out as two separate regulations.

The circumstance of the addressee temporarily going to another place is regulated under Article 20 of the Notification Law. If none of the situations listed in this article are present, Article 21 shall apply.

For Article 20 of the Notification Law to be applicable, certain conditions must be fulfilled. First, the notification must be one that is to be carried out pursuant to Articles 13, 14, 16, 17, or 18 of the Notification Law. In addition, the person to whom the notification is to be made must have temporarily gone elsewhere. It should be noted that a person who will return to the address on the same day is not deemed to have temporarily left; in such a case, the notification shall be effected pursuant to Articles 13, 14, 16, 17, or 18.

If the addressee has not temporarily gone elsewhere but is merely absent at the time of service, and it is known that they will return after service hours, Article 20 shall not apply.

If there are persons authorized to accept service at the address, the notification shall be carried out pursuant to Articles 13, 14, 16, 17, or 18 of the Notification Law. If those authorized persons are also absent, or if the persons stating that the addressee has temporarily gone elsewhere are not among the authorized persons, the notification shall be made in accordance with Article 21.

This distinction is crucial for determining the date on which the notification is deemed to have been made. Pursuant to Article 20 of the Notification Law and Article 29 of the Notification Regulation, the notification document is delivered to the local headman (muhtar), the council of elders (ihtiyar heyeti), or a law enforcement officer, and a notice is affixed to the addressee’s door. In such cases, the notification is deemed to have been made 15 days after the notice is affixed.

By contrast, a notification made pursuant to Article 21 is deemed to have been effected on the date the notice is affixed to the door.

1.2. Permanent Departure From The Address

The addressee may have permanently left the address, may not have a registered MERNIS address, and their new address may not have been notified or identified. In such a situation, Article 21 of the Notification Law shall not apply. Permanent departure means that the addressee has left the address with no intention of returning. If, upon fulfilling the duty of investigation, the notification officer is able to determine the addressee’s new address and this address falls within the same delivery district, the officer may effect service at that address. If the new address is outside the officer’s delivery area, the notification documents must be returned to the PTT center.

For the procedure relating to the addressee’s permanent departure to apply, the addressee must not have a registered MERNIS address. That is, if the address to which the notification is issued is the addressee’s MERNIS address, then even if the addressee has permanently left that address, the notification officer may—without conducting any further address investigation—deliver the documents to the local headman (muhtar), council of elders (ihtiyar heyeti), chief of police, or police officer pursuant to Article 21/2 of the Notification Law.

While Article 21/1 regulates the situation of the addressee being temporarily absent from the address, Article 21/2 governs the situation where the service address is the addressee’s MERNIS address even though the addressee has permanently moved away. The only difference between these two provisions is that, under Article 21/1, the notification officer must inform the nearest neighbor/building manager/doorman that the notification has been left with the headman; Article 21/2 imposes no such obligation.

For Article 21/2 to apply, the notification must be sent to the address provided for the addressee and returned unserved. One of the contested points in doctrine arises where the known address and the MERNIS address are the same.

According to one view in doctrine, if the known address and the MERNIS address coincide, the first notification need not be sent as an ordinary notification; it may be issued directly pursuant to Article 21/2 to the address recorded in MERNIS. Another view holds that, where the last known address and the MERNIS address are identical, issuing the first notification directly under Article 21/2 is required by the principle of procedural economy.

Furthermore, for Article 21/2 to be applied, a notation must be made on the notification documents. This notation constitutes a condition of application.

Another issue is that even where the addressee has permanently left the address, is in military service, is imprisoned, is abroad, or has never lived at the address, the notification must still be made to the address registered in the MERNIS system. Although this is the practice, it results in the infringement of many rights, including the right to be heard.

A matter of debate in doctrine concerns the procedure the notification officer must follow when arriving at the addressee’s MERNIS address and discovering that the building is derelict, demolished, or has been demolished and rebuilt.

According to the first view, even in such a situation, returning the notification documents is unnecessary; the documents must be delivered to the headman, and the notice must be affixed to the building where the address is located or to the location corresponding to that building. According to a second view, the officer must ascertain—through nearby residents—whether the addressee’s new address can be learned. If the addressee’s new address cannot be determined, the address shall be deemed unknown, and if other conditions are met, service by public announcement (ilanen tebligat) must be pursued. A third view argues that in such circumstances, the documents must be returned without effecting service.

1.3. Death Of The Addressee

The death of the addressee is also regulated as a ground for impossibility of service. Upon determining this situation, the notification officer records it in the return of service (mazbata) and obtains the signature of the person who provided the information. If the informant refuses to sign, the officer notes this refusal in the return of service and signs it personally. Thereafter, the notification documents are returned to the authority that issued the notification.

2. Refusal To Accept Servıce

A refusal to accept service arises when the addressee, or persons authorized to receive notification on behalf of the addressee, are present at the address but refuse to accept the document, either verbally or through conduct. In such cases, the person refusing service must be explicitly identified in the return of service (tebliğ mazbatası). Thereafter, the notification documents are delivered to the local headman (muhtar), the council of elders (ihtiyar heyeti), or the chief or officer of the municipal police (zabıta). These persons are obliged to receive the documents and retain them for three months.

As with cases of impossibility of service, the address must be the actual residence of the addressee, and a notice (ihbarname) must be affixed to the door. However, unlike situations involving impossibility of service, Article 31/1-b of the Notification Regulation does not require informing the nearest neighbor, building manager, or concierge.

3. Consequences Of Impossıbılıty Of Servıce

Where impossibility of service arises, the applicable provisions are Article 21 of the Notification Law and Article 30 of the Notification Regulation. In such cases, the first duty of the process server is to determine where the addressee is and when they are expected to return, and to record this information in the return of service.

If the addressee is expected to return the same day, the date on which the notice is affixed to the door is deemed to be the service date. Because the method of service differs depending on whether the addressee is temporarily or permanently absent, the process server cannot determine the appropriate method without conducting this inquiry and recording the findings.

Therefore, if service upon a natural person cannot be completed and Article 21 is to be applied, the process server must investigate whether the addressee will return during the day. Any statements received must be written into the return of service and signed by the persons providing the information. If the informant refuses to sign, the process server must record this fact and sign the return themselves.

Subsequently, pursuant to Article 21 of the Notification Law and Article 30 of the Notification Regulation, the notification document must be delivered to the headman, council of elders, or law enforcement authority at the addressee’s address. A notice indicating that service has been carried out under Article 21 must then be affixed to the addressee’s building. In this way, the addressee is informed that a notification document has been issued and to whom it was delivered.

Although the provision refers to affixing the notice to the “building,” this wording has caused debate in the doctrine. One view argues that “building” refers specifically to the door of the addressee’s residence; thus, if the addressee lives in an apartment building, the notice must be affixed to the door of their unit, not to the entrance of the building.

After affixing the notice, the process server must notify the nearest neighbor, building manager, or concierge that the documents have been left with the headman, so that this can be conveyed to the addressee. The name, surname, and signature of the person informed must be taken. If this information cannot be obtained or the signature cannot be secured, this must be noted in the return of service.

Article 30 of the Notification Regulation further provides that merely obtaining the name, surname, and signature of this person is not sufficient; the process server also has the duty to inquire, within the scope of the investigation obligation, why the addressee is absent and whether they will return the same day. The answers must be recorded in the return of service.

Another debated issue in the doctrine is whether non-compliance with the procedural sequence invalidates the service. Some argue that compliance with the procedural order is a validity requirement and that failure to follow it renders the service improper. Others contend that it renders the service invalid, not merely improper. A third view maintains that service should still be considered valid even if the sequence was not followed; according to this view, if the addressee ultimately receives the notification from the headman, it would not be reasonable to invalidate the service.

Conclusıon

It is essential that the grounds for impossibility of service be established in a clear, genuine, and legally valid manner, as this directly affects the lawfulness of the service. Otherwise, the process may be deemed unlawful, leading to invalid service and potential loss of rights.

The analysis demonstrates that Article 21 of the Notification Law is increasingly inadequate in meeting the needs of modern practice and that significant loss of rights still occurs in situations involving impossibility of service. Many individuals’ right to be heard is impaired due to improper service. Moreover, the manner in which the required procedure is regulated—leaving room for doctrinal debate—undermines legal certainty.

In conclusion, careful implementation of the provision and its revision in line with contemporary needs is essential for the proper functioning of notification law.