Service of Documents: When It Is Irregular, and What Follows

This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Tebligat: Usulsüz Tebligat ve Sonuçları.

Every time limit starts with service, which makes the regularity of service the most critical point in many files. Where service was irregular, the period runs not from the date on the certificate but from the date the addressee learned of it (Article 32 of the Notification Act). That is not taken into account unless it is expressly raised.

One day you learn of an enforcement file, or hear that a judgment against you has become final — but nothing was ever served on you.

Service is the starting point for every period. If it was irregular, the periods do not run. This article explains how service must be effected and what to do when it was not.

On Whom Is Service Effected?

Under the Notification Act (Law no. 7201), service is as a rule effected on the addressee in person.

If the addressee is not at the address (Article 16), it may be effected on someone living in the same dwelling or on one of their domestic staff.

There is a limit: the person receiving it must not appear to be under eighteen and must not be obviously lacking capacity (Article 22).

And a critical rule: service may not be effected on a person who is the opposing party in that case. Service handed to the other side is invalid.

Where a matter is conducted through a lawyer, service is effected on the lawyer (Article 11). Service on the party while they have a lawyer as a rule produces no legal effect.

Service on legal persons is effected on their authorised representatives (Articles 12 and 13).

What If Nobody Is at the Address?

This is the provision that causes the most argument.

Article 21/1: where neither the addressee nor anyone who may receive service on their behalf is at the address given, or they refuse to take receipt, the process server delivers the document against signature to the neighbourhood headman, a member of the council of elders, or a police officer, affixes to the door of the building at that address a notice giving the address of the person who received it, and, so far as possible, informs one of the nearest neighbours, or the building manager or caretaker, so that the addressee can be told.

In that case the date the notice was affixed to the door counts as the date of service.

Article 21/2: where service is made at the address registered in the address system, then even if the addressee never lived there or has permanently left, the process server follows the same steps. Here too the date the notice was affixed counts as the date of service.

That second paragraph matters enormously: service is valid even if you no longer live at your registered address. Notifying a change of address to the population directorate is therefore vital.

When Is Electronic Service Deemed Effected?

Article 7/a governs electronic service.

Service must be made electronically on the persons and bodies the Act lists: public institutions, professional bodies of a public character, lawyers, notaries, mediators and court experts, together with joint-stock, limited and partnerships limited by shares.

Electronic service is deemed effected at the end of the fifth day following the day it reaches the addressee's electronic address.

This matters in practice: even if you do not read it, it counts as served at the end of the fifth day and the periods begin to run.

The account should therefore be checked regularly and notification settings kept switched on.

What Is Irregular Service?

Article 32: even where service was effected contrary to the required procedure, it is valid if the addressee became aware of it.

But what follows is critical: the date the addressee states counts as the date of service.

Irregular service is therefore not treated as a nullity; but the periods run from the date the addressee says they learned of it, not from the date on the certificate.

Article 32 also requires that, where irregular service is alleged, the date of knowledge must be alleged and proved.

Grounds of irregularity:

• the certificate of service not showing that a notice was affixed to the door and a neighbour informed
• no record of delivery to the headman
• no note about the age and capacity of the person who took receipt
• the person who took receipt being the opposing party
• service on the party while they had a lawyer
• going straight to service by public notice without any address search

Obtaining a copy of the certificate of service and reading its annotations is therefore the foundation of any challenge.

What Should Be Done About Irregular Service?

The route depends on the type of file:

• In an enforcement file: a complaint to the enforcement court, seeking a finding that service was irregular and that the date of knowledge is as stated. A late objection to the payment order (Article 65 of the Enforcement and Bankruptcy Act) should also be considered.
• In a civil case: notify the date of knowledge and seek relief from the missed period (Articles 95 and following of the Code of Civil Procedure); the period is two weeks from the removal of the impediment.
• Where a judgment has become final: irregular service means the appeal period never began; it is contended that it runs from the date of knowledge.

In every case the first step is the same: examine the file and the certificates of service, which can be done through the judiciary portal.

As a precaution: notify changes of address to the population directorate, check your electronic notification account regularly, and tell relatives if you will be away from your address for a long period.