ABSTRACT
The traces of the technology area that makes our lives much easier can be seen in every area of life. Also the legal world keeps pace with the technological developments and in this context, regulations are being made to adapt technological developments to the legal practice. One of these regulations is that the notification is made by electronic means. In this article, it will be respectively mentioned that the reflections of electronic notifications in the legal world, implementation of electronic notification and the deficiencies of it that can be faced in the practice, as well as the procedures of foreign notifications carried out on the basis of international agreements.
I. INTRODUCTION
The significant developments in the fields of informatics and technology provide the emergence and advancement of information technology law. Within this framework, it is seen that the public institutions take steps in conducting its transactions through the information systems in order to render services more rapidly and efficiently. the development of the the applications for E-Declaration and E-Notification into action in Revenue Administration is the one of most important examples of these innovations.
E-Notification has been prominent as a recent procedure that is brought into judicial and financial notifications. The new procedure mentioned contains the process of preparing and delivering the notifications to the recipient carried out by the relevant authority.
In this Article on E-Notification, it is mentioned respectively that of the benefits of E-Notification and its position in the notification law as well as applications of the E-Notification abroad.
II. CONCEPT AND EMERGENCE OF THE E-NOTIFICTION
In Article 67 of the Notification Law, “the concept of notification has been defined as a notification process that the competent authority has made in writing or with announcement, in accordance with the law and the administration in order to present a legal action to the information of the concerned person.” There are three different kinds of notification, mentioned in the literature. These consist of judicial, fiscal and administrative notifications1. While the judicial notification is conducted by the judicial, administrative and military authorities, the fiscal notification is made by the Court of Accounts. Administrative notifications on the other hand, represents the notifications lied beyond the scope of judicial and fiscal notifications.
Informing and certifying are accepted as the two critical aspects of transaction of notification. Notification means that the recipient is informed of a decision or transaction related to him / her and this transaction is documented2. In the judgment of 13th Civil Chamber of the Court of Appeal dated16.12.2016 and numbered 2010/4617E., 2016/4241K., the purpose of notification explained as:
“The purpose of a due notification is informing the person about the lawsuit against him/her, accordingly providing she is being fully informed of the trial regarding him/herself as well as enable him/her to make a statement and use his/her right of vindication”3.
The transactions of notification are of vital importance at using the right of claim and defense as well as establishing the rights of fair trial and hearing. This is therefore directly linked to human rights and fundamental rights. E-Notification application, which increases the quality of service considerably, has appeared because of some difficulties on the application of notification in the matters that are important such as expenses, work force and time, until the application of E-Notification goes into effect.
In 2011, an amendment regarding the electronic notification has been made in the Notification Law numbered 7201. In the 7th article of the Law the paragraph as “a notification can be made by electronic means to those who give a convenient electronic address and want that the address given is subjected to the notification” has been added.
In the preamble of the draft Regulation of Electronic Notification:
“In recent years, the significant developments in the fields of informatics and technology as well as the innovations emerged as a result of these developments spread to all the fields of life. In order to be able to fulfill the functions of laws and secondary legislation entirely, it is necessary to be able to respond to the conditions and needs of the day, parallel to economic, social and technological developments. In this context, it was made several regulations related to technology either in our country and aimed to put opportunities and affordances served by information technologies into effect within many practice areas. Electronic communication is a faster and lower cost method rather than the classic methods”4.
As it is understood from the preamble, the main objective of the legal regulation is to apply the method of conveying a secure notification in a short time and at a lesser cost. The notion of E-Notification, which was introduced as a solution to the problem of transportation of notifications, carried into effect January 1, 2016.
III. THE PRINCIPALS OF E-NOTIFICATION SYSTEM
Firstly, it is need to be emphasized that e-notification is not different than the other variation of notifications regarding the purpose of notification. Because, the functions of transmitting, informing and certifying that are indicated in doctrine are also valid the e-notification5. Each natural and legal persons who has a electronical notification address may use this system. However, the use of e-notifications has become compulsory for particular types of companies. According to Article 7/a of Notice Law, it is obligatory to electronically notify the join-stock companies, limited companies and the limited partnership companies divided into shares. It is not possible for these companies included in the electronic notification system to leave the system unless it is inevitable under certain circumstances6. The death or absence of a person and, for legal persons, deletion of legal entity from trade register, type changes and mergers may constitute examples for these certain circumstances. In Tax Procedure Law, it is indicated that the join-stock companies, limited liability companies and the limited partnership companies divided into shares shall be penalized in the event of disobeying mentioned obligation.
It is required for the income taxpayers who have to use the E-Notification system to fill up the “E-Notification Request Statement” electronically until the date of 1st April 2016 and serve a request report to authority electronically by using Internet Tax Office. The income taxpayers who use the system through Internet Tax Office or by applying in person to Tax Office shall obtain an electronic notification address. It’s clearly legislated that in the event of not giving a request report by the mentioned companies which are not within the scope of E-notification system those companies shall be penalized with the punishment of special irregularity.
In case of not being able to conduct the transaction of electronical notification due to an unavoidable situation, it is predicted to send the notification by the other procedures which are provided by the law. Unlike the other procedures, pursuant to Notification Law, the notification transmitted by the E-Notification is deemed to be received at the end of the fifth day following the date of transmission to addressee’s electronic address. At the end of the fifth day, the notification will be regarded as read even if it is not read.
In Article 7/a of the Notice Law, it is stated that only the electronic addresses which are convenient for notification shall be taken as a basis for the notification. Because, an address which its origin is not in Turkey and is uncontrollable may cause many drawbacks.
As well as applying to administration of post offices within standard notification, in order to check whether the notification is received or the date and so forth, Enotification should be controllable and dependable in this manner. In this context, it is accepted the rule of sending E-Notification through a local and official electronical address being taken as a basis.
The application of E-Notification brings many advantages and eases in several aspects. In this regard, firstly it needs to be referred to its benefits upon information security. Under favour of this application, it is prevented the transmitted document and its context to be changed by others and provided to protect personal data of the recipient of notification.
Another benefit of the system is allowing not to any disputes in terms of evincing. Because, in the database of E-notification system, it can be displayed the date of notification transmitting, which authority sent the notification, who the receiver is, what the notification is and its annexes consist of. It is necessary to underline that these benefits of E-Notification expected may be obtained only if it is ensured that the cyber security at sufficient level is provided. It is not possible to mention of these benefits for such a network of having security risks7.
A. The Regulation of Electronic Notification
In 2013, by entering into force of the Regulation of Electronic Notification (“REN”), the e-notification can be made through the PTT by jurisdictions, public institutions with general budget, special budgeted institutions, regulatory and supervisory authorities, social security institutions and provincial private administrations, municipal administrations, local authorities, bar associations as well as notaries. In the scope of the practice of the Regulation, it is considered the principals under the Article 4. Within these principals, there are obtaining the data security, protection of the personal data, interoperability, providing the quality of service and meeting with the international qualifications8.
In courts, judicial services are conducted within electronical environment. In conducting of these services, National Judiciary Informatics System (“NJIS”) is used and notifications are drafted by this system. In the 2015, the infrastructure of NJIS has been completed, application of E-Notification has been carried into practice and it is still proceeded to service.
Another regulation that provides vital rules relevant to electronical notification is the Regulation of Procedures and Principals of Registered Electronical Mail System. This regulation is stipulated in order to regulate procedures and principals relevant to operation of registered electronical mail system within its legal and technical aspects.
B. Obtaining E-Notification Address
In Article 1 of Notice Law, the authorities that are qualified to make notification are stated in specific:
“All the notifications, including the electronic ones, that are made by judicial authorities, general budgeted public administrations subject to statement numbered (I) annexed to dated 10thDecember of 2003 Public Finance Management and Control Law numbered 5018, special budgeted administrations subject to statement numbered (II), regulatory and supervisory authorities subject to statement numbered (III), social security institutions and foundational higher education institutions subject to statement numbered (IV), provincial private administrations, municipality administrations, local borough authorities and bar associations and notaries, shall be made under the regulations of this Law and via General Directorate of Turkish Post and its public officials.”
The authorities mentioned should apply to PTT which is relevant administration in order to obtain an electronic notification address. Within the application, it should be indicated that the address of electronical notification shall be used by which agent or personnel9. It is compulsory for the authority that issues the notification, to have a central information system. On the other hand, it is predicted that the authority may conduct its transactions within electronical environment and upon request, be used of one particular electronical notification address for its all units.
The addressee who shall benefit from electronical notification service should obtain a registered electronical mail address that is appropriate for electronical notification. At this point, the addressees who are natural persons shall apply to the service providers in order to obtain an electronical notification address. By the definition of the service provider within the Regulation of Electronical Notification, it is meant the registered electronic mail provider. General Directorate of Turkish Post Inc., TNB Provision of Registered Electronic Mail Service and Trade Inc., TÜRKKEP Provision of Registered Electronic Mail Service and Trade Inc., INTERTECH Provision of Information Processing and Marketing Trade Inc., KEPKUR Software Informatics and Registered Electronic Mail Industry and Trade Inc., Micro Software House of Software Services Computer Industry and Trade Inc., F.I.T. Services of Data Processing Industry and Trade Inc. are the registered service providers which are able to be obtained electronical mail from.
The electronic notification of addressees and changes within these are kept on the list of electronical notification service users in a way that synchronized with their Turkish republic identification and central registration system numbers. With the integration to be performed between service providers’ systems, this list is open to access by service providers and the authorities that issue notifications. It is dependent on their assent to be presented in this list for those who benefit from electronic notification on demand.
If it is presented an another electronical address by the addressee who shall receive the notification in order to be notified, it shall be sent and information message to this address as soon as the notification is sent. Afterwards, in the event that a phone number presented by the addressee which is able to receive sms, it shall also be sent an information message about relevant electronical notification to this number at its own expense. As stated in the Regulation, not receiving the message shall not affect the duration or validity of notification and there shall not be any liability of the provider except the repaying information fee to the addressee according to second paragraph10.
C. The Transaction of Notification to Abroad
The principals of notification to abroad are provided in bilateral or/and multilateral conventions or the principals of international judicial assistance and Notification Law.
Transmitting the notification legally and in a short duration is of vital importance within the principal of fair trial. The fundamental cause of not being able to make notification to abroad in a short span of time is not obtaining information sufficiently about international agreements.
The right to claim and defense is one of the key stones of the right to fair trial. Therefore it is important that the transaction of notification is legitimate for the justice. If the addressees are informed about the hearings and execution proceedings against themselves by those notifications, their right to claim and defense shall not be violated. As a result of that the right of due process is of the fundamental human rights, it is critical to approach to this subject not only within the Republic of Turkey, but also for the other countries.
From the point of notification transmitting with overseas, Turkey is a party to Convention of 1954 on Civil Procedure and Convention of 1954 on the Service abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters.
There are 32 conventions of judicial assistance that made between Turkey and Germany, Albania, Austria, Azerbaijan, Bulgaria, Algeria, Czechoslovakia(The Czech Republic was joined by subrogation), The People’s Republic of China, Morocco, Georgia, Croatia, India, Iraqi, Persia, The UK, Switzerland, Italy, Kazakhstan, Turkish Republic of Northern Cyprus, Koweit, Hungary, Macedonia, Egypt, Moldova, Uzbekistan, Pakistan, Poland, Romania, Tajikistan, Tunisia, Jordan, Yugoslavia (Serbia, Montenegro, Croatia and Slovenia were joined by subrogation.) which are currently in force. However, due to the fact that the notifications to overseas is not carried into electronical environment, the transactions of notification are conducted in long spans of time, accordingly as indicated above this situation causes a difficulty in the practicality of the rights such as; fair trial and due process. On the purpose of preventing such kinds of issues, it needs to be provided some additional clauses within international agreements that shall lead up to transmitting notifications to abroad by electronical way. Hereinafter, it is discussed the vital issues that is needed to be discoursed relevant to this aspect of relationship between our country and four significant countries which we frequently trade with.
The United States of America
Within this matter, there are not any bilateral agreements between our country and The United States of America. Whereas The United States of America is a party to Lahey Convention of 1965 on Notification, it is not a party to Lahey Convention of 1954 on Civil Procedure. With an announcement to Lahey Regular Chamber of Private Law Conference in 15th of April 2004, The United States of America announced that pursuant to Clauses 2 to 6 of Lahey Convention of 1965, the notification liability of Central Authority of United States of America is assigned to a company named Process Forwarding International, and this implementation shall remain for 5 years since the date of 01.06.2003. As Ministry of Justice in Turkey leads the way to the courts by publishing the Notice on Procedures and Principals in Notification and Rogatory Letter Services to Abroad in Official Gazette at the beginning of each calendar year11.
China
Between China and our Country, there is “The Convention of 1992 on Assistance Between Republic of Turkey and The People’s Republic of China in Judicial, Commercial and Criminal Matters” which is approved by the Law numbered 4034, dated 27.09.1994 that was put into effect by publishing on Official Gazette numbered 22109, dated 12.11.1994. China is a party to The Notification Convention of 1965. The mentioned convention is governing either in autonomous administrations of Hon—Kong and Macau. Whereas China stated that Lahey Convention of 1954 on Civil Procedure shall be governing only in autonomous administration of Macau. According to Bilateral Convention, it should be attached the translations that are drafted in language of country which is requesting, and approved in English or language of country which is receiver of notifications and their annexes12.
The UK
Between UK and our country, there is “The Convention of 1931 Action in Forma Pauperis” which was approved by the Law dated 28.06.1932, numbered 2045 that was put into effect by publishing on Official Gazette numbered 2142, dated 05.07.1932. According to this convention, there shall be written of the names and titles of parties which are requester as well as the name, title and address of notification addressee on the notification requests. The requisition shall be drafted in official language of the receiver country or approved translations in this language shall be attached. According to Lahey Convention of 1965 on Notification that is currently principle in practice, the document of notification should be drafted pursuant to form numbered 184, as two groups in both Turkish and English13.
Kuwait
Between Kuwait and our country, there is “The Convention of 1990 on Assistance Between Republic of Turkey and State of Kuwait in Special Judicial, Commercial and Criminal Law Matters” which was approved by the Law dated 04.04.2000, numbered 4557 that was put into effect by publishing on Official Gazette numbered 24064, dated 30.05.2000. Pursuant to this bilateral convention, requests of notification shall be drafted in the official language of requester, it shall be attached the translations in the language of receiver state and all the documents shall be in duplicate. In the event that the documents are in the receiver state’s own official language or there are attached translations in its own language, the receiver state shall send the notification according to its own laws. Otherwise, the request and documents annexed to this shall contain the signature as well as seal of the requester chair, and it shall not be subjected to approval or any procedure in manner in such. According to Lahey Convention of 1965 on Notification that is currently principle in practice, the document of notification should be drafted pursuant to form numbered 184, as two groups in both Turkish and Arabic.
IV. CONCLUSION
As it is seen, with e-notification system which is the one of conveniences that developing technology provides to legal world, it is aimed both to achieve integration on public institutions and expedite the services. In this context, it is started to being used the electronical notification system within the regulations provided by government. At this point, the matter should be indicated that is making this application which is recently become prevalent to be uniform and within this scope, it is necessary to be syncing up the current regulations as much as possible. On the other hand, when it is considered the fact that services to the abroad takes a long span of time and this issue decreases the operability of law, the provisions related to the electronic communication, providing sufficient security level, must also be added.to conventions between Turkey and the other countries. Bibliography.
BIBLIOGRAPHY
The General Preamble of the Draught Regulation of Electronical Notification www.kgm.adalet.gov.tr. (Last Access: 30.04.2018)
İbrahim Çatalkaya, Tebligat Hukuku, 1st Edition, Adalet Yayınevi, Ankara 2018.
Evrim Elvin Dalkılıç, Elektronik Tebligatın İdari İşlemler Bakımından Değerlendirilmesi, The Journal of Hacettepe University Faculty of Law, 4(1) 2014.
Seyithan Deliduman, Tebligat Hukuku Bilgisi, 2nd Edition, Yetkin Yayınları, Ankara, 2011.
Ejder Yılmaz, Hukuk Sözlüğü, 7th Edition Yetkin Yayınları, Ankara 2002.
Asaf Varol/İhsan Baştürk, Hukuki ve Teknik Boyutuyla Elektronik Tebligat ile Kayıtlı Elektronik Posta Sistemi, The Journal of Ankara Bar Association, Number: 2015/1.
Ayşe Ece Acar, Elektronik Tebligat, The Journal of İstanbul University Faculty of Law, Number: 2016/1,74.
FOOTNOTE
1 Ejder Yılmaz, Hukuk Sözlüğü, 7th Edition, Ankara 2002, p. 56.
2 Seyithan Deliduman, Tebligat Hukuku Bilgisi, 2nd Edition, Ankara, 2011, p.16.
3 Supreme Court Assembly of Civil Chambers, dated 07.12.2015, numbered 2015/11883 E., 2015/23380 K.
4 The General Preamble of the Draught Regulation of Electronical Notification www.kgm.adalet.gov.tr (Last Access: 24.05.2012)
5 Asaf Varol/İhsan Baştürk, Hukuki ve Teknik Boyutuyla Elektronik Tebligat ile Kayıtlı Elektronik Posta Sistemi, The Journal of Ankara Bar Association, Number: 2015/1 p. 263-277 Ayşe Ece Acar, Elektronik Tebligat, The Journal of İstanbul University Faculty of Law, Number: 2016/1, Volume:74, p. 159-174
6 The General Communique on Electronical Notification System, Ministery of Customs and Trade, Number:30312, D. 25th January of 2018, Article 6.
7 Elvin Evrim Dalkılıç, Elektronik Tebligatın İdari İşlemler Bakımından Değerlendirmesi, The Journal of Hacettepe University Faculty of Law, Number:2014/1, Volume:4, p. 107-123
8 The Regulation of Electronical Notification, Article.6.
9 https://basvuru.hs01.kep.tr/online/giris/ton_basvuru (Last Access: 14.02.2018)
10 The Regulation of Electronical Notification, Article.6.
11İbrahim Çatalkaya, Tebligat Hukuku, 1st Edition, Ankara 2018, s. 271.
12 Çatalkaya, p. 278. 13 Çatalkaya, p. 282-283. 14 Çatalkaya, p. 289.
