The Law on Service of Documents (hereinafter “Service Law”) and its practical application constitute an extremely troublesome field, not least because enforcement offices possess differing levels of institutional knowledge, among other factors. Below, I will discuss an error I encountered regarding the application of this law to foreign nationals residing in Türkiye, and how it was ultimately corrected.

It should be noted that the issue is so obvious that examining it in such depth could even be regarded as a waste of time. Readers who (rightly) conclude that the matter discussed below does not merit detailed analysis may nonetheless find themselves more concerned by the fact that a chamber of the Court of Cassation (Yargıtay), the highest judicial authority below the Constitutional Court, committed such blatant errors on so elementary a matter; alternatively, they may of course read this piece as a tragicomic anecdote.

S, a foreign national residing in Türkiye, entrusted her jewelry to the home of her friend A, another foreign national, while she was searching for accommodation. Subsequently, when the time came and she requested the return of her belongings, they were not returned, as A alleged that he had handed them over to a third person who had defrauded him. Thereupon, acting on behalf of S, it became necessary to file a lawsuit against A for the return of the items.

The lawsuit was filed on the basis that an oral contract of safekeeping had been established between the parties (within the scope of Articles 561 et seq. of the Turkish Code of Obligations), and it was concluded in favor of my client by relying in particular on Article 568 of the Turkish Code of Obligations. The importance of Article 568 lies in the fact that it provides that the deposited item must not be delivered to anyone other than the depositor, even if a third party asserts a claim of ownership. Within the scope of our dispute, A failed to prove his allegation that he had been defrauded. However, even had he been able to prove this, the judge — accepting that A would still bear a compensation obligation toward S pursuant to Article 568 of the Turkish Code of Obligations — ruled that, if restitution in kind were not possible, compensation equivalent to the value of the jewelry should be paid. (Any discussions that could be made regarding the merits are outside the scope of this article.)

Subsequently, enforcement proceedings based on a judgment were initiated. As service of the payment order could not be effected at the debtor’s MERNİS address (the legally registered service address that every resident of Türkiye must have), a request was submitted to the enforcement office for service pursuant to Article 21/2 of the Service Law. The enforcement office rejected our request, holding that service could not be effected on foreign nationals pursuant to Article 21/2 of the Service Law, stating as follows: “As service cannot be effected on foreign persons pursuant to Article 21/2 of The Law on Service of Documents, it has been decided to reject the request. (Court of Cassation, 12th Civil Chamber, File No: 2021/12389, Decision No: 2022/4736.)”

As this decision was manifestly erroneous, I was compelled to prepare and submit a further, detailed four-page petition to the enforcement office. In this detailed petition, I explained at length why the decision of the Court of Cassation and of the chamber in question were erroneous and requested that the enforcement office comply with our request without causing unnecessary enforcement-law expenses. To its credit, the enforcement office read the petition, and this time accepted my request for service. After consulting colleagues and receiving responses such as “no enforcement office would ever read such a long petition,” the professional satisfaction and happiness I felt upon seeing that the enforcement office had indeed read the petition, understood its error, and correct it by rendering a favorable decision were more gratifying than the financial returns of the case. Indeed, I myself was worried that the office would most likely not read the petition. Below, I will explain why the Court of Cassation decision cited as the justification for rejecting our service request is erroneous. I hope it will be of use.

In its relevant decision, the chamber stated: “The Address-Based Population Registration System applies to citizens of the Republic of Türkiye. It is understood that the complaining debtor is of Bulgarian nationality. Therefore, the provisions relating to the address-based registration system cannot be applied. Consequently, the service effected on the foreign-national debtor pursuant to Article 21/2 of the The Law on Service of Documents is irregular.”

Unfortunately, this decision is manifestly erroneous and unfounded from beginning to end. In its decision, the court demonstrated that it confused three distinct systems, namely the “Address-Based Population Registration System,” the “Central Civil Registration System,” and the “Address Registration System,” and that it did not know what any of them actually meant. Decisions of this kind starkly reveal the fact that courts may at times be incapable of even conducting a basic Google search, and they demonstrate how crucial the legal profession can be when exercised meticulously. Let us examine in detail the error committed by the relevant chamber.

Within the Republic of Türkiye, there are three different systems that may be thought to relate to our subject: the Address-Based Population Registration System (ADNKS), the Central Civil Registration System (MERNİS), and the Address Registration System (AKS). The “Address-Based Population Registration System” referred to in the chamber’s decision is the system abbreviated as ADNKS, which was established by the Turkish Statistical Institute (TÜİK). This system has absolutely no connection with the subject of our request submitted to the enforcement office. Namely, the procedure for service of documents within the territory of the Republic of Türkiye on foreign nationals who have settled in Türkiye by obtaining residence permits.

Not only does the ADNKS system have no connection whatsoever with our rejected request, but it also has no relevance to the request rejected in the Court of Cassation decision itself. In fact, the system relevant to the issue of service on foreign nationals in Türkiye is AKS, the Address Registration System-and the Court of Cassation’s error does not end there. The legislation governing AKS does not impose a different address registration procedure on foreign nationals, nor does it make any distinction between Turkish citizens and foreign nationals. In other words, just as the Court of Cassation chamber confused AKS with ADNKS, it also quite simply invented the claim that AKS does not apply to foreign nationals. Let us examine the relevant systems.

There exist one directive and one regulation governing what the Address Registration System (AKS) is and how it is to be applied. Article 1 of the Address Registration System Regulation, published in the Official Gazette dated 15 December 2006 and numbered 26377, under the heading “Purpose,” reads as follows: “The purpose of this Regulation is to regulate the principles and procedures regarding the recording of the place of residence and other address information of Turkish citizens and foreign nationals who obtain a residence permit issued to foreign nationals for a period of at least six months for any purpose in Türkiye.” As can be seen, the regulation governing this system explicitly states that it applies to both foreign nationals and citizens and makes no distinction between the two groups.

The other legislative instrument regulating AKS is the Address Registration System Directive. The purpose article of this directive is in the same vein as that of the regulation, and the relevant part reads as follows: “The purpose of this Directive is to regulate the updating of changes in the national address database, with respect to Turkish citizens residing domestically and abroad, and foreign nationals who obtain a residence permit issued to foreign nationals for a period of at least six months for any purpose in Türkiye…” As is evident under this legislation as well, no distinction is made between citizens and foreign nationals, and it is provided that address records will be kept for both groups of natural persons.

Various other provisions of the relevant legislation also regulate how foreign nationals’ records are to be kept and how their forms are to be prepared. All of this clearly demonstrates that AKS is not a system applied solely to citizens of the Republic of Türkiye. It applies to both citizens and foreign nationals. Therefore, at this point, it is clear that even if the 12th Civil Chamber had referred to AKS, it would still have rendered a manifestly erroneous decision. What makes the matter tragicomic is of course, that the chamber based its decision not on AKS but on ADNKS, asserting that it is exclusive to Turkish citizens.

ADNKS is a registration system established by the Turkish Statistical Institute (TÜİK) and is used to compile statistics on matters such as population growth rates, gender ratios within society, and the proportion of the population living in provinces versus districts. That it has absolutely nothing to do with the procedure for service of documents or with the legally registered residence addresses of foreign nationals can easily be understood even from a superficial review of the legislation available on TÜİK’s website. In such circumstances, it is impossible to comprehend how the relevant chamber of the Court of Cassation could have made such a basic error.

In a concrete case such as this, where a foreign national has obtained a foreign national identification number in Türkiye, owns immovable property registered in their name, and has resided in Türkiye for a long period, and where there is a record in AKS and an address can be found through a MERNİS inquiry, it is self-evident that there is no obstacle to effecting service pursuant to Article 21/2 of the Service Law. The relevant provision is drafted using the term “addressee,” without making any distinction between citizens and foreign nationals. Accordingly, the relevant provisions of the law demonstrate that this method of service concerns everyone who falls within its scope. Accepting the contrary would amount to subjecting the wording of the law to a restrictive interpretation and limiting its scope.

Although, as a matter of generalization, it may be possible to find counterexamples, in my view it can be stated that unless a statutory provision explicitly specifies who its subject is, it encompasses all persons within the legal system who may fall within its scope and for whom there is no other general or special rule preventing its application. For this reason, the “addressee” in Article 21/2 may be any person, whether a foreign national or a Turkish citizen.

In addition to this general observation, let us examine Article 25/a of the Service Law as a specific piece of evidence supporting our claim: “… if the addressee is a Turkish citizen, service may also be effected through …” As can be seen, where a distinction between Turkish citizens and foreign nationals is intended under Service Law, it is made explicitly. Accordingly, it is easy to ascertain that the drafters of the Service Law were aware of the existence of Turkish and foreign subjects and made different regulations where they deemed it necessary. In such a case, the provisions in which the legislator explicitly makes a distinction also reveal a conscious choice with respect to the provisions in which no distinction is made. (At the very least, this is the most rational conclusion that can be reached through analyzing the text via the method of argumentum e contrario.)

As for the issue of restrictive interpretation, judicial authorities undoubtedly have the ability to interpret laws restrictively or expansively. However, this does not mean that judges may interpret statutory provisions however they wish. Where a restrictive or expansive interpretation is adopted, — and there can be no doubt that interpreting the term “addressee” in the Service Law as “Turkish-citizen addressee” constitutes a restrictive interpretation — there must be a reasonable justification for doing so. No such justification exists in this case. The fact that service of documents can be effected on foreign nationals pursuant to Article 21/2 is not only something mandated by the law, but also a result that addresses a significant problem and serves justice.

Accordingly, whether one adopts a methodological approach based on interest analysis or an approach that regards fidelity to the text as the primary objective, the correct conclusion is that the facility provided under Article 21/2 may also be used against foreign nationals.

To summarize once again, the subject of the dispute is whether service can be effected on foreign nationals present in Türkiye pursuant to Article 21/2 of the Service Law. The Service Law permits this by making no distinction in this regard, and there is likewise no such distinction (or prohibition) in the legislation governing the Address Registration System. The assertion by the 12th Civil Chamber of the Court of Cassation that “the address-based population registration system applies only to Turkish citizens” is, quite frankly, a nonsensical finding.

If the absurd conclusion reached by the 12th Civil Chamber of the Court of Cassation were to be accepted, the result would be that Turkish citizens who fail to keep their AKS and MERNİS records accurate could be served pursuant to the Article 21/2 procedure, whereas foreign nationals residing in Türkiye who fail to keep these records up to date or who make false declarations would be subject to no sanction whatsoever-that is, service could not be effected on them through the neighborhood headman-ultimately leading to the conclusion that foreign nationals would be in a more advantageous position than Turkish citizens with regard to service of documents. This would not only violate the constitutional principle of equality but would also amount to an interpretation that places Turkish citizens in a more disadvantageous position than foreign nationals in respect of service of documents, one of the most crucial matters of procedural law, and would generate a legal asymmetry disturbingly (or comically) akin to the capitulations of the late Ottoman period. Fortunately, the enforcement office read our petition and corrected its error.