It is observed that banks respond negatively to the requests such as address and identification number requested by the judicial authorities. For example, the Enforcement Directorate requested the debtor’s Turkish ID number from the bank for address research purposes, the bank responded negatively to this request, and the dispute became the subject of a lawsuit. As a result of the judgement, the bank’s negative response to the Enforcement Directorate’s request on the grounds of personal data was found unfair.
Decision of Ankara 3rd Execution Law Court dated 19.07.2022
At the end of the open judgement of the Complaint (Execution Officer Procedure) case pending in our court, THE NECESSITY WAS CONSIDERED:
COMPLAINT:
In summary in the complaint petition submitted to our court by the complainant’s attorney;
However, Ankara 6th Execution Directorate re-sent the writ dated 13/07/2022 and requested again to send the T.C. Identity Number to the file if it is in the name of the debtor by making an inquiry from the Iban number reported by the Ankara 6th Execution Directorate, the writings dated 23/05/2022 and dated 13/07/2022 sent by the Ankara 6th Execution Directorate should be cancelled, since the authority of the execution directorates to request information is limited to the debtor’s assets; In accordance with the regulations of Article 73 of the Banking Law regarding customer confidentiality and 6698. In accordance with the regulations of Article 73 of the Banking Law regarding customer confidentiality and the exceptions regarding the transfer of personal data regulated in the KVKK No. 6698, the subject of the lawsuit constitutes a violation of the law, the letter dated 13/07/2022 issued by the enforcement office and sent to the client bank is devoid of legal basis, therefore, Ankara 6th Execution Directorate has requested the cancellation of the letters dated 23/05/2022 and dated 13/07/2022. In summary, in the reply petition submitted to our court by the attorney of the complainant; It cannot be refrained from providing information by citing the Banking Law, the enforcement directorates, taking its authority from the Execution and Bankruptcy Law, fulfils the enforcement duty of the law, the power of enforcement is related to the State’s authority to protect the creditor against the debtor and to use force when necessary in this way, many powers at the point of forced collection of the debt are in the enforcement directorates, Ankara 6. Execution Directorate requested address information from the bank in order to notify the debtor, but the negative return was provided by the bank, and the negative return, when the provision of the law referenced in the banking law is examined, it regulates the confidentiality obligation of all personnel and officials engaged in banking business, so it does not contain any regulation at the point of not providing the information requested by a judicial authority, so it is a legal need to share the information requested by a judicial authority such as the execution directorate, the plaintiff bank’s failure to share the address information with the enforcement directorate on the grounds of customer confidentiality is unlawful, the enforcement directorates are not subject to the provisions of KVKK, the enforcement directorate uses its authority to search for address and identity information in order to make notification, and for these reasons, the plaintiff’s unjustified claims and demands are rejected and the lawsuit is dismissed.
DISCUSSION OF THE EVIDENCE AND JUSTIFICATION:
Pursuant to Article 18/3 of the EBL and Article 320/1 of the CCP, the enforcement office that carried out the transaction subject to the complaint did not need to make a statement and hold a hearing, and an examination was made on the file.
The execution file numbered 2022/… of Ankara 6th Execution Directorate was examined.
The complaint is about whether the letters dated 23/05/2022 and 13/07/2022 sent to the complaining bank from the file numbered 2022/… Main execution file of Ankara 6th Execution Directorate should be cancelled.
The file numbered 2022/… Main follow-up file of Ankara 6th Execution Directorate was summoned and examined. According to Articles 18/3 of the EBL and 320/1 of the CCP, the file has been examined on the file with the appreciation that there is no need for a hearing.
Pursuant to Article 73 of the Banking Law; “The chairman and members of the Board and the personnel of the Agency, the chairman and members of the Fund Board and the personnel of the Fund cannot disclose the secrets of the banks and their subsidiaries, affiliates, jointly controlled partnerships and customers that they learn during the course of their duties to anyone other than those authorised according to this Law and special laws, and cannot use them for their own or others’ benefit. Persons and organisations from whom the Agency receives external support services and their employees are also subject to this provision. This obligation continues even after leaving office.”
When the follow-up file and the entire file scope are evaluated together; the above-mentioned restrictions in the Law prevent the members and other officials of the banks from disclosing the secrets of the banks and their customers, which they have learned due to their titles, arbitrarily and arbitrarily, and since a restriction affecting the enforcement is not included in the said article, the said article does not cover the enforcement of the enforcement (Court of Cassation 12th HD. Decree dated 17/05/2021, numbered 2021/497 Main and 2021/4842 Decision), Ankara 6th. Execution Directorate’s file numbered 2022/8827, the execution directorate may write a writ to each of the relevant institutions and organisations in order to conduct an address search in order to ensure the notification of the payment order to the debtor, Because the execution directorate is an institution in charge of executing the execution of the enforcement file with the power of compulsory execution, and as stated above, the articles of law stated by the complainant’s attorney do not include compulsory execution since they do not contain a restriction that affects compulsory execution (Istanbul Regional Court of Justice 21 Civil Chamber dated 19/09/2022, 2021/3156 E. , 2022/2512 K numbered decision), in this context, as a result, it has been understood that the letters dated 23/05/2022 and 13/07/2022 written to the complaining bank for the determination of the debtor’s address in the context of address research before notifying the debtor who does not have a mernis address by the execution directorate, do not constitute a violation of procedure and law and do not need to be cancelled, it has been understood that it is necessary to take action by the complaining bank in line with the said letters and it has become necessary to make a decision on the rejection of the complaint as stated below.
JUDGMENT: As explained above;
1-Dismissal of the complaint,
2-Since the fee was received in advance, there is no need for a new fee,
3- The judicial expenses incurred by the complainant during the proceedings shall be left on the COMPLAINTANT,
4-Since there are no judgement expenses incurred by the complainant, it is not necessary to make a judgement on this matter,
5-TAKING INTO CONSIDERATION THAT THE COMPLAINT IS RELATED ONLY TO OFFICER PROCEDURE, THERE IS NO PLACE FOR THE APPROPRIATION OF A LEGAL FEE IN FAVOUR OF THE COMPLAINT,
6- When the decision is finalised, the balance of the advance on expenses shall be returned to the complainant in accordance with Article 333 of the CCP,
In the absence of the parties, it was decided as a result of the examination made through the file that the legal remedy of appeal to the Ankara Regional Court of Appeals shall be open with a petition to be submitted to our Court or to the Execution Law Court in the place where they are located or elsewhere within 10 days from the date of notification of the reasoned decision and that the judgement shall become final if the appeal is not applied within the time limit. 23/11/2022
Conclusion
Although the bank has refrained from providing the information on the debtor to the Enforcement Office by citing Article 73 of the Banking Law titled “Keeping of Secrets”, the Enforcement Offices are legally authorised to conduct address searches and collect information on the debtor for the purpose of enforcement. Therefore, the bank’s refusal to provide the information about the debtor to the Execution Office is unlawful and cannot be evaluated under the title of keeping secrets.
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