It is observed that banks responded negatively to the requests such as address and identification number requested by the judicial authorities. For example, the Execution 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 trial, 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 trial 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 canceled, 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. Pursuant to the regulations of Article 73 of the Banking Law on customer confidentiality and the exceptions to the transfer of personal data regulated in KVKK No. 6698, the writings subject to the lawsuit constitute a violation of the law, the writ 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 dated 23/05/2022 and dated 13/07/2022 has requested a decision to cancel the writings dated 23/05/2022 and dated 13/07/2022. In the reply petition submitted to our court by the attorney of the complainant, in summary; It cannot be refrained from providing information on the grounds of the Banking Law, the enforcement directorates, taking its authority from the Execution and Bankruptcy Law, fulfills the enforcement duty of the law, the power of enforcement is to protect the creditor of the State 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 bank responded negatively, and the negative response was negative, 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 information requested by a judicial authority such as an 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:
According to Article 18/3 of the EBL and Article 320/1 of the CCP, the enforcement office that made 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 Ankara 6th Execution Directorate’s file numbered 2022/… Main follow-up file should be canceled.
The file numbered 2022/… Main follow-up file of Ankara 6th Execution Directorate was summoned and examined. Pursuant to Articles 18/3 of the EBL and 320/1 of the CCP, no hearing was deemed necessary and an examination was made on the file.
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 banks and their subsidiaries, affiliates, jointly controlled partnerships and customers that they learn during the course of their duties to anyone other than those authorized according to this Law and special laws, and cannot use them for their own or others’ benefit. Persons and organizations from whom the Agency receives external support services and their employees are also subject to this provision. This obligation continues even after leaving the 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 enforcement is not included in the aforementioned article, the aforementioned article does not cover 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 organizations in order to conduct address research in order to ensure the notification of the payment order to the debtor, Because the execution directorate is an institution authorized to execute 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 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 canceled, 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 trial shall be left on the COMPLAINTANT,
4-Since there are no trial expenses incurred by the complainant, there is NO JUDGMENT IN 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 FAVOR OF THE COMPLAINT,
6- When the decision is finalized, 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 Enforcement Law Court in their location or elsewhere within 10 days from the date of notification of the reasoned decision and that the judgment shall become final if the appeal is not filed within the time limit. 23/11/2022
Conclusion
Although the bank 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 authorized to conduct address searches and collect information on the debtor for the purpose of enforcement. Therefore, the bank’s refusal to provide the information on the debtor to the Execution Office is unlawful and cannot be evaluated under the title of keeping secrets.
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