Review And Comparison Of Digital Correspondence Procedures Used In Our Country In Accordance With The Laws Of The Republic Of Türkiye

INTRODUCTION

In accordance with the laws of the Republic of Türkiye, the legal bases, usage procedures, and procedural principles of digital correspondence types recognized for use in our country, namely Registered Electronic Mail (“KEP”), National Electronic Notification System (“UETS”) and e-Correspondence hold considerable importance. In this direction, (i) the legal basis and regulatory frameworks of the specified correspondence types, (ii) determination of the usage areas of these correspondence types, and (iii) detailed analysis of comparisons and procedural principles related to correspondence forms within the legal framework and regulations are required. The opinions and evaluations regarding these correspondence types should primarily be analyzed within the framework of the regulations, namely the Electronic Notification Regulation (“UETS Regulation”), the Regulation on Procedures and Principles Regarding the Registered Electronic Mail System (“KEP Regulation”) and the Regulation on Procedures and Principles Regarding the Implementation of Official Correspondences (“e-Correspondence Regulation”).

A. E- CORRESPONDENCE

E-correspondence is defined as a set of common rules used to ensure the official correspondence between Institutions and Organisations through PTT by registered mail or courier, etc. to be carried out electronically using the KEP infrastructure, without using paper. Additionally, the e-Correspondence Package is characterized as a singular electronic file format, systematically compiled in adherence to predefined rules, encapsulating the information and components pertaining to an official document.

The digital correspondence type in the form of e-correspondence has been added to the scope of the legislation in order to accelerate the correspondence between institutions and has an important place especially in correspondence between the private and public sectors. In accordance with the first paragraph of Article 4 of the E-Correspondence Regulation, “Official correspondence by public institutions and organizations is conducted through documents prepared in accordance with the E-Correspondence Technical Guide and signed with a secure electronic signature”. In this context, within the framework of the E-Correspondence Regulation, many issues such as procedures, principles, format and document verification for related correspondence are regulated.

B. REGISTERED ELECTRONIC MAIL (KEP)

Registered electronic mail is an electronic mail system that constitutes legal evidence due to the fact that the time of sending and reading of the registered electronic mail is provable and fixed in a registered system and is regulated within the framework of the KEP Regulation. KEP system is a digital correspondence type legally deemed as a notification, due to reasons such as authentication of access to the relevant system within the framework of the identity verification process, and the fixed timestamping of the sending and reading date and time of all types of emails.

Access to the KEP system, allowing identity verification through the use of a secure electronic signature infrastructure, and the processes of email transmission through the system, are accomplished with the electronic signature of natural and/or legal persons. The electronic signature, as regulated under Law No. 5070 on Electronic Signatures is defined as electronic data attached to another electronic data or logically connected to electronic data and used for the purpose of identity verification. Within this framework, it is legally recognized as providing conclusive identification in accordance with the laws of the Republic of Türkiye. In this framework, the electronic signature will consist of letters, characters, or symbols that within a secure environment inaccessible to third parties, guarantee the transmission of information without compromise to its integrity (in its original form as created by the information transmitter) and verify the identities of the parties involved through electronic or similar means.

KEP system enables communication between individuals, both natural and legal persons, as well as with public institutions. In order for private companies engaging in correspondence with public entities in any form to utilize the e-Correspondence environment, it is necessary for them to have a KEP account.

Pursuant to Article 18/III of the Turkish Commercial Code, “Among merchants, notifications or warnings regarding putting the other party in default, terminating a contract, or withdrawing from a contract are made through a notary, registered letter, telegram, or registered electronic mail system using a secure electronic signature.”.  Within this context, it was aimed to increase the use of the KEP system in commercial life by regulating the electronic mail system messages sent by means of secure electronic signature within the framework of messages sent from the KEP system in specific commercial matters such as default, termination and rescission of the contract.

In this framework, it should be noted that; pursuant to Article 15 of the KEP Regulation; “Records created through the KEP system and KEP evidences shall have the effect of deeds and shall be deemed conclusive evidence until proven otherwise”. In addition, due to the legal obligations of the electronic signature, “Legal consequences related to all transactions carried out using the KEP account will arise on the account holder”.

C. NATIONAL ELECTRONIC NOTIFICATION SYSTEM (UETS)

Electronic notification is defined as electronic notifications made to the addressee by authorities entities to issue notifications, namely the Post and Telegraph Organization Joint Stock Company. In accordance with Article 5 of the Electronic Notification Regulation, the obligation to make electronic notifications is mandatory for the individuals and legal entities listed below:

a) The public administrations listed in the schedules numbered (I), (II), (III), and (IV) attached to the Law on Public Financial Management and Control dated 10.12.2003 and numbered 5018, along with the revolving fund organizations affiliated with them.

b) Local administrations defined in Law No. 5018.

c) Other public institutions and organisations established by special law and funds and bail funds established by law.

ç) State economic enterprises and their subsidiaries, establishments and enterprises.

d) Other corporations with more than fifty percent of their capital owned by the public.

e) Public institutions in the nature of professional organizations and their umbrella organizations.

f) All private law legal entities, including those established by law.

g) Notaries.

ğ) Attorneys who are registered in the Bar Association.

h) Registered mediators and experts.

ı) The entity to which individuals authorized to represent government bodies, state economic enterprises, or other entities in which more than fifty percent of the capital belongs to the public are affiliated in their capacity as attorneys before judicial and administrative judicial authorities, executive directorates, or arbitrators.

In this context, the UETS System is a system in which the receipt of electronic notifications by the addressee is determined, and the existence of such receipt is confirmed through electronic evidence. As in the KEP system; UETS evidence records will be deemed as conclusive evidence unless otherwise disproved. Finally, the UETS system stands out as an important type of correspondence in legal and administrative practice, as it would constitute an improper notification if physical notification is first made to the persons to whom electronic notification is mandatory without electronic notification.

In this context, it should be important to note that, electronic notification shall be deemed to have been made at the end of the fifth day following the date it reaches the recipient’s electronic address.

D. COMPARISON OF ELECTRONIC CORRESPONDENCE TYPES

The specific features regarding the electronic correspondence types detailed in this article are briefly compared in the table provided below.