EHRM, 21-07-2015, nr. 31833/06, nr. 37538/06

The Government argued in the first place that the second applicant, Ms Sema Cıngıllıoğlu, did not have victim status. In this connection, they stated that the proceedings seeking the annulment of the agreement by the Fund to take over Demirbank had been instituted by the applicant company, and the second applicant had not been a party to that set of proceedings. They further argued that the second applicant was a minor shareholder and had no right to lodge an application with the Court in respect of Demirbank.

The Court notes that the first application (no. 31833/06) was introduced by Cıngıllı Holding, the main shareholder of Demirbank. Cıngıllı Holding was a party to the domestic proceedings that were brought against the Agency seeking the annulment of the decision to take over Demirbank. The second application (no. 37538/06) was lodged by Ms Sema Cıngıllıoğlu, who complained that the decision to annul the sale of Demirbank to HSBC had never been enforced. It is clear that the second applicant was a party to that set of proceedings before the domestic courts (see paragraph 13 above) and was also a shareholder of Demirbank.

The Court reiterates that in order to be able to file a petition by virtue of Article 34 of the Convention, a person, non-governmental organisation or group of individuals must be able to claim to be a victim of a violation of the rights set forth in the Convention. To claim to be a victim of such a violation, a person must be directly affected by the impugned measure: the Convention does not, therefore, envisage the bringing of an actio popularis for the interpretation of the rights set out therein or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Burden v. the United Kingdom [GC], no. 13378/05, § 33, ECHR 2008, and Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010).

Consequently, the existence of a victim who was personally affected by an alleged violation of a Convention right is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid and inflexible way (see Bitenc v. Slovenia (dec.), no. 32963/02, 18 March 2008). The question of whether the applicant can claim to be a victim of the alleged violation of the Convention is relevant at all stages of the proceedings under the Convention (see Burdov v. Russia, no. 59498/00, § 30, ECHR 2002-III).

The Court interprets the concept of ‘victim’ autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000-XI), but it should also bear in mind whether the applicant was a party to the domestic proceedings (see Micallef v. Malta [GC], no. 17056/06, § 48, ECHR 2009).

The Court observes that in the circumstances of the present case, the second applicant's financial interests were undoubtedly affected as a shareholder of Demirbank. Furthermore, there was no dispute in the domestic proceedings regarding the second applicant's standing before the court. Hence, the merits of her case were examined at three levels of jurisdiction.

In view of the foregoing and given the need to apply the criteria governing victim status in a flexible manner (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 54, ECHR 2012), the Court accepts that the second applicant can be considered a victim of the facts complained of within the meaning of Article 34 of the Convention. It therefore rejects the Government's preliminary objection that the second applicant lacked victim status.

The Government further stated that the application should be rejected for non-exhaustion of domestic remedies, as the applicants had failed to bring compensation proceedings before the domestic courts pursuant to Article 12 of the Administrative Procedure Code and Article 125 of the Constitution.

The Court notes in particular that the administrative actions brought by the applicants were concluded in their favour and the ex tunc nullity of the disputed administrative acts was upheld by the domestic courts. The second applicant also sought the enforcement of the said decisions, but no action was taken by the administrative authorities, which were constitutionally bound to take all necessary measures to restore the de facto and de jure situation that was likely to have prevailed had Demirbank not been unlawfully transferred to the Fund. Under those circumstances, the applicants cannot be expected to have brought further actions against the State. The Court also notes that it has examined a similar objection in the past and has rejected it (see Süzer and Eksen Holding A.Ş. v. Turkey, no. 6334/05, §§ 95–98, 23 October 2012). It sees no reason to depart from those findings in the instant application and concludes that the applicants have complied with the requirement of exhaustion of domestic remedies.

It therefore rejects the Government's preliminary objection in this respect.

Lastly, the Government argued that the application should be rejected for non-compliance with the six-month time-limit. In this connection, they argued that the first set of proceedings had ended on 13 March 2006 and the second set of proceedings on 24 February 2006.

The Court notes that the first set of proceedings, concerning the taking over of Demirbank, ended on 13 March 2006, and the first application was lodged with the Court on 28 July 2006. The second set of proceedings concerning the annulment of the sale of Demirbank to HSBC, ended on 24 February 2006 and the second applicant's request for the enforcement of the impugned decision was rejected on 10 July 2006. The second application was lodged with the Court on 13 September 2006. Accordingly, both applications complied with the six-month time-limit and the Government's preliminary objection should be dismissed.

The Court notes that the present application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Court reiterates that the enforcement of a judgment given by any court must be regarded as an integral part of a ‘hearing’ for the purposes of Article 6 (see Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997-II). It refers to its extensive case-law concerning the non-enforcement or the delayed enforcement of final domestic judgments (see, amongst many other cases, Tacea v. Romania, no. 746/02, 29 September 2005; Jeličić v. Bosnia and Herzegovina, no. 41183/02, §§ 38–39, ECHR 2006-XII; Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, §§ 51–57, 15 October 2009; and Süzer and Eksen Holding A.Ş., cited above, § 114).

The above principles are of even greater importance in the context of administrative proceedings concerning a dispute whose outcome is decisive for a litigant's civil rights. By lodging an application for judicial review with the State's highest administrative court, the litigant seeks not only the annulment of the impugned decisions but also and above all the removal of its effects. The effective protection of a party to such proceedings and the restoration of legality presuppose an obligation on the administrative authorities' part to comply with the judgment of that court. The administrative authorities form one element of a State subject to the rule of law and their interests accordingly coincide with the need for the proper administration of justice. Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees under Article 6 enjoyed by a litigant during the judicial phase of proceedings are rendered devoid of purpose (see Hornsby, cited above, § 41).

The complexity of the domestic enforcement procedure or of the State budgetary system cannot relieve the State of its obligation under the Convention to guarantee to everyone the right to have a binding and enforceable judicial decision enforced within a reasonable time. Nor is it open to a State authority to cite lack of funds or other resources (such as housing) as an excuse for not honouring a judgment debt (see Burdov v. Russia (no. 2), no. 33509/04, § 70, ECHR 2009, and Süzer and Eksen Holding A.Ş., cited above, § 116).

The Court notes that in the present case the domestic courts annulled the decision to transfer Demirbank to the Savings Deposit Insurance Fund and its subsequent sale by the latter to the HSBC bank.

The Court accepts that a situation may exceptionally arise where the restitutio in integrum enforcement of a court judgment, declaring administrative acts unlawful and void, may, as such, prove objectively impossible due to insurmountable factual or legal obstacles. However, in such situations and in accordance with the right of access to court, guaranteed by Article 6 § 1 of the Convention, a Member State must, in good faith and on its own motion, examine other alternative solutions that can remedy the unlawful effects of its acts, in particular the awarding of compensation.

The Court recalls that on 11 May 2006 the second applicant requested the Agency to comply with the Supreme Administrative Court's judgments and to enforce them. Relying on the restitutio in integrum principle, she requested that Demirbank be returned to its previous owners. On 10 July 2006 the Agency simply responded that it would be impossible to enforce the judgments as, following its sale to HSBC, Demirbank had been struck off the commercial register (see paragraphs 17–18 above).

The Court observes that the Government have thus not demonstrated that any actions were taken by the Agency in an attempt to remedy the applicants' situation in the light of the judgments annulling the transfer of Demirbank and its sale to HSBC. In this regard, the Court notes that in separate proceedings, which are the source of a related application to the Court (see Reisner v. Turkey, no. 46815/09, 21 July 2015), the Supreme Administrative Court held in a judgment of 16 March 2009 that the enforcement of the judgment of 5 November 2004 (see paragraph 11 above) could be secured by the return of the supervisory and executive rights to Demirbank's shareholders, and did not require the restitution of the actual shares which would, in any event, be impossible.

In the light of the above, the Court finds that the complete inaction by the Agency in responding to the second applicant's request for the enforcement of the Supreme Administrative Court's judgments effectively deprived the applicants of their rights of access to court.

Accordingly, there has been a violation of Article 6 of the Convention.

The Court refers to its established case-law on the structure of Article 1 of Protocol No. 1 and the manner in which the three rules contained in that provision are to be applied (see, among many other authorities, J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 52, ECHR 2007-III; Bruncrona v. Finland, no. 41673/98, §§ 65–69, 16 November 2004; and Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004-V).

The Court reiterates that any interference by a public authority with the peaceful enjoyment of possessions should be lawful, must be in the public interest, and must pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see Doğrusöz and Aslan v. Turkey, no. 1262/02, § 27, 30 May 2006; and Moskal v. Poland, no. 10373/05, §§ 49–50, 15 September 2009).

An interference with the peaceful enjoyment of possessions must therefore strike a ‘fair balance’ between the demands of the public or general interest of the community and the requirements of the protection of the individual's fundamental rights.

The Court observes that in the present case, the applicants were the shareholders of Demirbank, which was taken over by the State authorities, and accordingly, there has indisputably been an interference with their right of property (see Süzer and Eksen Holding A.Ş., cited above, § 143; Capital Bank AD v. Bulgaria, no. 49429/99, § 130, ECHR 2005-XII (extracts)). As regards which provision of Article 1 of Protocol No. 1 applies in the instant case, the Court observes that the Board's decision to takeover Demirbank was clearly taken as a measure to control the banking sector in the country. It is true that it involved a deprivation of property, but in the circumstances the deprivation formed a constituent element of a scheme for controlling the banking industry. It is therefore the second paragraph of Article 1 of Protocol No. 1 which is applicable in the present case (see Süzer and Eksen Holding A.Ş., cited above, §§ 146 and 147).

The Court is now called on to determine whether the interference met the requirement of lawfulness, pursued a legitimate aim and was proportionate to the aim pursued. In this connection, it observes that the domestic courts annulled the decision pertaining to the takeover of Demirbank by the Savings Deposit Insurance Fund and its subsequent sale by the latter to the HSBC bank. In doing so, the courts respectively held that the administrative acts had been unlawful (see paragraphs 11 and 15 above). The Court further observes that the impugned administrative acts were declared null and void with retrospective (ex tunc) effect. Under these circumstances, it therefore considers that the interference with the applicants' right to enjoyment of their possessions cannot be considered as lawful within the meaning of Article 1 of Protocol No. 1 to the Convention (see Süzer and Eksen Holding A.Ş., cited above, § 148).

That being so, the Court is not required to determine whether the interference with the applicants' right to the peaceful enjoyment of their possessions pursued a legitimate aim and, if so, whether a fair balance has been struck between the demands of the general interest of the community, and the protection of the individual's fundamental rights.

The Court therefore concludes that there has been a violation of Article 1 of Protocol No. 1 to the Convention.