Published on 30 September 2024
SECOND SECTION
Application no. 19766/22
Yaşar MESCİGİL
against Türkiye
lodged on 11 April 2022
communicated on 10 September 2024
SUBJECT MATTER OF THE CASE
The application concerns the duration during which the injunction imposed on the applicant’s assets due to his responsibility as a manager of bankrupt Yurtbank remained in place, as well as the lack of any remedy against the continued validity of the injunction.
The applicant had been a branch manager of Yurtbank whose management and control were transferred to the Savings Deposits Insurance Fund (“the Fund”). The Fund lodged personal bankruptcy proceedings against managers of Yurtbank including the applicant with the Commercial Court for the damages caused to the bank which resulted in the transfer of the bank to the Fund. The Commercial Court imposed an interim injunction on the applicant’s personal assets on the Fund’s request.
While these proceedings against the applicant were still pending, on 23 March 2010 the Fund signed a Protocol with the Balkaner Group, the majority shareholder of Yurtbank at the time the bank was transferred to the Fund. This protocol was aimed at restructuring the debt that the Balkaner Group owed to the Fund by reason of fraudulent loans and other transactions that had allegedly caused losses to Yurtbank and to set out the terms of the repayment of the debt. It also contained a special provision concerning the lawsuits filed by the Fund to recover the losses of Yurtbank. According to that provision, the proceedings against the defendants were to be suspended as long as the parties complied with the terms of the Protocol.
The Commercial Court decided to suspend the proceedings against the applicant following the signature of the Protocol between the Fund and the Balkaner Group, without lifting the interim injunction.
The applicant complains under Article 1 of Protocol No. 1 to the Convention that the continuation of the measures regarding his assets affects the very essence of his right to property. He further complains under Article 6 § 1 of the Convention that he did not have access to a court to challenge the continued validity of the interim injunction regarding his assets. He further complains under Article 6 § 1 of the Convention of the length of the proceedings before the Commercial Court.
QUESTIONS TO THE PARTIES
1. Having regard to the Court’s case-law (see Karahasanoğlu v. Turkey, nos. 21392/08 and 2 others, §§ 142-154, 16 March 2021) and the duration during which the injunction remained in place, has there been an interference with the applicant’s right to peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, was that interference necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties? In particular, did that interference impose an excessive individual burden on him?
2. Did the applicant benefit from sufficient procedural safeguards to effectively challenge the implemented measures as required by Article 1 of Protocol No. 1 to the Convention (Karahasanoğlu, cited above, §§ 149-154)? In particular, did the Turkish Constitutional Court’s failure to address the applicant’s complaints under Article 1 of Protocol No. 1 to the Convention violate the procedural safeguards envisaged therein?
3. Did the applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention, to challenge the continued validity of the interim injunction regarding his assets?
4. Was the length of the proceedings before the Commercial Court in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
The parties are invited to submit a copy of the Protocol signed between the Balkaner Group and the Fund on 23 March 2010.