SECOND SECTION
DECISION
Application no. 8110/08
Ahmet OĞUZHAN and Meliha OĞUZHAN
against Turkey
The European Court of Human Rights (Second Section), sitting on 27 June 2017 as a Committee composed of:
Nebojša Vučinić, President,
Paul Lemmens,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 7 January 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Ahmet Oğuzhan and Ms Meliha Oğuzhan, are Turkish nationals who were born in 1935 and 1936 respectively and live in Istanbul.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 3 April 2003 the applicants bought a certain quantity of treasury bonds through İmarbank.
5. By a decision dated 3 July 2003, the Banking Regulation and Supervision Board (Bankalar Düzenleme ve Denetleme Kurulu, hereinafter referred to as “the Board”) revoked İmarbank’s licence to conduct banking activities pursuant to section 14 § 3 of the Banking Activities Act (Law no. 4389). It also decided to transfer the bank’s management and control to the Savings Deposit Insurance Fund (Tassarruf Mevduatı Sigorta Fonu ‑ hereinafter “the Fund”) in line with Article 16 § 1 of the same Act.
6. Subsequently, on 3 December 2003, the applicants instituted proceedings in the Ankara Administrative Court against the Banking Regulation and Supervision Agency (Bankalar Düzenleme ve Denetleme Kurumu – hereinafter referred to as “the Agency”), the Board and the Fund, claiming compensation for the loss of their treasury bonds.
7. In 2004, following the adoption of a new law (Law no. 5021 on certain acts concerning İmarbank), the Fund started reimbursing the account holders affected by the bank’s transfer of management and control by means of opening accounts in their names at Ziraat Bankası, a State bank. Reimbursement was made on condition that the account holders signed a document entitled a “certificate of relief and undertaking”. By signing such certificates, the account holders relieved the State authorities of all debt and relinquished any claim to a surplus in respect of the savings deposited with the bank and the interest due thereon.
8. On 7 February 2007 the Ankara Administrative Court partially accepted the applicants’ case and held that they should be paid the amount indicated on the bonds, namely a total of 49,299 Turkish liras (TRY)[1], plus interest to be calculated from the date on which they instituted proceedings. The court found that both the Board and the Agency had failed in their duty of supervision as the bank had continued to sell treasury bonds even though its permission to provide such intermediary services had been revoked in 1990.
9. The applicants appealed against that judgment.
10. On 21 July 2007, with the entry into force of Law no. 5667, the scope of persons who could benefit from the reimbursement was extended and it became possible for those who had acquired treasury bonds through İmarbank to be reimbursed. According to the decree setting forth the conditions laid down in Law no. 5667, persons who held such bonds were required to apply to the Fund and to sign a “certificate of relief and undertaking” before being paid the value of their bonds and the interest accrued thereon.
11. On 7 January 2008 the applicants lodged the present application with the Court. At that time they had neither applied to the Fund nor signed such a certificate.
12. On 19 November 2009 the application was communicated to the respondent Government.
13. On 13 February 2010 the applicants signed a certificate, thereby relieving the Fund, the Board, the Agency and all the other State authorities involved of any debt in relation to the treasury bonds they had acquired through İmarbank, including claims that were the subject of proceedings before the domestic courts. Before signing, they noted on the document that rights which might arise from the application they had lodged with the Court were to be excluded. The applicants were paid a total of TRY 63,187[2] in return.
14. On 28 April 2010 the Ankara Administrative Court discontinued the proceedings as the subject matter had been resolved.
COMPLAINTS
15. The applicants complained under Article 6 of the Convention about the length of the domestic proceedings.
16. Relying on Article 1 of Protocol No. 1, they argued that they had been deprived of property in that they had not been reimbursed in full, in particular as a result of the interest calculation method applied to the value of their treasury bonds.
THE LAW
A. Complaint under Article 6 of the Convention
17. The applicants complained under Article 6 of the Convention that the administrative proceedings had lasted for an unreasonably long time. The Court points out that in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013) it found that the Compensation Commission established by Law no. 6384 of 19 January 2013 constituted a remedy which applicants were required to exhaust for the purposes of Article 35 § 1 of the Convention. However, in the present case the applicants have not applied to that Commission.
18. Accordingly, the Court finds that this complaint is inadmissible for the applicants’ failure to exhaust domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
B. Complaint under Article 1 of Protocol No. 1 to the Convention
19. The applicants complained under Article 1 of Protocol No. 1 to the Convention that they had been deprived of property as a result of the authorities’ failure to compensate their loss in full.
20. The Court observes that during the course of the administrative proceedings brought by the applicants, new legislation − namely Law no. 5021 and Law no. 5667 – had entered into force, allowing those who had acquired treasury bonds through İmarbank to be reimbursed by the Fund. The decrees regulating the application of both Laws required those concerned to sign a certificate and relieve the State authorities of any debt relating to the treasury bonds at issue before they could be reimbursed.
21. In that respect, the Court notes that it examined similar complaints in its Erdem and Egin-Erdem v. Turkey decision (nos. 28431/06, 55559/07, 26427/08, 38143/08 and 58227/08, 17 November 2009) and found them inadmissible. In that decision, the Court held that the applicants had voluntarily signed a certificate to relinquish their claims concerning the inadequacy of the amount reimbursed by the Fund. It emphasised that no pressure had been exerted on them by the State to sign such a document and that they had done so of their own free will. Accordingly, the Court held that, in the circumstances, the interference with the applicants’ right to peaceful enjoyment of their possessions, because of the only partial reimbursement, had not imposed a disproportionate burden on them.
22. The Court observes in the instant case that at the time the application was communicated to the respondent Government, the applicants had not signed one of the above-mentioned certificates. However, they did so after the case had been communicated. Taking into account the amount that was eventually reimbursed to the applicants, the Court finds no reason to depart from its findings in the case of Erdem and Egin-Erdem (cited above). Consequently, it holds that the complaint under Article 1 of Protocol No. 1 is inadmissible for being manifestly ill-founded.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 July 2017.
Hasan BakırcıNebojša Vučinić
Deputy RegistrarPresident
[1]. Approximately 27,000 euros at the material time
[2]. Approximately 32,000 euros at the material time
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