Communicated on 10 October 2017
SECOND SECTION
Application no. 52543/07
Gökhan PEKCAN
against Turkey
lodged on 26 November 2007
STATEMENT OF FACTS
1. The applicant, Mr Gökhan Pekcan, is a Turkish national, who was born in 1963 and lives in Ankara. He is represented before the Court by Mr M. Kilciler, a lawyer practising in Ankara.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On an unspecified date, through the Istanbul stock market, the applicant bought a certain amount of shares of Türkiye Tütüncüler Bankası Yaşarbank A.Ş. (hereinafter “Yaşarbank”).
4. By a decision dated 21 December 1999 (no. 99/13765), the Council of Ministers transferred the management and control of Yaşarbank to the Savings Deposit Insurance Fund (Tassarruf Mevduat Sigorta Fonu – hereinafter “the Fund”), pursuant to Section 14 (3) and (5) of the Banking Activities Act (Law no. 4389) as modified by Law no. 4491.
5. Subsequently, the applicant brought proceedings against the Fund, requesting the annulment of the bank’s transfer and arguing that he had bought his shares through the stock market, relying on the information provided by the authorities. He also raised a plea of unconstitutionality, arguing that the small shareholders’ property rights were breached in violation of the Constitution.
6. During the course of the proceedings, the prosecutor at the Supreme Administrative Court stated in her opinion that the unconstitutionality plea was noteworthy, in that the transfer of all shares to the Fund, without differentiating between those of the main shareholders and those purchased through the stock market, had caused irreparable damage to the small shareholders, who had not been involved in the Bank’s decision-making mechanism. She concluded that the constitutionality of Section 14 (3) and (5) of Law no. 4389, pertaining to the transfer of the bank’s shares to the Fund, should be assessed by the Constitutional Court in so far as it concerned the transfer of shares purchased through the Istanbul stock market.
7. On 8 October 2002 the Supreme Administrative Court rejected the applicant’s request to refer the matter to the Constitutional Court, finding that the impugned provisions were proportionate and necessary in a democratic society. The court further dismissed the case, finding that the decision of the Council of Ministers to transfer the bank to the Fund was lawful. It noted that, taking account of the reports drawn up following inspections of Yaşarbank during a five-year period, the instructions given to the bank by the State authorities, and the failure of the bank to improve its financial situation following these instructions, it had become clear that further activity of the bank would disrupt the stability of the financial system and make it impossible to protect its creditors’ rights.
8. The applicant filed an appeal, arguing that the Supreme Administrative Court’s judgment merely pointed out that the transfer of the bank had been lawful, without addressing his main argument, namely, the unlawfulness of the transfer of the shares obtained through the stock market together with those of the main shareholders.
9. On 7 October 2004 the Joint Administrative Chambers of the Supreme Administrative Court upheld the judgment.
10. The high court rejected the applicant’s rectification request on 3 May 2007. That final decision was served on the applicant on 3 July 2007.
B. Relevant domestic law
11. A description of the relevant domestic law may be found in the case of Yaşar Holding A.Ş. v. Turkey (merits), no. 48642/07, 4 April 2017.
COMPLAINT
12. The applicant complains under Article 1 of Protocol No. 1 to the Convention that he was unlawfully and disproportionately deprived of his property, in that his shares in Yaşarbank were transferred to the Fund without any compensation despite the fact that he had bought them through the stock market, relying on official reports supervised by State agencies.
QUESTIONS TO THE PARTIES
Has the applicant been deprived of his possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?
In particular, did that deprivation impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
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