Communicated on 10 October 2017
SECOND SECTION
Application no. 59434/10
Haşmet SENDAN and Kadriye SENDAN
against Turkey
lodged on 7 September 2010
STATEMENT OF FACTS
1. The applicants, Mr Haşmet Sendan and Ms Kadriye Sendan, are Turkish nationals, who were born in 1946 and 1959 respectively and live in Istanbul. They are represented before the Court by Mr C. Göksel and Ms E. Efe Göksel, lawyers practising in Istanbul.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The applicants had accounts at Türkiye İmar Bankası T.A.Ş. (hereinafter “İmarbank”).
4. By a decision dated 3 July 2003, the Banking Regulation and Supervision Board (Bankalar Düzenleme ve Denetleme Kurulu - hereinafter “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”).
5. On 27 December 2003 a new Banking Activities Act (Law no. 5021) entered into force. Section 1 of that Act indicated that the modalities of the payment of money deposited with the accounts in the transferred banks and the calculation method of the interest rates to be applied to them would be specified by Council of Ministers decisions. It also regulated that certain accounts, including those that were transferred to İmarbank from offshore banks within the month prior to the bank’s takeover by the State, would not be reimbursed.
6. On 29 December 2003 the Council of Ministers adopted a decision (no. 2003/6668), setting forth the formalities of reimbursements to be made to creditors of İmarbank. Article 3 § a (1) of the decision reiterated section 1 of Law no. 5021. The decision further regulated the modalities of payment and the method to calculate the interest rates to be applied.
7. On 23 February 2004 the applicants brought proceedings, requesting the annulment of the Council of Ministers decision. They further claimed compensation for their loss and raised an unconstitutionality plea, arguing that section 1 of Law no. 5021 was unlawful.
8. On 21 February 2006 the Supreme Administrative Court accepted the applicant’s case. It noted that the impugned clauses in section 1 of Law no. 5021 and article 3 § a (1) of the subsequent Council of Ministers decision had been annulled by the Constitutional Court and the Supreme Administrative Court, respectively. The court concluded that in those circumstances, the administration was liable to compensate the applicants’ loss. It ruled that the Fund should pay the applicants 205,000 Turkish liras (TRY) plus legal interest to be calculated from the date the case was brought.
9. The applicants appealed, arguing that the interest should be calculated from the date they had opened their accounts at İmarbank.
10. On 3 July 2006, in line with the annulment of article 3 § a (1), the Council of Ministers made several modifications to its decision no. 2003/6668. Following these modifications, persons whose accounts had been transferred from offshore banks would benefit from the same reimbursement conditions as the other creditors. Accordingly, the main amounts and interest, which would be calculated on the basis of the methods set forth in the decision, would be paid to them on the condition they signed a document entitled a “certificate of relief and undertaking”. The said certificate contained a clause whereby the creditors waived their right to bring proceedings, and relieved the Fund, the Board and all the other State authorities involved of any debt in relation to their accounts at İmarbank, including claims that were the subject of proceedings pending before the domestic courts.
11. On 19 October 2006 the Joint Administrative Chambers of the Supreme Administrative Court quashed the judgment rendered in the applicants’ case. It held that following the modifications to the relevant Council of Ministers decision no. 2003/6668, the applicants had the possibility to be reimbursed by the Fund. The high court indicated that the Supreme Administrative Court was to assess the case taking account of that new situation and the interest calculation method specified in decision no. 2003/6668.
12. On 23 November 2006 the Fund deposited a total of TRY 231,000 in the applicants’ account.
13. Following the reimbursement, on an unspecified date in 2007 the applicants brought a separate set of proceedings before the Supreme Administrative Court, requesting the annulment of the clause pertaining to a waiver of their right to bring and pursue proceedings against State agencies with regard to their remaining claims.
14. On 8 May 2009 the Supreme Administrative Court held that it would not rule on the matter as the impugned clause had been cancelled by a judgment it had rendered earlier in 2009.
15. On 2 December 2009, with regard to the main case, the domestic court held that the subject matter had been resolved and that there was no need to deliver a judgment with regard to the applicants’ compensation claim as they had been reimbursed by the Fund in line with the provisions of the Council of Ministers decision no. 2003/6668. It further dismissed the applicants’ claims pertaining to the interest applied to the main amount.
16. The applicants appealed against the judgment, claiming once again that the reimbursement made did not cover their real loss, in particular because of the interest applied.
17. On 27 May 2010 the Joint Administrative Chambers of the Supreme Administrative Court upheld the judgment.
18. On 24 February 2011 the high court rejected the applicants’ request for rectification.
COMPLAINTS
19. Relying on Article 1 of Protocol No. 1 to the Convention, the applicants complain that their right to peaceful enjoyment of possessions was violated, in that they were not compensated in full and that the interest applied to the main amount reimbursed to them by the Fund was not calculated in accordance with the relevant legislation. In that connection, they claim that the interest rate applied in their case only became clear following the modifications made to decision no. 2003/6668 on 3 July 2006, that is, after they, as creditors with offshore accounts, could benefit from the same reimbursement conditions as the other creditors. They argue that the interest rate applied to the main amount should have been calculated in line with the ‘legal interest rates’ for each year.
QUESTIONS TO THE PARTIES
Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, has there been a violation of that provision?
In particular, did that interference impose an excessive individual burden on the applicants (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V?
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