Communicated on 11 May 2020
Published on 2 June 2020
SECOND SECTION
Application no. 69087/17
Fatma YILDIRIM
against Turkey
lodged on 13 September 2017
SUBJECT MATTER OF THE CASE
The application concerns the lack of any pecuniary compensation awarded to the applicant by the Constitutional Court, despite its finding of a violation on account of the loss in value of her receivables from a private person, which according to it resulted from the execution office’s failure to take any measures to protect the value of the assets under its control.
In 2002 the applicant brought enforcement proceedings before the Execution Office against her debtor. The Execution Office prepared a list determining the sequence of payments to be made to all the creditors of the debtor (sıra cetveli), as the latter’s property was not sufficient to cover all her debt.
In 2005 the applicant lodged an action before the Kadıköy Commercial Court, objecting to the order of the list. Her case was accepted by a judgment which became final in 2013.
In 2014 the applicant was paid 25,800 Turkish Liras (TRY). Subsequently, she applied to the Constitutional Court complaining of a violation of her right to property on account of the loss in value of her receivables during the course of the proceedings, which had lasted for more than nine years. In respect of pecuniary compensation, she claimed an amount calculated by applying the interest rate determined by the Turkish Central Bank to the amount paid to her. She also made a claim for non-pecuniary damage.
The Constitutional Court concluded that there had been a violation of the applicant’s right to property, finding that the State authorities had not acted in line with their positive obligations, as they had failed to prevent the loss in value of the applicant’s receivables, which had been under the control of the Execution Office during the course of the proceedings. It then awarded the applicant TRY 5,000 in respect of non-pecuniary damage, however, rejected her claim for pecuniary damage. In so doing, the Constitutional Court stated that the applicant could not prove the existence of a causal link between the alleged pecuniary damage and the violation found, as she had failed to provide any documents to that affect.
The applicant complains of a violation of her rights under Article 1 of Protocol No. 1 to the Convention, arguing that the Constitutional Court failed to award her compensation for the pecuniary damage despite its finding regarding the loss in value of her receivables. She argues that the Constitutional Court did not provide any reasoning for its finding of the lack of a causal link, although she had made a claim on the basis of the interest rate determined by the Turkish Central Bank, in line with its case-law.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the Convention on account of the Constitutional Court’s refusal of the applicant’s compensation claim for pecuniary damage, despite its findings as to the loss in value of the applicant’s receivables?
2. Was the applicant provided with sufficient procedural guarantees during the proceedings before the Constitutional Court? In particular, did the Constitutional Court provide sufficient reasoning regarding its refusal of the applicant’s claim for pecuniary damage (see Gereksar and Others v. Turkey, nos. 34764/05 and 3 others, 1 February 2011; contrast Melnychuk v. Ukraine (dec.), no. 28743/03, ECHR 2005‑IX)?
The Government are invited to provide the Court with copies of all the relevant documents showing the total amount of payment made to the applicant as a result of the enforcement proceedings brought her, as well as the total amount of the interest paid and the calculation method of the latter.
Full & Egal Universal Law Academy