Communicated on 10 October 2017
SECOND SECTION
Application no. 6372/05
Kazım ZÜLFIKARI
against Turkey
lodged on 11 January 2005
STATEMENT OF FACTS
1. The applicant, Mr Kazım Zülfikari, is a Turkish national, who was born in 1948 and lives in Istanbul. He is represented before the Court by Ms A. Becerik, a lawyer practising in Istanbul.
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 decided to transfer 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, requesting the annulment of the transfer and claiming compensation of 2 trillion former Turkish liras[1], the approximate value of his shares at the time. He maintained that he had bought the shares through the stock market, relying on the balance sheets of the bank, which had been supervised by State institutions and approved by independent auditing agencies. He argued accordingly that no fault could be attributed to him in Yaşarbank’s transfer to the Fund and that he should have received the same protection granted to those who had accounts in the bank. In that connection, the applicant pointed out that the main shares of banks and the shares bought through the stock market were subject to different legal provisions and thus should have been dealt with separately during the State’s takeover of the bank. The applicant also raised a plea of unconstitutionality.
6. On 18 June 2002 the Supreme Administrative Court dismissed the case. The court indicated that the lawfulness of Yaşarbank’s transfer to the Fund had been challenged before and had been dismissed by its judgment dated 27 February 2002, where it had found that the impugned transfer had been lawful and in the public interest. With regard to the applicant’s compensation claim, it noted that the applicant should be considered as a partner of the bank as he owned its shares, and that although the aim of commercial activity was to gain profit, one could not detach the risk of loss from such activity. The court further rejected the applicant’s request to refer the case to the Constitutional Court.
7. The applicant appealed, arguing that the State authorities had failed in their duty of supervision, in that they had not informed the public of Yaşarbank’s deteriorating financial situation.
8. On 29 April 2004 the Joint Administrative Chambers of the Supreme Administrative Court upheld the judgment.
9. The final decision was served on the applicant on 20 July 2004.
B. Relevant domestic law
10. 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
11. 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)?
[1]. Approximately 3,600,000 euros at the time
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