Communicated on 8 November 2017

SECOND SECTION

Application no. 33461/09 Refii Samim BERENT and others against Turkey lodged on 15 June 2009

STATEMENT OF FACTS

1. A list of the applicants is set out in the appendix. They are represented before the Court by Mr Tekin Ak ı ll ı o ğ lu , a lawyer practicing in Ankara.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. The first applicant is the president of two companies, indicated as the second and third applicants. All three of them together held a certain amount of shares in Pamukbank T.A. Ş . (hereinafter “ Pamukbank ”). At the time, 99% of the bank ’ s shares were held by the Çukurova Group, which was the main shareholder of numerous other companies.

4. By a decision dated 18 June 2002 (no. 742), the Banking Regulation and Supervision Board ( Bankalar Düzenleme ve Denetleme Kurulu - hereinafter “the Board”) revoked Pamukbank ’ s licence to conduct banking activities pursuant to sections 14 §§ 3 and 4 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 19 June 2002 the Fund took over the possession of all shares of Pamukbank in line with section 14 § 5 of Law no. 4389.

1. Proceedings brought by the Çukurova Group

6. Following Pamukbank ’ s takeover by the State, the Ç ukurova Group brought annulment proceedings and requested the stay of execution of the Board ’ s decision to transfer the bank to the Fund.

7. On 19 September 2002 the Supreme Administrative Court rejected the request.

8. After assessing the Group ’ s objection to that decision, on 22 November 2002 the Joint Administrative Chambers of the Supreme Administrative Court granted the Group ’ s request for the stay of execution. It found that the procedure before the transfer had not been conducted in compliance with provisional section 4 of Law no. 4389, according to which, before transferring banks with insufficient capital, the Banking Regulation and Supervision Agency ( Bankalar Düzenleme ve Denetleme Kurumu - hereinafter “the Agency”) had to provide them with information and time to take additional measures in order for them to achieve restructuring and recapitalisation. The high court noted that the Board ’ s decision to transfer Pamukbank to the Fund was not lawful as the authorities had not had recourse to any of the measures indicated in section 4 of Law no. 4389 before adopting the decision.

9. On 31 January 2003 the Ç ukurova Group signed a protocol with the Agency and the Fund. According to that protocol, the Group would withdraw its case before the Supreme Administrative Court concerning the annulment of Pamukbank ’ s transfer to the Fund and would not bring any further proceedings against the acts of the Fund and the Agency. It would further take on the liability to pay compensation to third parties, which would arise if the cases brought by those third parties were accepted by the Supreme Administrative Court. In return, the Fund would sell the shares of certain valuable companies, transferred to it as part of Pamukbank ’ s assets, back to the Group for the amounts indicated in the protocol. Those companies included Turkcell , the biggest telecommunication and technology services provider in Turkey, and Yap ı Kredi Bankas ı , one of the five biggest banks at the time.

10. Following the protocol, on an unspecified date the Supreme Administrative Court found it not necessary to render a judgment as the Group had withdrawn its case.

11. Subsequently, on 3 February 2003 the Board adopted a decision to resume the execution of Pamukbank ’ s transfer to the Fund.

2. Proceeding brought by the applicants

12. On 11 November 2002 the applicants brought proceedings against the Fund and the Agency, requesting the stay of execution and annulment of the decisions pertaining to Pamukbank ’ s transfer to the Fund and the latter ’ s takeover of all its shares. They argued that the impugned decisions were not in line with the law and that they failed to take into account the rights of the small shareholders, who had not been included in the procedure before the takeover of the bank and had relied on the information provided by the Agency.

13. On 17 April 2003 the Supreme Administrative Court rejected the applicants ’ request for the stay of execution. After assessing the impugned decisions, the court indicated that they had been taken in line with section 14 §§ 3 and 4 of Law no. 4389.

14. On 27 June 2003 the Joint Administrative Chambers of the Supreme Administrative Court rejected the applicants ’ objection to that decision.

15. On 9 November 2004, following a decision of the Board, Pamukbank merged with Halkbank , a State bank.

16. In the meantime, in response to the applicants ’ query about whether their rights as small shareholders would be taken into account in the merger, both the Agency and the Fund informed the applicants that their rights as shareholders had ceased to exist by Pamukbank ’ s transfer to the Fund and that they did not have any enforceable rights in the absence of a judicial decision to that effect.

17. On 18 May 2005 the Supreme Administrative Court dismissed the applicants ’ case. The court found that the bank ’ s transfer to the Fund was in line with section 14 §§ 3 and 4 of Law no. 4389, taking account of the bank ’ s failure to improve its situation during the seven-year period when it was under the inspection of the State authorities.

18. On 26 June 2008 the Joint Administrative Chambers of the Supreme Administrative Court upheld that judgment.

19. On 15 April 2010 the high court rejected the applicants ’ request for rectification.

B. Relevant domestic law

20. A description of the relevant domestic law may be found in the judgments of Reisner v. Turkey (no. 46815/09 , 21 July 2015), and YaÅŸar Holding A.Åž. v. Turkey (merits) (no. 48642/07, 4 April 2017).

COMPLAINT

21. The applicants complain under Article 1 of Protocol No. 1 to the Convention that they were unlawfully deprived of their property and did not receive any compensation for their loss. They argue that their case was dismissed as a result of the change in the Supreme Administrative Court ’ s approach following the protocol signed between the main shareholders and the State authorities, to which they were not a party and which made it impossible to execute a judgment finding the bank ’ s transfer unlawful. In that connection, the applicants indicate that the said protocol concerned not only the transfer of Pamukbank but also the sale of certain important companies back to the Çukurova Group, and accordingly was part of a bigger transaction between its parties which should not have affected their rights as small shareholders of the bank. They finally maintain that they could not claim compensation from the main shareholders either, in that the protocol clearly indicated that the Çukurova Group would recover third parties ’ losses only upon a judicial decision accepting their requests for the annulment of the bank ’ s transfer.

QUESTIONS TO THE PARTIES

Have the applicants been deprived of their 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 applicants (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?

Appendix