CONCURRING OPINION OF JUDGE SAJ Ó

In the present case the Joint Administrative Chambers of the Supreme Administrative Court held that prior to ordering the transfer of Demirbank to the Savings Deposit Insurance Fund, the Banking Regulation and Supervision Board should have carried out an objective evaluation of the bank ’ s financial situation. The Supreme Administrative Court held that the administrative act pertaining to the taking over of Demirbank by the Savings Deposit Insurance Fund was unlawful. Nevertheless the present judgment considered that the Board ’ s decision to takeover Demirbank was clearly taken as a measure to control the banking sector in the country. It is true that it involved a deprivation of property, but in the circumstances the deprivation formed a constituent element of a scheme for controlling the banking industry. I see it differently. The Board abused the control power and it confiscated property: It does not matter that it happened under the guise of control.

DISSENTING OPINION OF JUDGE KJØLBRO

59 . I respectfully disagree with the majority that there has been a violation of Article 6 of the Convention (see paragraphs 40-45 of the judgment).

60 . Execution of a court ’ s judgment is an integral part of the “trial” for the purposes of Article 6 of the Convention, and Article 6 imposes an obligation on administrative authorities to comply with a court judgment. Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees under Article 6 enjoyed by a litigant during the judicial phase of the proceedings are rendered devoid of purpose (see Hornsby v. Greece , 19 March 1997, § 40, Reports of Judgments and Decisions 1997 ‑ II).

61 . The Court has in numerous cases found a violation of Article 6 where administrative authorities have failed to comply with or execute a judgment. By way of example, such cases have related to failure to: pay a debt or compensation ( Burdov v. Russia , no. 59498/00, §§ 36-38, ECHR 2002 ‑ III; Timofeyev v. Russia , no. 58263/00, §§ 40-43, 23 October 2003; Metaxas v. Greece , no. 8415/02, §§ 25-26, 27 May 2004; and Simaldone v. Italy , no. 22644/03, §§ 48-56, 31 March 2009); comply with the annulment of an expropriation order ( Katsaros v. Greece , no. 51473/99, §§ 33-35, 6 June 2002); restore property or pay compensation ( JasiÅ«nienÄ— v. Lithuania , no. 41510/98, §§ 28-32, 6 March 2003, and Sabin Popescu v. Romania , no. 48102/99, §§ 68-76 , 2 March 2004 ); demolish buildings ( Kyrtatos v. Greece , no. 41666/98, §§ 31-32, ECHR 2003 ‑ VI (extracts), and Ruianu v. Romania , no. 34647/97, §§ 65-73, 17 June 2003 ); evict persons from a building ( Prodan v. Moldova , no. 49806/99, §§ 50-56, ECHR 2004 ‑ III (extracts)); grant access to public documents ( Kenedi v. Hungary , no. 31475/05, §§ 35-39, 26 May 2009); bring industrial and other activities to an end ( TaÅŸkın and Others v. Turkey , no. 46117/99, §§ 135-138, ECHR 2004 ‑ X, and Okyay and Others v. Turkey , no. 36220/97, §§ 72-74, ECHR 2005 ‑ VII); employ a person ( Castren-Niniou v. Greece , no. 43837/02, §§ 25-28, 9 June 2005 ); and hand over adopted children to their parents ( Pini and Others v. Romania , nos. 78028/01 and 78030/01, §§ 174 ‑ 189, ECHR 2004 ‑ V (extracts)).

62 . That being said, it also follows from the case-law that the obligation to comply with or execute a judgment cannot be interpreted in a way that will impose an impossible burden on an administrative authority. In other words, there may be exceptional circumstances that can justify a failure to execute a judgment. Thus, in practice it may be impossible de facto or de jure to execute a judgment (see Loiseau v. France , no. 46809/99, § 19, 28 September 2004; Manoilescu and Dobrescu v. Romania and Russia ( dec .), no. 60861/00 , §§ 67-82, ECHR 2005 ‑ VI; Treska v. Albania and Italy ( dec .), no. 26937/04 , ECHR 2006 ‑ XI ( extracts ); Société Cofinfo v. France ( dec .), no. 23516/08, 12 October 2010; Sofiran and BDA v. France , no. 63684/09 , §§ 50-56, 11 July 2013; and Süzer and Eksen Holding A.Åž. v. Turkey , no. 6334/05, § 123, 23 October 2012).

63 . Where a court ’ s judgment imposes a specific obligation on an administrative authority (to pay a specified amount of money or take certain actions), compliance with the judgment can easily be assessed. However, where a court ’ s judgment annuls an administrative decision as being unlawful, it may be less clear what the administrative authority has to do in order to comply with and give effect to the judgment. Where the administrative authority has unlawfully rejected an application for a permit, authorisation or benefit, the same authority may have to reassess the application in the light of the domestic court ’ s findings. Where the administrative authority has unlawfully rejected a request or imposed an obligation on an individual, the administrative authority may also be liable to pay compensation for damage caused by the unlawful decision. The administrative authority may also have to change its future conduct or practice in the light of the court ’ s decision. Thus, the way in which an administrative authority will have to comply with a court ’ s judgment annulling a decision will depend on the specific circumstances of the case, including the nature of the decision in question, the factual situation after the annulment and the request made by the plaintiff in the proceedings.

64 . In the present case the Supreme Administrative Court annulled the decision to transfer Demirbank to the Fund and its subsequent sale by the latter to the HSBC bank. The Supreme Administrative Court ’ s judgments annulled the transfer and declared the sales agreement null and void, but they did not impose specific obligations on the Agency, for example to restore the bank to its previous situation. Nevertheless, the Agency was required to comply with the findings of the judgments.

65 . The second applicant requested the Agency to comply with the judgments and enforce them by returning Demirbank to its previous owners (see paragraph 17 of the judgment). In other words, the second applicant requested restitutio in integrum . However, as Demirbank had been sold to and merged with the HSBC bank and no longer existed as a legal entity, the Agency informed the second applicant that it was impossible to enforce the judgments as requested by her (see paragraph 18 of the judgment). The second applicant did not request compensation for damage, nor did she institute proceedings to challenge the alleged impossibility of enforcing the judgments.

66 . In the specific circumstances of the case the Agency cannot be blamed for not returning Demirbank to its previous owners. As mentioned, the bank had been sold to and merged with another private bank and had itself ceased to exist and had been struck off the commercial register.

67 . As mentioned in the judgment (see paragraph 43), the Supreme Administrative Court assessed the transfer and subsequent sale of Demirbank in separate proceedings, which are the source of a related application to the Court (see Reisner v. Turkey , no. 46815/09, § 28, 21 July 2015). In its judgment of 16 March 2009 the Supreme Administrative Court stated that “the judgment could not be executed, as Demirbank ’ s shares had ceased to exist as a result of the loss of its legal personality following its merger with HSBC”. In other words, the domestic courts explicitly recognised that restitutio in integrum was impossible.

68 . The fact that it was impossible to restore the situation existing before the unlawful – and subsequently annulled – decisions does not imply that the Agency did not have to comply with the judgments. The impossibility de facto and de jure of restoring the bank to its previous situation, with all its assets and liabilities, and returning it to its previous owners would imply that the Agency could be held liable to pay compensation for damage suffered as a consequence of its unlawful decisions.

69 . In the view of the majority, the “complete inaction by the Agency in responding to the second applicant ’ s request for the enforcement of the Supreme Administrative Court ’ s judgments effectively deprived the applicants of their rights of access to court” (see paragraph 44 of the judgment). I respectfully disagree with this statement. The second applicant only asked the Agency to return the bank to its previous owners. She never asked for compensation for damage.

70 . In my view the Agency cannot be blamed for not “examining other alternative solutions” (see paragraph 41 of the judgment) of its own motion, for example by offering to pay compensation for damage to the second applicant, who made no request to that effect.

71 . Furthermore, the case is distinguishable from Süzer and Eksen Holding A.Åž. (cited above), where the Court did find a violation of Article 6 in a case concerning the transfer of another bank in Turkey (see §§ 119 ‑ 133). In that judgment the domestic authorities had exhibited persistent and total inactivity irrespective of final judgments annulling the transfer of the bank in question and irrespective of subsequent requests from the applicants to execute the judgments, as well as subsequent court decisions finding that the previous owners should be granted the necessary authorisation to establish a new bank (see, in particular, §§ 122, 124, 127 and 130).

72 . Therefore, having regard to the nature of the court ’ s judgments (annulling administrative decisions), the impossibility of restoring the situation existing before the unlawful decisions were taken, and the lack of a claim for compensation or of any requests other than restitutio in integrum , there has, in my view, been no violation of Article 6 of the Convention.

[1] . Rectified on 2 May 2017: the text was “ 2. On 30 August 2011 the Chamber decided to join the applications and communicate them to the Government. ”

[2] . Rectified on 2 May 2017 : ” I. JOINDER OF THE APPLICATIONS

20 .  Given their similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court. ” has been added.

[3] . Rectified on 2 May 2017: Heading I became Heading II.

[4] . The former paragraph number “21” has been deleted.

[5] . Rectified on 2 May 2017: Heading II became Heading III.

[6] . Rectified on 2 May 2017: “ 1. Dec ides to join the applications” has been added to the operative part and subse quent paragraphs have been renumbered accordingly.