AS TO THE ADMISSIBILITY OF
Applications nos. 48925/99 and 36109/04
by TÜRK TİCARET BANKASI MUNZAM SOSYAL GÜVENLİK EMEKLİ VE YARDIM SANDIĞI VAKFI
The European Court of Human Rights (Second Section), sitting on 23 May 2006 as a Chamber composed of:
Mr J.-P. Costa, President,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above applications lodged on 20 May 1999 and 10 September 2004,
Having deliberated, decides as follows:
The applicant, Türk Ticaret Bankası Munzam Sosyal Güvenlik Emekli Ve Yardım Sandığı Vakfı (the Supplementary Social Security and Pension Fund of the Turkish Commerce Bank) is a pension fund established in Istanbul in 1975 as a foundation (hereinafter, “the applicant”). It was represented before the Court by Mr Erbaşar Özsoy, a lawyer practising in Ankara.
The applicant filed an initial application in 1999 which was registered under no. 48925/99 and a subsequent application five years later which was registered under no. 36109/04. They represent the continuous evolution of the same subject matter and are therefore considered together.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the material time, the applicant owned approximately eighty per cent (80 %) of the shares in Türk Ticaret Bankası (Turkish Commerce Bank) (hereinafter, “the Bank”).
Starting from the early 1990s the Bank allegedly extended significant loans to a particular holding company. Although it was unable to recoup these non-performing loans, the Bank continued to extend additional amounts. By 1994 the aggregate amount of these loans represented 48 % of the Bank’s entire loan portfolio. Later, the Bank signed a debt restructuring scheme with the debtor holding company.
On 2 September 1994 the Ministry of State in charge of the Economy (hereinafter, “the Ministry”) established a “close supervision” regime over the Bank, pursuant to Article 64 § 1 of the Banks Act No. 3182, as the Bank’s financial standing was severely weakened.
1. The applicant’s attempts to convene a general assembly meeting
On 26 March 1995 the Bank held a general assembly meeting of shareholders. The shareholders reviewed the Bank’s financial statements and absolved the directors from any statutory liability with regard to their respective terms.
On 29 March 1996 the Bank held another general assembly meeting and once again absolved the board from any liability.
In December 1996 the applicant requested the directors, and later the auditors, to convene an extraordinary general assembly meeting mainly to establish the Bank’s assets, liabilities and non-performing loans. Its requests were denied as the suggested agenda was considered ill-timed and unhelpful to solve the Bank’s financial crisis. Later, the applicant reiterated its request, this time for an ordinary general assembly meeting, which was also denied on the same ground.
On 18 March 1997 the applicant applied to the 7th Commercial Court of Istanbul for an authorisation to convene a general assembly meeting with an agenda, inter alia, to appoint a new board of directors, to determine the amount of dividends to be distributed and to establish the Bank’s non-performing loans and those responsible for extending them.
On 13 May 1997 the court granted the authorisation, although it removed some of the agenda items as being irrelevant and unjustified. The board of the Bank appealed.
On 26 May 1997, upon the continued deterioration of the Bank’s financial standing, the Ministry transferred the Bank’s management to the Savings Deposit Insurance Fund of the Central Bank (“the SDIF”), pursuant to Article 64 § 2 of the Banks Act.
On 3 June 1997, having been convinced that the Bank’s financial crisis posed serious risks to the interests of its depositors and the banking system in general, the SDIF assumed the Bank’s entire outstanding liabilities and, in return, took over its shares, pursuant to Article 65 of the Banks Act. Thereby, the SDIF became the sole owner of the Bank with its entire assets and liabilities.
Despite the takeover, the applicant persisted with its efforts to convene a general assembly meeting by sending a notice to the Bank’s board on 27 June 1997. In response, the SDIF explained that the court’s earlier authorisation had lost its legal basis since the applicant was no longer a shareholder.
In the meantime, the 11th Chamber of Court of Cassation heard the applicant’s appeal. The court observed that the Article 64 regime was imposed on the Bank in 1994 and that the applicant had not initiated annulment proceedings against it for many years. The court then found that the proposed agenda as a whole was incompatible with the purposes of the Article 64 regime. As the Article 64 measures were meant to transfer certain critical matters from the shareholders’ prerogative to that of the Treasury and the Ministry, the shareholders were not able to convene a meeting with the proposed agenda and pass resolutions on them. Accordingly, it reversed the first instance ruling on 17 July 1997.
In the cassation proceedings, the applicant also argued that Article 64 of the Banks Act was unconstitutional and requested the court to refer the matter to the Constitutional Court. The court however found it a redundant exercise, as the applicant had already brought the matter before the Constitutional Court through a separate lawsuit.
On 9 October 1997 the Constitutional Court declared Articles 64 § 2 (authorising the transfer of the management of a bank to the SDIF) and 65 § 1(a) (authorising the transfer of the shares of a bank to the SDIF) of the Banks Act unconstitutional on procedural grounds. The court observed that the decree law introducing these two provisions should be considered annulled as the underlying law which had authorised the Council of Ministers to pass that decree law had itself been declared unconstitutional.
On 26 December 1997 the 7th Commercial Court of Istanbul complied with the cassation ruling and dismissed the applicant’s request. Upon the applicant’s re-appeal, the Court of Cassation dismissed the application on 20 October 1998, although this time it did not address the applicant’s unconstitutionality objection. However, shortly after that the court examined that same question when the applicant requested a rectification review. It observed that the Constitutional Court’s ruling in question did not come into force until April 1998, whereas the Bank had been placed under the Article 64 regime back in 1994. The court explained that, pursuant to the legal security principle, Constitutional Court rulings had no retroactive effect. Accordingly, it dismissed the rectification request on 12 February 1999.
2. The applicant’s challenge to the share and management takeover
On 9 July 1997 the applicant applied to the 8th Administrative Court of Ankara with a request for annulment of the takeover. The applicant argued that Articles 64 and 65 of the Banks Act were unconstitutional and that the underlying purpose of the takeover was to prevent it from calling a general assembly meeting.
The court referred the unconstitutionality question to the Constitutional Court and further rendered an interim decision on 14 July 1997 to stay the execution of the takeover until its decision on the merits. On 11 August 1997 the SDIF voluntarily revoked its takeover act and returned the shares to their previous owners. On 24 February 1998 the court struck the case off as the underlying dispute had been terminated upon the authority’s revocation.
3. The applicant’s challenge to the dissolution of the Bank
Shortly after the return of the shares, the Bank held two extraordinary general assembly meetings on 29 August 1997 and 3 February 1998 in order to replenish the lost share capital. The Bank resolved to increase its share capital initially from 3 to 50 and subsequently to 120 trillion Turkish liras. The applicant voted in favour of both decisions; however, it did not participate in the increase despite the Bank’s invitation. The SDIF alone injected money in an effort to restore the Bank’s financial standing. As a result, the SDIF became the majority shareholder with approximately 85 to 90 % shareholding, while that of the applicant was reduced to 5 to 10 %.
On 4 August 1998 the SDIF held a tender to sell the shares it owned in the Bank. The tender was awarded to a businessman offering 600 million American dollars (USD). A few months later, the sale was cancelled upon much publicized allegations that, prior to the bid, he had engaged in illicit contacts with certain political leaders and the other participating bidders.
When the SDIF reinitiated the sale, two new potential buyers showed interest but, after reviewing the Bank’s financial and legal records, they withdrew from the process.
After these failed efforts to sell the Bank, the banking regulators were convinced that the Bank could not recover from its financial troubles without vast additional capital. In that connection, the regulators decided on 15 June 2001 to revoke the Bank’s license to engage in banking activities and to accept deposits. The regulators further decided to dissolve it.
On 26 May 2001 the applicant requested the 10th Chamber of the Supreme Administrative Court (Danıştay) to annul the regulatory act in question and to stay its execution as an interim measure.
On 13 July 2001 the court refused the interim measure and proceeded to hear the merits. Upon the applicant’s appeal, the Grand Chamber of the Supreme Administrative Court (Danıştay İdari Dava Daireleri Genel Kurulu - “the DIDDGK”) granted the measure on 28 September 2001. On 17 May 2002 the Supreme Administrative Court dismissed the case.
On 9 August 2002 the Bank held a general assembly meeting and resolved its dissolution. The applicant voted against the resolution and filed a lawsuit for its annulment before the 9th Commercial Court of Istanbul. The court initially granted a stay of the execution measure on 29 November 2002, but revoked it on 4 March 2003 upon further review. The applicant applied for the withdrawal of the judges who had revoked the measure, alleging that they were partial. The motion was dismissed by the 4th Commercial Court of Istanbul for lack of any objective and concrete substantiation. On 16 September 2003 the Court of Cassation upheld the dismissal.
Meanwhile, administrative proceedings continued before the DIDDGK. On 18 October 2002 the court reversed the ruling of 17 May 2002 on the procedural ground that the lower court should have examined the appropriateness of the discretion used by the regulatory authority and have requested an expert opinion to better assess the weight of an earlier expert opinion submitted by the applicant.
On review, the Supreme Administrative Court took an interim decision to request the regulatory authority to provide clarification and financial data of the Bank’s insolvency. Thereafter, the court ruled again that the revocation of the Bank’s licenses and its dissolution was a justified measure in the public interest to protect the banking system and the interests of the Bank’s depositors. The court was not convinced by the applicant’s expert opinion arguing that the Bank was recovering from insolvency. It ruled that the ostensible recovery was only thanks to the large amounts of cash injected by the SDIF and that the Bank was not able to survive relying on its own assets. In that connection, the court found it unnecessary to require a further expert opinion and dismissed the case on 31 October 2003.
On 25 March 2004 the DIDDGK dismissed the applicant’s appeal and upheld the ruling of 31 October 2003.
B. Relevant domestic law
Article 64 of the Banks Act, No. 3182:
“STRENGTHENING THE FINANCIAL STRUCTURE:
ARTICLE 64: (1) Should the audit reviews reveal that the financial structure of a bank is severely weakened, the Minister may, by allowing an appropriate period of time, request from the board of directors:
(a) to increase its capital or call in the unpaid capital subscriptions or acquire subordinate loans;
(b) not to pay dividends and set aside allowances for bad debts;
(c) to cut its costs by closing some of its branches, stopping or limiting additional recruitment;
(d) to dispose of all or some of its subsidiaries or fixed assets;
(e) to avoid risky transactions, limit or stop extending credit, and increase measures to follow up inefficient or frozen credits;
(f) to withdraw the power of attorney of the officials determined to have acted in violation of laws and in weakening the financial structure of the bank;
(g) to convene the general assembly of shareholders;
(h) to take other measures deemed necessary for strengthening the financial structure.
The board of directors of the bank is obliged to take the necessary measures accordingly and to give monthly reports to the Undersecretariat [of the Treasury] about its decisions and measures.
Notwithstanding the foregoing provisions, the Minister shall be authorised to appoint new members to the board of directors, committee of managers or board of auditors, upon prior consultation with the Central Bank of the Republic of Turkey, if and when necessary by dismissing all or any of the members thereof or increasing the numbers of such boards, and to take all necessary measures for strengthening the financial structure, such as forfeiting or postponing the legal reserve requirements without penalty interest on them.
(2) Regardless of the request for the measures to be taken, upon consultation with the Central Bank of the Republic of Turkey, the Minister has the authority to transfer the management of the bank to the Savings Deposits Insurance Fund ...”
Article 65 of the Banks Act, No. 3182:
“SAVINGS DEPOSITS INSURANCE FUND
FOUNDATION, FUNCTIONS AND AUTHORITY OF FUND:
ARTICLE 65: (1) The Savings Deposits Insurance Fund [(“the Fund”)] has been founded as a legal entity in order to preserve confidence and stability in the banking sector, to strengthen and if necessary restructure the financial structures of banks and to insure the savings deposits in banks.
By taking into consideration the balance sheet of a bank as of the date of the transfer of the management to the Fund in accordance with the Article 64, the Fund has the authority and is in charge of;
(a) Taking over the losses of the bank ...,
(c) Liquidating every security, real estate property, capital shares, receivables and accepted commitments within the framework of commercial proceedings, to take measures such as increasing the terms of cashing receivables and payments, agreements, adjustments, securing, or with this aim or with the aim of selling the assumed shares of the bank, to guarantee the bank’s assets and liabilities to issue share certificates partially or fully to the creditors of the bank, including the depositors, against their claims.
The ownership of shares referring to the payment made in the context of paragraph (a) is transferred to the Fund without the need for any other transaction. In such a case, the shares of the shareholders shall be reduced pro rata.
All rights of the bank against third parties, related to the assets or liabilities assumed by the Fund, are transferred to the Fund without the need for any other legal transaction ...”
The applicant complained under Article 6 § 1 of the Convention that various aspects of the domestic proceedings denied it a fair trial. In this regard, the applicant complained specifically of the following facts:
(i) that the Court of Cassation, in its decision of 17 July 1997, refused to refer the applicant’s constitutional challenge to the Constitutional Court;
(ii) that the Court of Cassation’s ruling of 20 October 1998 did not address the applicant’s unconstitutionality objection;
(iii) that the same court, in dismissing its request to convene a general assembly meeting, relied on a law declared null and void by the Constitutional Court, and misinterpreted Article 64;
(iv) that the administrative case initiated on 25 June 2001 lasted for an excessive period of time;
(v) that its application in the commercial court against the dissolution resolution was heard by partial judges;
(vi) that administrative proceedings were concluded without holding public hearings;
(vii) that the decisions given against it were not sufficiently reasoned;
(viii) that in the administrative proceedings the court ruled against the applicant despite a favourable opinion by the public prosecutor (Danıştay başsavcısı);
(ix) that the Supreme Administrative Court’s decision of 31 October 2003 did not fully comply with the prior ruling of the DIDDGK, in forgoing an alternative expert opinion;
(x) that the clarifications and financial data submitted by the regulatory authority prevailed over the applicant’s expert opinion;
(xi) that the Turkish courts were not independent and impartial due to the fact that the judges were supervised by the Supreme Council of Judges and Prosecutors (Hakimler Savcılar Yüksek Kurulu) where the Minister of Justice and the Minister’s advisor were members; and lastly
(xii) that some of its stay of execution requests were not decided on within a reasonable period of time, or at all.
The applicant next complained under Article 10 of the Convention that the authorities’ refusal of permission to convene a general assembly meeting violated its right to freedom of expression.
Finally, under Article 1 of Protocol No. 1, the applicant complained that the collective actions of the authorities violated its right to the peaceful enjoyment of its possessions, i.e. its shares.
1. The applicant complained that it had not received a fair hearing in view of the various aspects of domestic proceedings summarised above. It relied on Article 6 § 1 of the Convention which provides in relevant part as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an ... impartial tribunal”.
Although the domestic proceedings which the applicant complained of developed in separate phases, they relate to the same underlying dispute. Accordingly, the Court deems it appropriate to join the two applications under present examination.
The Court notes that the impugned commercial and administrative proceedings as a whole were in determination of the applicant’s “civil rights and obligations”, since, as the Bank’s shareholder, it could arguably claim under Turkish law the right to participate in the corporate decision-making process (see, Pafitis and Others v. Greece 163/1996/782/983, judgment of 26 February 1998, Reports of Judgments and Decisions 1998-I). Article 6 § 1 is therefore applicable in this case.
In respect of the applicant’s complaints under this head, the Court makes the following observations:
(i) The Court of Cassation’s refusal to refer the applicant’s constitutional challenge to the Constitutional Court did not jeopardize the applicant’s right to have that challenge heard. As the Court of Cassation noted, the applicant had already a legal challenge pending before the Constitutional Court on the same matter.
(ii) The fact that the Court of Cassation’s ruling of 20 October 1998 did not address the applicant’s unconstitutionality objection was remedied without undue delay by the same court, at a later rectification review.
(iii) The same court dismissed the applicant’s request, reasoning that the Article 64 regime left the decision-making power to the relevant authorities. The underlying premise of the regime was that the Bank was unable to self-manage properly and caused serious risks to its depositors and the banking sector in general. The court also established that the close supervision of the Bank was established back in 1994, whereas the Constitutional Court’s ruling came into effect in 1998. As the court explained, Constitutional Court rulings had no retrospective effect in Turkish law and left executed legal acts and established legal relationships intact. Once declared unconstitutional, laws or some of their provisions became null and void and were not applicable “for the future” from the moment of their effective date. As regards the domestic courts’ alleged misinterpretation of Article 64, the Court reiterates that it has no authority to substitute its findings for those of domestic courts (see Kemmache v. France, judgment of 24 November 1994, Series A No. 296-C, § 44). The Court’s task is to examine whether the proceedings as a whole were fair and complied with the specific safeguards stipulated by the Convention. From the case file, the Court does not find any such non-compliance or arbitrariness in the Court of Cassation’s ruling.
(iv) The administrative proceedings were initiated on 25 June 2001 and ended on 25 March 2004, i.e., within two years and nine months. The applicant did not point to any particular delay in these proceedings imputable to the domestic courts. It rather complained that their overall length was excessive. The Court observes that, during that period, the Supreme Administrative Court heard a number of requests by the applicant for interim measures, decided on the merits of the case, later rendered an interim decision to collect more information and finally ruled on the merits once again, in the light of the additional information provided. During the same period, the DIDDGK heard and ruled on the applicant’s appeal and request for rectification. The Court observes that the administrative proceedings involved several reviews and rulings at two instances. Accordingly, the Court finds that the length of those proceeding cannot be considered excessive.
(v) The Court observes that the applicant failed to specify any objective and concrete indications which could suggest that the commercial court judges were not impartial. It appears from the case file that the applicant, on the mere basis of the outcome of the particular proceedings, suspected the judges of partiality.
(vi) Despite the applicant’s allegation that it was denied the benefit of a hearing, the Court notes that the administrative proceedings did in fact involve a hearing. It is evident from the Supreme Administrative Court’s decision dated 17 May 2002 that the court held a hearing on 26 February 2002 at which the applicant’s representative was present and had the opportunity to take the floor and make submissions. The DIDDGK, however, rejected the applicant’s request for a hearing pursuant to the relevant provisions of the Law on Administrative Procedure. The Court recalls that in order to examine whether there has been a hearing within the meaning of Article 6 § 1, it is necessary to consider the proceedings as a whole. The absence of a hearing on appeal or cassation may not raise an issue under Article 6 § 1 if the higher court was not determining an issue on the merits (see Helmers v. Sweden, judgment of 29 October 1991, Series A no. 212-A, p. 16, § 36; Meftah and Others v. France [GC], nos. 32911/96, 35237/97 and 34595/97, § 41, ECHR 2002-VII). In this regard, the Court notes, as a matter of Turkish law, that the DIDDGK’s review is restricted to points of law, and its decisions do not quash and replace those of lower courts, but reverse and remit them for further examination. The Court finds, therefore, that the lack of a public hearing at the DIDDGK level does not raise an issue under Article 6 § 1.
(vii) Article 6 only requires domestic decisions to be reasoned. It does not specify a minimum level of detail or depth in argumentation. The Court observes that the decisions in question gave reasons for their findings and, therefore, the requirements of Article 6 in this respect are prima facie satisfied (see García Ruiz v. Spain [GC], no. 30544/96, §§ 23-29, ECHR 1999-I).
(viii) Neither Turkish law nor the Convention jurisprudence requires domestic courts to be bound by a prosecutor’s opinion. Moreover, the Court notes that, in the instant case, the Court of Cassation also received the analysis of a judge rapporteur who disagreed with the prosecutor’s conclusions.
(ix) The Court also notes that the Supreme Administrative Court partially acted in accordance with the reversed ruling. This however does not automatically disclose an incident of arbitrariness. Although it did not order an alternative expert opinion to be provided, it collected additional information and data from the respondent banking regulator and made the necessary enquiries. As a result, the Supreme Administrative Court concluded that the regulator had used proper discretion in withdrawing the Bank’s licences and in deciding to dissolve it through corporate decision-making. The DIDDGK upheld this more substantiated second ruling and chose to forgo an additional expert opinion. This was not inconsistent with its earlier ruling as it was not based on procedural grounds alone, namely the insufficient judicial review.
(x) The Court notes that Article 6 does not, as such, require domestic courts to give prevalence to an expert opinion over its own analysis, evaluation or fact finding. In the case before the administrative court, the banking authorities had provided two rounds of submissions with detailed information and financial data to show that the Bank’s financial standing had been steadily weakening for a long time and that it could not be strengthened without large, additional capital injections by the regulator itself, since no other shareholder, including the applicant, was able or eager to do so. The DIDDGK was convinced by these submissions and ruled accordingly. Moreover, the Court notes that the applicant itself has admitted in its submissions that, at the material time, the Bank was practically bankrupt, its assets having vanished.
(xi) The Court recalls that in Imrek v. Turkey ((dec.), no. 57175/00, 28 January 2003), it established that the constitutional and judicial guarantees that Turkish law affords to civilian judges are sufficient to ensure their organic independence and impartiality. Therefore, the Court finds no matter for concern of independence or impartiality due to the composition of the Supreme Council of Judges and Prosecutors. Although the Imrek decision has dealt with the status of civilian judges sitting in State Security Courts, its analysis equally applies to all civilian judges in the other branches of the Turkish judiciary.
(xii) The alleged violation relating to the lack of or delay in the rulings on the applicant’s requests for stays of execution concerned only interim injunctions and did not involve a decision on the merits of the case. The Court has previously held that interlocutory proceedings relating to an interim injunction, in which no decision on the merits of the case is made, do not involve a determination of civil rights and obligations (see APIS a.s. v. Slovakia (dec.), no. 39754/98, 13 January 2000, unreported, and Moura Carreira and Lourenço Carreira v. Portugal (dec.), no. 41237/98, ECHR 2000-VIII). It follows that this aspect of the Article 6 complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3.
In light of the foregoing discussions, the Court finds that the applicant’s complaints under Article 6 are manifestly ill-founded as a whole and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant next submitted that the administrative authorities’ and the courts’ refusal to grant permission to call a general assembly meeting had also violated its right to freedom of expression enshrined in Article 10 of the Convention, which provides in relevant part as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority...”
The Court recalls that it has already examined this complaint under Article 6 § 1 of the Convention. It considers its above findings to be valid also in the context of the complaint under Article 10 of the Convention.
It follows that this complaint is similarly manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant further complained that the collective actions of the authorities violated its right to the peaceful enjoyment of its possessions, protected by Article 1 of Protocol No. 1 which provides insofar as relevant as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law ...
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ...”
The applicant alleged that certain unspecified State officials exerted political pressure on the Bank’s board to enter into business transactions incompatible with neutrality principles. It further claimed that the Bank was poorly managed while under the Treasury’s close supervision. In that connection, it submitted that it could not prevent the alleged misconduct by convening a general assembly meeting. It also claimed that its majority shareholding was removed by allegedly fraudulent and unlawful capital increases by the authorities. Finally, it submitted that the withdrawal of the Bank’s licenses and its dissolution and liquidation were unlawful.
In the light of these submissions, the Court observes that in the instant case there was no direct deprivation by domestic authorities of the applicant’s possessions and no interference comparable to such a deprivation. Although the applicant’s shares were taken over temporarily, the authorities returned them two months later. The Court considers that the applicant’s substantive complaint is one of a deprivation of its influence and power over the Bank as a majority shareholder.
The Court recalls that the notion of “possessions” in this Article has an autonomous meaning which is certainly not limited to ownership of physical goods: certain other rights and interests constituting assets can also be regarded as property rights, and thus possessions, for the purposes of this provision (see Gasus Dosier- und Föndertechnik GmbH v. Netherlands 15375/89, judgment of 23 February 1995, Series A, No. 306-B). Accordingly, company shares may be considered to be possessions (see Bramelid and Malmström v. Sweden nos. 8588/79 and 8589/79, Commission decision of 12 October 1982, Decisions and Reports (DR) 29).
The Court further recalls that a company share is a complex item which certifies that the holder possesses a share in the company together with the corresponding rights. This is not only an indirect claim on company assets but other rights may follow such as the right to influence company policy and control its assets (Company S. and T. v. Sweden, no. 11189/84, Commission decision of 11 December 1986, DR 50, p. 138).
Given the analysis below, however, the Court does not find it necessary to determine whether influence and power as a majority shareholder is, as such, a “possession” within the meaning of Article 1 of Protocol No. 1:
The Court observes that the alleged misconduct by the board of directors, and the State’s purported failure to exercise effective control in accordance with the requirements of Article 64 of the Banks Act, are primarily for the national authorities, notably the courts, to establish. The Court further observes that the applicant participated in two ordinary general assembly meetings in 1995 and 1996; it presumably examined the Bank’s financial statements and other records and was aware or should have been aware of any mismanagement or misconduct. The applicant could have voted against the resolutions absolving the respective boards of directors from statutory liability and could have filed for compensation on behalf of the Bank.
Thus, regardless of whether or not Article 1 of Protocol No. 1 entails a right to preserve the value of one’s company shares, the Court concludes that there was no causal link between the applicant’s inability to convene an extraordinary general assembly meeting and its alleged losses in terms of share value.
Turning to the alleged losses suffered due to the Court of Cassation’s misinterpretation of Article 64 of the Banks Act, the Court recalls that it has examined this complaint under Article 6 above and found no arbitrariness in the domestic court’s ruling. It finds no reason to reach a different conclusion here.
The applicant further alleged that the takeover was merely for the purpose of avoiding a general assembly meeting. The Court does not find it necessary to examine this complaint as, regardless of its underlying purpose, the takeover decision was revoked two months later and the shares were returned to the applicant. Therefore, the applicant cannot claim to be a victim of the takeover.
In addition, the applicant complained that, due to political corruption, the authorities had cancelled the tender and refused to award it to the next highest bidder. According to the applicant this caused its shares to lose their value. The Court notes that the authorities’ conduct in the context of the tender gives no right of claim to the applicant for the purposes of Article 1 of Protocol No. 1. The shares offered for sale were those of the SDIF, not the applicant. Therefore the authorities’ discretion relating to their own shares cannot be construed as an interference by the State with the applicant’s peaceful enjoyment of its shares or any control on their use. Furthermore, even the applicant itself argued that the winning bidder had conspired with all of the other bidders, including of course the second highest bidder. It follows that the applicant could not reasonably expect the tender to have been awarded to another contender.
Finally, the Court finds that the applicant’s allegations as to the allegedly fraudulent capital increases are completely groundless. It is evident from the Bank’s general assembly minutes that the applicant itself voted in favour of those increases but failed to contribute its part.
It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
S. Dollé J.-P. Costa
TÜRK TICARET BANKASI MUNZAM SOSYAL GÜVENLİK EMEKLİ
VE YARDIM SANDIĞI VAKFI v. TURKEY DECISION
TÜRK TICARET BANKASI MUNZAM SOSYAL GÜVENLİK EMEKLİ
VE YARDIM SANDIĞI VAKFI v. TURKEY DECISION