Přehled
Rozhodnutí
SECOND SECTION
DECISION
Application no. 38960/11
Toplusoy and Roman Ready-to-wear Textile, Industry and Trade Joint Stock Company
against Turkey
The European Court of Human Rights (Second Section), sitting on 9 November 2021 as a Committee composed of:
Carlo Ranzoni, President,
Egidijus Kūris,
Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 16 March 2011,
Having regard to the partial decision of 8 April 2014,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, Mr Turgut Toplusoy, was born in 1949 and lives in Istanbul. The second applicant, Roman Hazır Giyim ve Tekstil San. Tic. A.Ş., is a joint stock company registered in Turkey and located in Istanbul. They were represented before the Court by Mr H. Akalp, a lawyer practising in Istanbul.
2. The Government were represented by their co-Agent, Mr Hacı Ali Açıkgül, the Head of the Human Rights Department of the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On an unspecified date, the applicants signed a preliminary contract with a joint-stock company (C.H. Anonim Şirketi, hereinafter “C.H.”) for the sale of a plot of land in Ümraniye, Istanbul, which had been registered as parcel no. 26. The applicants and seven other people were the owners of the land.
5. Under the terms of the contract, the parties agreed to complete the sale at a price of 135 United States dollars (USD) per square metre on the condition that the sellers obtain a construction permit.
6. Article 10 of the contract provided that, as a sign of its commitment and goodwill in buying the land, C.H. would block USD 500,000 in a bank account at Demirbank and that it would give an order to the bank for the payment of the sum to the applicants at the moment of the transfer of the land in accordance with the terms of the contract.
7. On 23 May 2000 C.H. deposited the payment into an account at Demirbank.
8. On 23 October 2000 all the owners of the land, including the applicants, and Demirbank, which replaced C.H. as buyer, formally signed a contract for the sale of the land for 1,996,000,000,000 Turkish liras (YTL) (approximately 3,477,973 euros (EUR) at that time) at the Land Registry Office. In the contract, it was indicated that full payment of the price of the land was made to the sellers.
9. On the same date, the impugned land was registered in the Land Registry with the name of Demirbank.
10. By a decision dated 6 December 2000 (no. 123), the Banking Regulation and Supervision Board (Bankalar Düzenleme ve Denetleme Kurulu) decided to transfer the management and control of Demirbank to the Savings Deposit Insurance Fund (Tasarruf Mevduat Sigorta Fonu), pursuant to section 14(3) of the Banking Activities Act (Law no. 4389).
11. In its decision, the Board held that the assets of Demirbank were insufficient to cover its liabilities and that the continuation of its activities would threaten the security and stability of the financial system. Accordingly, Demirbank’s management and control, and the privileges of its shareholders except for dividends, were transferred to the Fund. The Fund also seized all properties belonging to Demirbank.
12. On 20 September 2001 the Fund entered into an agreement with another bank and sold Demirbank’s activities to the latter after having terminated its legal personality.
13. On 10 July 2006 the applicants brought an action against the Fund before the Kadıköy Commercial Court. They alleged that, although they had transferred the impugned land, the Fund had not paid the blocked money in breach of the preliminary contract. They requested USD 500,000 plus interest, from the Fund.
14. On 9 October 2007 the Commercial Court dismissed the applicants’ action. It underlined that Demirbank was not a party to the contract which was signed between C.H. and the applicants.
15. Following an appeal by the applicants, on 1 February 2000, the Court of Cassation upheld the judgment. It found that the preliminary contract was invalid as it had not been drawn up formally in a notary office and that the applicants were not entitled to make a claim based on an invalid contract.
16. On 15 October 2010 the Court of Cassation rejected the applicants’ request for rectification of the judgment.
COMPLAINTS
17. The applicants complained that the aforementioned facts had given rise to a violation of their rights under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.
THE LAW
18. The applicants maintained that they had been unable to recover the amount of USD 500,000, which was deposited in a bank account on their behalf in relation to a sales agreement of their land. They invoked Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.
19. The Court considers that the applicants’ complaints should be examined solely from the standpoint of the right to peaceful enjoyment of possessions within the meaning of Article 1 of Protocol No. 1, bearing in mind that the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, ECHR 2018).
20. The Government contested these arguments. They argued, inter alia, that the applicants could not be considered to have “possessions” within the meaning of Article 1 of Protocol No. 1.
21. The Court reiterates at the outset that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. The hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition. Where the proprietary interest is in the nature of a claim, it may be regarded as an “asset” only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming its existence. No legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (Kopecký v. Slovakia [GC], no. 44912/98, §§ 35, 50 and 52, ECHR 2004‑IX).
22. At the outset, the Court observes that the applicants received the entire sales price and that they never claimed or even suggested that the amount they received at the moment of the sale was reduced to take into consideration the sum blocked at Demirbank. In fact, as pointed by the Government, the official deed signed by the parties clearly stated that the sales price had already been paid and did not indicate that the amount already received by the applicants would be completed with payment of the blocked amount. In other words, the amount in question was paid to the applicants in full at the moment of the transfer of property.
23. It remains to be ascertained whether or not the applicants had a right on the blocked amount on any other ground. The Court observes that the applicants have failed to demonstrate that there was a legal or contractual clause stating that the blocked money have been paid to them in any case and would be capable of constituting the base of a legitimate expectation. On the contrary, the account where the said amount had been deposited, was blocked, that is, the applicants would be able to withdraw the money on the condition that C.H. gave its consent. This condition has not been fulfilled.
24. In any event, the applicants did not explain the reason why C.H. would have to pay them the blocked amount, nor did they provide any plausible explanation as to why they waited for six years before claiming a rather considerable sum of money.
25. Furthermore, the Court of Cassation ruled that the contract was invalid given that it was a real estate related preliminary contract and that it should have been drawn up before a notary. It further held that, as a consequence of this non-compliance with the formal requirement, the applicants were not entitled to make a claim on the basis of this contract. The Court finds nothing arbitrary or otherwise unreasonable in the Court of Cassation’s assessment.
26. Accordingly, the applicant neither had a right nor a claim amounting to a legitimate expectation in the sense of the Court’s case-law to obtain the disputed amount and therefore no “possession” within the meaning of Article 1 of Protocol No. 1.
27. It follows that the complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 2 December 2021.
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Hasan Bakırcı Carlo Ranzoni
Deputy Registrar President