CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 septembre 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B8D41EE { font-family:Arial; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s76CF415B { page-break-before:always; clear:both } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sDF237D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:8pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s6B505E72 { margin:0pt; padding-left:0pt } .s4F2ADFDB { text-align:center; font-family:Arial; font-size:8pt; list-style-position:inside } .sBB6163A7 { width:2.48pt; font:7pt 'Times New Roman'; display:inline-block } .s5F16DB7 { margin-left:26.68pt; text-align:justify; padding-left:9.32pt; font-family:serif; font-size:8pt } .sB217F55D { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:8pt }   Communicated on 27 September 2017   SECOND SECTION Application no. 74289/10 Destine GÜVEN against Turkey and 9 other applications (see list appended) STATEMENT OF FACTS 1.     A list of the applicants and the dates of the relevant judgments and decisions of the domestic courts is set out in the appendix. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicants, may be summarised as follows. 3.     The applicants all had accounts at Ulusal Bank. 4.     On 23 February 2001 they requested the bank to transfer all the money deposited in their accounts to another bank. 5.     By a decision dated 28 February 2001 (no. 189), the Banking Regulation and Supervision Board ( Bankalar Düzenleme ve Denetleme Kurulu ) decided to transfer the management and control of Ulusal Bank to the Savings Deposit Insurance Fund ( Tassarruf Mevduat Sigorta Fonu – hereinafter “the Fund”), pursuant to section 14 (3) of the Banking Activities Act (Law no. 4389). 6.     On 2 April 2001 the applicants sent warning letters to Ulusal Bank through a notary, indicating that although they had requested the transfer of all the money in their accounts, the bank had withheld part of it. They requested the transfer of the remaining amount. 7.     Following the implicit refusal of Ulusal Bank to comply with their requests, the applicants brought proceedings before the Izmir Commercial Court, requesting the payment of 8,874 Turkish liras, the amount confiscated by the bank. 8.     In response to the applicants’ allegations, Ulusal Bank’s lawyers stated that in February 2001 the bank had had to apply excessively high rates of interest to its creditors’ accounts in order to keep their money during the financial crisis. They argued that the financial difficulties endured by the bank during that time had forced it to abide by the creditors’ requests for such interest rates, called “overnight interests”, which was contrary to morals within the meaning of Article 20 of the Code of Obligations in force at the time (Law no. 818). They further alleged that the creditors’ acts constituted an abuse of the bank’s situation ( gabin ) pursuant to Article 21 of the same Code. They noted accordingly that following the transfer of Ulusal Bank to the Fund, the applicants had not been paid the amount accumulated by those overnight interests, in line with the approach adopted by the Fund in such cases. 9.     The expert reports drawn up during the course of the proceedings noted that in order for a party to revoke a contract on the basis of abuse, the acts of both parties must be severely disproportionate at the time the contract was first signed. The reports stated that in the present cases the disproportionality had resulted from the financial crisis which had occurred after the signature of the contracts between the parties. 10.     The Izmir Commercial Court accepted the applicants’ cases, relying on the expert reports and finding that in order for a party to revoke a contract due to abuse, the other party must have clearly benefited from his or her financial difficulty or lack of experience. In that connection, the court noted that as the bank was an institution of financial expertise, it could not be considered to lack experience. It went on to find that even assuming the bank was in a state of financial difficulty, this, in itself, was not sufficient to conclude that it had been the object of abuse. 11.     The Court of Cassation quashed the judgments. It held that the expert reports relied on by the first-instance court were not sufficient. The high court concluded that the Commercial Court had to render a new judgment after obtaining other expert reports, which should evaluate the objective and subjective elements of the concept of abuse (whether there was clear disproportionality between the parties’ acts and whether that disproportionality resulted from the state of difficulty or lack of experience of one of the parties, respectively). 12.     In the first application in the appendix hereto, brought by Destine Güven, the Izmir Commercial Court insisted on its previous finding and accepted the applicant’s case once again. Referring to previous Court of Cassation decisions supporting its approach, the court held that the applicants could not be considered to have taken advantage of the bank, the party offering the high interest rates and misinforming its creditors about its financial situation. 13.     The case subsequently went before the Joint Chambers of the Court of Cassation, which quashed the first-instance court’s judgment on 8   December 2004, holding that the court needed to assess the case in the light of a new expert report, making a comparative analysis of the interest rates offered by other banks during the period at issue. 14.     Subsequently, in all cases, expert committees composed of professors of economics, professors of law and bank directors submitted their reports to the Commercial Court. All of those reports maintained that there was no clear disproportionality between the acts of the parties, as other institutions, including State banks, had applied similar overnight interest rates during the period concerned. The applicants had chosen to benefit from the rates offered by Ulusal Bank and it was not possible for them to know that the bank was in a state of financial difficulty at the time. The expert reports stated accordingly that the objective element of abuse could not be satisfied. Moreover, they found that the subjective element was not fulfilled either, in that the bank was a financial institution with substantial power and could not be considered to have been exploited by its creditors who simply profited from the interest rates offered by the bank itself. The reports concluded that the applicants could request the payment of the amounts confiscated by Ulusal Bank as the latter had breached the terms of the contract. 15.     Subsequently, the Izmir Commercial Court dismissed the applicants’ cases. Indicating that it did not take into account the legal assessments made in the expert reports but relied merely on the financial information given therein, the court held that the bank had been obliged to apply excessively high interest rates in order to provide money flow during the financial crisis and that the applicants had not acted in bona fide as they had taken advantage of that difficulty faced by Ulusal Bank. 16.     Those judgments were upheld by the Court of Cassation. The high court further rejected the applicants’ subsequent requests for rectification. B.     Relevant domestic law 17.     The relevant part of Article 20 of the Code of Obligations in force at the time (Law no. 818) reads as follows: Nullity “A contract would be null if its subject is impossible, illegal or contrary to morals.” 18 .     Article 21 of the same Code reads: Abuse “If the parties’ acts in a contract are clearly disproportionate and if that disproportionality results from one party’s exploitation of the other’s financial difficulty or lack of experience, the injured party may revoke the contract within one year after signature and secure restitution.” COMPLAINTS 19.     The applicants complain under Article 1 of Protocol No. 1 to the Convention that their right to peaceful enjoyment of their possessions was violated, in that they were illegally and disproportionately deprived of the interest accumulated in their accounts at Ulusal Bank following its transfer to the Savings Deposit Insurance Fund. QUESTION 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   No. Application no. and date of introduction Applicant name date of birth place of residence nationality Represented by Judgments and decisions before the dismissal of the applicants’ cases Final judgment and the subsequent decisions of the Court of Cassation     74289/10 05/11/2010   Destine GÜVEN 11/04/1965 IZMIR Turkish   Hüseyin Ali AFŞAROGLU Izmir Commercial Court - 11 October 2002 (accepting the applicant’s case) Court of Cassation - 15 September 2003 (quashing the judgment) Izmir Commercial Court - 8 April 2004 (accepting the case) Joint Chambers of the Court of Cassation - 8 December 2004 (quashing the judgment once again) Izmir Commercial Court - 17 May 2007 (dismissing the applicant’s case) Court of Cassation - 2 November 2009 (upholding the judgment) Final decision - Court of Cassation - 6 April 2010 (rejecting the applicant’s request for rectification) Final decision served on the applicant on 10   May 2010     75443/10 05/11/2010   Emrah DOĞAN 04/01/1980 SANLIURFA Turkish   Hüseyin Ali AFŞAROGLU Izmir Commercial Court - 11 March 2003 (accepting the applicant’s case) Court of Cassation - 13 December 2004 (quashing the judgment) Izmir Commercial Court - 17 May 2007 (dismissing the applicant’s case) Court of Cassation - 3 November 2009 (upholding the judgment) Final decision - Court of Cassation - 19 May 2010 (rejecting the applicant’s request for rectification) Final decision served on the applicant on 8 June 2010     75444/10 05/11/2010   Hediye Berdan GÜVEN 01/04/1957 Izmir Turkish   Hüseyin Ali AFŞAROGLU Izmir Commercial Court - 25 March 2003 (accepting the applicant’s case) Court of Cassation - 13 December 2004 (quashing the judgment) Izmir Commercial Court - 17 May 2007 (dismissing the applicant’s case) Court of Cassation - 26 October 2009 (upholding the judgment) Final decision - Court of Cassation - 29 April 2010 (rejecting the applicant’s request for rectification) Final decision served on the applicant on 25   May 2010     75445/10 05/11/2010   Nesrin BILGIÇ 21/11/1957 SANLIURFA Turkish   Hüseyin Ali AFŞAROGLU Izmir Commercial Court - 25 March 2003 (accepting the applicant’s case) Court of Cassation - 13 December 2004 (quashing the judgment)   Izmir Commercial Court - 17 May 2007 (dismissing the applicant’s case) Court of Cassation - 2 November 2009 (upholding the judgment) Final decision - Court of Cassation - 27 April 2010 (rejecting the applicant’s request for rectification) Final decision served on the applicant on 17   May 2010     75446/10 05/11/2010   Fatma DOĞAN 24/08/1943 SANLIURFA Turkish   Hüseyin Ali AFŞAROGLU Izmir Commercial Court - 11 March 2003 (accepting the applicant’s case) Court of Cassation - 13 December 2004 (quashing the judgment)   Izmir Commercial Court - 17 May 2007 (dismissing the applicant’s case) Court of Cassation - 2 November 2009 (upholding the judgment) Final decision - Court of Cassation - 13 April 2010 (the high court accepted the applicant’s request for rectification, however; upheld the judgment once again, this time with a new reasoning) Final decision served on the applicant on 11   May 2010     45105/11 07/07/2011   Hüseyin Coşkun GÜVEN 29/07/1958 Izmir Turkish   Nüve KAŞERCİ Izmir Commercial Court - 13 December 2002 (accepting the applicant’s case) Court of Cassation - 22 September 2003 (quashing the judgment) Izmir Commercial Court - 29 December 2006 (dismissing the applicant’s case) Court of Cassation - 20 May 2010 (upholding the judgment) Final decision - Court of Cassation – 2   December 2010 (rejecting the applicant’s request for rectification) Final decision served on the applicant on 10   January 2011     47654/11 13/06/2011   Hanife Sibel KURTIŞ (GÜVEN) 05/07/1959 IZMIR Turkish   Nüve KASERCI Izmir Commercial Court - 13 December 2002 (accepting the applicant’s case) Court of Cassation - 25 September 2003 (quashing the judgment) Izmir Commercial Court - 29 December 2006 (dismissing the applicant’s case) Court of Cassation - 18 March 2010 (upholding the judgment) Final decision - Court of Cassation – 30   November 2010 (rejecting the applicant’s request for rectification) Final decision served on the applicant on 21   December 2010     58096/11 07/07/2011   Oya DOĞAN 15/06/1975 SANLIURFA Turkish   Nüve KASERCI Izmir Commercial Court - 13 December 2002 (accepting the applicant’s case) Court of Cassation - 22 September 2003 (quashing the judgment) Izmir Commercial Court - 29 December 2006 (dismissing the applicant’s case) Court of Cassation - 25 March 2010 (upholding the judgment) Final decision - Court of Cassation – 25   November 2010 (rejecting the applicant’s request for rectification) Final decision served on the applicant 10   January 2011     58103/11 07/07/2011   Hüseyin Berker GÜVEN 07/09/1994 IZMIR Turkish   Nüve KASERCI Izmir Commercial Court - 13 December 2002 (accepting the applicant’s case) Court of Cassation - 22 September 2003 (quashing the judgment) Izmir Commercial Court - 29 December 2006 (dismissing the applicant’s case) Court of Cassation - 15 March 2010 (upholding the judgment) Final decision - Court of Cassation – 2   December 2010 (rejecting the applicant’s request for rectification) Final decision served on the applicant on 10   January 2011   62277/11 20/06/2011   Ayşe Büge GÜVEN 20/04/1988 Izmir Turkish   Nüve KASERCI Izmir Commercial Court - 13 December 2002 (accepting the applicant’s case) Court of Cassation - 22 September 2003 (quashing the judgment) Izmir Commercial Court - 29 December 2006 (dismissing the applicant’s case) Court of Cassation - 3 May 2010 (upholding the judgment) Final decision - Court of Cassation – 9   November 2010 (rejecting the applicant’s request for rectification) Final decision served on the applicant on 21   December 2010