CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 septembre 2018

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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 } .s1A672C59 { margin-top:0pt; margin-bottom:0pt; text-indent:7.1pt; font-size:7pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .s30341481 { border-style:solid; border-width:0.75pt; padding:1.02pt 5.03pt; vertical-align:top; background-color:#f8f8f8 } .s5FFF0A7E { margin-top:0pt; margin-bottom:0pt; font-size:8pt } .sE8BFE78A { height:11.1pt } .s60ED8677 { border-style:solid; border-width:0.75pt; padding:1.02pt 5.03pt; vertical-align:top } .sF8C9A385 { font-family:Arial; font-size:8pt; font-weight:bold; list-style-position:inside } .sBB6163A7 { width:2.48pt; font:7pt 'Times New Roman'; display:inline-block } .s3537C2D6 { font-weight:normal } .s5C6807D3 { font-family:Arial; font-size:4.67pt; vertical-align:super } .s7ED160F0 { text-decoration:none } .s95B74BA6 { font-family:Arial; font-size:4.67pt; vertical-align:super; color:#0069d6 } .s548986CF { height:161pt } .s991AE78A { height:12.5pt } .s5ADC263B { height:26.7pt } .s26CDE78A { height:13.5pt } .sD7B9B0A7 { height:11.25pt } .s3D6F1073 { height:22pt } .s3505D7A { height:20.25pt } .s327E3B4A { height:110.4pt } .s872D3B90 { height:122.4pt } .sE933ECDB { margin-top:6pt; margin-bottom:6pt; text-align:justify; font-size:7pt } .sADC94CD6 { height:15pt } .sF6A12959 { width:33%; height:1px; text-align:left } .sC36A6361 { font-family:Arial; color:#000000 }   Communicated on 17 September 2018   SECOND SECTION Application no. 31707/07 Zeki ÜNAL against Turkey and 6 other applications (see list appended) STATEMENT OF FACTS A.     The circumstances of the case 1.     Background to the case 1.     The applicants, Zeki Ünal (“the first applicant”) and Şükrü Karahasanoğlu (“the second applicant”), are former executives and directors of two previously public banks, namely Sümerbank and Etibank. 2.     Sümerbank and Etibank were originally State-owned companies which operated in a number of different sectors, including the banking sector. 3.     They were restructured for privatisation purposes and as part of the restructuring process their banking assets were transferred to two newly incorporated legal entities, Sümerbank A.Ş. (hereinafter “Sümerbank”) and Etibank Anonim Ortaklığı (whose title was later changed to Etibank A.Ş.) (hereinafter “Etibank”). 4.     On 17 October 1995 Sümerbank was privatised and İpeks İplik Tekstil Sanayi A.Ş., a joint stock company owned by a businessman named H.G. and his companies, became the majority shareholder of the bank. 5.     On 2 March 1998 Etibank was privatised and Medya İpek Holding A.Ş. (whose title was later changed to Medya Sabah Holding A.Ş.), a joint stock company, which at the time was partly owned by D.B. and his companies, became the majority shareholder of the bank. 6.     Both applicants were appointed to the management and the board of directors of Sümerbank and Etibank following their privatisation and resigned from their duties before they were later taken over by the State. 7.     The first applicant was the assistant general manager of Sümerbank from 30 September 1997 to 28 February 1998 and the general manager of Etibank from 10 March 1999 to 9 August 2000. 8.     The second applicant was the general manager of Sümerbank and Etibank from 31 October 1995 to 16 February 1998 and from 2 March 1998 to 5 March 1999 respectively. 2.     Background information on the Savings Deposit Insurance Fund 9.     The Savings Deposit Insurance Fund ( Tasarruf Mevduatı Sigorta Fonu – hereinafter “the Fund”) was established to protect depositors and enhance the stability of the banking system in 1983. 10.     The Fund was a separate legal entity but remained under the control of the Central Bank of the Republic of Turkey and the Banking Regulation and Supervision Agency ( Bankacılık Düzenleme ve Denetleme Kurumu ‑ hereinafter “the Agency”) until it became an independent administrative authority in 2003. 11.     The Fund’s mandate, as described in the repealed Banks Act (Law no.   3182) of 25 April 1985, which entered into force on 2 May 1985, was initially limited to the insurance of the savings of deposit holders in banks. 12.     The repealed Banking Activities Act (Law no. 4389) of 18   June 1999, which entered into force on 23 July 1999 and replaced Law no.   3182, extended the Fund’s mandate so as to include the management of resolution processes of financially distressed banks. 13.     Law no. 4389 provided for the transfer of the management and supervision of a bank and the rights of its shareholders, except dividends, to the Fund in the event that the bank encounters certain financial problems (section 14 §   3) or its resources and assets are misused or abused by the majority shareholders (section 14 § 4). 14.     Law no. 4491 of 17 December 1999, which entered into force on 19   December 1999, introduced important changes to Law no.   4389, especially its provisions governing the scope of the Fund’s mandate in respect of bank resolution processes. 15.     Section 14 § 5, as amended by Law no. 4491, allowed the Fund to acquire the ownership of shares of a transferred bank on the condition that the Fund assumes the losses of the bank corresponding to its paid-up equity capital on the basis of its balance sheet at the time of the transfer. 16.     Under the same provision, the Fund, in addition to the right to acquire the shares of a transferred bank, was also entitled to demand the return of or compensation for losses incurred by the bank as a result of misuse and abuse of its resources. 17.     To recover those losses, under section 17 § 2 of Law no. 4389, the Fund was authorised to bring civil proceedings to engage the personal liability of the majority shareholders and the executives of the transferred bank who were responsible for the transactions which constituted misuse of the bank’s resources, regardless of whether or not the bank had gone bankrupt. 18.     For the purpose of securing the recovery of those losses, the Fund was also entitled to request the courts to take precautionary measures, such as ordering an interim injunction on assets of those persons, by virtue of section   14 § 5 (b) of Law no. 4389. 19.     Under section 15 of Law no. 4389, the Fund was also exempted from financial liabilities such as taxes, charges and levies. 3.     The transfer of Sümerbank and Etibank to the Fund 20.     Following the failure of the measures taken to improve their financial situation, fırst Sümerbank, by the Council of Minister’s decision of 21   December 1999, and then Etibank, almost a year later, by a decision of the Banking Regulation and Supervision Board ( Bankacılık Düzenleme ve Denetleme Kurulu – hereinafter “the Board”) of 27   October 2000, were transferred to the Fund pursuant to sections 14 §§ 3 and 4 of Law no.   4389. 21.     As a result, the Fund took over the management and supervision of those banks as well as the rights of their shareholders, except dividends. 22.     The Fund also acquired ownership of the shares of Sümerbank, under section 14 § 5 of the Law no. 4389 as per the Council of Minister’s decision. In respect of Etibank, the documents in the case file suggest that the ownership of its shares was also eventually transferred to the Fund under the same provision. 4.     Proceedings brought against the applicants by the Fund and subsequent legal and factual developments 23.     Following the transfer of Sümerbank and Etibank to the Fund, the auditors of the Board examined the transactions that the former executives of those banks had authorised and approved in their capacity as directors and/or managers. 24.     For each transaction which, according to the auditors’ reports, constituted a misuse or abuse of the bank’s resources in violation of the banking laws and rules of practice, the Fund brought separate personal liability lawsuits (the details of the lawsuits constituting the subject of the present applications are set out in the Appendix) against, among others, the applicants under section 17 § 2 of Law no. 4389. 25.     In those lawsuits, the Fund asked the domestic courts not only to hold the applicants together with other defendants personally liable for the losses allegedly incurred by the banks as a result of those unlawful transactions but also to declare their personal bankruptcy under the same provision. 26.     At the beginning of the proceedings, the Fund also asked the courts to place an injunction on the assets of the defendants, including the applicants, in accordance with section 14 § 5 (b) of the Law no. 4389. 27.     With the exception of a few sets of proceedings, the courts granted the Fund’s requests and issued in each set of proceedings separate interim injunctions covering all assets of the applicants, including their movable and immovable properties, their receivables and rights against third parties, without requiring the Fund to post any collateral (see the table in the Appendix for cases in which the Fund’s request for injunction was granted and the scope of the injunction on the applicants’ assets). 28.     While the proceedings against the applicants were pending, Law no.   4389 was amended by Law no. 4743 and Law no. 4672. The amendments not only granted the Fund exemptions specific to the proceedings for the recovery of losses of transferred banks but also extended the scope of receivables that it could claim in connection with those banks. The Fund was also granted additional powers such as the power to enter into agreements with the debtors and to ask the courts to suspend the lawsuits already filed for the duration of these agreements. 29.     The Banking Activities Act (Law no. 5411) of 19 October 2005, which came into force on 1 November 2005, repealed and replaced Law no.   4389. 30.     Law no. 5411 not only preserved the prrogatives of the Fund under Law no. 4389 but also endowed it with additional powers to collect its receivables in connection with a transferred bank. Accordingly, the Fund was authorised to take over the management and shareholding of companies owned by the majority shareholders of the banks and to sell the shares and assets of these companies in a bundle to achieve maximum collection of the amounts owed to it. 5.     The proceedings concerning Sümerbank 31.     The Fund brought one lawsuit against the first applicant and four lawsuits against the second applicant for the losses caused to Sümerbank as a result of loan transactions which they had authorised during their term as the managers and directors of the bank. 32.     These proceedings constitute the subject of applications nos.   27112/08 and 32844/17 (see Part A of the table in the Appendix for details of these proceedings). The proceedings registered under the docket no.   2008/271 E. concerned both applicants, although separate decisions were delivered in respect of each applicant. (a)     The protocols signed between the Fund and the majority shareholders of Sümerbank 33.     While these proceedings against the applicants were still pending, on 12 August 2004 the Fund signed a protocol with, among others, H.G and his companies (hereinafter “H.G. Group”), the majority shareholders of Sümerbank at the time the bank was transferred to the Fund. This protocol entered into force on 27 January 2006. 34.     The protocol was aimed at restructuring the debt that H.G. Group owed to the Fund by reason of the loans and other transactions that had allegedly caused losses to Sümerbank and to set out the terms of the repayment of the debt. It also contained a special provision concerning the lawsuits filed by the Fund to recover the losses of Sümerbank. According to that provision, the proceedings against the applicants were to be suspended as long as the parties complied with the terms of the protocol. 35.     The parties then signed additional protocols on 7 January 2009, 9   April 2010 and 25 June 2010 to supplement the original protocol of 12   August 2004. 36.     The above protocols signed between the Fund and H.G. Group had an important impact on the evolution of the proceedings brought against the applicants. In some of the proceedings, the courts decided that the lawsuits had become devoid of subject-matter whereas in other proceedings the Fund decided to withdraw the lawsuits. (b)     Lawsuits which became devoid of subject-matter 37.     In both proceedings under the docket nos. 2011/399 E. and   2012/291   E., the courts found it established that the payments made by H.G.   Group to the Fund under the protocols dated 12 August 2004 and the additional protocols dated 7 January 2009, 9 April 2010 and 25 June 2010 had compensated the alleged loss claimed by the Fund. On that basis, the courts decided that the lawsuits had become devoid of subject-matter. 38.     In the first set of proceedings under the docket no. 2011/399   E. brought against the second applicant only, the first-instance court awarded the applicant a fixed amount of 1,200 Turkish liras (TRY - equivalent to approximately 512 Euros (EUR) at the time of the decision) in attorney fees, noting that the status of the Fund should be taken into account under the terms of the Tariff on Minimum Attorney Fees (hereinafter “the Tariff”). 39.     The second applicant appealed against the first-instance court’s decision, arguing that he should have been awarded attorney fees on a pro rata basis, i.e. in proportion to the amount claimed by the Fund. 40.     The Court of Cassation dismissed the appeal on 14 April 2014 and upheld the first-instance court’s decision. 41.     In the second set of proceedings under the docket no. 2012/291 E., the second applicant submitted a petition to the first-instance court on 28   September 2012 stating that he would agree to waive his right to litigation costs and attorney fees on the condition that the Fund also did the same. 42.     However, at the hearing of 31 December 2012, the Fund asked the court to order the applicant to pay attorney fees, arguing that he had caused the filing of the lawsuit. 43.     The first-instance court, in its decision delivered on the same date, held that there was no reason to award any attorney fees to either of the parties. 44.     On 19 March 2013 the second applicant appealed against the decision, arguing that he could not be considered to have waived his rights to attorney fees since the Fund had not waived its rights and therefore the first ‑ instance court should have awarded attorney fees to him. 45.     The second applicant did not inform the Court about the outcome of the appeal proceedings. (c)     Lawsuits which were withdrawn by the Fund 46.     In two proceedings registered under the docket nos. 2008/271 E. and   2009/650 E., the Fund, during the course of those proceedings, decided to withdraw the lawsuits against the applicants. 47.     The first set of proceedings under the docket no.   2008/271   E. concerned both of the applicants but the lawsuits against them were dismissed on separate dates. 48.     At the hearing of 21 February 2011, the second applicant stated that he would waive his right to attorney fees provided that the Fund withdrew the lawsuit against him. Four days later, the Fund submitted a petition to the court expressing its wish to withdraw the lawsuit and waive its right to attorney fees and litigation costs as well as its right to appeal against the decision. Subsequently, by a decision dated 25 May 2011, the first-instance court severed the lawsuit against the second applicant (registering it under the docket no. 2011/293 E.) and dismissed it on account of its withdrawal by the Fund. 49.     The lawsuit against the first applicant, however, continued and the court reached a decision on the merits. While the appeal proceedings in respect of the decision were pending before the Court of Cassation, the Fund submitted a petition to withdraw the lawsuit against the first applicant. The Court of Cassation quashed the decision on that ground and remitted the case to the first instance court. Subsequently, on 1 June 2017, the first ‑ instance court decided to dismiss the lawsuit (registered under the docket no. 2017/283 E. following remittal) by reason of the Fund’s decision of withdrawal. 50.     In its decision, the court awarded the first applicant a fixed amount of TRY 7,920 (equivalent to approximately EUR 1,995 at the time of the decision) in attorney fees. 51.     The applicant did not inform the Court as to whether he appealed against the decision and if so, about the outcome of the appeal proceedings. 52.     The second set of proceedings under the docket no.   2009/650   E. concerned the second applicant only. 53.     On 28 February 2011 the Fund informed the court that it wished to withdraw the lawsuit. On the same date, the applicant also submitted a petition to the court waiving his right to attorney fees and to appeal. Accordingly, on 9 March 2011 the court dismissed the lawsuit against the second applicant on the grounds that the lawsuit had been withdrawn. 6.     The proceedings concerning Etibank 54.     The Fund brought ten lawsuits against the applicants for the losses caused to Etibank as a result of loans and other types of transactions which they had authorised during their term as the executives of the bank. 55.     These proceedings constitute the subject of application nos.   31707/07, 21932/08, 53870/09, 2458/11, and 3066/11 (see Part B of the table in the Appendix for details of these proceedings). Six of the proceedings registered under the docket nos.   2008/192-329-332-334-335   E. and 2009/396 E. concerned both applicants. (a)     The protocols signed between the Fund and the majority shareholders of Etibank 56.     D.B. and his companies had gradually acquired all shares in Medya Sabah Holding A.Ş. and had become the majority shareholders of Etibank at the time Etibank was transferred to the Fund. 57.     While the proceedings against the applicants were still pending, on 17   November 2003 the Fund made a protocol with, among others, D.B. and his companies, including Medya Sabah Holding A.Ş., (hereinafter “Medya Group”), which owned and operated a number of assets in the media sector, including the television channel ATV and the daily newspaper Sabah. 58.     According to the protocol, Medya Group would transfer some of its assets in the media sector and assign its receivables under some of its commercial agreements to the Fund towards the settlement of the amounts that it owed to the Fund for losses caused to Etibank as the bank’s majority shareholder. 59.     However, due to difficulties in the implementation of this protocol, D.B. entered into an arrangement with another businessman named T.C. who also owned companies that operated in the media sector (hereinafter “Merkez Group”). 60.     According to that arrangement, the assets and the receivables that could not be transferred to the Fund would be acquired by Merkez Group, which, in return, would assume the obligations of Medya Group to the Fund under the protocol of 17 November 2003. 61.     A protocol was made between, among others, the Fund, Medya Group and Merkez Group on 3 May 2005 to amend the protocol of 17   November 2003 pursuant to the terms of that arrangement and to put the amended protocol into force. 62.     However, on an unspecified date, the Fund cancelled the protocols of 17 November 2003 and 3 May 2005 on the grounds that D.B. and T.C. had allegedly colluded in violation of the terms of these protocols. 63.     As a consequence, the Fund, using the powers granted by Law no.   5411, took over the management, supervision and shareholders’ rights, except dividends, of the companies forming Medya Group and Merkez Group and also foreclosed the media sector assets of those companies. 64.     The Fund put together the shares of these companies and their assets, which also included the television channel ATV and the daily newspaper Sabah, formed a single unit named ATV-Sabah Economic and Commercial Unit ( ATV-Sabah Ticari ve İktisadi Bütünlüğü – hereinafter “the Unit”) and organised a tender for its sale. 65.     On 5 December 2007 the Fund sold the Unit for 1.1 billion US dollars. 66.     On 28 November 2008 the Fund made a new protocol with Medya Group and Merkez Group to set out the terms of repayment of the amount that Medya Group owed to the Fund with the proceeds from the sale of the Unit. 67.     The relevant provisions of the protocol dated 28 November 2008 concerning the proceedings against the applicants and its entry into force read as follows: Article 8.7 “Following the signing of this protocol, upon the withdrawal of civil or administrative lawsuits filed by the debtors and the finalisation of the lawsuits and execution proceedings brought by the Fund, in respect of the financial liability proceedings under the docket no.   2001/1299 E. pending before the 1 st Commercial Court of Istanbul (to which the proceedings under the docket no. 2001/1578 E. were joined) ..., the proceedings under the docket nos. 2001/2190 E., 2001/2192 E., 2001/2193 E., 2001/2314 E., 2001/2323 E., 2002/118 E., 2001/1200 E., 2001/2191 E., 2001/2194 E. pending before the 1 st Commercial Court of Istanbul ..., the proceedings under the docket no 2001/552 E. pending before the 3 rd   Commercial Court of Istanbul (to which the proceedings under the docket no.   2001/847   E. before the 8 th Commercial Court of Istanbul and the proceedings under the docket no.   2001/863 E. were joined) ... the proceedings under the docket nos.   2002/563   E. and 2002/692 E. pending before the 1 st Commercial Court of Istanbul for personal bankruptcy and all other personal bankruptcy and compensation proceedings, the Fund shall request the relevant courts to suspend these proceedings for all defendants and all claim amounts. Following the finalisation of the list of ranking for the ATV-Sabah Economic and Commercial Unit , the Fund shall take the necessary legal steps to ensure that the suspended financial liability, personal bankruptcy and recovery and compensation proceedings shall be rendered devoid of subject-matter insofar as concerning claims which fall within the scope of this protocol ...” Article 18 “... This protocol shall enter into force after its signing by the parties provided that the debtors and/or their relatives by blood or by marriage and/or related real and legal persons withdraw the lawsuits that they had filed against the Fund, that they allow for the finalisation of all lawsuits and execution proceedings and the tender for the sale of ATV ‑ Sabah Economic and Commercial Unit and the list of ranking pertaining to the purchase price becomes final.” 68.     Prior to their shares and assets being acquired by the Fund, Medya Group and Merkez Group companies were going concerns, which had been doing business with third parties. By taking the management, the shares and assets of those companies, the Fund also assumed their obligations towards third parties. 69.     Accordingly, the proceeds from the sale of the Unit, which comprised assets and shares of Medya Group and Merkez Group companies, would, therefore, also have to be used to repay the debts of those companies to those third parties, which the Fund had taken over. 70.     To set out the way in which the proceeds from the sale of the Unit would be distributed to those third party creditors, the Fund prepared a list in accordance with Law no. 5411 and the Regulation on the Sale of Foreclosed Assets Forming an Economic and Commercial Unit by the Savings Deposit Insurance Fund (“the Regulation”) indicating the ranking of each creditor (hereinafter “the List of Ranking”). 71.     The List of Ranking was published on the Official Gazette dated 2   December 2008. 72.     Subsequently, some of the creditors of Medya Group and Merkez Group companies brought civil and administrative proceedings against the Fund seeking the annulment of the sale of the Unit or challenging their place in the List of Ranking. 73.     Both the protocol of 28 November 2008 and developments related to those protocols had an important impact on the proceedings against the applicants concerning Etibank. In two lawsuits, the courts decided that the lawsuits had become devoid of subject-matter whereas in the remaining lawsuits, at the Fund’s request, the courts suspended the proceedings pursuant to the terms of the protocol. (b)     Lawsuits which became devoid of subject-matter 74.     In both proceedings under the docket nos. 2001/1745 E. and 2008/192   E., the courts ruled that the lawsuits had become devoid of subject-matter and that there was no reason to deliver a judgment. The court held that while the conditions to declare the applicants bankrupt had been met, the borrowers in the impugned loan transactions had compensated the bank’s losses by fully repaying their debt. 75.     In the first set of proceedings under the docket no. 2001/1745 E., the first applicant states that the court, in its decision dated 17 April 2006, ordered him to pay an amount of TRY   16,082.55 (equivalent to approximately EUR 9,800 at the time of the decision) in litigation costs. The applicant also states that he was ordered to pay a sum of TRY   400 (equivalent to approximately 243 EUR at the time of the decision) to the Fund in attorney fees. 76.     The applicant appealed against this judgment to the Court of Cassation arguing, inter alia , that the court’s decision to impose on him litigation costs and attorney fees and not to award him any attorney fees on a pro rata basis was not in accordance with the law. 77.     On 15 November 2007 the Court of Cassation dismissed the applicant’s appeal and upheld the decision of the first-instance court. 78.     In the second set of proceedings under the docket no.   2008/192   E., by a decision of 17 April 2006 the court initially ordered both applicants to pay a certain amount in litigation costs and the first applicant to pay TRY   400 (equivalent to approximately 243 EUR at the time of the decision) in attorney fees. 79.     The applicants appealed against this judgment to the Court of Cassation on grounds identical to the appeal lodged against the judgment delivered in the first set of proceedings (see paragraph 76 above). 80.     On 22 February 2008 the Court of Cassation upheld the first-instance court’s judgment, except its decision concerning the litigation costs, and remitted the case to the first-instance court for a fresh calculation of litigation costs. 81.     On 30 June 2008 the first-instance court ordered the applicants to pay an amount of TRY 11,678.43 (equivalent to approximately EUR 7,116 at the time of the decision) in litigation costs and held that there was no reason to issue a separate ruling as regards the parts of its previous judgment which had become final with the Court of Cassation’s decision. 82.     On 21 May 2009 the Court of Cassation dismissed the applicants’ appeal. (c)     Lawsuits suspended at the Fund’s request 83.     The remaining proceedings evolved, to a great extent, in the same manner. 84.     The first-instance courts decided to suspend the proceedings against the applicants at the Fund’s request in accordance with the relevant provisions of the protocol of 28 November 2008 and the relevant provisions of Law no. 4389 and Law no. 5411 until the List of Ranking drawn up for the distribution of the proceeds from the sale of the Unit was final pursuant to Articles 6.2 and 8.7 of the protocol of 28 November 2008. 85.     In their decisions, the courts also held that there was no need to make any determination as to attorney fees on the grounds that the suspension decision could not be regarded as a decision on the merits of the dispute. 86.     The applicants appealed against these decisions, opposing the suspension of the proceedings and arguing, inter alia , that the courts’ decision not to award them any attorney fees, despite the fact that they were represented by an attorney throughout the proceedings, was not in accordance with the law. 87.     The Court of Cassation dismissed the applicants’ appeal and upheld the judgments delivered by the first-instance court. 7.     The interim injunction placed on the assets of the applicants 88.     During the course of the majority of the proceedings where the courts granted the Fund’s request for an injunction, the domestic courts agreed to gradually narrow down the scope of the injunction so as to allow the applicants to use either their salary and retirement pension or the money in their accounts up to a certain amount. 89.     However, except for a few proceedings mentioned below, the injunction on the applicants’ remaining assets was maintained despite the applicants’ repeated requests both before the first-instance court and the appellate court for a complete lifting of the injunction. (a)     Proceedings where the courts decided to lift the interim injunction 90.     In two proceedings registered under the docket nos. 2008/192 E. and   2008/509 E concerning Sümerbank, where an injunction was placed on the assets of the second applicant only, the courts eventually decided to lift the injunction at the applicant’s request. In those proceedings, the courts held that the applicant’s assets had been automatically lifted ( mürtefi ) under section   112 of the repealed Civil Procedure Code (Law no. 1086) on account of the absence of any express ruling regarding the maintaining of the injunction in the decisions delivered by the first-instance court. 91.     In two other proceedings registered under the docket nos.   2008/271   E. and 2009/650 E. also concerning Sümerbank, the injunction on the second applicant’s assets was lifted on account the withdrawal of the lawsuit by the Fund. In proceedings under the docket no.   2008/271, the Fund also withdrew its lawsuit against the first applicant and the court dismissed the lawsuit on 1 June 2017. However, the court did not make any determination as to the injunction in its decision. According to the applicant, in the absence of any ruling as to the lifting of the injunction, the injunction placed on his assets on 16 July 2001 and maintained with the decision of 5 January 2012 will continue to remain in place until the decision of 1 June 2017 becomes final. (b)     Remaining proceedings 92.     In the remaining proceedings concerning Etibank where the court decided to suspend the lawsuit against the applicants upon the request of the Fund pursuant to the provisions of the protocol signed between the Fund and the majority shareholders, the applicants submitted fresh requests in 2014, requesting the court to lift the injunction on the grounds that maintaining of the injunction was no longer justified since the Fund had recovered the losses that the banks had allegedly incurred. 93.     By a decision dated 12 March 2015 the court dismissed all of these requests. Referring to section 136 of the Law no. 5411, it noted that the decision to suspend the proceedings was not a decision on the merits of the case and that because the List of Ranking prepared for the distribution of the proceeds from the sale of the Unit had not been finalised not only was it not possible to make any determination as to the status of debts owed to the Fund but also the protocol of 28 November had not yet entered into force since the finalisation of the List of Ranking had been a pre-condition for its entry into force. On that basis, it concluded that there was no compelling reason to change or cancel the decision on the maintaining of the injunction and the lifting of the injunction would significantly impair or render impossible the vindication of the right in question and create a significant loss. 94.     The applicants appealed against these judgments to the Court of Cassation, which dismissed the appeal, holding that the judgments were not subject to appeal. B.     Relevant domestic law 1.     Provisions of the banking legislation concerning bank resolution processes and the Fund’s powers and privileges (a)     The Banks Act, Law no. 4389, as amended by Law no. 4491 95.     The relevant provisions of the Law no. 4389 read as follows: Section 14 “4.     If the Agency determines that the shareholders of a bank who, directly or indirectly, alone or jointly, hold the bank’s management and supervision, have used the bank’s resources in their favour so as to jeopardise the secure operation of the bank or caused losses to the bank in such a way, the Board shall be authorised to transfer the management and supervision of the bank and the rights of its shareholders, except dividends, to the Fund. 5.     (a)   The Fund, in respect of a bank whose management, supervision and shareholders’ rights, except dividends, is transferred to it under paragraph 3 of this provision, taking as a basis the balance sheet to be prepared as of the transfer, shall be authorised to ... (ab)     take over the losses corresponding to the capital of the bank, provided that the losses do not exceed the savings covered by insurance and all of the shares are acquired, ... (b)     The Fund, in respect of a bank whose management, supervision and shareholders’ rights, except dividends, is transferred to it under paragraph 4 of this provision shall be entitled to: (ba     request the return of or compensation for the resources used in the way described in the said provision or the losses [of the bank] within the periods specified by it and the transfer of the shares [of the bank] to real and legal persons, who may be deemed to be appropriate by the Board ...” Section 15 “1.     The saving deposits in banks shall be insured by the Savings Deposit Insurance Fund, which is a public law body with separate legal personality. The Fund shall be responsible and authorised for strengthening the financial situation, restructuring and transfer to third parties of the banks whose shares and/or management and supervision have been transferred to it and to carry out all other tasks entrusted to it under this law ... 3.     The Fund shall be exempt from all types of tax, charges and levy ...” Section 17 “1.     If it is determined that the decisions and transactions of a bank’s board of directors, chairman and members of the credit committee, general managers, assistant general managers and officers whose signatures bind the bank have caused the bankruptcy of the bank, they may be personally held responsible for the amount of losses that they caused to the bank and by virtue of a Board decision and at the request of the Fund the courts may decide on their personal bankruptcy. If these decisions and transactions are made to benefit the shareholders of a bank who, directly or indirectly, alone or jointly, hold the bank’s management and supervision, this provision shall apply to the shareholders for the benefits that they acquired ... 2.     This provision shall also apply to the shareholders of the banks whose management, supervision and rights of shareholders, except dividends, or shares have been transferred to the Fund pursuant to paragraphs 3, 4 and 5 of section 14, who also have been referred to in paragraph 1 of this provision, and to employees of the bank referred to in paragraph 1 of this provision, who have been responsible for the transactions mentioned in paragraphs 3 and 4 of section 14, regardless of whether the bank had gone bankrupt. 3. The provisions of paragraph 5(b) of section 14 pertaining to declaration of assets and precautionary measures shall also apply mutatis mutandis to this provision.” (b)     Law no. 4672 amending Law no. 4389 96.     The relevant parts of section 15 § 3 of Law no. 4389 as amended by Law no. 4672 and section 15 § 7 added by Law no. 4672 read as follows: Section 15 “3.     ... As regards the receivables that it has taken over, the Fund shall be authorised to carry out all kinds of transactions, including discount, reaching of a settlement, acquisition of movable and immovable properties and all kinds of rights and receivables, without being subject to limitation, and to set these off against the amounts owed to it ... 7.     ... (b) the amounts due from the use of bank resources and assets by the shareholders of banks whose shares have been partly or wholly transferred to the Fund and who, directly or indirectly, alone or jointly, hold the management and supervision of that bank, or their executives who, through the board of directors, credit committees, branches and other authorised persons or officials or using other means, acquired or helped third persons acquire money, property, rights and receivables by way of creating, directly or indirectly, a security interest on the bank’s resources and assets in favour of third parties, showing these as collateral, extending loans to persons who do not have the means to repay, extending loans to secure financing, opening accounts in domestic and foreign banks and financial institutions under the name of deposit or other names or using these accounts as collateral or for other purposes or through other unlawful transactions, shall be considered to be owed to the Fund. ...” 97.     Provisional section 1 of Law no. 4672 stipulated that some of the provisions added to Law no. 4389 by Law no. 4672, including section   15 § 7, shall also apply to the receivables owed to the Fund in connection with banks whose management, supervision and shareholding rights, except dividends or shares, have been transferred to the Fund prior to the entry into force of Law no.   4672. (c)     Law no. 4743 amending Law no. 4389 98.     The relevant part of section 15 § 3 of the Law no. 4389 as amended by the Law no. 4743 provides: Section 15 “3. ... As regards all of its receivables under this law, including those which it had taken over or it is tasked and authorised to claim in lawsuits or execution proceedings, the Fund shall be authorised to carry out all kinds of transactions including discount, to settle, to acquire movable and immovable properties and all kinds of rights and receivables, without being subject to limitation, so as to set these off against the amounts owed to it, to enter into agreements with debtors, including the rescheduling of the repayment of the debt and within the framework of these agreements to take or not to take precautionary measures as per sections 14 and 17 of this law, to file or not to file lawsuits or to request the courts to suspend the civil lawsuits already filed for the duration of these agreements ...” (d)   Law no. 5411 repealing and replacing Law no. 4389 99.     The relevant parts of Law no. 5411 read as follows: Section 108 “The majority shareholders and executives of banks which have been transferred to the Fund ... shall return and compensate for the resources used as explained in the below paragraphs as well as the damages arising from such misuse, within the period given by the Fund, without prejudice to the provisions of this law governing personal liability. For the purposes of this provision, the banks’ resources and assets used by the majority shareholders and executives of banks, through the board of directors, credit committees, executives, branches and other authorised persons and officials to acquire or help third persons to acquire money, property and any kind of rights and receivables directly or indirectly by way of creating a security interest on the bank’s resources and assets, showing these as collateral, extending loans to persons who do not have any credibility, extending loans to secure financing, opening accounts in domestic and foreign banks and financial institutions under the name of deposit or other names or using these accounts as collateral or for other purposes or through other ways, shall be considered as fraudulently misused resources. ...” Section 132 “... As regards the receivables collected by it, the Fund shall be authorised to carry out all kinds of transactions including discount, to settle, to sell or buy back, to acquire movable and immovable properties and all kinds of rights and receivables on account of its claim under the conditions it will specify; to enter into agreements with debtors including a new repayment plan for its receivables, to apply or not to apply precautionary measures according to the principles and procedures to be determined by its board pursuant to the provisions of this law under the agreements it has concluded with the debtors, to file or not to file lawsuits and to ask the court to suspend the lawsuits already filed for the duration of those agreements. ...” Section 134 “If the Fund considers it useful for the collection of its receivables, it shall be authorised to take over the shareholders’ rights, except for dividends, associated with all and/or some of their shares, and their management and control, ... , of the following regardless of whether these are indebted to the Fund: (a)     the subsidiaries [of a bank transferred to the Fund], (b)     the legal person shareholders holding the majority of the shares of a bank transferred to the Fund, (c)     the companies in which the legal and real person majority shareholders of a bank transferred to the Fund are majority shareholders, and (d)     the shareholders of companies acting on behalf of the above-listed persons and entities or acquiring funds or rights on their account. The Fund ... shall be authorised to sell the shares of companies owned by the persons referred to in this provision and/or licences, permits and all other rights and assets, including rights arising from the temporary frequency utilization, channel utilization and concession agreements ... and/or all properties owned by these companies or those assets in proportion to the shares taken over by the Fund and to apply the proceeds to set off against its receivables or to pay the debts owed by those companies ... In order to ensure the collection of its receivables, the Fund shall be authorised to bring together the attached assets, the rights arising from licences, permits and concession contracts and all other rights and assets under the contracts that are accessories or inseparable parts of these assets but do not have a separate economic value alone so as to sell these in a manner that will ensure commercial and economic integrity, to sell the attached properties even though these are owned by more than one debtor and/or more than one creditor, to establish the payment method and currency of the tender value, the conditions required to be met by buyers, the payment date, other principles and procedures applicable to the tender as well as sale conditions ... , to acquire the commercial and economic unit towards the settlement of the debts owed to the Fund ... The board of the Fund shall set up a sale committee consisting of a minimum of three members to execute the sale process and shall appoint the chairman of the committee ... The estimated value of the commercial and economic unit shall be set by the board of the Fund on the basis of a re