KAHVECİ v. TURKEY (European Court of Human Rights)

SECOND SECTION
DECISION
Application no.21903/05
Vahti KAHVECİ
against Turkey

The European Court of Human Rights (Second Section), sitting on 9 January 2018 as a Committee composed of:

LediBianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 31 May 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr VahtiKahveci, is a Turkish national, who was born in 1947 and lives in Istanbul. He was represented before the Court by Mr B. Doğan, a lawyer practising in Ankara.

2.  The Turkish Government (“the Government”) were represented by their Agent.

A.  The circumstances of the case

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  On 16 December 1999 the applicant opened an account in a private bank, namely Egebank. By a decision dated 22 December 1999, the management and control of Egebank was transferred to the Savings Insurance Fund (hereinafter referred to as “the Fund”). When the applicant requested to withdraw his savings from his account on 17 January 2000, he was informed that this would not be possible as his money was in an offshore account in the “Turkish Republic of Northern Cyprus” (the “TRNC”) and that the Fund did not have any liability for the protection of the savings in that account.

5.  On 21 December 2000 the applicant initiated proceedings before the Ankara Commercial Court against the Fund. In his petition, the applicant argued that the savings that he had deposited in a branch of Egebank was under State protection pursuant to the Banking Activities Act. He therefore asked to be reimbursed.

6.  During the proceedings, on 3 September 2000 and 7 May 2003 respectively, the court obtained two expert reports. In the initial report, the expert stated that Fund should reimburse the applicant as it had appeared that he had no knowledge that his money would be transferred to an offshore account in the “TRNC”. The Fund filed an objection against this report, submitting further documents to the court certifying that when the applicant had opened a bank account on 16 December 1999, on the same day he had also given specific orders to Egebank for the transfer of his money to an offshore account in the “TRNC”. To this effect, he was provided with a bank account certificate of the offshore account in question. Based on these new documents, the second expert concluded that the applicant was well aware of the fact that his money would be transferred to the offshore account to benefit from high interest rates, amounting to 78%. The expert stated that at the time, the applicant did not have any objections for the transfer in question, and therefore he should request reimbursement from Egebank Offshore Limited Company, which was registered in the “TRNC”.

7.  On 12 June 2003, relying on the second expert report, and taking into account the documents in the file, the Ankara Commercial Court dismissed the applicant’s case. It held that the new entity, which had taken over Egebank, could not be considered liable for the savings held in the Egebank Offshore Limited Company, which was set up in accordance with the “TRNC” legislation.

8.  In the meantime, the Fund decided to merge Egebank first with Sümerbank and then with Oyakbank. As a result, Oyakbank became a party to the proceedings.

9.  The applicant appealed, alleging that the first instance court had failed in the evaluation of evidence and interpretation of law.

10.  On 12 June 2003 the Court of Cassation upheld the judgment of the Ankara Commercial Court finding in line with its reasoning. On the basis of the documents in the file, the Court of Cassation found it established that the applicant had willingly opened an offshore account and given specific orders for the transfer of his money. The Court of Cassation therefore concluded that neither the Fund nor Oyakbank could be held responsible for an account in the Egebank Offshore Limited Company, which was an independent entity from Egebank.

11.  On 4 February 2005 the Court of Cassation dismissed the applicant’s rectification request.

B.  Relevant domestic law and practice

12.  In a similar case brought by another account holder in Egebank, on 12 June 2002 the Trabzon Civil Court of First Instance initially accepted the case and ruled that the Fund should reimburse the account holder’s loss (2000/302E, 2002/174K). Subsequently, on 10 March 2003 the Court of Cassation quashed the judgment of the first instance court, holding that the savings in offshore accounts were not under Stateprotection and the Fund was thus liable for the loss suffered by offshore account holders. It was indicated that the claimant should initiate proceedings against the offshore company which had been set up in accordance with the “TRNC” legislation (2002/9495E, 2003/2087K). Subsequently, on 16 February 2004 the Trabzon Civil Court of First Instance dismissed the case holding that Egebank and Egebank Offshore Limited Company were separate entities and that the Fund could not be held liable for savings in an offshore account (no. 2004/26E, 2004/75K).

13.  In another case brought by an account holder in Yurtbank, which was also taken over by the Fund, on 13 March 2002 the Ankara Commercial Court initially accepted the case and held that the account holder should be reimbursed even though his money was in an offshore account (judgment no. 2000/997E, 2002/95K). This decision was quashed by the Court of Cassation on 8 March 2002 (no. 2002/6877E, 2002/10121K). The Court of Cassation held that offshore accounts were not under protection of Turkish legislation and that by choosing to open an offshore account in a foreign country, the claimant had accepted the risks. Subsequently, on 25 June 2003 the Ankara Commercial Court adhered with the decision of the Court of Cassation and dismissed the case (no. 2003/259E, 2003/393K). This judgment was upheld by the Court of Cassation on 14 October 2004 (2003/13303E, 2004/9824K).

COMPLAINTS

14.  Relying on Articles 6 and 14 of the Convention, the applicant complained of a violation of his right to a fair trial on account of the fact that the domestic courts had rendered contradictory judgments in similar cases.

15.  The applicant further claimed under Article 1 of Protocol No. 1 to the Convention that, as a result of the unfair and arbitrary decisions of the domestic courts, his right to peaceful enjoyment of his possessions had been breached.

16.  Invoking Articles 4 and 5 of the Convention, the applicant alleged that, due to arbitrary court decisions, he had lost his life time savings. In this connection, relying on Article 2 of Protocol No. 1 to the Convention that, the applicant further complained that, as a result of his financial problems, his children had difficulties in completing their university degrees.

17.  Finally, under Article 6 of the Convention the applicant complained about the fairness and excessive length of the proceedings.

THE LAW

A.  Complaint regarding contradictory judgments delivered by domestic courts

18.  The applicant argued that the domestic courts had rendered contradictory judgments in similar cases and thereby violated his right to a fair trial. In this connection, he relied on Articles 6 and 14 of the Convention.

19.  The Government contested the claims. In the first place, they stated that this part of the application should be rejected for non-exhaustion of domestic remedies since the applicant could have requested the unification of case-law pursuant to Section 45 of the Law on Court of Cassation.

20.  The Court considers that this part of the application should be examined solely under Article 6 of the Convention. It further considers that it is not necessary to examine the preliminary objection of non-exhaustion of domestic remedies raised by the Government, because the applicant’s complaint is in any event inadmissible for the reasons given below.

21.  The Court notes that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. Its role is to verify whether the effects of such interpretation are compatible with the Convention (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49, 20 October 2011). The Court has also acknowledged that the possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention (see Nejdet Şahin and Perihan Şahin, cited above, § 51).

22.  In the light of these principles, the Court has examined the two proceedings referred to by the applicant, namely the proceedings before the Trabzon Civil Court of First Instance and the Ankara Commercial Court (see paragraphs 12 and 13 above). While it is true that the first instance courts had initially accepted the cases, in both cases the Court of Cassation delivered coherent decisions and quashed the said judgments, by clearly indicating that offshore accounts were not under the protection of the Turkish legislation. As a result, both cases were dismissed.

23.  The Court notes that in the particular circumstances of the present case, it has not been demonstrated that the domestic courts delivered conflicting decisions in similar matters. Accordingly, this part of the application is unsubstantiated and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention for being manifestly ill-founded.

B.  Complaint concerning Article 1 of Protocol No. 1 to the Convention

24.  The applicant submitted under Article 1 of Protocol No. 1 to the Convention that the national courts’ misinterpretation of domestic law and evaluation of evidence had constituted a violation of Article 1 of Protocol No. 1 to the Convention.

25.  The Court notes that the fact that the State, through its judicial system, provided a forum for the determination of the applicant’s rights and obligations does not automatically engage its responsibility under Article 1 of Protocol No. 1 (see Voyager Limited v. Turkey (dec.), no. 35045/97, 4 September 2001). While the State could be held responsible for losses caused by such determinations, if, for instance, court decisions amount to an arbitrary and disproportionate interference with possessions, this is not the case here. Referring to its findings under Article 6 § 1 of the Convention (see paragraphs 22 and 23 above), the Court considers that the assessment made by the domestic courts cannot be regarded as having been arbitrary or manifestly unreasonable.

26.  It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

C.  Remaining complaints

27.  The applicant raised further complaints under Articles 4, 5, 6 and Article 2 of Protocol No. 1.

28.  In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court concludes that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects it as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 February 2018.

Hasan Bakırcı                                                                        Ledi Bianku
Deputy Registrar                                                                       President

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