5.  The applicants were born in 1948 and 1963 and live in Istanbul and Ankara respectively.
6.  They held a certain amount of shares in Türkiye Tütüncüler Bankası Yaşarbank A.Ş. (hereinafter “Yaşarbank”) - a private bank established in 1924 - which they had bought on the Istanbul Stock Exchange.
7.  By a decision dated 21 December 1999 (no. 99/13765), the Council of Ministers decided to transfer the management and control of Yaşarbank as well as all of its shareholder rights (except for dividends) to the Savings Deposit Insurance Fund (Tasarruf Mevduat Sigorta Fonu – hereinafter “the Fund”), pursuant to section 14(3) and (5) of the Banking Activities Act (Law no. 4389) as amended by Law no. 4491. With the same decision, the Council of Ministers also decided to transfer the ownership of Yaşarbank’s shares to the Fund under section 14(5) of the same Act.
8.  At the time of the transfer, 48.48% of Yaşarbank’s shares were owned by Yaşar Holding A.Ş., 32.85% by companies belonging to the Yaşar Group, 2.08% by foundations belonging to the Yaşar Group, and 0.12% by the Yaşar family. Lastly, the remaining 16.47% of capital was held by the public, including the applicants.
9.  On 21 December 1999 Yaşarbank’s shares, which were open to the public, sold on the Istanbul Stock Exchange at a price of 1,950 former Turkish liras (TRL) each.
10.  A financial report prepared by a private audit company on 22 December 1999 noted that Yaşarbank’s assets and liabilities amounted to TRL 385.46 trillion and TRL 947.16 trillion respectively.
11.  On 26 January and 18 February 2001 respectively the Banking Regulation and Supervision Agency (Bankalar Düzenleme ve Denetleme Kurumu - hereinafter “the Agency”) decided that Yaşarbank would be consolidated under Sümerbank and that the former’s banking licence would be revoked.
12.  On 4 February 2000 the main shareholders of Yaşarbank, including Yaşar Holding A.Ş., brought an administrative case against the Agency, seeking the annulment of the decision of 21 December 1999 regarding the bank’s transfer to the Fund. They argued, inter alia, that the conditions set forth by section 14(3) of Law no. 4389 as regards the transfer of a bank to the Fund had not been satisfied and that accordingly the Council of Ministers’ decision had been unlawful. In that connection, they argued that following its amendment by Law no. 4491, section 14(3) provided for more detailed measures which would be implemented gradually. However, the bank had not been invited to take those measures and the authorities had failed to take account of the recovery plan it had submitted which, according to them, could have strengthened the bank’s financial situation had it been implemented. They also claimed that the transfer of the bank had been disproportionate in view of the other measures provided for by section 14 of Law no. 4389. Lastly, they raised a plea of unconstitutionality.
13.  On an unspecified date the main shareholders initiated administrative proceedings, challenging the revocation of Yaşarbank’s banking licence.
14.  On 27 February 2002, after examining a number of expert reports, the Supreme Administrative Court dismissed the main shareholders’ action for the annulment of Yaşarbank’s transfer to the Fund.
Firstly, the court rejected the main shareholders’ request to refer the case to the Constitutional Court for a preliminary ruling, finding that section 14 of Law no. 4389 did not contravene Article 35 of the Constitution, which guaranteed the right to property.
As to the merits, it found that in line with paragraphs 1, 2 and 3 of section 14 of Law No. 4389 the administration had discretion to choose the measures to be adopted according to the severity of the financial problems involved and that the measures provided for by the different paragraphs of section 14 need not be implemented in order. Moreover, in view of its deteriorating financial situation, Yaşarbank had been placed under the close supervision of the authorities pursuant to the former Banking Activities Act (Law no. 3182). However, it had failed to apply the measures pointed out in the relevant audit reports issued during that period of supervision. Nor had the recovery plan prepared by the bank been sufficient to improve its financial situation. The Supreme Administrative Court concluded that the continuation of Yaşarbank’s activities would have jeopardised the rights of its creditors and undermined the reliability and stability of the banking system.
15.  On 27 October 2003 the Supreme Administrative Court also dismissed the action regarding the annulment of the revocation of Yaşarbank’s banking licence.
16.  By two separate decisions delivered on 29 April 2004, the General Assembly of the Administrative Proceedings Divisions of the Supreme Administrative Court (Danıştay İdari Dava Daireleri Genel Kurulu - hereinafter “the General Assembly”) upheld both judgments. On 8 February 2007 the General Assembly rejected an application for rectification by the main shareholders.
17.  A detailed description of the facts surrounding the State’s takeover of Yaşarbank and the proceedings initiated by the main shareholders may be found in the case of Yaşar Holding A.Ş. v. Turkey ((merits), no. 48642/07, 4 April 2017).
18.  On an unspecified date the first applicant bought a number of shares in Yaşarbank on the Istanbul Stock Exchange.
19.  Following the transfer of Yaşarbank to the Fund, the first applicant initiated proceedings, requesting the annulment of the transfer and claiming compensation of TRL 2 trillion, the approximate value of his shares at the time, together with interest. He maintained that he had bought the shares on the stock market, relying on the financial statements of the bank, which had been supervised by the Capital Markets Board (Sermaye Piyasası Kurulu) and approved by independent auditing agencies. He argued accordingly that no fault could be attributed to him for Yaşarbank’s transfer to the Fund and that he should have received the same protection as that granted to the creditors of the bank.
The first applicant pointed out that the main shares of banks and shares bought on the stock market were subject to different legal provisions and thus should have been dealt with separately during the State’s takeover of the bank. In that connection, he argued that the relevant legislation, in particular section 14(5) of Law no. 4389, was unclear in that it referred to the transfer of the shares of the main shareholders and the transfer of all shares of the bank in the same sentence, making it difficult to understand the scope of the transfer covered by that provision. He concluded therefore that the transfer of his shares to the Fund, without any compensation in return, had violated his right to property.
The first applicant also raised a plea of unconstitutionality as regards section 14 of Law no. 4389.
20.  On 18 June 2002 the Supreme Administrative Court dismissed the first applicant’s case. Referring to its judgment of 27 February 2002 regarding the main shareholders’ action for the annulment of the impugned transfer, the court found that the Council of Ministers’ decision to transfer the bank to the Fund had been lawful. In that connection, it reiterated that taking account of reports drawn up following inspections of Yaşarbank over a five-year period, instructions given to the bank by the State authorities, and the failure of the bank to improve its financial situation following these instructions, it had become clear that further activity of the bank, whose assets had been insufficient to cover its liabilities, would disrupt the stability of the financial system and make it impossible for the authorities to protect its creditors’ rights.
With regard to the first applicant’s compensation claim, the court noted that the administration was not liable to pay compensation for any loss resulting from the transfer of Yaşarbank. It noted that the applicant should be considered a partner of the bank as he had owned shares in it, and that although the aim of commercial activity was to make profit, one could not remove the risk of loss from such activity.
The court also rejected the first applicant’s request to refer the case to the Constitutional Court.
21.  The first applicant appealed, stating that the Supreme Administrative Court had violated his right to a fair trial as it had not addressed his main argument, that is, the transfer of his shares as a minority shareholder. In that connection, he maintained again that the State authorities had failed in their duty of supervision, in that they had not informed the public of Yaşarbank’s deteriorating financial situation and had caused the deprivation of his shares by their wrongful actions.
22.  On 29 April 2004 the General Assembly upheld the judgment. The final decision was served on the applicant on 20 July 2004.
23.  On various occasions between 3 and 20 December 1999 the second applicant bought a certain amount of shares in Yaşarbank on the Istanbul Stock Exchange.
24.  Following the Council of Ministers’ decision to transfer Yaşarbank to the Fund, on 18 February 2000 he brought a case against the Fund, requesting the annulment of that decision. He maintained that he reserved the right to request compensation at a later stage.
He argued, inter alia, that section 14(5) of Law no. 4389 as amended by Law no. 4491 did not cover the shares of minority shareholders and its application in Yaşarbank’s case had been unlawful as it had resulted in the transfer of all of the bank’s shares, including those of minority shareholders such as himself, who had bought their shares on the stock market, relying on information provided by the authorities. In that connection, he maintained that the deprivation of his property had resulted from the authorities’ failure to comply with their duty of supervision, and in particular the failure of the Capital Markets Board to inform the public of Yaşarbank’s deteriorating financial situation, as required by the Capital Markets Act (Law no. 2499).
The second applicant also raised a plea of unconstitutionality regarding section 14(3) to (5) of Law no. 4389.
25.  On 8 October 2002 the Supreme Administrative Court rejected the second applicant’s request to refer the matter to the Constitutional Court. The court also dismissed the action for the annulment of Yaşarbank’s takeover by the State, finding that the Council of Ministers’ decision to transfer the bank to the Fund had been lawful. In doing so it repeated the reasoning it had provided in the first applicant’s case.
26.  The applicant appealed, arguing that the Supreme Administrative Court’s judgment had merely pointed out that the transfer of the bank had been lawful, without addressing his main argument, namely the unlawfulness of the application of section 14(5) and the resulting transfer of the shares obtained on the stock market together with those of the main shareholders.
27.  On 7 October 2004 the General Assembly upheld the judgment.
28.  On 3 May 2007 the appellate court rejected a rectification application lodged by the applicant. That final decision was served on the applicant on 3 July 2007.