CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 4 novembre 2014

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .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 } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .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 } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s28BDCFEA { width:6.53pt; display:inline-block } .sF7ECFE89 { width:209.1pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }   SECOND SECTION DECISION Application no. 9050/06 Mahmut YILDIZ against Turkey The European Court of Human Rights (Second Section), sitting on 4   November 2014 as a Committee composed of:   Helen Keller, President,   Egidijus Kūris,   Jon Fridrik Kjølbro, judges, and Abel Campos, Deputy Section Registrar, Having regard to the above application lodged on 15 February 2006, Having regard to the comments submitted by the parties, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Mahmut Yıldız, is a Turkish national, who was born in 1948 and lives in Ankara. He was represented before the Court by Mr   S. Çepik, a lawyer practising in Şanlıurfa. The Turkish Government (“the Government”) were represented by their Agent. A.     The circumstances of the case 2.     The facts of the case, as submitted by the parties, may be summarised as follows. 3.     The applicant had been the shareholder of two companies, M.Y.A.Ş and H.İ.L.Ş (hereinafter referred to as “the companies”). He held 40% and 75% of the shares respectively. 4.     On an unspecified date a certain Mr H.P. initiated enforcement proceedings against the companies for the recovery of a debt. 5.     Mr S. Çepik, acting as the legal representative of the companies, brought an action in the Şanlıurfa Civil Court of First Instance with a view to establish that the companies did not, contrary to what had been alleged, owe Mr H.P. any money. 6.     In order to stop the pending enforcement proceedings, on 12 August 2003 the companies deposited a certain amount of money in the Şanlıurfa Enforcement Directorate’s account at Şeker Bank as guarantee. 7.     On 23 July 2004, the companies informed the court of their intention to withdraw the action ( feragat ). Following their withdrawal, on 26 July 2004 the Şanlıurfa Civil Court of First Instance decided to return the guarantee deposited by the companies. The court also decided that the interest accrued on the guarantee should be transferred to the Treasury in accordance with section 36 (1) of the Charges Act. The companies objected to this decision. 8.     On 29 September 2004 taking into account the companies’ withdrawal from the proceedings, the court dismissed the case. In its decision, the court refused to examine the companies’ request concerning the application of section 36 (1) of the Charges Act on the ground that it had already decided on this matter. The companies appealed the decision. 9.     On 30 September 2005 the Court of Cassation, referring to the statutory nature of section 36 (1) of the Charges Act, upheld the judgment of the first instance court. On 20 December 2005 the Court of Cassation dismissed a request by the companies for a rectification of its decision. 10.     The applicant sold all his shares for the two companies in years 2004 and 2008. B.     Relevant domestic law 11.     Section 36 (1) of the Charges Act stipulates that any interest accrued on amounts deposited in banks in respect of judicial or administrative acts by courts or enforcement chambers, shall belong to the State. COMPLAINT 12.     The applicant complained under Article 1 of Protocol No. 1 to the Convention that the domestic courts’ decision concerning section 36 (1) of the Charges Act had been in breach of his right to the peaceful enjoyment of his possessions. THE LAW 13.     Article 1 of the Protocol No. 1 to the Convention reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 14.     The Government submitted a preliminary objection arguing that the applicant could not claim to be a victim within the meaning of Article 34 of the Convention because the losses were suffered by the companies rather than the applicant; therefore the application should have been introduced by the companies, not by the applicant. 15.     The applicant submitted that he had been a victim of the alleged violation because he was the active shareholder and authorised representative of the two companies. He argued that he incurred damages in his own assets as a result of the domestic court’s decision to transfer the amount in question to the Treasury. 16.     The Court observes that the alleged financial losses were suffered directly by the companies acting in their capacities as legal entities. Furthermore, the domestic judicial proceedings were pursued by the companies and not by the applicant personally. The present application, however, was lodged with the Court by the applicant personally in his own name, and concerns a complaint about the applicant’s own rights under the Convention. 17.     The Court reiterates that the term “victim” used in Article 34 of the Convention denotes the person directly affected by the act or omission which is in issue (see, among other authorities, Vatan v. Russia , no.   47978/99, § 48, 7 October 2004). It further reiterates that a person cannot complain of a violation of his or her rights in proceedings to which he or she was not a party, even if he or she was a shareholder and/or director of a company which was party to the proceedings (see, among other authorities, F. Santos, Lda. and Fachadas v. Portugal (dec.), no. 49020/99, ECHR 2000-X, and Nosov v. Russia (dec.), no. 30877/02, 20 October 2005). Furthermore, while in certain circumstances the sole owner of a company can claim to be a “victim” within the meaning of Article 34 of the Convention where the impugned measures were taken in respect of his or her company (see, among other authorities, Ankarcrona v. Sweden (dec.), no.   35178/97, ECHR 2000-VI, and Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria , no. 14134/02, § 40, 11 October 2007), when that is not the case the disregarding of a company’s legal personality can be justified only in exceptional circumstances, in particular where it is clearly established that it is impossible for the company to apply to the Convention institutions through the organs set up under its articles of incorporation or ‑ in the event of liquidation – through its liquidators (see Centro Europa   7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 92, ECHR 2012). In the present case no such exceptional circumstances have been established. There was no reason preventing the two companies from lodging an application before the Court in their own names, and the applicant did not seek to offer any explanation as to how and why he could claim to be a victim of the alleged violation within the meaning of Article 34 of the Convention. In addition to this, the Court notes that the applicant was not the sole owner of the companies. 18.     For these reasons the Court upholds the Government’s preliminary objection and finds that the applicant cannot claim to be a victim of a violation of his rights under the Convention, within the meaning of Article   34 of the Convention. 19.     It follows that the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible.   Abel Campos   Helen Keller Deputy Registrar   President