CEDH · CASELAW;COMMUNICATEDCASES;ENG — 10 septembre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 30 September 2024   SECOND SECTION Application no. 16536/20 Yüksel SAMAST against Türkiye lodged on 19 March 2020 communicated on 10 September 2024 SUBJECT MATTER OF THE CASE The application concerns the loss, by virtue of a new law, of the privileges attached to the shares held by the applicant in a joint stock company. The applicant was a B-grade privileged shareholder in a joint stock company. The other shares (A-grade) belong to a foundation connected to the Turkish Military Forces. Under the company’s articles of association, additional shares could be created at the end of a certain period and the applicant was entitled to acquire them on a priority basis at a preferential rate in exchange for the profits made by the company over that period and thus increase his stake in the company. On 12 April 2011 Law No. 6215 entered into force and amended Article   401 of the Turkish Commercial Code. According to the amendment, no privileges could be established in joint stock companies in favour of shareholders who are not among the public benefit foundations. Additionally, the law provided that the articles of association had to be brought in line with this amendment. On 16 December 2011 the company in question called a general assembly meeting, at the end of which it was decided to amend the articles of association and cancel the privileges attached to the applicant’s shares. The applicant brought an action before the Commercial Court and requested the annulment of the decision taken during this general assembly meeting. He further requested that the Commercial Court apply to the Constitutional Court in order to have the constitutionality of the newly enacted law reviewed in the framework of a preliminary ruling. The applicant’s requests were rejected. The judgment in question was upheld by the Court of Cassation. Subsequently, the applicant’s individual application to the Constitutional Court was declared inadmissible. The applicant complains under Article 1 of Protocol No. 1 to the Convention that, as a result of the above-mentioned legal amendment, he lost the privilege of acquiring additional shares at favourable conditions with the profits of the company as foreseen in the company’s articles of association. The applicant further complains under Article 6 of the Convention that the right to a reasoned judgment and the right of access to a court had been infringed because the trial court had not given any details as to why it had dismissed his requests, especially the one related to the referral to the Constitutional Court. QUESTIONS TO THE PARTIES 1.     Has there been an interference with the applicant’s right to peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No.   1 to the Convention, as the applicant’s share privileges were cancelled by virtue of the new law? In this context, to what extent did this interference affect the applicant’s pecuniary rights?   2.     Was the interference with the applicant’s property rights in conformity with the requirements of Article 1 of Protocol No.   1? (a)     Did the interference serve a public interest? Is there any provision in the new Commercial Code similar to the one the applicant is complaining of? (b)     Did the interference strike a fair balance between the demands of the general interest and the interest of the applicant within the meaning of Article   1 of Protocol No. 1? In this framework, to what extent is the quality of the parliamentary and judicial review of the necessity of the measure material to its proportionality in the circumstances of the present case (see   James and Others v. the United Kingdom , 21 February 1986, § 36, Series   A no.   98, and, mutatis mutandis , Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts))? (c)     Has the applicant been afforded a reasonable opportunity to challenge effectively the measures affecting his possessions and to obtain adequate redress (compare Blumberga v. Latvia , no. 70930/01, § 67, 14   October 2008)?   3.     Did the applicant have a fair trial in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the Commercial Court’s rejection of the applicant’s request for a preliminary ruling violate the applicant’s rights to a reasoned judgment and of access to a court guaranteed by Article 6 § 1 of the Convention (see, mutatis mutandis , Dhahbi v. Italy , no. 17120/09, §§ 31 to 34, 8   April 2014)?