MERCÜMEK v. TURKEY
Inadmissible
Gaukur Jörundsson;Wilhelmina Thomassen
The applicant is a Turkish national, born in 1944 and currently living in Istanbul, Turkey. He is represented before the Court by Mr Ünal Somuncuoğlu, a lawyer practising in Istanbul. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a client of the Mecidiyeköy branch of the Economy Bank (İktisat Bankası: hereinafter “the defendant”). On 12 June 1989 the applicant sought to withdraw the balance on the bank accounts which he had opened with the defendant namely, 1,694,424 US dollars (USD) and 166,762 German marks (DEM). The bank refused to comply with his request giving as its reason that there was no longer any balance left on the accounts since all amounts previously deposited had been withdrawn. The applicant brought legal proceedings against the defendant before the 3rd Commercial Court of Istanbul (Asliye Ticaret Mahkemesi). During the proceedings the court appointed experts to look into the defendant’s accounts. The experts could not identify the existence of any document or record proving that the applicant had been paid the sum of USD 1,694,424 from his accounts. Although the defendant had not been able at the start of the trial to supply any documents signed by the applicant in the form of bills, checks or payment orders, it submitted a report dated 11 May 1990 indicating the existence of “a general release” (genel ibraname) which the applicant had signed on 4 September 1988 affirming that he had irrevocably released the defendant from its obligation to pay him the money which he had deposited with it. The applicant contended that the defendant forged the so-called general release after he instituted proceedings against it. He maintained that the defendant, using a typewriter, filled in a blank page which he had signed and lodged with the defendant’s Mecidiyeköy branch. The applicant claimed that he had done so since he had trusted the defendant’s branch manager at the time and considered that this was in the interests of the smooth running of his financial dealings. He noted that the typed wording of general release bore a misspelling of his last name (“Mercimek” instead of “Mercümek”). The applicant argued before the court that notwithstanding the existence of the so-called “general release” of 4 October 1988, the defendant had nevertheless made him a payment from his account no. 787643 on 12 June 1989 in the sum of USD 45,000. During the proceedings before the 3rd Commercial Court of Istanbul the applicant requested that witnesses be heard by the court on the matter of the validity of the release. He submitted an expert legal opinion to the court stating that the court could only properly assess the applicant’s claim by hearing evidence other than the general release letter. The applicant’s request was refused. The experts commissioned by the 3rd Commercial Court of Istanbul on the matter of the alleged falsity of the general release letter stated in a report dated 15 February 1995 that they “did not find any proof that the disputed document had been prepared later by filling in blank pages signed by the applicant”. The experts who investigated the history of the applicant’s deposit accounts found that “the bank had paid all sums of money, totalling USD 1,703,248, without the applicant having signed any check, payment order or other document”. As to the “general release letter” the experts concluded that: “the existence of this release may legitimately close the accounts and bring to an end the bank’s obligation to pay money out of them.” The experts also stated that the general release letter had been signed by hand whereas the actual wording of the letter had been typed. This made it impossible to determine whether the wording used in the general release letter had been inserted after it had been signed by the applicant, as he alleged. In its judgment of 21 April 1995, the 3rd Commercial Court of Istanbul rejected the applicant’s claim. It found inter alia that there was no evidence to prove that the release given to the defendant by the applicant was a blank page which had been filled in later or that he had intended a signed blank page to be used by the bank for another transaction. The court found that although some of the documents concerning the payments made to the applicant did not bear the applicant’s signature these documents were nonetheless valid having regard to his general release letter of 4 October 1988. The applicant appealed to the Court of Cassation arguing that the judgment of the 3rd Commercial Court had not clarified a number of legal issues. The applicant requested the Court of Cassation to examine the merits of these issues and to address them specifically and separately. The 19th Civil Chamber of the Court of Cassation upheld the decision of the 3rd Commercial Court of Istanbul. The Court found that the applicant’s release letter relieved the defendant from the obligation to make payments to him from his account. The court considered the applicant’s argument that he had given the release to the defendant in the form of a blank page for the purposes of a banking transaction. The court noted that the 3rd Commercial Court of Istanbul appointed a group of experts to inquire into the allegation that the document had been unlawfully filled in at a later stage. However, the court-appointed experts found no evidence of forgery. The court also considered the issue whether the document could be regarded as a lawful release under Turkish law. It noted that, according to doctrine, a release of debt was accepted as one of the ways of discharging a debt. The court concluded that the release letter showed that it was the intention of the applicant to discharge the debt owed to him by the defendant. Furthermore the release had complied with the requirements of the relevant provisions of the Code of Obligations (Borçlar Kanunu). One judge dissented, being of the opinion that the first instance court should have allowed witnesses to be heard on behalf of the applicant. The judge also noted that there were indications that the general receipt could have been forged and that it was not normal practice for a bank to pay out money to a client without having a trace of his signature. The judge was not prepared to accept the defendant’s argument that it had paid money in good faith from the applicant’s account after the date indicated on the general release letter. On 8 November 1996 the 19th Civil Chamber of the Court of Cassation rejected the applicant’s request for rectification of its earlier judgment.