SECOND SECTION

DECISION

Application no. 23395/09 Nedim Ä°BRAHÄ° MHAKKIOÄžLU against Turkey

The European Court of Human Rights (Second Section), sitting on 23 January 2018 as a Committee composed of:

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

Having regard to the above application lodged on 30 March 2009,

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 Nedim İbrahimhakkıoğlu , is a Turkish national, who was born in 1950 and lives in Istanbul. He was represented before the Court by Mr C. Ülgen , a lawyer practising in Istanbul.

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

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

4. At the time of the events giving rise to the application, the applicant was the Director of the Regional Directorate of Foundations in Istanbul (“the Regional Directorate”). He alleged that he had left his position and had severed ties with the Regional Directorate in June 1996.

5. On 7 May 1997 a fire broke out in a historical and religious building in Istanbul owned by the Regional Directorate.

6. On 19 November 1999 the Regional Directorate brought proceedings against the applicant and seven other individuals, seeking compensation for the damage caused to the premises and its contents.

7. During the proceedings, the first-instance court decided to seek an expert report from a panel of experts in order to determine whether the defendants were responsible for the occurrence of the incident and if so, the degree of their responsibility.

8. In their report dated 22 May 2002, the experts concluded that the applicant, as the Director of the Regional Directorate, was partially responsible for the damage caused by the fire to the premises and its contents.

9. On 27 January 2005 the first-instance court found against the applicant and two other defendants. Relying mainly on the expert report, the court ordered the applicant to pay part of the damages.

10. The applicant lodged an appeal against the judgment before the Court of Cassation, which upheld the first-instance court ’ s judgment on 13 October 2006.

11. On an unspecified date the applicant requested rectification of the Court of Cassation ’ s decision.

12. On 5 March 2007 the Court of Cassation dismissed the applicant ’ s request for rectification.

13. This final judgment was served on the applicant on 30 January 2009.

COMPLAINTS

14. The applicant complained under Article 6 § 1 of the Convention about the unfairness and the excessive length of the domestic proceedings.

THE LAW

A. The complaint concerning the fairness of the proceedings

15. The applicant complained that the proceedings before the national courts had not been fair in that he had been wrongfully attributed responsibility for an incident that took place approximately one year following his departure from the Regional Directorate.

16. The Court reiterates that it is not a court of fourth instance and it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I, and Streletz , Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001 ‑ II). The Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08 , § 61, ECHR 2015) .

17. The Court notes that the applicant ’ s complaint essentially concerns the outcome of the domestic proceedings and is therefore fourth ‑ instance in nature. For the Court, there is nothing in the case file that would suggest that the findings of the domestic courts were arbitrary or manifestly unreasonable.

18. The Court therefore finds that the complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B . The complaint concerning the length of the proceedings

19. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

20. The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that the applicant had not exhausted domestic remedies, as they had not made any application to the Compensation Commission: this ground had also been recognised by the Court in its decision in the case of Turgut and Others (( dec. ), no. 4860/09, 26 March 2013). The applicant contested the Government ’ s argument and submitted that the remedy only became available after he had made his application with the Court.

21. The Court observes that, as pointed out by the Government, a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others , cited above, the Court declared a new application inadmissible on the ground that the applicants must avail themselves of the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.

22. The Court notes that in its aforementioned decision in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine, under its normal procedure, applications of this type which had already been communicated to the Government.

23. However, in view of the Government ’ s preliminary objection with regard to the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others (cited above). It therefore concludes that the complaint concerning the excessive length of the civil proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 February 2018 .

Hasan Bakırcı Ledi Bianku              Deputy Registrar President