BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

SECOND SECTION

Application no. 33210/05
Irfan ARABACI
against Turkey
lodged on 12 September 2005

STATEMENT OF FACTS

The applicant, Mr Irfan Arabaci, is a Turkish national who was born in 1952 and lives in Izmir. He is represented before the Court by Mr Ü. Emek, a lawyer practising in Bursa.

A.  The circumstances of the case

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

1.  Criminal prosecution for the killing of the applicant’s daughter

On 5 April 1999 the applicant’s daughter was shot by her ex-husband, K.S., and died.

In the course of the criminal proceedings, the Bursa Assize Court gathered all relevant evidence, i.e. the ballistic and autopsy reports, on-site visit records and the statements taken from the accused and witnesses, and in the light of those, it established that on the day of incident, K.S. had gone to the workplace of the applicant’s daughter and forced her out, and following a dispute which arose between them, he had shot her four times in the head.

On 25 September 2002 the Bursa Assize Court convicted K.S. of premeditated murder and sentenced him to life imprisonment. In its judgment, the court refused to apply any mitigating factors in his regard.

It was also revealed in the proceedings that K.S. had a previous conviction for the murder of another person, which had been suspended on 13 April 1991 by the Çanakkale Assize Court.

On 21 May 2002 Law no. 4616 (Law on Conditional Release and Suspension) was adopted, providing for the suspension of criminal proceedings and execution of sentences regarding certain offences committed before 23 April 1999.

In accordance with the above-mentioned law, on 25 September 2002 the Bursa Assize Court suspended the execution of K.S.’s latest sentence. On the other hand, it ordered that notification be given to the public prosecutor and the Çanakkale Assize Court for the execution of his previous sentence.

2.  Civil proceedings lodged against the administration

In 2003 the applicant filed an action against the Ministry of Justice claiming a sum in compensation for the anguish and sorrow he had allegedly suffered on account of the release of his daughter’s murderer under Law no. 4616, despite the fact that he had been sentenced to life imprisonment.

On 29 March 2004 the Bursa Administrative Court held that there was no causal link between the administration’s act and the applicant’s alleged moral suffering. Referring to the constitutional principle of separation of powers between the legislator and judiciary, the court found that the law on conditional release enacted by the legislator had been applied to the incident by the judicial authorities without any arbitrariness. In this respect, the court held that there had been no liability incumbent on the administration for the applicant’s alleged moral suffering and thus dismissed the applicant’s claim for compensation.

The applicant lodged an objection contending that since the Ministry of Justice had been responsible for carrying out the preparatory work of Law no. 4616, it should have been accountable for the fault in conduct.

On 14 December 2004 the Bursa District Administrative Court dismissed the applicant’s appeal and upheld the first-instance court’s judgment.

This final decision was served on the applicant on 15 March 2005.

B.  Relevant domestic law

According to Law no. 4616 on conditional release, proceedings in respect of crimes committed before 23 April 1999 may be suspended and subsequently dropped if no crime of the same or a more serious kind is committed by the offender within the statutory time-limit for the prosecution of that crime.

In the absence of such a subsequent conviction, the earlier prosecution and trial will be considered annulled with retroactive effect.

COMPLAINTS

The applicant complains under Articles 2 and 8 of the Convention that by failing to impose a deterrent punishment on the perpetrator who murdered two people in eight years, including his own daughter, the authorities did not adequately protect the life of his daughter and respect his family life.

Relying on Article 2 in conjunction with Articles 1 and 17 of the Convention, the applicant further alleges that by the frequent adoption of amnesty laws, the respondent State exceeded its margin of appreciation and impaired the essence of the rights guaranteed by the Convention.

QUESTION TO THE PARTIES

Was the manner in which the criminal-law mechanisms were applied in the present case by the domestic authorities in breach of Article 2 of the Convention? In this connection, did the authorities effectively enforce the domestic criminal laws protecting the right to life in the present case (see Nikolova and Velichkova v. Bulgaria no. 7888/03 § 57, judgment of 20 December 2007)?