(Application no. 75535/01)
26 May 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Esat Bayram v. Turkey,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Işıl Karakaş, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 5 May 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“I saw Hüseyin Arabacı approaching and I remembered his death threats. I thought he was going to shoot me. I do not remember what happened but I am sure that I did not shoot myself.”
“A surgical incision measuring 30 cm begins from the area between the nipples and extends centrally to below the navel. Several old razor wound scars are noted between the left and right shoulders and elbows, measuring 10-15 cm each. The name Emrah is carved with a razor or another sharp object on the outer side of the left arm. A bullet exit hole on the left lumbar region measuring 1 cm is noted. A bullet entry hole was observed in the stitched wound in the chest area”
“We unanimously agree that the bullet had entered the body from the lower left part of the xiphoid process, passing through the muscle under the skin into the abdominal cavity, passing slightly to the left, leaving the body from the upper part of the lumber region; and that because persons move, the route of the bullet through the body cannot assist in medically determining the direction from which the bullet had been fired or the height above the ground”
As a result, in the report, it was unanimously accepted that the bullet had entered from the abdomen.
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
1. As to the medical assistance provided to the applicant's brother in the Çanakkale Military Hospital
2. As to the death of Mr Halim Bayram
a. General principles
B. Application of these principles in the present case
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into new Turkish liras at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 26 May 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza Deputy Registrar President
1. Definition of xiphoid process: a pointed cartilage attached to the lower end of the breastbone or sternum, the smallest and lowest division of the sternum.