CASE OF ESAT BAYRAM v. TURKEY

FOURTH SECTION

CASE OF ESAT BAYRAM v. TURKEY

(Application no. 75535/01)

JUDGMENT

STRASBOURG 

26 May 2009

FINAL

06/11/2009

This judgment 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:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
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:

PROCEDURE

1. The case originated in an application (no. 75535/01) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Esat Bayram (“the applicant”), on 19 February 2001.

2. The applicant was represented by Ms D. Bayır and Ms M. Tepe, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3. On 16 March 2007 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

4. The Chamber further decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine of the Rules of Court).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1973 and lives in Istanbul.

6. The applicant’s brother Halim Bayram, who was a Turkish citizen of Kurdish origin, was called up for military service in 1998. He was 20 years old at the time.

7. On 23 May 1998 Halim Bayram started his initial two months’ training in Izmir. On 10 August 1998 he was granted leave for fifteen days. On his return, he was informed that he had been appointed to Çanakkale. On 28 August 1998 Halim Bayram went to Çanakkale to join his unit. His superior was Mr Hüseyin Arabacı.

8. A few days later the applicant received a telephone call from his brother, who stated that he was being bullied by his superior. He told the applicant that he had been threatened with death by Hüseyin Arabacı.

9. On 7 September 1998 the applicant’s brother was posted to sentry duty. At about 12.30 p.m. he was seriously wounded by one bullet and he was immediately taken to the Çanakkale Military Hospital, where he was operated upon. At 5 p.m. the same day, Hüseyin Arabacı called the applicant and informed him that there had been an accident and his brother had shot himself. The applicant went to Çanakkale immediately. Hüseyin Arabacı and another soldier took the applicant to hospital. His brother was in the intensive care unit, unconscious. When the applicant asked Hüseyin Arabacı how the incident had happened, he told the applicant that he had been 20-30 metres away from Halim Bayram when he saw him point the gun towards himself and fire. He explained that Halim Bayram had been taken immediately to the hospital where he had been operated upon.

10. On 8 September 1998, the applicant was able to speak to his brother briefly at the hospital. Halim Bayram allegedly told the applicant:

“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.”

11. The applicant’s brother told him that he wanted to be transferred to Istanbul. He also said that he had written a letter and given it to his friend Mr Kazım Ağın, also a conscript.

12. In the meantime, statements were taken from witnesses to the event, namely from Mr Barış Tulpar, Mr Celal Elbir and Mr Kazım Ağın.

13. In his statement Mr Tulpar said that after lunch, as he was walking around, he heard a single gun shot. When he went to see what had happened, he saw Halim Bayram lying on the ground, heavily injured. He was mumbling, saying “you have burnt me Emrah, I am burning, I am in pain”. Mr Tulpar said Halim Bayram’s rifle was between his knees.

14. Mr Celal Elbir said that when he heard the shot, he immediately went to the scene of incident. Halim Bayram was lying on the ground. He was alive but heavily bleeding. His rifle was between his legs.

15. In his statement, Mr Ağın maintained that Halim Bayram had told him that he would commit suicide as the girl whom he was in love with was getting married to someone else. He also said that Halim Bayram had given him a letter to be sent to his parents, should anything happen to him.

16. The same day, the applicant also spoke to Mr Kazım Ağın, who allegedly told him that Halim Bayram had been pressurised by his superior Hüseyin Arabacı. He told the applicant that the soldiers had been forced not to speak to Halim Bayram and added that Halim Bayram had no bed and was sleeping on the floor. Mr Ağın confirmed that Halim had given him a letter; however he explained that somebody had taken it from his bag.

17. The applicant wanted to transfer his brother to another hospital but the doctors refused. The applicant returned to Istanbul.

18. On 14 September 1998 the applicant’s brother developed disseminated intravascular coagulation and the doctors decided to transfer him to the GATA Military Hospital in Istanbul. He died from internal bleeding in the ambulance during the transfer.

19. On 15 September 1998 the applicant lodged an application with the Çanakkale Public Prosecutor’s office to clarify the circumstances in which his brother had died. He stated that he doubted that his brother had shot himself and requested an autopsy.

20. The body examination report, dated 15 September 1998, stated the following:

“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”

21. The applicant was also present during this body examination. He stated that he had doubts about his brother’s death and requested a second autopsy.

22. On 15 September 1998 the Çanakkale Public Prosecutor conducted an examination of the scene of incident.

23. On 16 September 1998 the military investigation board started an investigation into Halim Bayram’s death. On 18 September 1998 the board took a statement from Hüseyin Arabacı. Mr Arabacı explained that when he heard that the applicant’s brother had shot himself, he immediately went to see what had happened and called an ambulance. He saw that there was blood on Halim Bayram’s abdomen.

24. On 22 September 1998 the military investigation board delivered its report and concluded that no fault could be attributed to Mr Hüseyin Arabacı or the hospital.

25. In the meantime, on 17 September 1998 a second autopsy was conducted on Halim’s body by the Morgue Expertise Directorate of the Forensic Medicine Institute. The report stated that no bullet was found in the body and that the detailed report would be delivered at a later date. Samples of the wound from the xiphoid process[1] and back were sent for further chemical examination.

26. On 18 September 1998 the Forensic Medicine Institute delivered its report concerning the chemical examination of these two pieces of skin. Large amounts of nitrite-nitrate ions were observed on the piece of skin taken from Halim Bayram’s back and none was found on the piece of skin taken from the xiphoid process.

27. On 28 September 1998 the Çanakkale Public Prosecutor delivered a non-jurisdiction decision and transferred the file to the Gölcük Military Prosecutor.

28. Upon the request of the Military Prosecutor, on 11 November 1998 an expert examination was conducted on the hive obtained from the scene of the incident. While conducting the examination, the expert fired two further shots using the rifle that had been used by Halim Bayram. On 13 November 1998 the three spent cartridge cases, namely the one found following the incident and the two obtained by the expert, were examined at the Istanbul Criminal Police Laboratory and it was concluded that they all came from the same rifle.

29. On 16 November 1998 Miss Emrah Baynal gave a statement to the gendarmes. When asked about Halim Bayram’s suicide, Miss Baynal said that she had been friends with Halim Bayram for nearly two years. She explained that they loved each other and denied that she was engaged to somebody else.

30. On 9 December 1998 the applicant gave a statement to the Military Prosecutor. He explained that his brother Halim Bayram had been threatened with death by Hüseyin Arabacı.

31. On 26 February 1999 the Forensic Medicine Institute delivered its medical report. Making reference to its previous examinations dated 17 and 18 September 1998, it concluded that Halim Bayram had been shot in the back. According to the report, a bullet had entered his back and exited from the right below the xiphoid process. In order to establish the exact range from which the shot was fired, a further chemical examination of Halim Bayram’s clothes was requested.

32. In a report dated 25 October 1999 the physical ballistics expertise branch stated that no traces of gunfire were found on either the shirt or the vest of Halim Bayram. The reports further concluded that there was a hole in the back part of the shirt, measuring 1x 0.5 cm.

33. On 21 January 2000 the Forensic Laboratory Department delivered its final report. In its detailed report, it made reference to all of the previous forensic examinations. It stated that although when bullet entry and exit holes are examined, it is usually the small holes that are ascertained to be entry holes and large holes to be exit holes, it was medically possible for the opposite to be found as well. The report concluded that although the autopsy report dated 26 February 1999 had stated that the entrance hole had been in the back, as following the chemical examination no nitrite and nitrate ions had been found on Halim Bayram’s clothes, this should indicate that the bullet must have entered from the xiphoid process. In the report, it was further stated that there was no indication to determine whether the shot had been fired from close range or point blank range. It continued:

“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.

34. On 30 March 2000 the Military Prosecutor decided not to prosecute. The applicant appealed against that decision. On 9 August 2000 the Military Court rejected the applicant’s appeal and this was notified to the applicant on 22 August 2000.

35. On 20 July 2001 the applicant obtained a medical report from Mr Christopher Milroy, a professor of Forensic Pathology and Consultant to the Home Office. After making an analysis of the available documentary evidence, Mr Milroy concluded that the presence of a small circular gunshot wound in the back and a larger gunshot wound in the front of the abdomen was suggestive of the entrance wound being in the back. The presence of nitrate-nitrite ions on the skin taken from the back of the body and their absence on the front would provide confirmatory evidence that the back contained the entrance wound. However, it was also stated that these findings were inconsistent with the fact that no gunshot residue was identified anywhere on the clothing. In sum, Professor Milroy concluded that the evidence supported the theory that the entrance wound was in the back.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

36. Relying on Articles 2, 6 and 13 of the Convention, the applicant complained about the flaws in the domestic investigation which was initiated following the death of his brother during his military service. He believed that his brother had been deliberately shot and killed by his superior; however it had not been possible to prove his allegations because of the ineffectiveness of the domestic proceedings. The applicant further alleged that his brother had not received adequate medical care in the Çanakkale Military Hospital.

37. The Court considers that these complaints should be examined from the standpoint of Article 2 alone, which reads:

“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.”

A. Admissibility

38. The Government argued that the applicant had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. Referring to Article 125 of the Constitution, they stated that the applicant could have brought civil and administrative proceedings before lodging his application with the Court.

39. The Court observes that it has already examined and dismissed similar preliminary objections by the Government in previous cases (see Abdullah Yılmaz v. Turkey, no. 21899/02, § 47, 17 June 2008, and Salgın v. Turkey, no. 46748/99, § 61, 20 February 2007). It finds no particular circumstances in the instant case which would require it to depart from its findings on those applications. Consequently, it dismisses the Government’s preliminary objection.

40. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. As to the medical assistance provided to the applicant’s brother in the Çanakkale Military Hospital

41. The Government maintained that the authorities had provided adequate medical care to the applicant’s brother, who had been seriously wounded. They stated that Halim Bayram had been immediately transferred to the hospital and had undergone an operation. Subsequently, after the doctors diagnosed internal bleeding, he had been transferred to the GATA hospital in an ambulance and his doctor had accompanied him. Halim Bayram had however died from the internal bleeding during the transfer.

42. The Court observes that the applicant’s brother had been seriously injured during the incident and was immediately transferred to the Çanakkale Military Hospital, where he underwent an operation. On 14 September 1998, eight days after the operation, the applicant’s brother developed disseminated intravascular coagulation and the doctors decided to transfer him to the GATA Military Hospital in Istanbul. He died from internal bleeding in the ambulance during the transfer. On the basis of the available material, the Court finds no indication of any shortcomings on the part of the authorities in providing adequate medical treatment to the applicant’s brother.

43. In view of the foregoing, the Court finds that there has been no violation of Article 2 under this head.

2. As to the death of Mr Halim Bayram

44. The applicant alleged that his brother had been deliberately shot and killed by his superior during his military service. He also maintained that due to the ineffectiveness of the investigation into Halim Bayram’s death, many questions were left unanswered and thus it had not been possible to prove his allegations. He referred in this connection to the autopsy reports dated 26 February 1999 and 21 January 2000, which revealed contradictory findings. He also indicated that no statement had been taken from his brother at the hospital, explaining that the authorities had prejudged the matter and had accepted, without questioning, the theory that Halim Bayram had attempted to commit suicide.

45. The Government denied the applicant’s allegations. They maintained that Halim Bayram had committed suicide and stated that the domestic authorities had fulfilled their obligations to conduct an effective investigation his death.

a. General principles

46. The Court reiterates the basic principles laid down in its previous judgments, concerning deaths occurring during compulsory military service (see, in particular, Abdullah Yılmaz, cited above, §§ 55‑58, Kılınç and Others v. Turkey, no. 40145/98, §§ 40-43, 7 June 2005, Salgın, cited above, §§ 76‑78, and Ataman v. Turkey, no. 46252/99, §§ 54‑56, 27 April 2006). It further emphasises that it is sensitive to the subsidiary nature of its role and must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, Solomou and Others v. Turkey, no. 36832/97, § 68, 24 June 2008). Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. Though the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Selim Yıldırım and Others v. Turkey, no. 56154/00, § 59, 19 October 2006). Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny (see, mutatis mutandis, Ribitsch v. Austria, 4 December 1995, § 32, Series A no. 336, and Avşar v. Turkey, no. 25657/94, § 283, ECHR 2001‑VII) even if certain domestic proceedings and investigations have already taken place.

47. The obligation to carry out an effective investigation into unlawful or suspicious deaths is well-established in the Court’s case law (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§ 110‑113, ECHR 2005‑VII). The investigation must be capable, firstly, of ascertaining the circumstances in which the incident took place and, secondly, of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (with regard to autopsies, see, for example, Salman v. Turkey [GC], no. 21986/93, § 106, ECHR 2000‑VII; concerning witnesses, for example, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999‑IV; and concerning forensic evidence, for example, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its capacity to establish the cause of death or identify the person responsible will risk falling below this standard. A requirement of promptness and reasonable expedition is implicit in this context (see Ali and Ayşe Duran v. Turkey, no. 42942/02, § 63, 8 April 2008).

B. Application of these principles in the present case

48. The Court notes in the first place that an investigation was indeed carried out into the death of the applicant’s brother. However, for the reasons explained below, it revealed some serious inconsistencies and deficiencies.

49. The Court observes that before the domestic authorities, the applicant constantly denied that his brother had committed suicide and accused Hüseyin Arabacı of killing his brother. While a test was carried out on the rifle to show that the bullet had been fired from the G3 rifle which had been found near Halim Bayram, there was no test on the rifle for fingerprints. The Court considers that this test could have provided valuable information to establish whether or not Halim Bayram had been shot by his superior as alleged. Furthermore, no statement had been taken from Halim Bayram at the hospital, despite the fact that he had gained consciousness and was able to speak after the operation. In the Government’s observations, it is also accepted that Halim Bayram had regained consciousness the day after the operation, but it is stated that as his survival was still uncertain, and as, in any event, the judicial inquiry had started after his death, no statement had been taken from him at the hospital. The Court, however, is not convinced by the Government’s explanations. In its view, the failure to take a statement from Halim Bayram at the hospital seriously hampered the investigation.

50. The Court is further concerned that during the investigation, the military public prosecutor took very brief statements from witnesses and in particular from Hüseyin Arabacı, who was accused by the applicant of killing his brother. When questioned, Mr Arabacı was asked what he knew about the incident and in reply he explained that, when he had heard that the applicant’s brother had shot himself, he had immediately gone to see what had happened and had called an ambulance.

51. Finally, the Court observes that there is an inconsistency between the medical reports filed during the domestic investigation. It is noted that the first report filed on 15 September 1998 stated that a bullet exit hole had been noted in the left lumbar region and a bullet entry hole in the chest area. Subsequently, samples of the skin taken from the xiphoid process and the back were examined for chemicals and as a result on 18 September 1998 the Forensic Medicine Institute reported that large amounts of nitrite-nitrate ions had been observed on the piece of skin taken from Halim Bayram’s back and none had been found on the piece of skin taken from the xiphoid process. The Court observes that based on the medical report dated 26 February 1999, the Forensic Medicine Institute prepared a second report, this time concluding that Halim Bayram had been shot in the back. According to this report, a bullet had entered his back and exited from right below the xiphoid process. In order to determine the exact range from which the shot had been fired, Halim Bayram’s clothes were also sent for chemical examination. In a report dated 25 October 1999, the Forensic Medicine Institute found that there was no trace of nitrite-nitrate ions or gunshot residue on the clothes. Ultimately, on 21 January 2000, the Forensic Laboratory Department issued a final report which contradicted the previous reports filed on 15 and 18 September 1998 and 26 February 1999. This report referred to the finding that no nitrite-nitrate ions or gunshot residue had been found on Halim Bayram’s clothes and concluded that the bullet had entered from the abdomen. At this point, the Court notes that the purpose of the post-mortem examination is to elucidate the circumstances surrounding the death, including an objective analysis of the clinical findings (see Gül, cited above, § 89). The Court finds that, in deciding to accept the conclusion in the report of the Forensic Laboratory Department and to terminate the investigation, the relevant authorities failed adequately to investigate or explain the patent contradictions between the findings in that report and those in the two earlier reports of the Forensic Medicine Institute which clearly indicated that Halim Bayram had been shot in the back and not in the abdomen, a view which was confirmed by the ballistics examination of the Halim Bayram’s shirt which contained a single bullet hole in the back and by the subsequent report of Professor Christopher Milroy. The Court further finds that no or no adequate steps were taken by the relevant authorities to investigate the apparent inconsistency between the conclusion that the bullet had entered from the abdomen and the fact that the only gunshot residue on Halim Bayram’s body was found on his back and that no traces of gunfire were found anywhere on his clothing.

52. In the light of the foregoing, the Court considers that the national authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicant’s brother. The Court for its part finds it impossible to establish on the basis of the evidence before it whether the death of Halim Bayram was the result of suicide or of the act of another person. The Court would observe that its difficulty in determining whether there was any substance in the applicant’s claim that his brother was unlawfully killed rests with the failure of the authorities adequately to investigate the circumstances of the death (see, mutatis mutandis, Veznedaroğlu v. Turkey, no. 32357/96, §§ 30-31, 11 April 2000) in breach of the procedural obligations imposed under Article 2 of the Convention.

53. The Court accordingly finds that there has been a violation of Article 2 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

54. The applicant complained that his brother had been killed because of his Kurdish origin, in violation of Article 14 of the Convention.

55. The Government stated that the applicant had not raised this complaint before the domestic authorities. They further stated that this allegation was unsubstantiated.

56. Having regard to all the material in its possession, and in so far as this complaint falls within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

57. Article 41 of the Convention provides:

“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.”

A. Damage

58. The applicant claimed 30,000 euros (EUR) in respect of pecuniary damage in respect of himself and his parents. In this connection, he stated that Halim Bayram was twenty years old when he died. The applicant further claimed a total of EUR 130,000 in respect of non-pecuniary damage.

59. The Government contested these claims.

60. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim (see Buldan v. Turkey, no. 28298/95, § 113, 20 April 2004). As regards non-pecuniary damage, the Court observes that the authorities’ failure to investigate effectively the death of Halim Bayram must have caused considerable anguish and distress to the applicant. Accordingly, deciding on an equitable basis, the Court awards EUR 5,000 to the applicant in respect of non-pecuniary damage.

B. Costs and expenses

61. Referring to the Istanbul Bar Association’s scale of fees, the applicant’s representative claimed 33,400 New Turkish liras (TRY) (approximately EUR 17,000) covering fifty hours’ legal work, spent in the preparation and presentation of this case before the Court, and other costs and expenses.

62. The Government contested the claim.

63. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 to the applicant under this head.

C. Default interest

64. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint concerning Article 2 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 2 of the Convention;

3. Holds

(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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 26 May 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıNicolas 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.

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