issued by the Registrar of the Court

ECHR 274 (2017)

12.09.2017

Judgments of 12 September 2017

The European Court of Human Rights has today notified in writing two Chamber judgments¹,

summarised below, which are available only in English.

Rõigas v. Estonia (application no. 49045/13)

The applicant, Anneli Rõigas, is an Estonian national who was born in 1963 and lives in Tallinn. The

case essentially concerned her complaint of a lack of investigation into her son’s alleged

maltreatment in hospital and into the circumstances of his death.

Ms Rõigas’ son, O., born in 1983, was diagnosed with malignant melanoma in 2006. In that year, he

underwent surgery and regular check-ups. In April 2009 he had more surgery, in which a metastasis

was removed from his brain, and he received radiation therapy. Following a deterioration of his

health, he was admitted to hospital again in September 2009. After computerised tomography (CT)

and magnetic resonance imaging scans of his brain had been performed, a hospital medical council

decided to proceed with palliative care. It found that, because O.’s tumour had spread, oncological

treatment would not be effective. For one week, in October 2009, O. was physically restrained to a

bed, apparently in order to prevent him from hurting himself, because he was in a disturbed state of

mind. When he was additionally suffering from progressive respiratory failure, he was transferred to

an intensive care unit, where, on 12 October, he stopped breathing and mechanical ventilation was

applied. On the next day, the characteristics corresponding to brain death were ascertained. O. died

on 15 October 2009. An autopsy was performed on the following day. The medical death certificate

indicated cerebral oedema as the immediate cause of death and melanoma with multiple

metastases as the medical condition that had brought it about.

According to Ms Rõigas, O. did not sign the medical council’s decisions not to provide him with

oncological treatment and to proceed with palliative care. She also maintains, in particular, that O.

fell into a coma following an overdose of medicine, that the protocol for verifying brain death was

not properly carried out by the hospital and that the administration of food and medicines was not

resumed, despite her requests.

Following O.’s death, Ms Rõigas complained to the police about his treatment in the hospital and

requested an expert examination. After she had additionally complained to the Health Board, the

case was transmitted to the Expert Committee on the Quality of Health Care Services, which, after

examining O.’s medical records, obtaining explanations from the hospital staff and obtaining expert

opinions, found no medical malpractice. Ms Rõigas’ action to have the Expert Committee’s report

declared unlawful was dismissed by a final judgment of the Supreme Court in December 2015. In

parallel, following an offence report lodged by her, criminal proceedings were initiated. They were

eventually terminated in October 2012 as on the basis of the gathered evidence the commission of

an offence had not been proven.

Under Articles 43 and 44 of the Convention, Chamber judgments are not final. During the three-month period following a Chamber

judgment’s delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a

panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and

deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Under Article 28 of the

Convention, judgments delivered by a Committee are final.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution

Relying in particular on Article 2 (right to life) of the European Convention on Human Rights, Ms

Rõigas notably complained of a lack of investigation into her son’s maltreatment in hospital and into

the circumstances of his death.

No violation of Article 2

Karataş and Others v. Turkey (no. 46820/09)

The applicants are ten Turkish nationals who live in Tunceli (Turkey). The case concerned an armed

incident in south-eastern Turkey in September 2007. The applicants complained that soldiers had

killed their relative Bülent Karataş and had severely injured one of the applicants, Rıza Çiçek, in the

same incident; they maintained that the authorities had failed to conduct an effective investigation

into the events.

In the late morning of 27 September 2007, near the village of Yenibaş in south-eastern Turkey,

Bülent Karataş and Rıza Çiçek, who were unarmed, were hit by several bullets fired by soldiers of a

military unit based in the town of Hozat. In the afternoon of the same day, they were taken by

gendarmes to the military hospital in Elaziğ. Bülent Karataş died on the way to the hospital, where a

post mortem examination was carried out. The doctors noted that three bullets had entered his

body and that he had died from the loss of blood as a result of the wounds. They also noted a

number of abrasions and a broken rib.

The Hozat public prosecutor opened an investigation on the day after the incident, after having

declined to visit the scene of the incident on 27 September 2007, due to security concerns, and

having instead instructed the gendarmes to secure any objects found in the area.

Six military personnel who had taken part in the operation were questioned by the public prosecutor

in early October 2007; they stated that their unit had been in the area to look for members of

terrorist organisations who, according to intelligence, had been transporting food supplies and

equipment to their hiding places. When the soldiers came across the two men on 27 September

2007, they had asked them to stop, but the men had disobeyed and had started running down a hill.

The soldiers had fired in the air and repeated their warning. When, at that moment, fire was opened

in their direction from a river bed, they had returned fire.

According to the statements from Rıza Çiçek, who was questioned as a “suspect” by the prosecutor

on 6 November 2007, he and his cousin Bülent Karataş, who was a bee-keeper, had gone to the area

in question on 27 September 2007 to collect a bee colony. Their identity was checked by a group of

soldiers, who then told them to leave as they were in a “terrorist area”. Bülent told the soldiers that

they would finish their job and then leave. About 20 minutes later the soldiers returned; they first

told them to lie on the ground and then to get up and run away. When Rıza Çiçek did so, several

rounds of shots were fired in his direction and he was hit in his chest and arm.

In December 2008 the Elaziğ military prosecutor, to whom the file had in the meantime been

forwarded, decided to close the investigation and not to bring criminal proceedings against the

soldiers. He considered that the version of the events put forward by the military personnel was true

and noted in particular that, although Bülent Karataş and Rıza Çiçek had been unarmed, there was a

strong suspicion that the two men had been in the area to assist terrorists.

Rıza Çiçek and two other applicants filed an objection against the military prosecutor’s decision,

maintaining that the two men had intentionally been shot by the soldiers and arguing that there had

not been a thorough investigation either by the Hozat public prosecutor or by the military

prosecutor, who had never actually questioned Rıza Çiçek, who was both a victim and witness. The

applicants’ objection was rejected by the Malatya Military Court in March 2009.

In the meantime, Rıza Çiçek had been placed in detention on remand and charged with aiding and

abetting a terrorist organisation. The trial court declined however to open proceedings and, in May

2008, ordered his release.

The applicants complain of a violation of Article 2 (right to life) of the Convention in respect of

Bülent Karataş and Rıza Çiçek.

Violation of Article 2 - in respect of Bülent Karataş’s demise and the injury caused to Rıza Çiçek

Just satisfaction: 20,000 euros (EUR) jointly to Güler Karataş, Pınar Şafak Karataş and Berdan Ulaş

Karataş, for pecuniary damage; EUR 65,000 jointly to Güler Karataş, Pınar Şafak Karataş, Berdan Ulaş

Karataş, Bıra Karataş, Kumru Karataş, Perince Ataş, Nebahat Ateş, Serincan Çiçek and Yıldız Deniz, for

non-pecuniary damage; EUR 30,000 to Rıza Çiçek for non-pecuniary damage; and EUR 3,750 jointly

to the ten applicants for costs and expenses.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member

States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.