GÜLEÇ JUDGMENT OF 27 JULY 1998
34
and upheld on 13 November 1991 by the Supreme Administrative Court, on
the ground that it had not been possible to identify those responsible, was
not at all pertinent, since the complaint of 5 April 1991 had been lodged
against Mustafa Karatan.
The right to life was one of the most important Convention rights, and
the Government had failed to fulfil its obligation to protect it by not
bringing proceedings in the courts against the offender whenever anyone
infringed it.
(b) The Government
75. The Government replied that if there had been the slightest prima
facie evidence, the Administrative Council would have decided to
prosecute. In any event, the Regional Administrative Court, a judicial body
which had a legal duty to review all discontinuation orders made by
administrative councils, would have set aside the order and ordered the
prosecution of the suspects. In the last two years administrative councils had
brought criminal proceedings in 4,955 cases. During the same period, the
Regional Administrative Courts and the Supreme Administrative Court, two
courts composed of professional judges who could not be removed from
office, had set aside no fewer than 439 discontinuation orders.
As regards the lack of a public hearing during the review procedure, the
Government submitted that, even if the law provided for a hearing, the court
concerned would uphold the administrative council’s conclusion, since this
reflected the truth as established on the basis of the evidence obtained
during the investigation.
In conclusion, it could not be argued that the right to life had been
infringed because there were no remedies or because existing remedies were
ineffective, unavailable and inaccessible.
(c) The Commission
76. In the Commission’s view, the authorities responsible for the
investigation lacked the requisite independence and impartiality. The two
investigating officers appointed by the Provincial Governor, Celal Uymaz
and Osman Kurt, were gendarmerie officers and the hierarchical superiors
of the gendarmes whose conduct they had to investigate. As to the
Administrative Council, it was composed of the District Commissioner and
senior civil servants of the provincial administration, all under the orders of
the Provincial Governor, who was in charge of the local gendarmerie.
In the present case, there had been not only a lack of objective
impartiality as defined in the Court’s case-law, but also of subjective
impartiality. Certain phrases in investigating officer Kurt’s report, to the
effect that the applicant had made “gratuitous and inopportune accusations
against Major M. Karatan, who was simply obeying orders” and that “[t]he
fact that the major has been made the target of the accusations …, reveals an