Temporary detention of an international judge and search of his residence, despite his diplomatic immunity. Violation of privacy and personal liberty
JUDGMENT
Aydın Sefa Akay v. Turkey 23.04.2024 (app. no. 59/17)
SUMMARY
The case concerned a UN judge’s arrest and pre-trial detention, as well as the search of his house
and person, in the aftermath of the 2016 attempted military coup in Türkiye, in spite of his
diplomatic immunity. He was working remotely from his home in Istanbul for the United Nations
International Residual Mechanism for Criminal Tribunals (“the UN Criminal Tribunals Mechanism”)
when arrested.
The Court was not convinced by the national courts’ interpretation of international law when
rejecting his claim for diplomatic immunity. It also found that Mr Akay appeared to have been
entitled to full diplomatic immunity, including the inviolability of his person and private residence
and being shielded from any form of arrest or detention, under international law. His arrest, pre-trial
detention, search of his house and person had thus been unlawful. Moreover, the courts had only
first examined the issue of the applicant’s diplomatic immunity after over eight months, rendering
futile any protection Mr Akay had had as an international judge, and had not examined it at all in
relation to the searches of his house and person.
PROVISION
Article 5 par. 1
Article 8
PRINCIPAL FACTS
The applicant, Aydın Sefa Akay, is a Turkish national who was born in 1950. He started working as a
legal advisor for the Ministry of Foreign Affairs in 1987 and since then has held a number of overseas
postings, including at the Permanent Representation of Türkiye to the Council of Europe, where he
represented Türkiye before the European Court. He is currently detained in Rize (Türkiye) following
his conviction in 2021 of being a member of an armed terrorist organisation.
Shortly after the attempted military coup in Türkiye of 2016, a criminal investigation was opened
against employees of the Ministry of Foreign Affairs suspected of being involved in what the
authorities referred to as the “Fetullahist Terror Organisation / Parallel State Structure” (Fetullahçı
Terör Örgütü / Paralel Devlet Yapılanması – “FETÖ/PDY”). Fetullah Gülen, the leader of FETÖ/PDY,
was blamed for the coup. Many people who were suspected of being part of the structural
organisation of FETÖ/PDY in various public, health, educational, commercial and media institutions
were arrested and placed in pre-trial detention.
Against that background, in September 2016, Mr Akay, at the time a judge for the UN Criminal
Tribunals Mechanism and working remotely from his home in Istanbul, was arrested.
He was placed in pre-trial detention and subsequently indicted with being a member of an armed
terrorist organisation. The indictment referred to Mr Akay’s use of Bylock, an encrypted messaging
application allegedly used exclusively by members of FETÖ/PDY, and two books found during the
search of his home by Fetullah Gülen and one of his senior managers.
Mr Akay’s counsel raised the issue of diplomatic immunity throughout the proceedings in numerous
applications for his release. In particular, in October 2016, he submitted a letter from the President
of the UN Criminal Tribunals Mechanism and a note verbale from the UN Office of Legal Affairs to
the Permanent Mission of Türkiye to the UN, confirming that Mr Akay was entitled to diplomatic
immunity. The note verbale, as well as a subsequent order by the President of the UN Criminal
Tribunals Mechanism, also requested Mr Akay’s immediate release and the termination of all legal
proceedings against him.
Mr Akay’s pre-trial detention was however extended on the grounds, among other things, that there
was concrete evidence to suspect him of being a member of an armed terrorist organisation, and the
risk that he would flee or tamper with evidence.
The case went to trial, with Mr Akay being found guilty as charged at first instance in June 2017. The
trial court rejected his claim for diplomatic immunity. It found that he had immunity for acts related
to his duties as a UN judge but not in the jurisdiction of Türkiye. He was sentenced to seven years
and six months’ imprisonment, and immediately released on bail with a ban on leaving the country.
Mr Akay’s subsequent appeals in the courts were unsuccessful. His conviction was upheld in
February 2021 in a final judgment by the Court of Cassation and he is now serving his sentence in
Rize L-Type Prison.
In the meantime, Mr Akay had also lodged an application with the Constitutional Court, alleging
among other things that he had been placed in pre-trial detention without respect for diplomatic
guarantees. It was rejected in 2019. The Constitutional Court found in particular that his pre-trial
detention had had a legal basis under the Constitution because, according to the relevant
international law, he could not claim immunity in the State he represented or of which he was a
national. He lodged another application with the Constitutional Court in 2021 concerning his
conviction, which is apparently still ongoing.
THE DECISION OF THE COURT…
Article 5 § 1
First, the Court emphasised that the special role of the judiciary as the guarantor of justice, and the
need for safeguards to protect its members from interference by the executive were also applicable
in respect of international judges.
It went on to note that the national courts had only carried out the first detailed assessment of
Mr Akay’s immunity when convicting him in June 2017, that is more than eight and a half months
after his arrest and placement in pre-trial detention and more than seven and a half months after his
counsel had requested his release on that ground. Such a delay was incompatible with Article 5 § 1
and rendered futile any protection he had on account of his diplomatic immunity.
The Court was not convinced either that the national courts’ interpretation of the nature of
Mr Akay’s immunity had been compatible with Article 5 § 1. As concerned the Constitutional Court’s
finding, it pointed out firstly that the judges of the UN Criminal Tribunals Mechanism did not
represent the States nominating them for election to the UN under the applicable rules. Indeed, that
would be incompatible with the very independence that defines a judge and the judiciary, be it
national or international.
Secondly the fact that Mr Akay enjoyed the privileges and immunities “accorded to diplomatic
envoys, in accordance with international law” did not mean that he had been a diplomatic envoy.
Therefore, the provisions of the Vienna Convention on Diplomatic Relations, relied on by the
Constitutional Court, although certainly relevant, were not wholly transposable to Mr Akay, who
benefited from such privileges and immunities in his capacity as a judge of the UN Criminal Tribunals
Mechanism, with the ultimate aim being to protect the independence of the judges, and hence of
the tribunal, vis-à-vis any State. That being the case, there was no question of his not being entitled
to his immunity in “the sending State”, namely in Türkiye.
Accordingly, the Court concluded that Mr Akay could not have foreseen such an interpretation of his
diplomatic immunity. Nor was it in keeping with the principle of legal certainty under Article 5 § 1.
Contrary to the national courts, the Court considered that Mr Akay appeared to have been entitled
to full diplomatic immunity, including personal inviolability and being shielded from any form of
arrest or detention, during his term of office as a UN judge from July 2016 to June 2018. Such
interpretation had been based on the wording of the relevant international legal texts and
confirmed in the order issued by the President of the UN Criminal Tribunals Mechanism and the
UN’s note verbale.
Lastly, the Court concluded that Mr Akay’s pre-trial detention could not be justified under Article 15
(derogation in time of emergency). States could adopt measures derogating from their obligations
under the Convention provided that they were “strictly required by the exigencies of the situation”
and were “consistent with other obligations under international law”. The Court was not convinced
however that that had been the case despite the attempted coup d’état and the state of emergency,
given the delay in the courts’ assessing Mr Akay’s diplomatic immunity and the Court’s findings
above.
Accordingly, Mr Akay’s pre-trial detention had been unlawful and there had been a violation of
Article 5 § 1 of the Convention. In view of that finding, the Court held that there was no need to
examine separately his complaints under Article 5 §§ 1 (c) and 4.
Article 8
The Court noted that its findings regarding the interpretation of the scope of Mr Akay’s diplomatic
immunity under Article 5 § 1 meant that he had also been entitled to enjoy under international law
the inviolability of his person and his private residence.
Moreover, since the applicant had been working for the UN Criminal Tribunals Mechanism from
Türkiye at the relevant time, the Court found that his place of residence had been under heightened
protection, similar to the protection afforded to searches of a lawyer’s office in its case-law under
Article 8 of the Convention. Furthermore, none of the domestic courts had examined that aspect of
Mr Akay’s diplomatic immunity and certain items found during the search in the criminal
proceedings against him had been used against him in the criminal proceedings.
Nor had the applicant’s failure to raise his diplomatic immunity at the time of the searches been
conclusive, given the Government’s failure to obtain a waiver of that immunity from the UN
Secretary General and the absence of any ex post facto consent either by the UN or Mr Akay to the
searches in question.
Accordingly, it concluded that the search of his house and person in September 2016 had interfered
with his rights and that that interference had not been “prescribed by law”, in violation of Article 8.
Lastly, the Court concluded that the searches of Mr Akay’s house and person had not been justified
under Article 15 (derogation in time of emergency), as they were inconsistent with Türkiye’s “other
obligations under international law” within the meaning of that provision.
Article 41 (just satisfaction)
The Court held that Türkiye was to pay Mr Akay 21,100 euros (EUR) in respect of non-pecuniary
damage, and EUR 7,000 in respect of costs and expenses.
Article 46 (binding force and enforcement)
The Court dismissed Mr Akay’s request under Article 46 to be released because its findings only
concerned his pre-trial detention, which ended in June 2017, and not his current deprivation of
liberty, which stemmed from the enforcement of the sentence imposed on him by the Court of
Cassation.
Separate opinion
Judge Krenc, joined by Judge Schembri-Orland expressed a separate opinion, which is annexed to
the judgment
