Legal summary
April 2024
Aydın Sefa Akay v. Türkiye - 59/17
Judgment 23.4.2024 [Section II]
Article 5
Article 5-1
Procedure prescribed by law
Arrest and pre-trial detention of a judge serving at the United Nations International Residual Mechanism for Criminal Tribunals despite his diplomatic immunity: violation
Article 8
Article 8-1
Respect for home
Respect for private life
Searches of the person and house of a judge serving at the United Nations International Residual Mechanism for Criminal Tribunals despite his diplomatic immunity: violation
Facts – In 2016 the applicant, a Turkish national, served as a judge at the United Nations International Residual Mechanism for Criminal Tribunals (“the Mechanism”), working remotely from his home in Istanbul. Shortly after the attempted military coup that year he was arrested, searched at the police station and placed in pre-trial detention in the context of a criminal investigation against employees of the Ministry of Foreign Affairs. On the day of his arrest, the police also conducted a search of his house and seized amongst other items, computers, mobile phones and two books written by the leader of FETÖ/PDY (Fetullah Gülen) and by allegedly a high-ranking member of the same organisation respectively. In the subsequent trial, the applicant’s claim for diplomatic immunity was rejected. In particular, the trial court found that he only enjoyed functional immunity as a UN official but had no immunity in the jurisdiction of Türkiye for acts unrelated to his duties as judge of the Mechanism. He was convicted of being a member of an armed terrorist organisation, FETÖ/PDY, and was sentenced to seven years and six months’ imprisonment. He was released on bail with a ban on leaving the country. The applicant appealed unsuccessfully and his conviction was upheld by the Court of Cassation. His individual application to the Constitutional Court was dismissed as inadmissible. It appears that another application he lodged with that court concerning his conviction is still pending. The applicant is currently serving his sentence in prison.
Law – Article 5 § 1:
The Court emphasised the special role in society of the judiciary as the guarantor of justice and the necessity of safeguarding its independence as well as the growing importance attached to the separation of powers. While its relevant case-law related to the independence of the domestic judiciary, the principles described therein applied mutatis mutandis in respect of international judges and courts, their independence being equally a conditio sine qua non for the proper administration of justice.
The applicant’s pre-trial detention had a legal basis in domestic law for the purposes of Article 5 § 1. While the Court had no competence to decide on the applicant’s diplomatic immunity as such, it had to ascertain whether the domestic courts’ stance vis-à-vis that immunity - conferred on him by virtue of his status as a judge of the Mechanism in accordance with Article 29 § 2 of its Statute - had been such that his pre-trial detention could be regarded as being foreseeable and compatible with the requirements of legal certainty under Article 5 § 1. The principle of legal certainty might be compromised if domestic courts introduced exceptions in their case-law which ran counter to the wording of the applicable statutory provisions or adopted an extensive interpretation negating procedural safeguards afforded by law.
Firstly, although this issue should have been addressed swiftly and thoroughly, the domestic courts carried out the first detailed assessment of the applicant’s diplomatic immunity more than eight and a half months after his arrest and pre-trial detention and more than seven and a half months after his counsel, backed by the President of the Mechanism and the UN Office of Legal Affairs had asked for his release on that ground. Such delay had been incompatible with Article 5 § 1 and had rendered futile any protection afforded to him by virtue of his immunity.
Secondly, the domestic courts’ interpretation regarding the applicant’s diplomatic immunity had neither been foreseeable nor in keeping with the requirements of the principle of legal certainty under Article 5 § 1. The Constitutional Court had found that his pre-trial detention had had a legal basis under the Constitution, since according to the relevant international law (Section 15 of the Convention on the Privileges and Immunities of the United Nations –“ the General Convention”- and Article 31 § 4 of the Vienna Convention on Diplomatic Relations – “the Diplomatic Convention”) he could not assert immunity before the authorities of the State which he had represented or of which he was a national.
However, taking into consideration the relevant provisions of the UN Charter (Article 105 §§ 2 and 3) and the General Convention (Articles IV, V, VI and Section 19), there were strong arguments for concluding that a judge of an international court was not a representative of a member State to an organ of the UN; that would be incompatible with the very independence that defined a judge and judiciary, be it national or international. The judges of the Mechanism did not represent the States nominating them for election and under its Statute and Code of Professional Conduct for Judges they were independent of all external authority and influence, including from their own State of nationality.
Furthermore, the fact that the applicant had enjoyed, under Article 29 of the Statute, the privileges and immunities “accorded to diplomatic envoys, in accordance with international law” did not mean that he had been a diplomatic envoy. The status of the Mechanism’s judges and the concepts defined under Article 1 of the Diplomatic Convention such as “head of mission”, “members of the diplomatic staff” and “diplomatic agent” bore fundamental differences. Therefore, the provisions of the Diplomatic Convention relied on by the Constitutional Court, although certainly relevant, were not wholly transposable to the situation of the applicant, who had benefited from such privileges and immunities in his capacity as a judge of the Mechanism, the ultimate aim being to protect the independence of the judges, and hence of the tribunal, vis-à-vis any State.
Contrary to the domestic courts’ findings, the Court considered that the applicant appeared to have enjoyed full diplomatic immunity, including, inter alia, personal inviolability and not being subject to any form of arrest or detention for the duration of his term of office as a judge at the Mechanism, including when working remotely in accordance with the framework for the operation of the Mechanism. That interpretation was based on the ordinary meaning of the wording of the relevant international texts and confirmed by the order issued by the President of the Mechanism to the government of Türkiye and the note verbale of the UN Office of Legal Affairs requesting his immediate release and the termination of all legal proceedings against him.
Lastly the Court held that the applicant’s pre-trial detention could not be justified under Article 15 of the Convention. In particular, it was not convinced that the domestic courts’ delay in assessing the applicant’s diplomatic immunity had been strictly required by the exigencies of the attempted coup d’état which had given rise to the state of emergency. Further, its finding as to the applicant’s pre-trial detention implied that the measure in question had been inconsistent with Türkiye’s “other obligations under international law” within the meaning of Article 15.
Conclusion: violation (unanimously).
Article 8:
The search of the applicant’s house and person had entailed an interference with his rights to respect for his private life and home.
The scope of the immunity under Article 29 § 2 of the Mechanism’s Statute was, to a certain extent, circumscribed by the General Convention and the Diplomatic Convention which provided for inviolability of the person and the private residence of a diplomatic agent. Given that at the material time the applicant had been working for the Mechanism remotely from his home country as permitted by the Mechanism’s Statute, his place of residence had been in an analogous position to that of an office. Therefore, it had been subject to a heightened protection, similar to the protection afforded to searches of a lawyer’s office in the Court’s case-law under Article 8. Moreover, the domestic courts had not examined the question of whether the applicant’s immunity had been respected in relation to the search and certain items seized had later been used in the criminal proceedings against him.
Furthermore, the applicant’s failure to raise his diplomatic immunity during the searches had little bearing on the question whether the domestic authorities had acted in accordance with international law in carrying it/them out. The immunity under Article 29 § 2 of the Statute did not belong to him, but to the UN (pursuant to Section 20 of the General Convention), which had formally asserted his immunity before the Turkish authorities. In other words, he could not waive his diplomatic immunity by failing to raise it. The Government had not argued that the domestic authorities had duly obtained a waiver of his immunity from the UN nor had the UN or the applicant consented to the searches ex post facto.
Accordingly, the interference with the applicant’s rights could not be regarded as having been “prescribed by law” under Article 8 § 2.
Lastly, the searches in question had not been justified under Article 15 as they had been inconsistent with Türkiye’s “other obligations under international law” within the meaning of that provision.
Conclusion: violation (unanimously).
Article 46: The Court held that it could not grant the applicant’s request to order his immediate release under this provision. Its findings of a violation under Article 5 concerned his pre-trial detention which had ended with the trial court’s decision to release him, and not his current deprivation which stemmed from the execution of the sentence imposed on him by the Court of Cassation. Notwithstanding, the separate breach of Article 8 was another matter requiring the respondent State to take the necessary steps to act in conformity with its obligations under Article 46. In doing so, the respondent State remained free to choose the means by which it would discharge its legal obligation under the said provision.
Article 41: EUR 21,100 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.
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