SECOND SECTION
CASE OF AYDIN SEFA AKAY v. TÜRKİYE
(Application no. 59/17)
 
JUDGMENT
 
Art 5 § 1 • Procedure prescribed by law • Arrest and pre-trial detention of judge serving at United Nations International Residual Mechanism for Criminal Tribunals despite diplomatic immunity conferred on him by Mechanism’s Statute • Principles set out in Court’s case-law on independence of domestic judiciary applied mutatis mutandis in respect of international judges and courts • Domestic courts’ delay in assessing relevance of applicant’s diplomatic immunity was incompatible with Art 5 § 1 and rendered futile any protection afforded to him by virtue of that immunity • Domestic courts’ interpretation regarding immunity neither foreseeable nor in keeping with Art 5 § 1 requirements of legal certainty • International court judges not representatives of a member State to a UN organ • Applicant enjoyed full diplomatic immunity, including personal inviolability and not being subject to any form of arrest or detention for duration of his term of office, as well as when working remotely • Ultimate aim of privileges and immunity to protect independence of judges and hence Mechanism tribunal vis-à-vis any State
Art 8 • Private life and home • Searches of applicant’s person and home not “prescribed by law” • Applicant’s place of residence in analogous position to that of an office, given he was working for Mechanism remotely from his home country • Residence subject to heightened protection similar to that afforded in the Court’s Art 8 case-law to searches of a lawyer’s office • Domestic courts’ failure to examine that aspect of applicant’s immunity • Certain items seized later used in criminal proceedings against him • No waiver of immunity from UN Secretary-General or ex post facto consent of UN or applicant
Art 15 • Derogation in time of emergency • Art 5 § 1 • Art 8 • Measures inconsistent with Respondent State’s “other obligations under international law”
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
23 April 2024
 
FINAL
 
23/09/2024
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aydın Sefa Akay v. Türkiye,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Arnfinn Bårdsen, President, 
 Jovan Ilievski,
 Pauliine Koskelo,
 Saadet Yüksel,
 Lorraine Schembri Orland,
 Frédéric Krenc,
 Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 59/17) against the Republic of Türkiye 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 Aydın Sefa Akay (“the applicant”), on 21 December 2016;
the decision to give notice of the application to the Turkish Government (“the Government”);
the parties’ observations;
Having deliberated in private on 26 March 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application mainly concerns the question whether the arrest and pre-trial detention of the applicant, who enjoyed diplomatic immunity as a judge serving at the United Nations International Residual Mechanism for Criminal Tribunals, were “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention. 2. The application further concerns, under Article 5 § 1 (c) of the Convention, the alleged lack of any reasonable suspicion warranting the applicant’s pre-trial detention, which was predominantly based on his use of the ByLock smartphone application and, under Article 5 § 4 of the Convention, the domestic courts’ alleged failure to address the applicant’s arguments concerning his diplomatic immunity when examining his objections against his pre-trial detention. Lastly, the application concerns, under Article 8 of the Convention, the allegedly unlawful searches of the applicant’s house and person in disregard of his diplomatic immunity. THE FACTS
3. The applicant was born in 1950 and is currently detained in Rize. He was represented by Dr K. Altıparmak, a lawyer practising in Ankara. 4. The Government were represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye. 5. The facts of the case may be summarised as follows. THE APPLICANT’S Professional career
6. In 1987 the applicant started working as a legal adviser (hukuk müşaviri) for the Ministry of Foreign Affairs of Türkiye and between 1989 and 2012 he carried out various tasks and occupied various positions, including at: the Permanent Mission of Türkiye to the United Nations (“the UN”); the Permanent Representation of Türkiye to the Council of Europe, where he represented Türkiye before the Court; the Turkish embassy in Nicosia, in the “Turkish Republic of Northern Cyprus”; the Permanent Delegation of Türkiye to UNESCO; and the Ministry of Foreign Affairs in Ankara. Between 2012 and 2014 he served as the ambassador of Türkiye to Burkina Faso and in 2015 he retired. 7. Between 2003 and 2012 the applicant was a judge at the International Criminal Tribunal for Rwanda. On 20 December 2011, at its 87th Meeting, the General Assembly of the UN elected the applicant as a judge of the UN International Residual Mechanism for Criminal Tribunals (“the Mechanism”) for a four-year term of office beginning on 1 July 2012. On 24 June 2016 the UN Secretary-General reappointed the applicant for a further two-year term with effect from 1 July 2016. In June 2018 the UN Secretary-General did not reappoint the applicant, so his term of office expired on 30 June 2018. 8. On 25 July 2016 the President of the Mechanism, Judge Theodor Meron, assigned a bench of five judges, among whom was the applicant, to consider an application for review lodged on 8 July 2016 by Augustin Ngirabatware in respect of the judgment delivered by the Appeals Chamber of the Mechanism in his case (Prosecutor v. Augustin Ngirabatware) on 18 December 2014[1]. At the time of the events giving rise to the present application, the applicant was working on the case remotely from his home country, Türkiye, in accordance with Article 8 § 3 of the Statute of the Mechanism, as is common for judges of the Mechanism (see paragraph 81 below). Attempted coup of 15 July 2016 and declaration of a state of emergency
9. On the night of 15 July 2016, a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup aimed at overthrowing the democratically elected Parliament, government and President of Türkiye. 10. During the attempted coup, soldiers under the instigators’ control bombarded several strategic State buildings, including the parliament building and the presidential compound, attacked the hotel where the President was staying, held the Chief of General Staff hostage, attacked television channels and fired shots at demonstrators. During the night of violence, more than 300 people were killed and more than 2,500 were injured. 11. In the aftermath of the attempted military coup, the national authorities blamed Fetullah Gülen, a Turkish citizen living in Pennsylvania (United States of America) who was considered to be the leader of a terrorist organisation referred to by the Turkish authorities as the “Fetullahist Terror Organisation/Parallel State Structure” (Fetullahçı Terör Örgütü/Paralel Devlet Yapılanması – the “FETÖ/PDY”). During and after the attempted coup, in order to dismantle the infiltration within the government and eliminate the continuous threat to it, public prosecutors’ offices all over Türkiye initiated criminal proceedings against those who had been directly involved in the attempted coup, as well as against those who had not been directly involved but were suspected of being part of the structural organisation of the FETÖ/PDY in various public, health, educational, commercial and media institutions. In the course of these criminal investigations, many people were arrested and subsequently placed in pre-trial detention. 12. On 20 July 2016 the government declared a state of emergency for a period of ninety days from 21 July 2016. It was subsequently extended for further periods of ninety days by the Council of Ministers, chaired by the President. 13. On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article 15. 14. On 18 July 2018 the state of emergency was lifted. Criminal proceedings against the applicantThe applicant’s arrest and pre-trial detention and searches of his house and person

15. Shortly after the attempted military coup, the Ankara Chief Public Prosecutor’s Office instituted a criminal investigation against the employees of the Ministry of Foreign Affairs suspected of being involved in an armed terrorist organisation, the FETÖ/PDY. The public prosecutor in charge of the investigation issued a written order to the police to (i) arrest the applicant and (ii) carry out searches of his house, person and vehicle and seize any material or items found in view of the strong suspicion and evidence showing that he was a member of the FETÖ/PDY. The public prosecutor further ordered the transfer of the applicant to Ankara, stating that hundreds of suspects in the case in question were being investigated by the Anti-Terrorism Branch of the Ankara Security Directorate. 16. On 21 September 2016 the applicant was arrested at his home in Büyükada, Istanbul and taken into police custody in the course of that investigation. At the Büyükada police station, he was searched and had his watch, glasses, wedding ring, wallet, belt and medication seized. He was subsequently transferred to Ankara in accordance with the public prosecutor’s order. 17. On the day of his arrest, the police also conducted a search of his house in Istanbul and seized four computers, three mobile phones, two flash disks, three floppy disks, one videotape and two books, entitled Örnekleri Kendinden Bir Hareket (“A Movement with its own Examples”), written by Fetullah Gülen, the leader of the FETÖ/PDY, and Medya: Makasların Gölgesinden İlkelerin Zirvesine (“Media: From the Shadow of Scissors to the Peak of Principles”), written by E.D., allegedly a high-ranking member of the same organisation. The following day the Adalar Magistrate’s Court upheld the seizure of the items collected during the search of the applicant’s house. 18. On 26 September 2016 the police took statements from the applicant in the presence of his lawyer at the Ankara Security Directorate. He denied the offences of which he was accused, namely membership of an armed terrorist organisation, carrying out acts and activities on behalf of that organisation aimed at attempting to subvert the constitutional order by the use of force, murder, causing bodily harm, damage to property and attempting a military coup. He stated that he had no relationship with the FETÖ/PDY or any other terrorist organisation. He further stated, among other things, that he was a member of the Grand Lodge of Free and Accepted Masons of Türkiye (Hür ve Kabul Edilmiş Masonlar Büyük Locası). When asked various questions about the mobile application ByLock, such as whether he had used it, how he had obtained it, for what purpose he had used it and who he had contacted with it, he replied as follows:
“At the request of the former Minister for Foreign Affairs of Burkina Faso, [D.B.], I downloaded the program from Google Play Store in December 2015 and contacted him and [H.Z.] about Masonic topics for three to four months ... I only downloaded this program without using any encryption from Google Play Store and used it. There is no encryption. This is the first time I have heard about encryption here ... I haven’t talked to anyone else except [D.B. and H.Z.] ...”
When asked about the two books seized from his home, he replied as follows:
“I have more than 2,000 books on every topic in my library. I am sure they are not criminal. Also, I write books, do academic research and hold conferences/seminars. It is natural to have books by different authors in my library.”
19. On 28 September 2016 the applicant and six others were brought before the Ankara 2nd Magistrate’s Court. He gave evidence in person, stating as follows:
“... I want to elaborate on the ByLock program. I suppose I downloaded this program on my phone in December 2015. I downloaded it from the Google Play Store to talk to my friends in Africa about Masonic topics. The person I contacted was the former Minister for Foreign Affairs of Burkina Faso, where I served as ambassador in the past. I am also a Mason, and the person I contacted was one of the masters of this institution. I then uninstalled the program because it was difficult to use. When my background, [social] circle and lifestyle are examined, it will be understood that I have nothing to do with this organisation [the FETÖ/PDY]. I like to read books. There are nearly 2,500 books at my house. I may be charged due to two of them. As I said, I read all kinds of books. I am 66 years old. I have diabetes and blood pressure disorders. I am a respected individual nationally and internationally. My duty as a judge of the United Nations International Residual Mechanism for Criminal Tribunals currently continues. I have a diplomatic passport. I went abroad and came back a week ago. I certainly cannot accept this accusation.

Outcome for Article 5: violation