European Court of Human Rights – Akay v. Turkey

The case originated from a criminal investigations and proceedings carried out by Turkish authorities against Aydin Sefa Akay, a Turkish citizen serving as a Judge at the United Nations International Residual Mechanism for Criminal Tribunals. During his mandate and while working remotely from his home in Turkey, Akay was arrest, placed in pre -trial detention and accused of being part of the FETÖ/PDY, an armed terroristic organization. The Trial Court rejected his defense of immunity, holding that the instant criminal proceeding was out of the scope of Akay functional immunity, since the facts of the indictments did not concerns official activities as a judge. The Trial Court’s decision was confirmed on appeal.

As a result, the applicant filed an application to the European Court of Human Rights, claiming that Turkey had violated his rights under Articles 5, 6 and 8 of the European Convention on Human Rights, having failed to recognize his immunities.

The Court firstly underlined that independence of international judges is a necessary condition to ensure the proper administration of justice. In this regard, it also clarified that a judge of an international court is not a representative of a member State. As stressed by the Court a different conclusion would be incompatible with the independence of judges and judiciary systems.

The Court noted that Article 29 of the Statute of the International Residual Mechanism provides judges with the same immunities accorded to diplomatic envoys. Contrary to the domestic courts’ findings, the Court considered that the applicant enjoyed full diplomatic immunity. However, as explained by the Court, Article 29 does not extend the full regime of diplomatic immunities to judges of the Mechanism. As e result, the nationality exception cannot be applied to Akay.