On an International Judge’s Immunity: The ECtHR in Akay v Turkey

In April 2024, the European Court of Human Rights’ (ECtHR) Second Section Chamber (Chamber) unanimously found that Turkey violated the immunity, and consequently, the right to liberty and the right to private life of former Judge Aydin Sefa Akay. Recently, a five-member panel of the ECtHR’s Grand Chamber rejected Turkey’s request for a referral of this judgment. Therefore, the Chamber’s findings have now become final, as under Article 44 of the European Convention on Human Rights (ECHR).

When Akay was arrested in 2016, he served as a Judge at the International Residual Mechanism for Criminal Tribunals (IRMCT). In 2018, the Secretary-General of the United Nations (UN) declined to reappoint him to the IRMCT. This development immediately caused concerns about the unchecked ability of states to interfere with the functioning of an international court, with the then President of the IRMCT, Judge Meron, terming this a “dangerous precedent”.

The present Chamber had the unique opportunity to defend the independence of international Judges by linking their immunity to human rights under the ECHR. Below, I discuss and affirm the Chamber’s rigorous findings on the applicability of Akay’s immunity and on the nature and scope of such immunity. I then reflect on the concerning shortcomings of this judgment’s legacy, in light of the Chamber’s refusal to order Akay’s release from prison following his non-reappointment.

Context for the Case

The IRMCT was established by the UN Security Council through Resolution 1966 (2010), which included the IRMCT’s Statute. It was designed as a temporary tribunal to conclude the residual workload of the former criminal tribunals for Yugoslavia and Rwanda. It was meant to function in cost-effective and efficient ways, in light of which Judges were expected to work remotely as far as possible [IRMCT Statute, Article 8(3)]. As a Turkish national, Akay was living in Turkey while discharging his duties for the IRMCT (Chamber judgment, para 8).

In 2016, anxious after an attempted coup, Turkey purged thousands of domestic Judges on reportedly fabricated charges of suspected involvement with terror groups. Similarly, Akay was arrested and subjected to pre-trial detention, with the police searching his house and seizing evidence for trial (paras 15-20). He was later convicted but released on bail in 2017 by the Trial Court for the duration of his appeal against the decision. After this, a series of appellate courts upheld his conviction, most recently in 2021. His latest appeal remained pending at the time of the Chamber’s judgment, while he was serving his sentence in prison (para 75).

It was possible for the UN to have issued a waiver of his immunity, thus potentially making way for Turkey’s proceedings. However, as early as October 2016, the UN Office of Legal Affairs began protesting by asserting Akay’s immunity as a Judge (para 24). Similarly, because Akay’s absence disrupted the IRMCT’s work, the President of the IRMCT took the exceptional step of issuing an order to Turkey to cease the foregoing proceedings (para 39).

Akay argued that his arrest, prosecution, and imprisonment amounted to an interference with his right to liberty under Article 5(1) of the ECHR. To be justified, such interference must, among other things, be “in accordance with a procedure prescribed by law”. In addition, he argued that the police search of his house violated his right to private life under Article 8, which must also have been “in accordance with the law” to be justified. Turkey’s actions, however, were illegal under international law owing to the disregard of his immunity, making them unjustified. In other words, the complaint hinged on the applicability of Akay’s immunity.

Turkey took the following defence on the refusal of its domestic courts and law enforcement to respect Akay’s immunity (paras 58-60; 104-108). First, although Akay enjoyed immunity as an IRMCT Judge, apparently such immunity was only functional (i.e., for official acts). His alleged terror acts were not official acts functionally connected to his Judgeship. Secondly, his immunity did not preclude coercive action from the state of which he was a national, i.e., Turkey, thus not protecting Akay from the interferences. In this backdrop, I will now consecutively address the Chamber’s findings on Turkey’s objections.

Akay Enjoyed Personal Immunity

Article 29(1) of the IRMCT Statute links the immunities of its staff to the Convention on the Privileges and Immunities of the United Nations 1946 (1946 Convention). Article 29(2) of the IRMCT Statute recognises that the “judges of the Mechanism” enjoy the same immunities as “diplomatic envoys”. The language of Article 29(2) resembles that of Article 5 (Section 19) of the 1946 Convention. That provision confers upon high-ranking UN officials the same immunities as those enjoyed by diplomatic agents. These diplomatic immunities are incontrovertibly known to include immunity for private and official acts alike (see Edward Chukwuemeke Okeke). Therefore, such high-ranking officials also enjoy personal immunity—in this case, Judges of the IRMCT. It is true that UN officials below these ranks would enjoy only functional immunity, but that was not relevant to Akay’s case.

Indeed, the Chamber characterised Akay as possessing “immunity ratione personae” during his Judgeship, which is an affirmation of personal immunity applying to international Judges of his stature (para 121). It was, then, immaterial that Turkey’s charges against Akay concerned alleged terror acts that fell outside the functions of the IRMCT—because Akay’s personal immunity applied to acts performed in a private capacity. In any event, citing the Cumaraswamy advisory opinion of the International Court of Justice (ICJ), the Chamber emphasised there is a strong presumption of the applicability of immunity once the UN asserts it for an official (para 123). This increased the burden of justification expected from domestic courts, in this case the Turkish courts, to explain their disregard of immunity.

As per Article 29(2), Judges of the IRMCT enjoy diplomatic immunities “when engaged on the business of the Mechanism”. In arguing that Akay’s immunity was only functional, it appears as if Turkey sought to rewrite this phraseology to something like “in relation to the business of Mechanism”. It is important to note that the phrasing of Article 29(2) is borrowed from Article 19 of the Statute of the ICJ, as well as Article 10 of the Statute of the International Tribunal for the Law of the Sea. According to Anderson and Wordsworth’s commentary, this phrasing was intended to clearly provide for the Judge’s full immunities during their “period of office”—far from limiting the scope of immunity to their “business” functions. Thus, accepting Turkey’s view would have had wide and damaging ramifications against the personal immunity of international Judges generally speaking. It is appreciable, though not surprising, that the Chamber rejected the Turkish stance.

Akay’s Immunity Against Turkey

This left the other argument from Turkey, i.e., Akay’s immunity was not applicable as against the state of which he was a national. At the outset, this objection was misleading, as the only way it would be true is if Akay were a delegate representing Turkey on the IRMCT, having been sent on Turkey’s behalf. It would require changing the facts, as if Turkey were Akay’s “sending state” under diplomatic law, in which case the basis of his immunity would be representational.

However, this was not an issue of the relations between a sending and receiving state—but rather the relations between an international organisation and states. In reality, Akay’s immunity flowed from his membership of the IRMCT and the UN. While it is true that the applicable treaty provisions on the immunity of IRMCT and UN officials provide that the immunities of Judges are the same as those of diplomatic agents, this choice of drafting was historically simply a “matter of convenience”—because the regime of the immunities of state diplomats was already well-established. It was not a conflation of the two distinct forms of immunities. In this sense, immunities in diplomatic law and in the law of international organisations might relate in content, but not their rationale and context.

As the Chamber observes, Akay’s possession of immunities akin to diplomats did not mean that “he himself was the diplomatic envoy” (para 125). Quite the opposite—Akay’s role as a Judge necessitated complete independence from states to freely perform his function, especially from the state of his nationality, which could unduly affect his work. As with the immunities of international organisations generally, the need to ensure his independent functioning from the backlash of powerful states formed the basis of his immunity (para 127-128). Thus, the Chamber rejected the Turkish objection to the applicability of Akay’s immunity on the basis of his nationality.

Holdings

In this regard, the Chamber observed that the interpretations of Turkish courts, which circumvented Akay’s immunity, were “neither foreseeable nor in keeping with the requirements of the principle of legal certainty” (para 129). As a result of this shortcoming, there was an infringement of his right to liberty under Article 5(1) of the ECHR. This is because his detention and the trial following it were not pursuant to a procedure prescribed by (international) law.

Furthermore, the searches of Akay’s private house in connection with the terror charges were an interference with his right to private life under Article 8. Moreover, the Chamber emphasised that his house, given that it simultaneously acted as his office for his judicial work, enjoyed “heightened protection” under Article 8 (para 142). This is a point that will benefit all international Judges who might need to work remotely for any reason. The interference with Akay’s right to private life was similarly unjustifiable for failing the “prescribed by law” requirement for restrictions over that right (para 144).

These principled findings of the Chamber must be commended for their rigorous examination of the immunities of international Judges.

Troubled Legacy

Akay v Turkey was the first-ever case where the ECtHR was asked to protect the independence of international Judges. The Chamber deserves praise for its thorough judgment, clarifying the nuanced distinctions between diplomatic immunity and the immunity of international Judges. Similarly, its systemic integration of immunities into international human rights law with reference to the “prescribed by law” requirement is appreciable. For these statements of law, the unanimous judgment should be frequently cited in discourse regarding immunities in the future.

However, its legacy in terms of practical impact is questionable. Consider that prior to 2016, Akay was a reputed international Judge. Since then, he has remained imprisoned. That is, barring the bail period following his pre-trial detention in 2017, and before he began serving his most recent sentence from 2021 onwards (para 59). The Chamber’s analysis of his immunity appears to matter precious little once we consider its refusal to grant Akay the remedy of his release.

According to the Chamber, its findings on the violation of his rights applied only to the deprivation of his liberty during his pre-trial detention until 2017. Since he was not re-appointed to the IRMCT in 2018, the Chamber noted that he lost his personal immunity from Turkey’s terror charges (para 149). Simply put, his imprisonment from 2021 onwards was not barred by personal immunity anymore. Still, Akay argued that the original disregard of his immunity since 2016, from which the prosecution and the criminal proceedings stemmed, vitiated the entire process (para 147). The Chamber found that Turkey owed him pecuniary compensation for his pre-trial detention; however, it declined ordering his release from his current detention (para 150), implicitly rejecting Akay’s formulation of a wrongful act of a continuing nature.

Judge Krenc’s concurring opinion (joined by Judge Schembri Orland) emphasised that the immunity of Judges must not become an “empty shell” (para 4). Can it be said that the Chamber succeeded in ensuring this expectation? There may potentially be technical legal merit in the Chamber’s inability to order Akay’s release. However, given that refusal, it is legitimate to ask whether the Chamber might inadvertently incentivise conduct such as Turkey’s, in brazen violation of immunity and disregard of UN authorities. The reason why the Chamber could not seek his release was the cessation of his personal immunity, which resulted from the Secretary-General’s disappointing decision not to re-appoint him to the IRMCT. The non-reappointment itself was perceptibly owed to Turkey’s detention and conviction of Akay. And yet, Akay’s non-reappointment was raised as a favourable submission by Turkey before the Chamber (para 108). In a way, then, Turkey as the respondent benefitted from its wrongdoing.

Despite losing in principle in the case, has Turkey really lost in fact? Is the Chamber’s judgment a sufficient example to inspire confidence in international Judges to work freely, at a time of apparent threats to judicial independence from national actors, such as against the International Criminal Court? These questions remain.