Turkey Arrests and Convicts UN Judge in Spite of Diplomatic Immunity
Kelley Drye Client Advisory
Turkish authorities arrested UN Judge Aydin Sefa Akay, and on 14 June 2017 convicted him to seven years and six months of imprisonment in first instance. Judge Aydin Sefa Akay is a member of the Appeals Chamber of the United Nations Mechanism for International Criminal Tribunals and in that capacity he enjoys diplomatic immunity.
On or about 21 September 2016, Turkish authorities arrested Judge Aydin Sefa Akay on suspicion of involvement in the failed military coup in Turkey in July 2016. In his capacity as Judge of the United Nations Mechanism for International Criminal Tribunals (MICT) he however enjoys diplomatic immunity “when engaged on the business of the Mechanism” (Article 29(1) and (2) of the Statute of the MICT).
The UN Office of Legal Affairs, on behalf of the Secretary-General, formally asserted immunity to the Turkish authorities and requested the immediate release of Judge Akay. Judge Akay was indeed, at the time of his arrest, carrying out his functions for the MICT as he had been assigned in July 2016 to a bench of the Appeals Chamber of the MICT in a review case that was then still pending. The finding by the UN Secretary-General that the immunity is applicable “creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts”, to use the words of the International Court of Justice in Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion of 29 April 1999, para. 61).
On 31 January 2017, Judge Theodor Meron, the Presiding Judge of the Appeals Chamber of the MICT, issued an order to the government of Turkey “to immediately cease prosecution and to release Judge Akay so that he can continue to exercise his judicial functions.” The order reiterated the importance of diplomatic immunity as a cornerstone of an independent international judiciary. The order further stated that this full diplomatic immunity can only be waived by the UN Secretary-General and that it is thus not for Turkey to set this immunity aside.
Following the refusal of Turkey to comply with the order of the MICT to release Judge Akay and uphold his immunity, the President of the MICT referred the matter to the UN Security Council on 9 March 2017, calling on the Security Council to take such measures necessary to achieve an appropriate resolution. To date, the Security Council has not taken any measures.
Despite international pressure, Turkey sentenced Judge Akay to seven years and six months of imprisonment on 14 June 2017 on charges of membership in a terrorist organization (more specifically membership in “FETO”, the organization supporting exiled cleric Fethullah Gülen whom Turkey accuses of involvement in the failed military coup). Judge Meron reacted by saying that he “deeply regrets this action of the Turkish authorities, in further breach of Judge Akay’s protected status under the international legal framework.” Judge Akay is currently appealing the verdict and has been provisionally released while awaiting the appeal judgment, but is subject to a travel ban and is prohibited from leaving Turkey.