Published on 1 2 April 2021

SECOND SECTION

Application no. 59/17 Aydın Sefa AKAY against Turkey lodged on 21 December 2016 communicated on 26 March 2021

SUBJECT MATTER OF THE CASE

The application concerns the detention on remand of the applicant, the proceedings for the judicial review of his detention and the searches conducted by the national authorities on the applicant ’ s house and person.

At the material time the applicant served as a judge at the United Nations International Residual Mechanism for Criminal Tribunals of the United Nations (the Mechanism).

On 21 September 2016 the applicant was arrested in Ankara for his alleged links to FETÖ/PDY ( Fetullahist Terror Organisation / Parallel State Structure). On 28 September 2016 the Ankara 2 nd Magistrate ’ s Court ordered the applicant ’ s pre-trial detention relying mainly on his alleged use of the ByLock application. His objection against the detention order was rejected on the ground that the detention order was in compliance with the applicable law. On unspecified dates, the applicant was subjected to searches of his house and person.

Relying on Article 5 § 1 of the Convention, the applicant alleges that the national authorities arrested him and ordered his pre-trial detention despite the fact that he was granted personal and diplomatic immunities under Article 29 of the Statute of the Mechanism and Articles 29 to 31 of the Vienna Convention on Diplomatic Relations, respectively.

He further argues that there was no specific evidence giving rise to a reasonable suspicion that he had committed the offence of which he was accused and thus necessitating his pre-trial detention. He alleges a violation of Article 5 §1 c) of the Convention on those accounts.

The applicant also claims that the judicial authorities who ordered his pre-trial detention and reviewed the detention order did not take into account his submissions regarding his personal and diplomatic immunities in breach of Article 5 § 4 of the Convention.

Lastly, relying on the above-mentioned immunities, the applicant argues that the personal and home searches to which he was subjected violated Article 8 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s detention in breach of Article 5 § 1 of the Convention? In particular:

(a) Was the applicant ’ s arrest and pre-trial detention carried out in accordance with the guarantees and protection allegedly provided to him by the relevant provisions of the Statute of the Mechanism and the Vienna Convention on Diplomatic Relations?

(b) Can the applicant be considered to have been detained on the basis of “a reasonable suspicion” that he had committed an offence (see, in particular, Fox, Campbell and Hartley v. the United Kingdom , 30 August 1990, § 32, Series A No. 182)?

2. Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention? In particular, did the judges take into account the submissions of the applicant regarding his alleged diplomatic and personal immunities (see Nikolova v. Bulgaria [GC], no. 31195/96, § 61, ECHR 1999 ‑ II)?

3. With regard to the searches conducted in the applicant ’ s house and on his person:

Has there been an interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention? If so, can that interference be considered to have been in accordance with the law and necessary in terms of Article 8 § 2?

The Government are invited to respond to these questions in view of the immunities allegedly granted to the applicant by the provisions of the Statute of the Mechanism and the Vienna Convention on Diplomatic Relations.