| Applicant name | SEFA AKAY |
| Applicant type | natural person (diplomat) |
| Number of applicants | 1 |
| Country | Turkey |
| Application no. | 59/17 |
| Date | 23/04/2024 |
| Judges | Arnfinn Bårdsen, President, Jovan Ilievski, Pauliine Koskelo, Saadet Yüksel, Lorraine Schembri Orland, Frédéric Krenc, Diana Sârcu |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Not prescribed for by law |
| Type of privacy | Locational privacy |
| Keywords | Professional privacy diplomat |
| Facts of the case | The applicant complained that the searches undertaken by the domestic authorities, particularly those of his house and person, had been in blatant disregard of his diplomatic immunity and had entailed a violation of Article 8 of the Convention |
| Analysis | As to Article 15 ECHR, the Court repeats that the attempted military coup disclosed the existence of a “public emergency threatening the life of the nation” within the meaning of the Convention. However, the Court finds that the domestic courts’ interpretation on the applicant’s diplomatic immunity was neither foreseeable nor in keeping with the requirements of the principle of legal certainty under Article 5 § 1 of the Convention. As regards the question whether the applicant’s above-mentioned pre-trial detention could be seen as justified under Article 15 of the Convention in view of the conditions giving rise to Government’s notice of derogation, the Court makes the following observations. In time of war or other public emergency threatening the life of the nation, States may adopt measures derogating from their obligations under the Convention, provided that the conditions laid down in Article 15 § 1 are met, that is to say that the measures were strictly required by the exigencies of the situation and consistent with the State’s other obligations under international law. In the present case, however, the Court is not convinced that the domestic courts’ failure to assess the applicant’s diplomatic immunity up until the trial court pronounced itself on the merits of the case and convicted the applicant on 14 June 2017 could be regarded as strictly required by the exigencies of the attempted coup d’état of 15 July 2016 which gave rise to the state of emergency. Moreover, the Court’s finding above regarding the applicant’s pre-trial detention implies that the measure in question was inconsistent with Türkiye’s “other obligations under international law” within the meaning of Article 15 of the Convention. That being the case, the applicant’s pre-trial detention cannot be regarded as justified under Article 15 of the Convention. Accordingly, there has been a violation of Article 5 § 1 of the Convention. As to Article 8 ECHR, the Court reiterates its findings regarding the interpretation of the scope of the applicant’s diplomatic immunity in the context of the lawfulness of his pre-trial detention under Article 5 § 1 of the Convention. The scope of the immunity under Article 29 § 2 of the Statute of the Mechanism was, to a certain extent, circumscribed by the General Convention and the Diplomatic Convention, which in its Articles 29 and 30 provided, respectively, for inviolability of the person and the private residence of a diplomatic agent. In view of Article 8 § 3 of the Statute, which enables judges of the Mechanism to exercise their functions remotely, away from the seats of the branches of the Mechanism subject to the President’s decision, the applicant’s place of residence was in an analogous position to that of an office, given that at the material time he was working for the Mechanism remotely from his home country. Therefore, it was subject to a heightened protection, similar to the protection afforded to searches of a lawyer’s office in the Court’s case-law under Article 8 of the Convention. |
| Other Article violation? | Yes, Article 5 ECHR |
| Damage awarded | (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 21,100 (twenty-one thousand one hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; |
| Documents | Judgment |