CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 avril 2024

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height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3133A7C8 { font-family:Arial; color:#0069d6 } SECOND SECTION CASE OF AYDIN SEFA AKAY v. TÜRKİYE (Application no. 59/17)   JUDGMENT   Art 5 § 1 • Procedure prescribed by law • Arrest and pre-trial detention of judge serving at United Nations International Residual Mechanism for Criminal Tribunals despite diplomatic immunity conferred on him by Mechanism’s Statute • Principles set out in Court’s case-law on independence of domestic judiciary applied mutatis mutandis in respect of international judges and courts • Domestic courts’ delay in assessing relevance of applicant’s diplomatic immunity was incompatible with Art   5 §   1 and rendered futile any protection afforded to him by virtue of that immunity • Domestic courts’ interpretation regarding immunity neither foreseeable nor in keeping with Art   5 §   1 requirements of legal certainty • International court judges not representatives of a member State to a UN organ • Applicant enjoyed full diplomatic immunity, including personal inviolability and not being subject to any form of arrest or detention for duration of his term of office, as well as when working remotely • Ultimate aim of privileges and immunity to protect independence of judges and hence Mechanism tribunal vis-à-vis any State Art 8 • Private life and home • Searches of applicant’s person and home not “prescribed by law” • Applicant’s place of residence in analogous position to that of an office, given he was working for Mechanism remotely from his home country • Residence subject to heightened protection similar to that afforded in the Court’s Art   8 case-law to searches of a lawyer’s office • Domestic courts’ failure to examine that aspect of applicant’s immunity • Certain items seized later used in criminal proceedings against him • No waiver of immunity from UN Secretary-General or ex post facto consent of UN or applicant Art 15 • Derogation in time of emergency • Art   5 §   1 • Art   8 • Measures inconsistent with Respondent State’s “other obligations under international law”   Prepared by the Registry. Does not bind the Court.   STRASBOURG 23 April 2024   FINAL   23/09/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aydın Sefa Akay v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen, President ,   Jovan Ilievski,   Pauliine Koskelo,   Saadet Yüksel,   Lorraine Schembri Orland,   Frédéric Krenc,   Diana Sârcu, judges , and Dorothee von Arnim, Deputy Section Registrar , Having regard to: the application (no. 59/17) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr   Aydın Sefa Akay (“the applicant”), on 21   December 2016; the decision to give notice of the application to the Turkish Government (“the Government”); the parties’ observations; Having deliberated in private on 26   March 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application mainly concerns the question whether the arrest and pre-trial detention of the applicant, who enjoyed diplomatic immunity as a judge serving at the United Nations International Residual Mechanism for Criminal Tribunals, were “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 of the Convention. 2.     The application further concerns, under Article   5 §   1   (c) of the Convention, the alleged lack of any reasonable suspicion warranting the applicant’s pre-trial detention, which was predominantly based on his use of the ByLock smartphone application and, under Article   5 §   4 of the Convention, the domestic courts’ alleged failure to address the applicant’s arguments concerning his diplomatic immunity when examining his objections against his pre-trial detention. Lastly, the application concerns, under Article 8 of the Convention, the allegedly unlawful searches of the applicant’s house and person in disregard of his diplomatic immunity. THE FACTS 3.     The applicant was born in 1950 and is currently detained in Rize. He was represented by Dr K. Altıparmak, a lawyer practising in Ankara. 4.     The Government were represented by their Agent, Mr   Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye. 5.     The facts of the case may be summarised as follows. THE APPLICANT’S Professional career 6.     In 1987 the applicant started working as a legal adviser ( hukuk müşaviri ) for the Ministry of Foreign Affairs of Türkiye and between 1989 and 2012 he carried out various tasks and occupied various positions, including at: the Permanent Mission of Türkiye to the United Nations (“the UN”); the Permanent Representation of Türkiye to the Council of Europe, where he represented Türkiye before the Court; the Turkish embassy in Nicosia, in the “Turkish Republic of Northern Cyprus”; the Permanent Delegation of Türkiye to UNESCO; and the Ministry of Foreign Affairs in Ankara. Between 2012 and 2014 he served as the ambassador of Türkiye to Burkina Faso and in 2015 he retired. 7.     Between 2003 and 2012 the applicant was a judge at the International Criminal Tribunal for Rwanda. On 20 December 2011, at its 87th Meeting, the General Assembly of the UN elected the applicant as a judge of the UN International Residual Mechanism for Criminal Tribunals (“the Mechanism”) for a four-year term of office beginning on 1   July 2012. On 24   June 2016 the UN Secretary-General reappointed the applicant for a further two-year term with effect from 1 July 2016. In June 2018 the UN Secretary-General did not reappoint the applicant, so his term of office expired on 30   June 2018. 8.     On 25 July 2016 the President of the Mechanism, Judge Theodor Meron, assigned a bench of five judges, among whom was the applicant, to consider an application for review lodged on 8 July 2016 by Augustin Ngirabatware in respect of the judgment delivered by the Appeals Chamber of the Mechanism in his case ( Prosecutor v.   Augustin Ngirabatware ) on 18   December 2014 [1] . At the time of the events giving rise to the present application, the applicant was working on the case remotely from his home country, Türkiye, in accordance with Article 8 §   3 of the Statute of the Mechanism, as is common for judges of the Mechanism (see paragraph   81 below). Attempted coup of 15 July 2016 and declaration of a state of emergency 9.     On the night of 15 July 2016, a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup aimed at overthrowing the democratically elected Parliament, government and President of Türkiye. 10.     During the attempted coup, soldiers under the instigators’ control bombarded several strategic State buildings, including the parliament building and the presidential compound, attacked the hotel where the President was staying, held the Chief of General Staff hostage, attacked television channels and fired shots at demonstrators. During the night of violence, more than 300 people were killed and more than 2,500 were injured. 11.     In the aftermath of the attempted military coup, the national authorities blamed Fetullah Gülen, a Turkish citizen living in Pennsylvania (United States of America) who was considered to be the leader of a terrorist organisation referred to by the Turkish authorities as the “Fetullahist Terror Organisation/Parallel State Structure” ( Fetullahçı Terör Örgütü/Paralel Devlet Yapılanması – the “FETÖ/PDY”). During and after the attempted coup, in order to dismantle the infiltration within the government and eliminate the continuous threat to it, public prosecutors’ offices all over Türkiye initiated criminal proceedings against those who had been directly involved in the attempted coup, as well as against those who had not been directly involved but were suspected of being part of the structural organisation of the FETÖ/PDY in various public, health, educational, commercial and media institutions. In the course of these criminal investigations, many people were arrested and subsequently placed in pre-trial detention. 12.     On 20 July 2016 the government declared a state of emergency for a period of ninety days from 21 July 2016. It was subsequently extended for further periods of ninety days by the Council of Ministers, chaired by the President. 13.     On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article   15. 14 .     On 18 July 2018 the state of emergency was lifted. Criminal proceedings against the applicant The applicant’s arrest and pre-trial detention and searches of his house and person 15.     Shortly after the attempted military coup, the Ankara Chief Public Prosecutor’s Office instituted a criminal investigation against the employees of the Ministry of Foreign Affairs suspected of being involved in an armed terrorist organisation, the FETÖ/PDY. The public prosecutor in charge of the investigation issued a written order to the police to (i) arrest the applicant and (ii)   carry out searches of his house, person and vehicle and seize any material or items found in view of the strong suspicion and evidence showing that he was a member of the FETÖ/PDY. The public prosecutor further ordered the transfer of the applicant to Ankara, stating that hundreds of suspects in the case in question were being investigated by the Anti-Terrorism Branch of the Ankara Security Directorate. 16.     On 21   September 2016 the applicant was arrested at his home in Büyükada, Istanbul and taken into police custody in the course of that investigation. At the Büyükada police station, he was searched and had his watch, glasses, wedding ring, wallet, belt and medication seized. He was subsequently transferred to Ankara in accordance with the public prosecutor’s order. 17 .     On the day of his arrest, the police also conducted a search of his house in Istanbul and seized four computers, three mobile phones, two flash disks, three floppy disks, one videotape and two books, entitled Örnekleri Kendinden Bir Hareket (“A Movement with its own Examples”), written by Fetullah Gülen, the leader of the FETÖ/PDY, and Medya: Makasların Gölgesinden İlkelerin Zirvesine (“Media: From the Shadow of Scissors to the Peak of Principles”), written by E.D., allegedly a high-ranking member of the same organisation. The following day the Adalar Magistrate’s Court upheld the seizure of the items collected during the search of the applicant’s house. 18.     On 26 September 2016 the police took statements from the applicant in the presence of his lawyer at the Ankara Security Directorate. He denied the offences of which he was accused, namely membership of an armed terrorist organisation, carrying out acts and activities on behalf of that organisation aimed at attempting to subvert the constitutional order by the use of force, murder, causing bodily harm, damage to property and attempting a military coup. He stated that he had no relationship with the FETÖ/PDY or any other terrorist organisation. He further stated, among other things, that he was a member of the Grand Lodge of Free and Accepted Masons of Türkiye ( Hür ve Kabul Edilmiş Masonlar Büyük Locası ). When asked various questions about the mobile application ByLock, such as whether he had used it, how he had obtained it, for what purpose he had used it and who he had contacted with it, he replied as follows: “At the request of the former Minister for Foreign Affairs of Burkina Faso, [D.B.], I downloaded the program from Google Play Store in December 2015 and contacted him and [H.Z.] about Masonic topics for three to four months ... I only downloaded this program without using any encryption from Google Play Store and used it. There is no encryption. This is the first time I have heard about encryption here ... I haven’t talked to anyone else except [D.B. and H.Z.] ...” When asked about the two books seized from his home, he replied as follows: “I have more than 2,000 books on every topic in my library. I am sure they are not criminal. Also, I write books, do academic research and hold conferences/seminars. It is natural to have books by different authors in my library.” 19.     On 28 September 2016 the applicant and six others were brought before the Ankara 2nd Magistrate’s Court. He gave evidence in person, stating as follows: “... I want to elaborate on the ByLock program. I suppose I downloaded this program on my phone in December 2015. I downloaded it from the Google Play Store to talk to my friends in Africa about Masonic topics. The person I contacted was the former Minister for Foreign Affairs of Burkina Faso, where I served as ambassador in the past. I am also a Mason, and the person I contacted was one of the masters of this institution. I then uninstalled the program because it was difficult to use. When my background, [social] circle and lifestyle are examined, it will be understood that I have nothing to do with this organisation [the FETÖ/PDY]. I like to read books. There are nearly 2,500 books at my house. I may be charged due to two of them. As I said, I read all kinds of books. I am 66 years old. I have diabetes and blood pressure disorders. I am a respected individual nationally and internationally. My duty as a judge of the United Nations International Residual Mechanism for Criminal Tribunals currently continues. I have a diplomatic passport. I went abroad and came back a week ago. I certainly cannot accept this accusation. For these reasons, I do not pose any risk of absconding. I demand my release, failing which, I demand the implementation of appropriate judicial supervision measures.” 20 .     On the same day the magistrate ordered the applicant’s pre-trial detention on account of his being a member of an armed terrorist organisation, an offence under Article 314 § 2 of the Criminal Code. The six other suspects were also detained. The following reasoning was given in respect of the applicant: “... Having regard to the nature and importance of the [alleged] offence, the state of the available evidence, the reports available in the [case] file, search and seizure reports, the ByLock report and the scope of the case file, the existence of concrete evidence indicating the presence of a strong suspicion of commission of the [alleged] offence within the scope of the case file, the fact that the [alleged] offence is one of the catalogue offences listed in Article l00 of the Code of Criminal Procedure, the fact that the decision on pre-trial detention is proportionate in view of the length of the sentence prescribed by law, and the risk of the [applicant’s] absconding or tampering with evidence, it is understood that the application of judicial supervision measures would be insufficient and [it is decided that] the suspects shall be detained pursuant to Article   100 of the Code of Criminal Procedure.” Decisions extending the applicant’s pre-trial detention and dismissing his objections 21.     On 4 October 2016 the applicant’s counsel filed an objection against the order for his pre-trial detention, arguing that the mental element of the offence of which the applicant was accused was not satisfied. His use of ByLock had no connection whatsoever with the FETÖ/PDY since he had used it to discuss Masonic topics with the former Minister for Foreign Affairs of Burkina Faso, who did not have any affiliation with the organisation. Counsel argued that the mere use of ByLock was not sufficient to constitute the offence of membership of an armed terrorist organisation and that ByLock could be downloaded from the Google Play Store and used by anyone. In other words, it was not necessary to be a FETÖ/PDY member to access the ByLock application. In any event, counsel argued that since the applicant did not deny having used the application, it was incumbent on the authorities to carry out the necessary enquiries to determine the date he had first started using it, the people with whom he communicated and the dates and content of his communication. Referring to the applicant’s age, illnesses, professional career and profile, and pointing out that he could have freely fled the country had this been his intention, counsel requested the applicant’s release with the application of appropriate judicial supervision measures. 22.     On 10 October 2016 the Ankara 3rd Magistrate’s Court examined and dismissed objections lodged by four suspects, including the applicant, against the order for their detention. The court extended their pre-trial detention, holding (i) that no evidence necessitating the reversal of the pre-trial decisions had been adduced and (ii) that the reasoning provided by the Ankara 2nd Magistrate’s Court in its decision of 28 September 2016 was in accordance with procedure and the law. 23 .     On 24 October 2016 the applicant’s counsel applied for his client’s release, claiming that the applicant enjoyed diplomatic privileges and immunities as a judge of the Mechanism under Article 29 of the Statute of the Mechanism adopted by Security Council Resolution 1966 (2010), which was binding on all member States of the UN (see paragraph 81 below). One of the documents attached to the request was a letter from the President of the Mechanism dated 30   September 2016, indicating the status and immunity of the applicant. 24 .     On 25 October 2016 the United Nations Office of Legal Affairs communicated a note verbale to the Permanent Mission of Türkiye to the UN, formally asserting that the applicant enjoyed diplomatic immunity under Article   29 of the Statute of the Mechanism. It accordingly requested his immediate release from detention and the termination of all legal proceedings against him. 25 .     On the same date the Ankara Chief Public Prosecutor’s Office received a letter from the Ministry of Foreign Affairs dated 13 October 2016, the relevant parts of which read as follows: “[I]t has been ascertained that on 28 September 2016 Akay was placed in pre-trial detention in Ankara as part of measures taken as a result of the hideous coup attempt of 15   July 2016. The principles and procedures concerning Akay’s duty as a judge at the Mechanism are set out in the Convention on the Privileges and Immunities of the United Nations dated 13 February 1946. [Article] V, Section 18(a), of that Convention confers on UN officials functional immunity [from legal process] in respect of words spoken or written and all acts performed by them in their official capacity. By the same token, [Article]   V, Section   20, of that Convention specifies that the functional immunity in question is granted to UN officials in the interests of the United Nations, not for the personal benefit of the individuals themselves, and also states that the waiving of this immunity is possible in cases where it would impede the course of justice and that in such a case its waiver is a duty of the UN Secretary-General. In that connection, the concept of functional immunity, which, in some respects bears resemblance to the concept of parliamentary immunity-inviolability applicable in our country to members of parliament, does not [confer] absolute immunity [on] Aydın Sefa Akay and this person has no special status in respect of issues falling outside his duty [as a judge of the Mechanism], particularly from the standpoint of the judiciary of our country ...” 26.     On the same date the Ankara 1st Magistrate’s Court decided that there was no need to rule ( karar verilmesine yer olmadığına ) on the applicant’s request in view of Article   3 §   1   (ç) of Legislative Decree no.   668, which provided that applications for release were to be examined on the basis of the case file at the time of the automatic review carried out at thirty-day intervals. 27.     On 27 October 2016 the public prosecutor asked the trial court to review and continue the pre-trial detention of several suspects, including the applicant, in accordance with Article 108 § 1 of the Code of Criminal Procedure. On the same day the Ankara 3rd Magistrate’s Court upheld that request and ordered the continued pre-trial detention of the applicant and sixteen others, considering the following factors: “... the nature of the offence, the state of the available evidence, the fact that the investigation has not yet been concluded, the continuation of the reasons given for detention, the existence of facts indicating a strong suspicion that an offence was committed, in accordance with Article 100 of the [Code of Criminal Procedure], and reasons for detention under Article 5 of the [European Convention of Human Rights], the proportionality of the detention order, and that the application of judicial supervision measures would be insufficient ( adli kontrol hükümlerinin uygulanmasının yetersiz kalacağı ) ...” 28.     On 11 November 2016 the Permanent Mission of Türkiye to the UN in New York submitted a letter to the UN Office of Legal Affairs in reply to its note verbale of 25 October 2016. The Permanent Mission stressed that the applicable legal instruments, notably Article   29 §   1 of the Statute of the Mechanism, the Convention on the Privileges and Immunities of the United Nations (adopted on 13 February 1946, 1 UNTS 15 and 90 UNTS 327 – “the General Convention”) and Article   31 §   4 and Article   38 §   1 of the Vienna Convention on Diplomatic Relations (adopted on 18 April 1961, 500 UNTS   95 – “the Diplomatic Convention”) confirmed that the applicant could enjoy functional immunity, that is to say immunity only for acts performed within the framework of his assignment under the Mechanism and that he did not enjoy immunity for charges against him outside the scope of his functions as a judge. The letter further indicated that the provisions in question were an expression of the general principle that there could be no system in which there was a gap in criminal jurisdiction, and that immunities could not be construed as a basis for developing or promoting a culture of impunity or for impeding the course of justice. 29 .     On 14 November 2016 the applicant lodged an individual application with the Constitutional Court, complaining of violations of his rights under Articles   19, 20, 21 and 36 of the Constitution. 30 .     On 24 November 2016 the Ankara 9th Magistrate’s Court, in the course of the automatic periodic review of the detention of several suspects, ordered the applicant’s continued pre-trial detention, taking into account the following factors: “... the nature of the offence, the existence of facts indicating a strong suspicion that the offence was committed and reasons for detention, the state of the available evidence, the maximum penalty prescribed by law for the offence ...” 31.     In a handwritten letter dated 15 December 2016 to the Ankara Magistrate’s Court, the applicant asked for his release, explaining, inter alia , that his pre-trial detention had disregarded his absolute immunity as a judge of the Mechanism, which could only be waived by the UN Secretary-General. 32.     On 22 December 2016 the Ankara 3rd Magistrate’s Court, in the course of the automatic periodic review of the detention of fourteen suspects, ordered the continued pre-trial detention of the applicant and several other suspects, essentially reiterating the grounds in its previous decision. Developments leading to the Mechanism’s order of 31   January 2017 to the government of Türkİye for the applicant’s release and its decision of non-compliance 33.     By a letter dated 5 October 2016, addressed to the President of the UN Security Council, the President of the Mechanism drew the attention of its members to the arrest of the applicant, who had been “engaged on the business of the Mechanism” in his capacity as a judge of its appeals bench. 34.     In his address to the UN General Assembly on 9 November 2016, the President of the Mechanism pointed out that the applicant had enjoyed diplomatic immunity from the time of his assignment to the Ngirabatware proceedings on 25 July 2016, and that he would continue to enjoy such immunity until the conclusion of those proceedings. He called upon the government of Türkiye, in accordance with its binding international obligations under Chapter VII of the Charter of the United Nations, to immediately release the applicant from detention and enable him to resume his lawfully assigned judicial functions. 35.     On 10 November 2016 the defendant in the Ngirabatware case (to which the applicant had been assigned on 25 July 2016) lodged a request for the Mechanism to issue an order, pursuant to Article 28 of its Statute and under Rule   55 of its Rules of Procedure and Evidence, to the Government of Türkiye to cease its prosecution of the applicant so that he could resume his judicial functions in the case. 36.     On 28 November 2016 the President of the Mechanism invited the Government of Türkiye to file written submissions in response to that request, but to no avail. 37.     On 8 December 2016 the President of the Mechanism addressed the UN Security Council and urged the release of the applicant from detention in Türkiye. 38.     On 21 December 2016 the President of the Mechanism ordered that a public hearing be held on 17 January 2017 at the Mechanism’s branch in The Hague to provide the Government with an additional opportunity to be heard in relation to the applicant’s arrest and detention. No representative of Türkiye attended the hearing. 39 .     On 31 January 2017 the President of the Mechanism issued an order to the Government of Türkiye to (i) cease all legal proceedings against the applicant and (ii) take all necessary measures to ensure his release from detention as soon as practicable, but no later than 14 February 2017, so that he could resume his judicial functions in the Ngirabatware case. The relevant parts of the order read as follows (footnotes omitted): “5.     Pursuant to Article 29 of the Statute, the Convention on the Privileges and Immunities of the United Nations of 13 February 1946 applies, inter alia , to the judges of the Mechanism, who enjoy [the] privileges and immunities, exemptions and facilities accorded to diplomatic envoys in accordance with international law when engaged on the business of the Mechanism. Judge Akay was engaged on the business of the Mechanism at the time of his arrest and detention. 6.     On behalf of the Secretary-General of the United Nations, the United Nations Office of Legal Affairs has formally asserted diplomatic immunity with respect to Judge   Akay to the authorities of Turkey and requested his immediate release from detention and the cessation of all legal proceedings against him. The Secretary-General’s assertion of immunity creates a presumption which cannot be easily set aside by domestic authorities. This full diplomatic immunity has not been waived by the Secretary-General. ... 11.     It is self-evident that justice and the rule of law begin with an independent judiciary. The right to be tried before an independent and impartial tribunal is an integral component of the right to a fair trial enshrined in Article 19 of the Statute and embodied in numerous human rights instruments. The United Nations Human Rights Committee has stated that the right to an independent and impartial tribunal ‘is an absolute right that may suffer no exception’. To uphold this right, in the exercise of their judicial functions, the judges of the Mechanism shall be independent of all external authority and influence, including from their own States of nationality or residence. A corollary guarantee for the independence of the Mechanism’s judges is contained in Article   29 of the Statute, which provides for full diplomatic immunity for judges during the course of their assignments – even while exercising their functions in their home country. Accordingly, diplomatic immunity is a cornerstone of an independent international judiciary, as envisaged by the United Nations. The ability of the judges to exercise their judicial functions first and foremost from their home countries reflects the unique characteristics of the Mechanism, which was intended to ensure justice coupled with cost-savings and efficiency. Turkey was a member of the United Nations Security Council at the time of the consideration of our Statute and voted in favour of its adoption, a Statute which guarantees an independent judiciary and full diplomatic immunity for our judges while performing their work ... 12.     With the arrest of Judge Akay, proceedings on the merits of Ngirabatware’s Request for Review have necessarily come to a standstill ... 16.     I recall that, while the Mechanism will not lightly intervene in a domestic jurisdiction, there is clear authority to order a state to terminate proceedings against individuals on the basis of the immunity they enjoyed as a result of their connection with the Mechanism. Such orders have been implemented. In the present circumstances, an order to Turkey to immediately cease prosecution and to release Judge Akay so that he can continue to exercise his judicial functions in this case is entirely appropriate and necessary to ensure that the review proceedings can conclude. Such an order is binding on Turkey pursuant to Resolution 1966 adopted by the United Nations Security Council under Chapter VII of the United Nations Charter on 22 December 2010. Article 9 of Security Council Resolution 1966 requires that all States comply with orders issued by the Mechanism. ...” 40.     On 6 March 2017, as Pre-Review Judge, the President of the Mechanism, Theodor Meron, issued a decision of non-compliance by Türkiye, holding that the Government of Türkiye had failed to comply with its obligations under Article 28 of the Statute to cooperate with the Mechanism in relation to the proceedings in the Ngirabatware case and to comply without undue delay with its judicial order of 31   January 2017. The Mechanism therefore decided to report the matter to the UN Security Council. Bill of indictment and the subsequent criminal proceedings against the applicant 41 .     On 2   February 2017 the Ankara public prosecutor lodged a bill of indictment against the applicant, accusing him under Article 314 § 2 of the Criminal Code of being a member of an armed terrorist organisation. The prosecutor referred to the following evidence: (i) the fact that since 26   February 2015 the applicant had used ByLock, an encrypted messaging application allegedly used exclusively by the members of the FETÖ/PDY; and (ii)   the two books by Fetullah Gülen and E.D. (allegedly part of the senior management of the organisation) seized during the search of his house (see paragraph   17 above), on the first pages of which the following statements were written: “1012 111-C, 111-F Aydın Sefa AKAY 23.11.2004 Frankfurt” and “1001 IV-A Aydın Sefa AKAY 23.11.2004 Frankfurt” respectively. Referring to the Ministry of Foreign Affairs’ letter dated 13   October 2016 (see paragraph 25 above), the prosecutor took the view that the applicant’s functional immunity did not create absolute judicial immunity and that he did not have any special status in terms of matters outside his mandate, especially in terms of the jurisdiction of Türkiye. 42.     On 6   February 2017 the Ankara 16th Assize Court (hereinafter “the trial court”) accepted the bill of indictment, and the trial subsequently commenced before that court. 43.     On 7   February 2017 the trial court drew up a preparatory hearing record ( tensip zaptı ) and ordered the applicant’s continued pre-trial detention. It held that alternative measures would be insufficient at that stage of the proceedings on account of the following: “... the nature and importance of the offence of which the [applicant] is accused, the state of the evidence, the existence of concrete evidence giving rise to a strong suspicion of an offence, the fact that the alleged offence [is] listed as a catalogue offence in Article   100 § 3 and [Article] 111 of the Code of Criminal Procedure, in respect of which the existence of grounds for detention is [ sic ] assumed, the existence of a possibility that the evidence would be tampered with ...” The trial court also asked the Anti-Terrorism Branch of the Ankara Security Directorate to provide it with information on the structure and operating principles of the ByLock messaging application, the dates, frequency and manner of its usage by the applicant and cell tower records relating to the mobile phone used by him. 44.     On 14 February 2017 the applicant’s lawyer lodged an objection against that order and requested the applicant’s release. Counsel referred, among other things, to the order issued by the Mechanism on 31   January 2017 (see paragraph 39 above), which stated that the applicant would be released no later than 14 February 2017. The lawyer further argued that the order was binding on Türkiye by virtue of Security Council Resolution 1966 (2010), which had been issued in accordance with Chapter VII of the Charter of the United Nations, and further took the view that all States were required to comply with the order, pursuant to operative paragraph 9 of UN Security Council Resolution 1966 (2010) (see paragraph 81 below). 45.     In observations submitted the same day, the public prosecutor’s office requested the dismissal of the applicant’s objection, referring, among other things, to the existence of a strong suspicion that the applicant had committed the offence of being a member of an armed terrorist organisation in view of the current state of the evidence in the case file (being a user of ByLock, having confessed to such use and being in possession of books written by leaders of the organisation). 46.     On 15 February 2017 the trial court dismissed the applicant’s objection, holding that the applicant was a “red ByLock user” (meaning his ByLock use was judged to have been frequent by the police on the basis of data showing the number of connections made from his mobile phone to the ByLock servers), that he had admitted having used that application for different purposes in his previous statements and that none of the grounds indicated in its decision on 7 February 2017 had been changed. Accordingly, the trial court held that there was no legal reason which could necessitate a change in the grounds for detention “in the present case, where a lawyer asked for the applicant’s release, arguing that he had been a judge at the [International Criminal Court]”. The case file was thus sent to the Ankara 17th Assize Court for review. 47.     On 20 February 2017 that court dismissed the applicant’s objection on account of the following: “... the nature of the offence [of which] the suspect [is accused], the fact that there is strong evidence indicating the commission of the alleged offence, that the alleged offence is one of the catalogue offences listed in Article l00 of the Code of Criminal Procedure and that the application of the judicial supervision measure would be insufficient at this stage.” 48.     On 13 March 2017 the applicant’s lawyer applied to the trial court and asked for the applicant’s release, the termination of the criminal proceedings and his acquittal submitting, among other things, that he enjoyed absolute diplomatic immunity, as confirmed by Article 29 of the Statute and the order issued by the President of the Mechanism on 31   January 2017. The lawyer took the view that the opinions proffered by the Ministry of Foreign Affairs and the Ministry of Justice were contrary to the international conventions on the subject signed by Türkiye. The lawyer alleged that the criminal case had been brought against the applicant on account of the erroneous guidance given to the political authorities and the judiciary. In any event, the ByLock application had not only been used in encrypted form by the members of the FETÖ/PDY, but also by ordinary people who had no connection whatsoever with the FETÖ/PDY and who had downloaded the application from mobile application stores and used it. Moreover, in order to attach any weight to the ByLock application in making out the offence of being a member of an armed terrorist organisation, the communications undertaken via that application should have been made in the context of the activities of the FETÖ/PDY and its content should have constituted an offence. However, the case file revealed that the applicant’s communications had been of a social nature. 49.     On 14 March 2017 the applicant’s lawyer filed defence submissions in respect of the offence of being a member of an armed terrorist organisation and regarding the ByLock application. In his view, even though the National Intelligence Agency of Türkiye ( Milli İstihbarat Teşkilatı ) had suggested that ByLock had been developed for the exclusive use of the FETÖ/PDY, it had failed to explain why such an organisation, which allegedly attached so much importance to secrecy, had uploaded the ByLock application to mobile application stores, which were accessible to anyone. The lawyer pointed out that at no point in his career had the applicant had any involvement with the organisation in question, except in certain instances required by his position as ambassador. Moreover, and more importantly, all the ByLock call records allegedly belonging to the applicant consisted of “cancelled”, “rejected” or “missed” calls, showing that he had not made any voice calls via ByLock. As regards the content of his messages on ByLock, the applicant accepted most of them, with the exception of certain messages which could have given the impression that he had been affiliated with the FETÖ/PDY, arguing that they could have been forged. In that connection, the applicant adamantly denied having texted “I have important ideas about the Hizmet Movement” or any other message concerning the repayment of his mortgage, arguing that neither he nor any of his family members had had a mortgage at the material time. Lastly, the lawyer submitted that in his capacity as an ambassador, the applicant had been in contact with people from different layers of Turkish society in Burkina Faso and that most of his messages had concerned the construction of a library, the shea butter trade and the opening of a football academy by a Turkish football club. Accordingly, he had exchanged messages on ByLock in the context of his personal affairs, which had had nothing to do with the FETÖ/PDY, as alleged. 50.     In a letter dated 15 March 2017, the applicant reiterated his lawyer’s requests. 51.     At the first hearing, held on 15 March 2017, the applicant gave evidence in person, stating, inter alia , that his pre-trial detention was in violation of international law, under which he was entitled to enjoy diplomatic immunity as a judge of the Mechanism. He also stated that his pre-trial detention had prevented him from taking part in its hearings, bringing to a halt the case to which he had been assigned, making it impossible for him to carry out his duties as an international judge. Stating that he had served the Ministry of Foreign Affairs for a long time, the applicant expressed his dismay at and disagreement with their opinion (see paragraph 25 above), stressing that he would continue enjoying his immunity unless the UN Secretary-General waived it. 52.     The applicant further indicated that following his appointment as ambassador to Burkina Faso in 2012, he had set up the Turkish embassy there and had been in contact with several religious organisations, including the organisation currently referred to as “the FETÖ/PDY” by the authorities, which had been referred to at the material time as “the Gülen movement”, arguing that he had not even known the difference between those organisations. As to his use of ByLock, he reiterated that he had explicitly admitted having used it even though he had known that other people had denied having done so. Although he was unsure of the exact date, he stated that he had downloaded the ByLock application to his mobile phone from Google Play Store in around December 2014 and had started using it for social purposes following the advice of his friend, B., who had been the Minister for Foreign Affairs of Burkina Faso. The applicant stress