The United Nations Mechanism for International Criminal Tribunals today ordered the Government of the Republic of Turkey to cease all legal proceedings against Judge Aydin Sefa Akay and to take all necessary measures to ensure his release from detention, no later than 14 February 2017, so that he can resume his judicial functions in the case of Prosecutor v. Augustin Ngirabatware. The order is binding on Turkey under United Nations Security Council Resolution 1966 (2010), which requires that all States comply with orders issued by the Mechanism.
Judge Akay, a member of the Appeals Chamber Bench in the Ngirabatware case, was detained in Turkey, on or around 21 September 2016, in relation to allegations connected with the events of July 2016 directed against the constitutional order of Turkey. He has remained in detention since that time. In accordance with the Mechanism’s Statute – which was adopted by the United Nations Security Council with the support of the then Council member Turkey - the judges of the Mechanism enjoy privileges and immunities accorded to diplomatic envoys under international law when engaged on the business of the Mechanism, even while exercising their functions in their home country. The United Nations Secretary-General has formally asserted the diplomatic immunity of Judge Akay to the Turkish authorities and requested his immediate release and the cessation of all legal proceedings against him.
The Order issued by Judge Theodor Meron, the Mechanism’s President and the Presiding Judge of the Ngirabatware case, underscored that “diplomatic immunity is a cornerstone of an independent international judiciary, as envisaged by the United Nations”. The Mechanism rejected the Prosecution’s proposal for the replacement of Judge Akay on the Ngirabatware case, stating that “[t]o say Judge Akay can be replaced easily to facilitate the judicial process – at this initial stage and before other avenues have been exhausted – is to say we do not value judicial independence, value justice, value what is right.” According to the Order, replacing Judge Akay as a first rather than last measure “will have a chilling effect on the administration of justice” because it “would allow interference by a national authority in the conduct of a case and the exercise of judicial functions”.
Augustin Ngirabatware, the former Rwandan Minister of Planning, was sentenced to 30 years of imprisonment for committing direct and public incitement to commit genocide and instigating and aiding and abetting genocide. On 8 July 2016, Ngirabatware filed a request for review of his convictions on the basis of new facts that he claims exonerate him. With Judge Akay’s detention, the proceedings in the case have come to a standstill. On 10 November 2016, Ngirabatware requested that an order be issued to the Government of the Republic of Turkey to cease its prosecution of Judge Akay so that he can resume his judicial functions. Despite being given several opportunities to be heard, both in writing and in person, the Government of the Republic of Turkey did not respond.
The Order also denied Ngirabatware’s request for “temporary provisional release” that he sought in view of the alleged undue delay in the review proceedings caused by Judge Akay’s arrest and detention because such a decision requires a full bench of the Appeals Chamber.