Access to State-funded General Legal Aid Scheme
According to Art 68-8 of LFIP, detained international protection applicants must be given opportunity to meet with legal representatives, notary and UNHCR officials, if they wish so.
As per Art 81-1 of LFIP, all international protection applicants and status holders have a right to be represented by an attorney in regards to “all acts and decisions within the scope of the International Protection section of the LFIP”, under the condition that they pay for the lawyer’s fees themselves.
As per Art 81-2, persons who do not have the financial means to pay a lawyer are to be referred to the state-funded Legal Aid Scheme (Adli Yardım) in connection with “judicial appeals” pertaining to any acts and decisions within the international protection procedure. However, as elaborated in the section above on the Regular Procedure, while at first sight this seems like a free legal aid provision, in reality the LFIP simply makes reference to the existing Legal Aid Scheme framework, which in theory should be accessible to all economically disadvantaged persons in Turkey, including foreign nationals. However in practice, until recently the Legal Aid Scheme did not extend any services to foreign nationals generally, leave alone asylum seekers and other categories of vulnerable migrants. At present, very few bar associations extend any meaningful amount of legal aid services to international protection applicants leave alone detained asylum seekers. In this regard, bar associations continue to struggle with capacity and resource limitations as well as a reluctance to extend services to a group hitherto not covered under the legal aid scheme.
Furthermore, the functioning of the General Legal Aid Scheme in Turkey requires the applicant to approach the bar association to make a formal request for legal aid. While some bar associations have been working to build more flexible interpretations of this requirement in recent years in relation to detained migrants and asylum seekers, in practice it is very difficult for a detained asylum seeker to access the legal aid mechanism by himself or herself. In most cases, either an NGO or UNHCR will alert the bar association and seek to ensure the appointment of a legal aid lawyer to the person.
Access to legal assistance services of NGOs
As per Art 81-3, international protection applicants and status holders are free to seek counselling services provided by NGOs. This safeguard must be understood also to extend to international protection applicants in detention. However, while Art 68-8 provides that detained international protection applicants shall be allowed an opportunity to meet with legal representatives, notary officials and UNHCR representatives, no explicit reference is made to NGO legal counselling providers in this connection. Furthermore, Art 59 of LFIP, which governs the functioning of removal centres provides that “NGOs’ visits to removal centres are subject to the permission of DGMM”. Currently, no NGOs in Turkey have any formalized arrangement with DGMM to access detention places for the purpose of providing legal information and counselling services to international protection applicants as referred to in Art 81 of LFIP.
In the absence of any such formalized arrangement, the small number of NGO service providers such as Refugee Rights Turkey send down their affiliate lawyers and meet with detained asylum seekers’ by taking advantage of the right to meet with legal representatives.
However, the principal practical constraint in that regard has to do with the very limited resources and operational capacities of the small number of NGOs that seek to extend legal information and counselling services to detained asylum seekers. In the context of a very large country and increasing resort to detention, particularly in border regions, there is simply no sufficient NGO supply to extend counselling services to even a minority of detained protection seekers.
Problems in authorizing a legal representative
In Turkey, for a lawyer to be authorized to represent a person, they must obtain a notarized power of attorney. This means that a Notary Office must be involved during the certification of the legal representation act between the lawyer and the person. According to the Law No: 1512 on Notaries, an identity document must be presented to the Notary Office by the person seeking to notarize a power of attorney. Art 90 of the Implementing Regulation of the Law on Notaries lists the type of documents that may be presented by persons to Notary Offices for the purpose of establishing identity. In the case of foreign nationals, Notary Offices do not hesitate to accept passports as valid identity documents, they are generally reluctant to proceed with any other type of identification documents presented by foreigners.
After the LFIP came into force, it emerged that various new types of identity documents were being issued to foreign nationals, which Notary Offices were reluctant to recognize and process. In response, on 19 September 2014, the Union of Notaries in Turkey published a regulatory note addressed to Notary Offices, listing the types of documents issued by reference to LFIP, which can be accepted as valid identity documents by Notary Offices.
Crucially, the Note identifies the “International Protection Applicant Registration Document” as a valid identity document for the purpose of notarization of power of attorney. This is a very positive step. However, in practice detained asylum seekers are not issued this document at all, which renders it impossible for them to notarize a power of attorney.
As per Art As per Art 69-7, upon the completion of the registration of an international protection applicant, Provincial DGMM Directorate must issue an International Protection Applicant Registration Document to the applicant free of charge. The Registration Document is valid for 30 days and may be extended by 30 day periods. However in current practice, it appears that this Registration Document is not issued at all to detained asylum seekers despite the clear provision in the LFIP. Therefore, detained asylum seekers who do not have any identity documents with them remain completely unable to authorize a legal representative and therefore their ability to effectively use the judicial remedies provided by LFIP is significantly curtailed.
Currently, there are ongoing discussions among refugee rights advocacy actors, DGMM, UNHCR and Union of Notaries to address this lingering problem.
That said, when a legal aid lawyer is appointed by a bar association to represent a person, the official appointment letter can serve as a temporary substitute in place of a notarized power of attorney in certain types of judicial applications. This is indeed a short cut that is currently being used to help address the problems of access to remedies created by the notarization problem.