This article is part of the blog series “Who, What, and How Much Does Temporary Protection Protect?” and edited by Ibrahim Soysüren. It builds on presentations from a workshop which had the same title and held on 9 December 2023 in Izmir and jointly organised by the NCCR On the Move, the Institute of Sociology of the University of Neuchâtel, and the Izmir Bar Association.
Ayşe Kaymak analyses the challenges faced by about 3 million Syrians under temporary protection in Türkiye and draws attention to the importance of access to justice and fair trial. Using the example of the Izmir Bar Association, she highlights the important role that lawyers and bar associations can play in exposing these violations and preventing unlawful practices.
The Role of Bar Associations in Preventing Violations of the Rights of Foreigners under Temporary Protection in Türkiye and the Case of the Izmir Bar Association
Ayşe Kaymak
Temporary protection is a temporary solution applied as part of states’ non-refoulement obligations to people arriving in large numbers at a country’s borders. About 3 million Syrians have been living in Türkiye for more than 10 years under temporary protection as permanent legal solutions, such as integration or resettlement in a third country, have not been provided for them and the voluntary return option is not implemented in accordance with the law. On the other hand, it is unfortunate to state that Syrians under temporary protection may be exposed to violations of their rights to education, health, housing, respect for private life, access to justice and fair trial in addition to the fact that deportation orders are issued against Syrians with temporary protection status on very simplistic grounds and individuals subject to final deportation orders have had their temporary protection status revoked due to the very broad interpretation of state sovereignty. However, as Syria is still not recognised as a safe country, they cannot be deported under the non-refoulement principle. People whose temporary protection registration is cancelled in this way are deprived of their most basic human rights, as they are not granted a new status. Lawyers and bar associations have an important role to play in highlighting, reporting and preventing these violations and unlawful practices.
The right to access to justice and the right to a fair trial, which are directly related to the activities and duties of bar associations, are among the most important violations of the rights of Syrians under temporary protection status in Türkiye. Article 334 of the Civil Procedure Code states that “Persons who are unable to pay prosecution expenses” can receive legal aid “provided that he gives the impression of being right.” The legislature is not limited to this general provision and there are also special provisions for foreigners, asylum seekers or refugees in the Law on Foreigners and International Protection. Article 57/7 of this law stipulates that “those who apply for a judicial remedy against administrative detention proceedings and who do not have the means to cover the fees shall be provided with (…) legal services upon their request”. Article 81/2 of the same law stipulates that “legal aid will be provided to refugees unable to meet the costs of legal representation for their court applications, in accordance with legal aid provisions.”.
It is clear that legal provisions alone do not ensure access to justice for foreigners; administrative, social, economic and cultural barriers that prevent them from seeking remedies must also be addressed. For example, foreigners who are detained based on deportation orders and administrative detention decisions and placed at a removal centre are not informed of the grounds for the restriction of their liberty, their rights and remedies despite the legal obligation to do so. For reasons such as language barriers, they are deprived of information about their right to appeal against decisions taken against them or their right to access a lawyer. Few foreign nationals are aware that they may access legal aid and representation through bar association legal aid offices. Moreover, foreigners who are informed of this right apply for legal aid and are assigned a lawyer may even be prevented from meeting with their lawyer in the detention centre because of unlawful and arbitrary measures.
Access to justice for foreigners with temporary protection status in Türkiye is not fully guaranteed, not only regarding procedures and decisions under the Law on Foreigners and International Protection, but also for disputes and violations of rights under private law. There are many Syrians who have been left ‘without status’ for years after their temporary protection status was cancelled because they cannot be returned to their country. These foreigners’ rights such as rights to education, health, housing and transport are being violated. However, given the complexity of the legal system in Türkiye, even for citizens, and the incomprehensibility of legal language, it is clear that there is a need to provide interpretation services to foreigners in Türkiye for their access to justice and to establish special mechanisms for access to justice and information. In this context, the “Legal Aid Service Tool”, which was launched within the “Izmir, Capital of Human Rights Protocol”, signed between the Izmir Bar Association and the Izmir Metropolitan Municipality on 10 December 2020, can be considered as an important and functional instrument. This example of cooperation between local governments and bar associations for the basic needs of everyone living in the city, such as access to justice, would be a very positive model for whole Türkiye once it becomes operational.
Unfortunately, the rise of xenophobia and hate speech against refugees in Türkiye in recent years has put foreigners in a very vulnerable position legally. It is well known that deportation decisions are taken against them on very simplistic grounds and that ”disturbing public order” as a ground is interpreted very broadly by the administration and the judiciary in addition to the fact that legal remedies have become almost ineffective with the established judicial implementation. These problems may discourage foreigners, who are victims of crime or whose rights are violated, from exercising their right to seek a remedy. Foreigners, whose rights are violated, are reluctant to report rights such violations or seek redress because of, for example, the ‘codes’ introduced against foreigners who file complaints or seek information with the police or the courts.
The contributions of the Izmir Bar Association are essential to the prevention and exposure of human rights violations affecting Syrians under temporary protection in Türkiye. Lawyers who have received special training in this field are assigned to handle requests for legal aid from foreigners in cases related to deportation, administrative detention and temporary protection status under the Law on Foreigners and International Protection, as well as private law issues they face.
However, there is no common standard in Türkiye regarding the allocation criteria and working standards of the legal aid offices of the bar associations. The majority of bar associations do not provide legal aid to foreign nationals for applications under the Law on Foreigners and International Protection. For example, while some bar associations have a broader interpretation of the ‘poverty’ criterion, some other bar associations may reject legal aid applications because the applicants does not meet the poverty criterion. As a result, the number of bar associations providing legal aid to refugees remains limited. The main reason for this is undoubtedly the very limited legal aid budgets and the inability to secure adequate funding.
Finally, it is essential to recognize the significant role played by volunteer lawyers from the Izmir Bar Association’s Migration and Asylum Commission in safeguarding and advancing human rights, specifically through monitoring, reporting, and preventing violation against refugees. Some of the various activities of the Commission are listed below:
- Applications to the Human Rights Commission of the Grand National Assembly of Türkiye and the parliamentary groups of political parties to take the required measures immediately regarding the incidents that took place in August 2021 when the houses and workplaces of almost all foreigners were destroyed by attacks in the neighbourhoods where Syrians live in the Altındağ district of Ankara, and filing a criminal complaint to identify and prosecute the attackers.
- Complaints filed regarding discriminatory practices denying or delaying aid to Syrian refugees, a population severely affected by the 6 February 2023 earthquake.
- Administrative appeals against violations of the right to education, health and transport for Syrians subject to deportation orders and left without a status following the cancellation of their temporary protection status.
- Active follow-up of the case of three Syrian workers burned to death in the Güzelbahçe district of İzmir and similar cases.
Through these and similar activities, the volunteer lawyers, members of the Migration and Asylum Commission of the Izmir Bar Association, have played an important role in making rights violations visible, eliminating them, and changing administrative practices. Based on these examples, it is important to expand the work of bar associations on refugees and to strengthen their capacities as part of their duty to protect and promote human rights.
Ayşe Kaymak is a lawyer. She served as a board member of the Izmir Bar Association in charge of its Migration and Asylum Commission.
* The ideas and opinions expressed in GAR Blog publications are those of the authors; they do not reflect those of the Association for Migration Research.
** The image created by ChatGPT
