Legal Aid
Are you a Plaintiff or Defendant?
You can apply for legal aid to the bar associations or courts for civil and administrative proceedings
LEGAL AID GIVES THE EXEMPTION FROM LITIGATION COSTS AND PROVIDES FREE ATTORNEYSHIP SERVICES.
Are you a Suspect, Accused, Victim or Complainant of a Certain Crime?
For criminal investigations and prosecutions, you can apply for legal aid to police and gendermerie centers, public prosecution offices and criminal courts.
What is Legal Aid?
Legal aid is enjoying the right of representation of a lawyer free of charge for all suspects and accused who declare that they are not in the position to choose a defence lawyer (advocate) and in addition victims and complainants of certain crimes.
Who is Suspect and Accused?
Suspect refers to the person who is under the suspicion of a crime during the investigation phase. Accused, on the other hand, refers to the person who is under suspicion of a certain crime from the starting point of prosecution till the decision becomes final.
In other words, the person who is under suspicion of a crime which is investigated by prosecution Office or law enforcement agencies (police and gendarmerie) is called as suspect and the person under the suspicion of a crime whose procedure is ongoing in a court of crime is called as accused.
Who is Defence Counsel and Advocate?
Lawyer who defends the suspect or the accused during a criminal procedure is called as defence counsel. Lawyer who represent the intervening party, the victim of a crime or financially responsible person during a criminal procedure is called as advocate.
In another saying, both defence counsel and advocate are lawyers.
What is Investigation and Prosecution?
Investigation is the phase that comprises transactions, starting with gaining knowledge of suspicion of a committed crime by competent authorities as indicated by the Code, and continuing until the indictment has been approved and prosecution is the phase beginning with the decision on the admissibility of the indictment and ending with the final judgment.
This means that the procedure managed by prosecutor or law enforcement agencies (police and gendarmerie) is called as investigation and the procedure managed by a criminal court is called as prosecution.
Who can Get Benefit from the Legal Aid?
All suspect and accused have the right to legal aid upon their requests. This right of enjoying legal aid is also recognized for victims and complainants of crimes which requires minimum 5 years of imprisonment and sexual assault.
Can Foreigners Enjoy the Right to Legal Aid?
Foreigners have the right to enjoy legal aid in criminal investigations and prosecutions in all equal terms and conditions with Turkish citizens.
Does State Cover the Costs of Interpretation?
The costs of interpreter who is assigned for non-Turkish speaking person or suspects, accused, victims or witnesses with disabilities, are not deemed as litigation costs.
Those costs are covered by State, this means it is not demanded from the relevant person or collected afterwards.
Of Which Investigation and Prosecution of Crimes Are Granted with Legal Aid?
Legal aid right is granted in any criminal investigation and prosecution upon the request of the suspect and the accused regardless of the crime type.
The victim and the complainant also does have the right to legal aid in cases where the minimum sentencing is five years and the crime is sexual assault.
Are there Any Cases where the Legal Aid is Compulsory?
Legal aid in criminal investigation and prosecution phases are granted to suspect, accused, victim and complainant without requiring the demand of the person in certain cases.
In another saying, representation of those people by a lawyer is compulsory and there is not a need to require the demand of the person. Law enforcement agencies (polis and gendarmerie), public prosecution office and criminal courts conduct required procedures by their own. There is not a payment demand from the legal aid beneficiary deriving from the assignment of defence counsel or attorney or the costs are no recollected from the person afterwards.
Compulsory Defence Counsel Assignment for the Suspect and Accused when they do not have a Lawyer
i. If an individual, who is accused with crimes that that carry a punishment of imprisonment no less than 5 years;
ii. If the suspect or accused is child (under the age of 18);
iii. If an individual, who is disabled to that extend that he cannot make his own defence; to an individual, who is deaf or mute;
in such cases, the defence counsel is assigned without the requirement of the person’s demand.
Compulsory Advocate Assignment for the Victim and Complainant when They do not have Representation
i. If the suspect or accused is child (under the age of 18);
ii. If an individual, who is disabled to that extend that he cannot make his own defence; to an individual, who is deaf or mute;
in such cases, the defence advocate is assigned without the requirement of the person’s demand.
How and in which Time Period is the Legal Aid Application made?
Suspect, accused, victim and complainants can submit their request of legal aid without any condition or time limitation to the investigation conducting authority (police or gendarmerie and relevant public prosecution office) or the court (criminal court of peace, criminal court of first instance, intellectual and industrial property rights criminal court, criminal court of juvenile, enforcement court of criminal proceedings, heavy penal court, juvenile heavy criminal court).
The request of the person is proceeded with the relevant authorities and again those authorities contacts with the bar association.
After the finalization of first instance proceeding, in other words, in legal remedy phase of the criminal proceeding, legal aid application can be submitted to regional criminal court or court of cassation.
This means that legal aid application can be submitted in criminal proceedings in any stage of the criminal investigation and prosecution.
Who do Provide the Legal Aid Services? Is there Any Payment to be Made to Enjoy Legal Aid?
The requests of people are delivered to bar association by law enforcement agencies (police or gendarmerie), public prosecution office or criminal court under any circumstances. Then again, the assignment of the lawyer is performed by the bar association under any circumstances and the attorneyship services are provided by a lawyer registered to bar association. In order to enjoy this service, there will not be need of issuing a power of attorney which means that the legal aid beneficiary is not required to pay notary costs or any similar other costs.
Costs that will be Recollected from the Accused at the End of the Proceedings
The costs that are used to conduct the proceeding and the expenses which means as a whole the litigation costs, covered from the State treasury are not recollected from the victim or the complainant.
However, the costs of the proceedings, which are initially covered by the State, are collected from the accused who is sentenced to a penalty or security measure at the end of the proceedings. If the accused dies before the verdict becomes final, heirs are not obliged to pay the expenses.
However, if there are expenses occurred due to investigation or prosecution carried out in different stages of the proceeding and the result has been revealed in favour of the accused; when it is understood that the charging of these costs will be contrary to the right the person, the court decides that these are partially or completely covered by the State.
Litigation costs are not recollected from the accused for which acquittal or punishment has been decided not to be given, and these persons are only condemned to pay the costs deriving from their own faults.
What is Legal Aid?
This is a public service provided for the ones who do not have the means to afford the lawyer’s fees and litigation costs.
Who can Get Benefit from Legal Aid?
Persons who have no ability to partially or totally afford necessary litigation or enforcement costs without putting livelihood of himself or his family in a significantly difficult position, may apply for legal aid in his claims and pleas, demand of temporary protection and enforcement proceeding on the condition that his claims explicitly have no legal ground.
Public benefit associations and foundations may apply for legal aid in case their claims and pleas have a justifiable reason and have no ability to partially or completely afford necessary costs without putting itself in a financially difficult position.
Do People who are not Citizens of Turkey can Get Benefit from Legal Aid?
In order that the foreigners can get benefit from legal aid, it is conditioned upon the existence of reciprocity principle besides that the applicant has no ability to partially or totally afford necessary litigation or enforcement costs and the condition that their claims explicitly have no legal ground.
Reciprocity principle is met upon the condition that a Turkish citizen can enjoy the right of legal aid in the country of foreign legal aid applicant. In order to prove the reciprocity principle, it will be acceptable to have bilateral or international treaties and the practice of granting legal aid to Turkish citizens in the relevant country.
Situations where the Reciprocity Principle is not Required
In accordance with the 13. Law on Foreigners and International Protection, Law Number 6458; applicants and international protection beneficiaries may be represented by a lawyer whose fee is covered by them. Legal aid is provided pursuant to the provisions on legal aid stipulated in the Code of Lawyers numbered 1136. In addition to that, they can use counselling services provided by non-governmental organizations and other State’s benefits for the people under temporary protection.
In which Cases can Legal Aid be Granted? Granted?
Legal aid can be granted in cases to be filed or currently at the stage of proceeding, in every civil case (civil court of law, commercial court of first instance, family court, consumer court, intellectual and industrial property rights court, cadastral court, enforcement court, labor court, civil court of peace), in administrative cases (administrative court, tax court), in ex-parte proceedings, in enforcement and bankruptcy proceedings, evidence-fixing, discretionary measures and precautionary seizures.
Scope of Legal Aid
Legal aid granted by bar associations only gives the right to enjoy representation by a lawyer free of charge and does not cover the exemption from litigation costs.
It is required to apply court in order to have exemption from other litigation costs other than the fees of lawyers.
The legal aid decision by court gives the applicant to enjoy temporary exemption from all litigation and prosecution costs, exemption from posting guarantee fort he litigation and prosecution costs, advance payment by state fot the costs that needs to paid in the proceeding and execution phases, if the case requires to be presented by a lawyer, the assignment of a lawyer whose fee to paid later on.
Besides that, in administrative cases, guarantee is not required for issue of stay order from legal aid beneficiaries.
Where to Apply for Legal Aid?
Legal aid application can be made to bar associations or courts.
Legal aid application is made to the bar association or to the court that the case will be heard before the proceeding and then again after filing the suit, the application is made to the bar associations, the court that the decision will be given and in enforcement and bankruptcy cases, to the enforcement court that the prosecution will take place.
After the first instance proceeding is finalized, legal aid application can be made to the regional court of justice or court of cassation in civil cases and in legal remedies, regional administrative court in administrative cases.
This means that application regarding legal aid can be made in every stage of the proceedings.
Is it Possible to Apply for Legal Aid after Filing the Suit?
It is possible to apply for legal aid to bar association or to court after filing the suit.
However, as it is for the pre-trial phase, the bar association’s legal aid decision gives only exemption from lawyer’s fees in the post-filing suit phase.
In addition to exemption from lawyer’s fees, if the person seeks for exemption from litigation costs, it is necessary to apply to the court that the case takes place. However, in this case, the legal aid granted after filing the suit does not cover prior litigation costs.
How to Apply for Legal Aid? How the Applications are Evaluated?
The person applies to bar association for legal aid, delivers the request to the legal aid bureau or the representatives of the bureau in the place of service. Legal aid bureau and the representatives ask relevant documents and information from the applicant. (Movable – immovable property registration under the name of the applicant, monthly income of the applicant, familial situation, people living dependent on the applicant, etc.) The applicant must prove that s/he is rightful in her/his request with evidence. Legal aid bureau and representatives also do the research regarding the rightfulness of the application and give decision when deemed necessary.
The person applies to court for legal aid, must provide to court the summary of her/his claim, evidence, as the basis of her/his claims, and financial documents which shows that the applicant is not capable of paying the litigation costs (Movable – immovable property registration under the name of the applicant, monthly income of the applicant, familial situation, people living dependent on the applicant, etc.) The document regarding the application for legal aid is exempted from any kind of fee and tax. The court may decide on the legal aid request without having a hearing however, examination shall be made by conducting a hearing upon demand.
Recognition of Legal Aid Request
If the request for legal aid is accepted, the fact will be recorded in a memorandum. The requestor will be made to furnish a letter of commitment to the effect that the requestor will reimburse the bar association with the fee paid to the attorney and five percent of the material gains, if any, the requestor will receive upon completion of the job; and that the requestor will return twice the amount of the fee paid to the assigned attorney and any expenditures incurred including legal interest thereon if it is subsequently discovered that the request for legal aid was not rightful. Power of Attorney cost may be covered from the legal aid budget.
Court may decide the partial or full acceptance of the request by examining the financial situation of the applicant. In case the application is accepted, legal aid decision lasts till the decision of the court becomes final. The fees of lawyer that assigned for legal aid beneficiary upon the request of court are covered from state treasury as deemed as litigation cost.
Can the Legal Aid Decision be Revoked after Recognition of Legal Aid?
Decision of legal aid is cancelled if it comes forth that the applicant has submitted wrong information about his financial status as a result of intentional conduct or gross negligence or if it is determined that financial status of the applicant has adequately improved later on.
Does the Applicant Pay the Postponed Litigation Costs upon the Legal Aid Recognition by Court?
As a rule, all litigation costs postponed because of legal aid decision and advance payments paid by the State shall be collected from the party who lost the case or enforcement at the end of the proceedings. In case of the party who has benefitted from legal aid loses, it may be decided to the detriment of the applicant to pay litigation costs with equal installments within maximum length of one year.
If it is explicitly determined by court that collection of litigation costs paid or exempted by the State because of decision of legal aid would aggrieve the party who get benefit from legal aid, the court may decide on total or partial exemption from the payment.
Rejection of Legal Aid Request
If the request for legal aid is rejected, the requestor may apply to the president of the bar association verbally or in writing within fifteen days as of the date of notification. The president of the bar association will make a decision within seven days. This decision will be final. If the decision is not given in the defined time period, then it is deemed that the request is rejected.
The reasons of rejection regarding the information and documents for the legal aid applications to the courts are stated clearly. Against the decision of rejection on legal aid application, it is possible to appeal the decision to the relevant court within a week of decision notification by submitting a petition. The appealed court refers the file to the following civil court and for the last numbered court to the first numbered court in the same place if there are more than one court, if there is one single civil court in the place, then the file is referred to the closest court with same duties and responsibilities. The decision is final after the appeal examination.
Is it Possible to Re-Apply to Legal Aid after the Rejection Decision?
If the legal aid application is rejected, upon a serious decrease in financial capacity of the applicant, it is possible to apply for legal aid again, to bar association or to court.
In which Circumstances the Legal Aid is Terminated?
Legal aid is terminated when the legal aid beneficiary passes away or excluded from the case, the termination of status of public benefit organization or foundation or exclusion from the case or revoking the legal aid decision or the finalization of the prosecution or proceeding.
What is How to Reach the Bar Association? Bar Association?
Bar associations are professional organizations of lawyers and they are the occupational organizations with the status of public institutes. There are bar associations in every province where there are at least thirty lawyers in the jurisdictional area.
All contact information for all bar associations in Turkey can be accessed via the website of Union of Turkish Bar Associations. http://www.barobirlik.org.tr/Detay19809.tbb Besides that, bar association representative offices can be accessed at the premises of courthouses.
About the Project
European Union Twinning Project
“STRENGTHENING THE LEGAL AID SERVICE IN TURKEY”
The overall objective of this Twinning Project is to ensure that the judical services are delivered completely and fairly to all the segments of the society by strengthening the legal aid system in compliance with the Article 6 of the European Convention of Human Rights. The project purpose is to establish a more effective, sustainable and satisfacory legal aid system in order to strengthen rihght to a fair trial and access to justice.
Access to legal aid is an important part of the right to a fair trial under Article 6 of the ECHR and Article 47 and 48 of the European Union Charter of Fundamental Rights. These articles provide a right to legal aid to those who lack sufficent resources so far as this is necessary to ensure effective access to justice.
The main beneficiary of this Twinning Project is the Ministry of Justice of the Republic of Turkey and the co-beneficiary is Union of Turkish Bar Associations and the Project is co-implemented by Spain – Lithuania – France and Turkey.
The Project has started on 16 June 2016 and have an implementation period of 24 month.
