Entrance

Due to its geographical location and international obligations, Turkey is a country hosting millions of refugees, foreigners with temporary protection status, and applicants for international protection. The size of this population has led to foreigners being more frequently involved as parties, victims, suspects, or defendants in criminal proceedings. Therefore, the status of refugees in criminal proceedings is shaped, both at the normative level and in practice, is of great importance.

Because the criminal justice system involves institutions that directly interfere with personal liberty and security, the status of foreigners under international protection requires special care. Due to factors such as legal uncertainties, language barriers, lack of documentation, difficulties in identity verification, interpreter problems, and the risk of deportation, refugees constitute one of the most vulnerable subjects of criminal justice.

This article comprehensively addresses the rights, obligations, protection mechanisms, and practical issues of refugees in criminal proceedings

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I. Conceptual Framework: Asylum Seeker, Refugee, Foreigner with International Protection

1. The Concept of Refugee

In Turkish legislation, a "refugee" refers to a foreigner who has applied to the Directorate of Migration Management for international protection but whose application has not yet been finalized . These individuals are:

• international protection applicant,

• Person under temporary protection,

• subsidiary protection or conditional refugee status .

Although these statuses lead to different outcomes in terms of criminal procedure, they all share common standards in terms of fundamental rights.

2. International and Constitutional Framework

The fundamental principles of refugees' rights in criminal proceedings:

• Articles 17, 19, and 36 of the Constitution

• CMK m. 147, 150, 153, 234, 239

• Law on Foreigners and International Protection (YUKK)

• 1951 Geneva Convention

• ECHR (Liberty and Security, Fair Trial, Prohibition of Torture)

This normative framework is based on the protection of the refugee's human dignity and right to a fair trial.

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II. The Status of the Refugee in the Process Initiating Criminal Proceedings

1. Identity Verification and Registration Issues

Criminal proceedings against refugees often involve:

• Failure to verify identity information,

• Lack of documentation,

• Registration discrepancies in the Immigration Administration system

It becomes complicated because of this.

According to Article 147/1-a of the Code of Criminal Procedure, even if identity information is requested during questioning and interrogation, practices detrimental to personal liberty may occur if verification is not possible.

Application Problem

In some law enforcement agencies, it has been observed that asylum seekers are effectively kept waiting for long periods of time due to the inability to verify their identities, and that procedures are delayed until an interpreter arrives.

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2. Interpreter Assistance and Language Barriers

Articles 202 and 147/1-e , asylum seekers have the right to request an interpreter during their statements. In practice:

• The interpreter is not present

• Difficulty with language matching

• Lesser-known languages ​​(Pashto, Dari, Rohingya languages, Persian dialects)

Problems such as these are experienced.

Legal Consequences

A statement taken without an interpreter an absolute legal violation .
According to established Supreme Court jurisprudence, a statement taken without an interpreter is invalid.

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3. Appointment of a Defense Counsel and Mandatory Legal Representation

Since refugees are often unaware of their right to defense, mandatory legal representation is of paramount importance.

a) Mandatory Legal Representation for the Suspect/Defendant (Code of Criminal Procedure, Article 150)

Appointing a defense lawyer is mandatory in the following cases:

• If the person has requested legal counsel,

• Crimes that carry a minimum sentence of more than 5 years ,

• Factors that weaken expressive power (language, cultural incompatibility),

• Certainly for child refugees.

b) Application Advantage

Having a lawyer ensures both the right to a fair trial and prevents the asylum seeker from giving statements that could put them at risk of deportation.

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III. The Position of Refugees During Detention, Arrest, and Imprisonment Processes

1. Arrest and Detention Measures

Refugees may be detained for identity verification or on suspicion of a crime.
However:

• Arbitrary arrest,

• Long waiting time,

• Notification without an interpreter

The illegality of these actions is clear.

a) Notice of Arrest and Declaration of Rights

According to Articles 90 and 91 of the Code of Criminal Procedure:

• Reason for arrest,

• The reason for detention is..

• Rights

to the person in a language they understand .
Otherwise, the process is invalid.

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2. Arrest and Judicial Control Procedures

of refugees fleeing, law enforcement reports are frequently interpreted negatively.
However, the established approach of the Supreme Court is as follows:

"Being a foreigner alone cannot be grounds for arrest."

a) Types of Judicial Control

The main judicial control measures applied to asylum seekers are:

• Signature obligation

• Do not leave your home

• Residing in a specific place

• Guarantee

• Electronic ankle monitor

However, there are still cases where arrest warrants are issued directly instead of judicial supervision on the grounds that foreigners do not have fixed addresses.

b) Defense Required in Practice

When a judicial control assessment is being conducted on an asylum seeker:

• Temporary protection ID,

• Immigration Administration records,

• Permanent residence,

• Family ties,

• History of regular signature obligations

The suspicion of escape must be refuted.

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IV. Rights of the Refugee During Statement and Interrogation

1. Clear and Understandable Statement of Rights

Article 147 of the Code of Criminal Procedure mandates that the suspect be fully informed of their rights.

This information should be provided to refugees through an interpreter and in simple language .
Some law enforcement agencies are seen to be quickly preparing "brief statements"; such practices are against the law.

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2. The Right to Remain Silent

Foreigners often believe that "silence will be perceived as an admission of guilt."
Therefore, during questioning:

• That silence a fundamental right ,

• Silence cannot be interpreted negatively

This should be emphasized.

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3. Right to Consult with Legal Counsel

According to Article 154 of the Code of Criminal Procedure, the suspect confidential meeting with their lawyer.
In practice, this is especially true in border regions:

• Under police surveillance,

• By putting pressure on the translator,

• Without giving the defense lawyer sufficient time

It appears that statements have been taken.

This weakens the evidentiary value of the statement and violates the right to defense.

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V. Status of Refugees as Victims or Participants

Refugees are often victims of crime as well. They
have a high rate of victimization in workplace accidents, domestic violence, human trafficking, assault, robbery, and sexual crimes.

1. Victim Rights (Code of Criminal Procedure, Article 234)

Refugee victims:

• To be notified of the hearing

• Request for interpreter

• Compulsory legal representation (especially for children and victims of sexual crimes)

• Claim for material and moral damages

They have rights.

Especially Compulsory Representation

In cases of sexual assault and child victimization, the appointment of legal representation is mandatory.
Refugee victims are often unaware of this right due to communication problems.

2. Refugees who are victims of human trafficking

The Turkish Penal Code and the Turkish Code of Civil Procedure provide special protection for foreign victims of human trafficking

• Investigation confidentiality

• Safe housing

• No return ban

• Psychosocial support

The inadequate application of these protections during the criminal proceedings remains a significant problem.

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VI. The Relationship Between Non-Refoulement and Criminal Procedure

1. Deportation while criminal proceedings are ongoing

When criminal proceedings are initiated against an international protection applicant or asylum seeker, the deportation order before the conclusion of the trial .

This situation is in accordance with both the case law of the ECHR and Articles 54-55 of the Law on Foreigners and International Protection.

2. Deportation Issues After Conviction

A conviction against an asylum seeker does not automatically mean deportation.
A specific assessment must be made.

• His life is at risk if he returns to his country

• Risk of torture

• Civil war

• Family ties

• The children's situation

If these risks exist, a deportation ban will be applied.

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VII. Intersections of Criminal Procedure and Immigration Legislation

1. Refugee and Criminal Investigation in a Deportation Center

To the refugee at GGM:

• An interpreter is mandatory when delivering notifications

• If the prosecutor summons them for questioning, law enforcement must expedite the transfer process

• Meeting with the defense attorney is mandatory.

2. Principle to be Followed in Conflicts Between the Code of Criminal Procedure and the Law on Foreigners

The protection of personal liberty is interpreted broadly.
Criminal proceedings are considered to have higher priority than administrative oversight processes.

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VIII. Common Problems in Practice and Proposed Solutions

1. Shortage of Translators

Proposed solution: The list of notaries should be expanded, and mobile translation units should be established.

2. Problems of Arbitrary Detention and Identification

Integration between the Directorate of Migration Management and the Police should be strengthened.

3. Problems with Accessing Legal Remedies

CMK (Criminal Procedure Code) assignments should be expedited, and 24/7 access to lawyers should be provided.

4. Pressure to deport while criminal investigation continues

Clear protocols should be established between immigration authorities and public prosecutors' offices.

5. Lack of interpreters during evidence collection

Professional interpreters must be used for notifications, victim statements, and photo identifications.

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IX. Conclusion

The status of refugees in criminal proceedings is a complex area requiring special sensitivity, both under national law and international obligations. Refugees are the most vulnerable parties in criminal proceedings due to reasons such as language barriers, lack of awareness of their rights, cultural incompatibility, and lack of documentation. Therefore, the effective protection of their rights is possible not only through the application of the provisions of the Code of Criminal Procedure, but also through a judicial culture that respects human dignity.

The Turkish criminal justice system has mechanisms that, when properly implemented, can strongly protect asylum seekers. The problem often stems from the ineffective operation of these mechanisms in the field.

This article aims to provide practitioners and academics with a comprehensive framework regarding the status of refugees in criminal proceedings. Increased awareness among lawyers, prosecutors, and judges in this area will lead to stronger implementation of both the right to a fair trial and the principles of international protection.