Mandatory Legal Counsel for Foreign Defendants

1. Introduction: The Position of a Foreign Defendant in Criminal Proceedings

Criminal proceedings pose a significant burden for someone unfamiliar with the language, legal culture, and trial techniques. Foreign defendantsoften face:

Those who do not know Turkish at all or know it at a very limited level,
Completely unfamiliar with the criminal procedure system in Türkiye,
Those who are in a vulnerable position in terms of their social environment, family, and financial resources,
They face additional risks such as deportation and revocation of their residence permit

is a person.

This situation reveals the danger that the right to defense, theoretically granted to everyone, may not be practically usable for foreign defendants . Therefore, treating a foreign defendant as an ordinary "defendant" and being limited solely to the bare criteria of mandatory legal representation in the law (minimum 5 years, childhood, disability, etc.) is incompatible with the spirit of the principle of a fair trial.

Mandatory legal representation for foreign defendants is a human rights-based institution that should be evaluated within the triangle of defense attorney, interpreter, and consular notification

2. Normative Framework: Constitution, ECHR and Code of Criminal Procedure

2.1. Constitutional Guarantee

Article 36 of the Constitution of the Republic of Turkey guarantees the "right to a fair trial" for everyone, without distinguishing between citizens and foreigners. The term "everyone" also includes foreign defendants tried in Türkiye.

According to this article:

Having the opportunity to present claims and defenses before judicial authorities ,
Being able to use legitimate means and methods in this process ,
To be able to utilize procedural opportunities that may influence the outcome of the trial

It is essential. In a system where a foreign defendant is tried without a lawyer or interpreter, it is difficult to speak of the true existence of the right to a fair trial.

2.2. The Impact of Article 6 of the ECHR and the Case Law of the ECHR

Article 6 of the European Convention on Human Rights states that the defendant:

To defend himself or to be represented by a lawyer of his choosing,
If you lack the means to hire a lawyer and justice demands it, you can obtain free legal assistance
Free interpreter assistance if one does not understand the language used in the proceedings

It regulates their rights.

The European Court of Human Rights, particularly in many of its decisions concerning Turkey (especially in its specific case law), has emphasized the importance of providing legal assistance from the early stages of an investigation; it has found that making statements taken without a lawyer the sole or essential evidence is incompatible with the right to a fair trial. This approach lays the groundwork for a broad interpretation of the mandatory legal representation regime stipulated in the Code of Criminal Procedure.

These standards should be applied even more strictly with regard to foreign defendants because:

The language barrier is too serious to be overcome without legal support
The outcome of the criminal proceedings is highly likely to directly affect the defendant's residency status in the country.

2.3. The System of Defense Counsel and Mandatory Defense Counsel in the Code of Criminal Procedure

In the Code of Criminal Procedure, a defense counsel is defined as the lawyer assigned to defend the suspect or defendant. While legal representation is generally voluntary , mandatory legal representation exists in certain circumstances.

Especially:

CMK Article 150:
- Those who have not reached the age of 18,
- Those who are incapacitated to the point of being unable to defend themselves,
- If the suspect or defendant who is deaf and mute does not have a defense attorney, one will be appointed without requiring a request.
- Furthermore, in cases involving offenses punishable by a minimum of five years imprisonment, it is mandatory to appoint a defense attorney for the suspect or defendant without requiring their request.
CMK Article 101 and subsequent articles:
- The mandatory defense regime is also foreseen to be activated in interrogations related to the request for arrest.
CMK Articles 234 and 239:
- In cases involving crimes that fall under the jurisdiction of the high criminal court, mandatory legal representation provisions are also included for victims and participants under certain circumstances.

Although the law does not explicitly include foreign defendants among those covered by mandatory legal representation, the criteria of "being incapacitated to the extent that one cannot defend oneself" and being under a serious threat of punishment in Article 150 of the Code of Criminal Procedurecontain a protective logic quite similar to the actual situation of the foreign defendant.

2.4. Article 202 of the Code of Criminal Procedure: Right to Interpreter

For foreign defendants the right to an interpreteris an integral part of mandatory legal representation. According to Article 202 of the Code of Criminal Procedure:

If the defendant or victim does not know Turkish well enough to express themselves,
An interpreter is appointed to ensure that the essential points of the claims and defenses can be understood.

This provision covers not only the translation of the defendant's statements, but the explanation of the essential parts of the trial proceedings, the indictment, and the verdict to the defendant . For foreign defendants, the defense counsel must work with an interpreter to ensure that the defense is presented accurately.

3. Structural Disadvantages of Foreign Defendants

3.1. Language Barriers and Comprehension Difficulties

Foreign defendants often:

They may not know Turkish at all or may only be able to use a few everyday phrases
While they may struggle to understand concepts of criminal law and procedure even in their native language, they can develop almost no comprehension in a foreign language.

In this situation:

Having standard rights reminder forms signed,
Minutes filled out without translation, such as "My rights have been explained, I do not want a lawyer,"
Brief interrogations conducted without an interpreter

It is not based on genuine consent and a conscious choice of defense. Mandatory legal representation should, precisely at this point, function to compensate for the inequality arising from the language barrier.

3.2. Unfamiliarity with the Legal System and Practice

Foreign defendants, in most cases:

He tries to act according to the criminal procedural rules of his country,
In Türkiye, prosecutors, judges, lawyers, and police officers cannot distinguish between their roles
He doesn't know what rights he has at which stage.

This makes trial without legal representation particularly dangerous. For example:

His acceptance of the charges with the thought, "They'll send me back to my hometown after I give my statement,"
He assumes that the "compromise" or "negotiation" mechanisms in his own country also exist in Türkiye,
His inability to foresee the long-term consequences of his admissions and denials during questioning

These are very common situations. Compulsory legal representation is the only mechanism that can break these false assumptions.

3.3. Social and Economic Vulnerability

A significant number of the foreign defendants:

In Türkiye, it consists of people who do not have family, acquaintances, or economic means
Often, there is no one in custody or detention center with whom they can communicate
He is not in a position to freely pay a lawyer's fees.

Therefore, the legal aid aspect of mandatory legal representation comes to the forefront; the lawyer appointed by the bar association under the Code of Criminal Procedure effectively becomes the sole support of the defense . Failure to apply mandatory legal representation in such a case would effectively mean a trial without defense

3.4. Intersection of Immigration Law and Criminal Procedure

In most cases, a criminal case against a foreign defendant:

Deportation order,
Cancellation of visa or residence permit,
Referral to deportation center

It is intertwined with administrative procedures such as these. The defense attorney must consider not only the outcome of the criminal case but also the impact of the decision on the foreigner's legal status in the country. This further aggravates the need for mandatory legal representation for foreign defendants.

4. The Importance of Mandatory Legal Representation for Foreign Defendants During the Investigation Phase

4.1. Detention, Interrogation, and Law Enforcement Procedures

The initial phase of the investigation is the most vulnerable period for a foreign suspect. During this phase:

Identity verification,
The detention order,
Statements to law enforcement and prosecutors,
Referral for arrest warrant request

Such processes can be completed in a very short time.

A foreign defendant without mandatory legal counsel:

Which crime were you questioned about?
He made statements that could be used against him in the future,
The right to remain silent or the possibility to postpone giving testimony,
The right to strategize with his/her lawyer regarding evidence gathering

It's almost impossible to know.

Therefore, in particular:

In crimes that carry a minimum sentence of more than five years imprisonment,
In cases where the possibility of arrest is serious,
In cases where it is understood that the foreigner does not speak Turkish or cannot express themselves clearly

Article 150 of the Code of Criminal Procedure should be interpreted broadly and favorably, and the bar association should immediately appoint a defense lawyer.

4.2. Notification of Rights and Use of Interpreter

Informing a foreign defendant of their rights does not simply mean handing them a printed form to sign. It must be done through a suitable interpreter:

What he is accused of,
What stage it is in,
The right to request legal counsel
The right to remain silent,
The right to present evidence or to call witnesses, for or against the accused

It should be explained in clear and understandable language.

The defense counsel must monitor this process together with the interpreter; they must object if the interpreter is inadequate and request another interpreter if necessary. Otherwise, the defendant's statements such as "I do not want a defense counsel" or "I agree to give a statement" will not be considered a valid expression of will.

4.3. Consular Notification Obligation

Informing the consulate of the country of origin of the foreign defendant is an obligation under international conventions and domestic regulations. This notification:

The defendant should be able to contact the consulate in his country,
To benefit from access to legal representation or other support mechanisms through the consulate,
To prevent him/her from feeling psychologically alone

It contributes.

The mandatory defense counsel should inquire whether a consular notification has been made; if not, this should be recorded in the minutes and, if necessary, an objection should be raised to lay the groundwork for a future claim of human rights violation.

5. Foreign Defendants and Mandatory Defense Counsel During the Prosecution Phase

5.1. Serving the Indictment and Understanding the Language of the Trial

Unless the foreign defendant understands the indictment and the relevant articles of law, he cannot comprehend the scope of the charges against him. This is where mandatory legal counsel comes in:

He should explain the indictment to his client in detail
The elements of the crime, the threat of punishment, and the evidence should be summarized in simple language
With the help of an interpreter, the defendant should convey this information to the prosecutor and work together to determine the defense strategy.

Without this communication, the defendant's statements in court often become either automatic denials or tacit acceptances

5.2. Interpreter-Counsel Cooperation During the Trial

The coordination between the interpreter and the defense attorney during the trial directly affects the quality of the foreign defendant's defense:

The defense attorney must convey their questions and statements clearly to the interpreter
You should intervene if you notice that the translator has provided an incomplete or superficial translation
The courtroom atmosphere should assess whether the defendant truly understands the judge's demeanor and the prosecutor's allegations.

Mandatory legal representation is not simply about "having a lawyer present at the hearing"; that lawyer actively and effectively defend the defendant . In cases involving foreign defendants, this effectiveness is directly dependent on the interpreter's qualifications and performance.

5.3. Continuity of the Defender and the Relationship of Trust

In lengthy criminal trials, assigning a different lawyer under the Code of Criminal Procedure to the same defendant at each hearing is a common problem. This situation has much more serious consequences for foreign defendants because:

At each hearing, they have to re-contact a new lawyer
The continuity of previous defense strategies cannot be ensured,
Finding a "core advocate" who is familiar with the case becomes difficult.

Wherever possible, the bar association should ensure that the same defense attorney is assigned; the attorney should also systematically follow the case and establish a relationship of trust with their client. This is critically important for the effectiveness of mandatory legal representation.

6. Representation of Foreign Defendants in Legal Proceedings

6.1. Appeals and Cassation Applications

The conviction decision given for the foreign defendant:

What evidence is it based on?
On what legal grounds it was established,
What legal remedies are available?

Understanding the decision alone is often impossible. It is essential that the decision be summarized through an interpreter and that the appeal period be explained.

Compulsory defense attorney:

The appeal or cassation petition must be prepared within the prescribed time limit
The defendant must be given a brief explanation of the outcome and the process in language they understand
The petition should clearly highlight instances where mandatory legal representation requirements were violated, such as a lack of interpreters or failure to inform the plaintiff of their rights.

6.2. Allegations of Violation of the Right to a Fair Trial and Individual Applications

In cases where mandatory legal representation is not effectively implemented, adequate interpreter support is not provided, and consular notification is not made, the foreign defendant:

After the appeal and cassation processes,
Individual application to the Constitutional Court,
If the appropriate conditions exist, an application to the ECHR

This possibility may arise. Here, the guiding role of the defense counsel is indispensable; because the likelihood of a foreign defendant using such mechanisms on their own is quite low.

7. Typical Errors Encountered in Practice

In practice, mandatory legal representation for foreign defendants often remains only on paper, leading to serious human rights violations for the following reasons:

Don't settle for the printed form
- The defendant was made to sign a standard form stating that their rights had been explained, but no actual information was provided.
- Obtaining a statement of "I do not want a lawyer" without providing an explanation in a foreign language.
Delay or Inadequacy of Interpreter Provision
- Taking statements without calling an interpreter during the law enforcement phase,
- The translator's grammar or ability to translate legal concepts is not being checked.
The Compulsory Defense Attorney's Name Appears Only in the File
- Although the defense attorney's name appears in the minutes, he/she was not actually familiar with the case file
- Failure to attend hearings with a valid excuse, or merely being present in the courtroom for a short time without actively participating in the defense.
Deficiencies in the Consular Notification
- Failure to notify, or notification given too late,
- The defendant was not informed of this right,
- The consular representative's involvement in the process was not requested.
Leaving the Identity and Status of the Foreign Defendant Uncertain
- No distinction should be made between refugees, asylum seekers, tourists, or students
- Ignoring the immigration law aspect of the criminal case.

These errors not only hinder the fair conduct of the trial, but also prolong the process with future rulings of violation and create additional responsibilities for the state.

8. Practical Tips for Practitioners

8.1. From the Perspective of the Defenders

When assigned to a case involving a foreign defendant, be sure to clearly and in writing request an interpreter for the case file
Have a private conversation with your client, even a brief one, before and after the hearing, if possible ; don't just limit yourself to a few sentences in the courtroom.
Document every point where you suspect a human rights violation (lack of interpreter, consular notification, reminder of rights, allegations of ill-treatment, etc.).
Always consider the impact of the criminal case outcome on your client's residency and deportation status; collaborate with colleagues specializing in immigration law if necessary.
In your appeals, explain in detail what the absence of mandatory legal counsel and interpreters means in the context of the right to a fair trial

8.2. From the Perspective of Judges and Prosecutors

To assess whether the foreign defendant truly speaks Turkish, don't just rely on a few words; observe the content of their statement and their behavior in court.
In cases where the conditions for mandatory legal representation are met, do not proceed with proceedings without legal representation based solely on the defendant's statement, "I do not want a lawyer.".
Try to observe what the interpreter is actually conveying to the defendant; request a more qualified interpreter if necessary.
Do not neglect to notify the bar association about defense lawyers who, despite being appointed as mandatory defense counsel, do not actually participate in the case.

8.3. From the Perspective of Law Enforcement Units

the foreign defendant's rights are explained not only by having them sign a form, but verbally in a language they understand .
Do not delay providing an interpreter during the detention phase on grounds of cost or workload; remember that this delay may lead to the voiding of evidence later on.
Establish a transparent and verifiable record-keeping system for consular notifications.

9. Conclusion: Mandatory legal representation for foreign defendants is not a luxury, but a necessity

Cases involving foreign defendants are the ones that most clearly reveal the weaknesses of criminal procedure. When language barriers, unfamiliarity with the legal system, and social and economic vulnerability come together, legal assistance is provided.

Because:

The mandatory legal representation requirements in Article 150 of the Code of Criminal Procedure should be interpreted broadly.
The right to an interpreter and consular notification should be considered together with mandatory legal representation
Judicial authorities and defense lawyers should view mandatory legal representation not merely as a "formal appointment," but an effective defense organization .

Mandatory legal representation for foreign defendants is not only an individual right but also a requirement of Turkey's international human rights obligations . Developing the practice from this perspective benefits both the defendant and the criminal justice system.

#ECHR, Article 6 of the ECHR, criminal law, Code of Criminal Procedure, Legal Consultancy, Istanbul Lawyer, Penal Code, foreign law, compulsory defense counsel

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