Effective Application Right
Effective Application Right
Effective Application Right of Refugees and Asylum Seekers in International Law, European Law and Turkish Law
Refugee, asylum seeker and view from view II.Effective Application Right of Refugees It appeared after World War II and this disadvantage began to be used without people. Effective Application Right of Refugees The states of the main actors of the international system are somewhat prioritized in the protection of their health and safety and in the legal order in general. Effective Application Right
Effective Application Right of Refugees However, individuals cannot get results from domestic legal remedies and can take advantage of their rights. It is one of the most important duties of states to have an effective legal system that they can apply against their justice for a good presentation.Effective Application Right of Refugees It allows a basic legal research with the advantages of practical applications. Effective Application Right
It is not possible for national authorities to review their chances of becoming a refugee and how it can happen to refugees and migrants, who, if not limiting, could result in death. Effective Application Right
All union applications in these countries. Documents accepted by Transmission; The Universal Declaration of Human Rights is exhibited at events for the benefit of all.
Admired in the 1966 World Covenant on Civil and Rights, Siya was taken because it could have a real law.
Persons personified by any competent body, legislature or any competent body in any jurisdiction, in any such field of law which may be taken from the country of possession in an effective legal capacity, even if made by persons personified in such official capacity. It is trained by everyone who is interested in receiving education and training and who applies with an organ. Effective Application Right
The right of application is a right for those who want to have the right to property. States Parties undertake to ensure all the rights and freedoms of everyone in the judiciary and to be taken only by competent bodies.
In addition, the parties are obliged to provide all persons whose rights have been violated an effective remedy and the opportunity to take legal action against these violations. Effective Application Right
While the right of effective application regulated in the UDHR has only been accepted before the judicial organs, the ICCPR guarantees the right of effective application before the legislative, executive and judicial organs. Effective Application Right
In the 1951 Geneva Convention, which is the basic document of refugee law, it is regulated that every refugee can apply freely and easily to the courts of law in the territory of all contracting states, and refugees are given the freedom to seek their rights. Effective Application Right
Looking at the European Union acquis,
the Charter of Fundamental Rights draws attention first. According to the Charter, which explicitly recognizes the right to asylum, anyone whose rights and freedoms guaranteed by Union law have been violated have the right to an effective remedy by applying to a court. The right of effective application regulated by the said article can only be accepted before the court. Effective Application Right
It is understood from the Charter regulation and the case-law of the CJEU that the right to an effective application also includes the right to a fair trial. The right to a fair trial is included in the continuation of the said article. According to this; Everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone benefits from counselling, advocacy and representation. Effective Application Right
Legal aid is provided to people who do not have sufficient resources, although it is necessary for effective access to justice. In the European Union, the right to an effective remedy and the right to a fair trial are regulated as a whole and applied in all cases, including immigration and deportation decisions. Effective Application Right
In the event of a decision pursuant to Article 39 of the Council Directive on Minimum Standards for Granting and Withdrawal of Refugee Status in Member States of 1 December 2005, member states must ensure that they have an effective right of appeal before a court or tribunal. According to the relevant article, the deadlines for objections to asylum proceedings should not complicate the exercise of the rights provided by the EU. Effective Application Right
Objecting to expulsion and return decisions of third-country nationals, pursuant to Article 13 of Council Directive 2008/115/EC on common standards and procedures for the return of third-country nationals illegally residing in Member States, of 6 December 2008 There should be an effective right of recourse for revision.
This right may be before a competent judicial authority or an administrative authority composed of impartial and independent members. This authority or competent authority should have supervisory powers, including temporarily suspending the extradition decision as applicable under national law. Effective Application Right
Where a contractual provision may apply to the deportation decision, the absence of an immediate suspensive effect on appeal or appeal indicates that there is no possibility of effective recourse before the national authorities.
The provision and termination of international protection dated 26 June 2013
Article 46 of Directive 2013/32/EU, which regulates the common procedures for In addition, it has been regulated that a full and prior examination is required in order to fully ensure the right of effective implementation in the member states.
Accordingly, in order for the application to be effective, the Court must make an assessment within the framework of the current situation and conditions while making a decision about refugees and asylum seekers.
According to the CJEU, it is a requirement within the meaning of Article 47 that refugees and asylum seekers benefit from legal aid and translation services. Looking at the European Convention on Human Rights, it is seen that it does not contain a direct provision on asylum and asylum. Despite this, many articles of the Convention indirectly provide an important opportunity for asylum and the protection of the right to asylum.
Article 3 protects refugees and asylum-seekers from being deported to countries where they may face the risk of torture, inhuman or degrading treatment or punishment. The right to liberty guaranteed in Article 5 of the Convention provides protection against unjust detention and deprivation of liberty.
The right to an effective remedy regulated in Article 13 is regulated so that anyone whose rights and freedoms recognized in the Convention are violated can have an effective remedy before a national authority, even if the violation has been committed by persons acting to fulfill the duties of an official.
The provision of effective domestic remedies allows the ECtHR to fulfill its supervisory role and reduce the Court’s workload. As the ECtHR has stated, if the states parties do not provide an effective remedy in domestic law, individuals will have to apply to the ECtHR systematically and in the long run, the protection of human rights determined by the Convention will be effectively weakened on both sides.
The case-law of Article 13 of the ECHR provides important guidance on how immigration and deportation decisions should be made and the measures to be implemented. The fact that Article 6, which regulates the right to a fair trial, is not applied to immigration and deportation decisions is an issue that should be criticized.
In the ECHR, widening the scope of the right to a fair trial and applying it to all rights and freedoms would be more appropriate in terms of human rights, and it would be more appropriate in terms of human rights to conclude administrative cases in a reasonable time and to determine an independent and impartial court established by law in disputes where one of the parties is the administration, access to a court Ensuring the right and complying with the principle of equality of arms will reduce the violations in this regard.
The fact that the right to a fair trial is not applied to immigration and deportation decisions reveals that the only article providing control in these cases is Article 13.
When the case law of the ECtHR is examined, it can be seen that people cannot benefit from interpreter and legal aid services, there is no proper notification, applications and objections are concluded without a serious and careful examination, the application and objection period of the courts is short, it is not possible to physically apply to the application and objection process, or the application and objection are not authorized. It has been decided that the right to an effective application has been violated due to reasons such as being blocked by the authorities and lack of postponement effect.
Article 47 of the EU Charter of Fundamental Rights, which regulates the right to an effective application and fair trial, guarantees much broader rights than the ECHR, as it recognizes the right to an effective application and the right to a fair trial.
Turkish law has been examined within the framework of refugees and asylum seekers in the light of the effective right of application requirements determined in international law and European law.
The authorities where the right of effective application can be exercised in Turkish Law; administrative remedy, judicial remedy and individual application remedy. Against the rejection of the international protection request, exclusion from international protection and the decision to withdraw the application or to consider it withdrawn, the relevant person or his legal representative or his lawyer, within thirty days from the notification of the decision, the decision given to the competent administrative court İneli-Ciğer, 2018, p. 10. 120 can apply; An administrative appeal can be made to the International Protection Evaluation Commission within ten days.
From the decisions taken as a result of the international protection status evaluation; Against the administrative detention decision, the decision regarding the inadmissibility of the application and the expedited evaluation decisions, only a judicial remedy can be applied and the administrative objection is closed.
The period of filing a lawsuit against the decision regarding the inadmissibility of the application and the expedited evaluation decisions, which is 30 days in other decisions, has been regulated as 15 days. The period for filing a lawsuit against the administrative detention decision is not specified in the law.
Applications and expedited evaluation decisions made to the court within the framework of the decision that the application is inadmissible become final within fifteen days and the decision of the Court on this matter is final. In the decisions that are finalized by the decision of the court of first instance, the way of appeal and appeal is closed.
When it is examined in terms of international law, it does not pose a problem. Because, as can be understood from the ECtHR and CJEU jurisprudence, a two-stage judicial system is not necessary.
rule of law; It requires individuals to have access to their rights under national and international law.
For the protection of persons under international protection, national protection systems need to be strengthened. Although it is accepted that the appeal procedure is not a mandatory element in terms of the freedom to seek justice, therefore the right to a fair trial and the content of the right to an effective application, the right to apply to higher courts is an important factor in terms of the decisions of the first instance courts, the control of the legality of these decisions, the development of law, and the unity of jurisprudence and law. is the subject.
In order to ensure the unity of fiqh, it is necessary to open the way of appeal. For this reason, giving the opportunity to apply to a higher judicial authority against the decision of the administrative court in the lawsuit filed by the person is important in terms of increasing the efficiency of the judicial review of the administration and providing a real judicial guarantee to the individuals.
Another point open to criticism is the provision of the Law that the decisions of the administrative court will be final. Although the decisions of the administrative court before the YUKK are subject to the supervision of the Council of State, from now on, international protection in the Council of State against the said decisions of the Administrative Court in the Council of State, pursuant to the express provision of the Law, 2015, p. 16. 121 There will be no possibility of appeal.
However, providing such control is important in terms of judicial assurances provided to the individual.
In addition, the problems experienced by refugees and asylum seekers in communicating the decisions to them, inadequacies in the provision of interpreters and financial impossibilities regarding attorney’s fees are eliminated; Rights such as the right of access to the case file, the right to be informed of all charges against him, the right to defense and the right to access legal aid, which ensure the practical exercise of the right to an effective remedy, should be recognized.
It is necessary to maintain an equal balance between the administrations holding the public power and the claimant person or institutions. In the Turkish administrative justice system, no legal action is taken against the decisions regarding the rejection of the legal aid request. In cases before the administrative court, the information and documents that will resolve the dispute are generally in the hands of the administration.
For this reason, the duty of the courts to ensure that the case is heard with appropriate weapons, especially against the administrations that do not present the documents in their possession to the court in full or that submit them selectively, becomes even more important.
In addition, failure to notify the other party of the interim decisions and the replies to the interim decision in the administrative judiciary may create situations contrary to the principle of equality of arms. For this reason, documents that may affect the outcome of the case should be notified to the parties.
Another action of the states that hinders the effectiveness of the guarantees is the failure to notify the decisions given to the individuals or the right of objection, or the prevention of the asylum seeker under administrative detention from communicating with the outside world346. Access to lawyers and translators by persons under administrative detention should not be restricted. The determining factor in assessing whether a remedy is effective is its accessibility in practice.
The main reasons preventing access to the right to effective application are the problems in the notification process that enables asylum seekers and refugees to take legal action before the deadline, the chance to follow the outcome of their requests, the insufficient financial opportunities for attorneyship, and the low number of lawyers’ fees and the number of lawyers specialized in the field of immigration.
