Hukuk Öğretiminde Yeni Yaklaşımlar: Hukuk Klinikleri

Alberoni

The University of Alberoni’s Law and Shari’a Faculties have been keen to have a clinic since 2010 but difficulties finding suitable space at the University coupled with a lack of financial backing had prevented this happening. DPK (a USAID supported consultancy service) is now assisting with infrastructure and 2 professors from each faculty have now been licensed by Afghan Independent Legal Aid Board (AILAB) to practice as lawyers. As at June 2012 thirty students had been inducted and the Clinic was due to start taking on criminal cases from August 2012. At the time of writing confirmation of the commencement had not been received. The visit to see the clinics at Herat were mentioned as being particularly useful in adding development.

Balkh (Mazar i Sharif)

Like Alberoni, Balkh University have been intent on setting up a clinic for the last 2 years. They too visited the clinics at Herat and this was seen as a very important step towards establishing their own in-house service. Students at Balkh are already placed with another organisation (ILF) and it was anticipated that the in-house clinic at Balkh would start taking clients in the summer of 2012. At the time of writing this development had not been confirmed. The clinic intends to specialise in civil cases. Four professors, 2 each from the Law and Shari’a Faculties, are already registered with AILAB. Unfortunately, as at May 2012, applications for donor aid had not been successful although DPK has provided some initial help with equipment. This would enable the Clinic to start, albeit on a very modest basis. Although many of the funding bids are for major capital as well as recurrent expenditure the Herat model demonstrates that a clinic can be set up and run at relatively modest expense.

Herat

From its start in 2008 the Herat Clinic has made steady progress and in 2010 expanded to include criminal defence service. Herat University Law and Shari’a Faculties run the clinics as a joint venture and share the staffing responsibilities. Students from both faculties are able to take part in the clinics and equal numbers of male and female students do so. Sixteen students each term work in the civil clinic, 12 take part in the criminal clinic and a further 20 in a Street Law programme run in conjunction with local schools. Since 2008 over 300 students had worked in the various clinics at the University. All students undertake a 2-week induction programme and spend time on placement at the local courts, the government Legal Aid office and with the Ministry of Women’s Affairs. The clinics handle around 3 civil and 7 criminal cases a term. All students receive a participation certificate on completion of their time in the clinic and after they have taken part in a mock trial. Herat has hosted a number of ‘exposure’ visits so that other universities in Afghanistan can benefit from seeing the Herat clinics in operation and discussing how the clinics run with staff and students there. Funding bids have been made to a range of donor and other agencies so that the clinics at Herat are not over-reliant on one source of financial support (OSI).

Kabul

Kabul University through its Shari’a and Law Faculties has long articulated a commitment to clinical legal education. With resources from DPK the Shari’a Faculty established a live-client clinic in February 2012. The Law Faculty plans to do the same. To date the clinic had trained 160 students of whom 40 had (as at May 2012) had case work experience. By this time the clinic had taken on 20 cases. All of these had been concerned with family law. The Law Faculty intends to deal with criminal law cases when it begins its operation. In addition to the in-house clinic, students are also placed with local criminal defence lawyers. Concern was expressed that when DPK funding runs out it might affect the longer-term future of the clinical programme. The Dean of the Shari’a Faculty in Kabul is also the Director of the AILAB, the body that registers practising lawyers.

Nangarhar (Jalalabad)

A Clinic at Nangarhar University started in February 2012. Two professors, one each from the Law and Shari’s Faculties are licenced to practice. In order to get the Clinic up and running the Dean of the Law School resigned from his post to become the Director of the Legal Clinic. Initial training has been provided by staff at Herat University. The Clinic at Nangarhar focuses on family and inheritance cases. By June 2012 twelve students had taken part in the clinic and the clinic had assisted 5 clients. There is strong interest amongst the student body. Students undertake a training programme and, as well as seeing clients in-house, also spend time on placement with the courts, the Ministry of Justice and the Ministry of Women’s Affairs. The ‘Herat model’ is again being replicated here.

A further important development has been the creation of The Independent Afghan Bar Association (IABA) which has been supported heavily by the UK’s Department for Overseas Development (DFID). Established in 2008 the Association has already been responsible for a number of significant developments including assisting with the drafting of the Advocates’ Law, By-laws of AIBA and Code of Conduct.⁶¹. From personal discussions I have had with the chair of the Education Committee, the AIBA is highly supportive of the concept of legal clinics and is willing to support clinics through supervision and placements⁶². On a broader note, Article 16 of By-Laws actively requires the AIBA to make rules for ‘public legal trainings’ (interpreted as legal literacy classes) and these are expected to be ready by mid-2013. Again there is scope for productive links between the legal profession and law schools through Street Law-related activities. DFID has provided both human resource and financial backing. The AIBA also provides providing training for judges and other qualified lawyers and runs the bar examination system for aspirant practitioners.

There are currently over 1,000 licenced lawyers in Afghanistan and therefore there is great potential to involve legal practitioners, in many different parts of the country in access to justice partnership with NGOs and law schools.

Further evidence of the grounding of the legal clinics in the overall service provision picture comes with the development of monthly meetings between Legal Aid Department (Ministry of Justice), NGOs and the University in Herat. It is important for these discussions to be held to share best practice, to ensure that service provision is complementary, to maximise service opportunities and to ensure that scare resources are best utilised.

Afghanistan, with all of its problems and challenges, has established a platform from which unmet legal need can begin to be addressed. This starts with the raising of awareness of the general public of legal rights and responsibilities and increasingly includes the delivery of individual client-focused advice and representation. The key to the success of this movement has been in the partnerships being developed between a range of service providers including government, the private legal profession, NGOs and law schools.

Has this pattern emerged in other parts of the world where conflict has been or is still evident? In the space that remains one further case study will be examined:

Georgia

The fall of the Soviet Union and the rise of the independent countries surrounding what is now the state of Russia brought uncertainty as well as fundamental change. Although blood was shed and dispute and tension still persists on the Georgian/Russian border (notably in Abkhazia and South Ossetia) the country has witnessed a rapid move to commercialisation and the establishment of major institutions including law firms to service needs arising in this context.⁶³ At the other end of the property spectrum reports suggest that legal need is extensive particularly around employment, housing and family issues. Whilst the contrast with Afghanistan could not be greater in terms of the security situation and developments to infrastructure and the economy, striking similarities can be found ion terms of legal service options.This is especially true in the context of indigent people obtaining legal help with everyday problems. There is reportedly widespread public ignorance on matters legal. For an account (albeit openly critical) of the current position in Georgia, in terms of human rights and related legal protection, the Human Rights Watch reports make for interesting reading.⁶⁴

The absence of a Legal Aid system if they are to receive legal help clients must somehow find the money to pay for a lawyer or they must depend on services being provided pro bono or through an NGO. With the targeted support of the USAID, the NGO, Public Interest Law Network (PILnet), through the Judicial Independence and Legal Empowerment Project (JILEP), has been promoting the development of law school-based legal clinics. The project started in 2008 at the Georgian-American University, Tbilisi (GAU). Through a similar strategic response to that used in Afghanistan - using of an exemplar and a team of donor-linked, in-house, support staff - other universities in the country have been able to develop their own ideas for legal clinics based on the model piloted at the initial law school, in this case GAU.

What are these clinics doing? The list by now may be sounding familiar – family law (especially for women and especially in issues of domestic violence); criminal cases (particularly where a person is in custody); housing and employment cases; inheritance and property problems; and, legal literacy issues

At a workshop held in September 2012, run by JILEP staff and a range of international ‘experts’, teaching staff and students from 5 law schools met to discuss development possibilities and principles of best practice. The institutions represented were: the Free University, Tbilisi (FU); Tbilisi State University (TSU); Akaki Tsereteli State University, Kutaisi (KSU); and the Shota Rustaveli State University, Batumi (BSU). As at September 2012 clinics were operating at all 5 institutions.

The challenges identified, in terms of establishing and running the Clinics at all attending institutions, provides fertile ground for supporting common development. As this paper is being typed a common operations manual is being drafted for the clinics in Georgia to share and adapt to suit particular needs and electronic mailing ‘lists’ are also being put in place to facilitate further discussions and developments and the sharing of best practice.

Despite the identified needs, the level of legal service provided by the Clinics is, as yet, relatively low. None of the Clinics has a substantial client base. The Clinic staff do not appear to be proactive in seeking clients but passively receive enquiries and act on them once received. Heavy reliance is put, in all of the Clinics, on previous cases (taken from supervisors’ own practices) and effectively getting the students to discuss problems in simulated form. Whilst there is nothing wrong with this in terms of learning it is rather a wasted opportunity not to provide much-needed advice and expose students to the ‘real client’ experience. Attracting clients appears to be a significant issue and may, if what colleagues in Georgia say is correct, in part be a cultural concern. Clients are said to be dubious about the value of a free service. Older clients still look to the state to provide help when it is needed – a possible hangover from expectations of previous times.. These perceptions may change once a track record has been established and when clients begin to recommend the law school clinic service to others. In any event, more attention could be given to advertising the clinic services – through internet, local and national media and through publicity flyers.

Other case studies could also have been used to illustrate the prevalence and possible value of clinics in conflict-affected societies.. A rapidly rising clinical legal education movement is now appearing in the former war-torn countries of the Mekong (Cambodia, Laos and Viet Nam) spearheaded by the NGO Bridges Across Borders Southeast Asia (BABSEA).⁶⁵ Bloch (2010) details similar development globally..

Conclusion

When setting out to write this paper I was of the view that legal clinics had a particular relevance and role to play in improving access to justice in conflict zones. I remained convinced of that in a logistical and literal sense – that is where there is a limited infrastructure to provide legal help, clinics, formed in partnership with existing service providers, government and law schools, are an effective way of addressing aspects of unmet legal need. I now however question whether conflict, of the war-torn variety, is the key consideration. I am increasing of the opinion that it is social injustice that is the real issue. Of course injustice and inequality may be aggravated by open conflict but are not caused by it per se.

The role of the law school clinic, as evidenced by the activities of the institutions discussed in this article, is twofold: providing legal advice and assistance and raising awareness of rights and responsibilities. The beneficiaries are clear – clients receive a free, professional and customised service, students learn experientially, law schools serve a wider community mission and the legal profession stands to inherit lawyers who are beginning to acquire and appreciate the need for legal practice awareness and to develop pragmatic, problem-solving skills.

Of course legal need in jurisdictions where there is a very limited availability of lawyers could be met in many ways – for example government funding of legal help or increased pro bono provision. The distinct advantage however of the law school clinic, providing it is properly supervised, is that it uses a readily available resource (human and otherwise) and it is in the interest of all concerned that the service is developed and delivered. The nature of the clinic is one that is flexible to need and context. The principal drawback is the cost of supervision and this can be addressed through developing effective partnerships between law schools, government, NGOs, community leaders and donor agencies.

As is often the case with reflective practice one can use the experience of others to rethink the nature of problems in one’s own jurisdiction. I am mindful in particular of the public funding cuts being experienced in many so-called ‘developed’ countries. In the country with which I am most familiar, the UK, the public funding of legal services (Legal Aid) is due to change radically in April 2013 – to the extent that it will only be available in a very limited number of instances – criminal cases where liberty is at stake, some reviews of the actions of public bodies, cases involving the care of children and cases where domestic violence and/or the loss of a home are involved.⁶⁶ Large numbers of people will be effectively denied access to justice in the UK as a result. Not only will Legal Aid be restricted in its scope but many NGOs currently providing a service to those otherwise unable to access a lawyer will close as they depend heavily on public funding. A detailed account of this can be found in Justice4all (2011). The role of law school-based legal clinics has been predicted to become more prevalent and in much greater demand as a result (LawWorks (2011)).⁶⁷

As suggested above rights without remedies (or access to the help that might provide such an outcome) are of little use to those in immediate need. Access to justice requires access to the machinery of justice and that includes access to legal advice and representation.

I therefore now conclude, without suggesting that legal clinics might be obliged in any way to offer a service that should be incumbent on the state to provide, that law school-based clinics have a particular role to play in addressing social injustice. By raising levels of legal literacy and assisting in individual cases clinics can offer help to those who would otherwise be without legal help. Not only are communities and individuals aided but law students involved in the process are exposed to the often harsh realities of life. One would hope that exposing students to such injustices hones not only their technical knowledge and skills but sensitises them to social issues and reinforces their professional commitment.

In those countries with histories of conflict there is, predictably, a greater degree of injustice and an often much poorer support systems to address social and legal needs. The case studies discussed in this paper hopefully demonstrate that. In this context the legal clinic may serve an even more important role.

Acknowledgments

I very much appreciate the opportunities I have been given to see and to work alongside colleagues in legal clinics in many countries. They are too numerous to mention here but they know who they are and I am truly grateful to them. I am also appreciative of the detailed and constructive comments provided on an earlier draft of this article by the peer reviewers. The shortcomings contained in this revised version are of course down to me.

Bibliography

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1^ 13 Haziran 2013’te Eskişehir Anadolu Üniversitesi’nde düzenlenen Klinik Hukuk Eğitimi Sempozyumu’nda yapılan sunumdur.

2^ Washington D.C.

3^ Polonya Hukuk Klinikleri Vakfı Başkanı, Adalet Eğitimi için Küresel İttifak (GAJE) Başkanı. Prof. Czernicki’nin hazırladığı metin sempozyumda Malgorzata Wysoczynska (Lodz Üniversitesi Hukuk Kliniği Danışmanı) tarafından sunulmuştur.

4^ http://www.pilnet.org/

5^ http://www.fupp.org.pl/index_eng.php?id=statute

6^ http://www.fupp.org.pl/index.php?id=raporty

7^ http://www.fupp.org.pl/index.php?id=raporty

8^ 13-14 Haziran 2013 tarihinde Anadolu Üniversitesi Hukuk Fakültesi tarafından düzenlenen Hukuk Öğretiminde Yeni Yaklaşımlar: Hukuk Klinikleri sempozyumunda sunulmuştur.

9^ Bakü Devlet Üniversitesi Hukuk Kliniği Yöneticisi

10^ 13-14 Haziran 2013 tarihlerinde Anadolu Üniversitesi Hukuk Fakültesi tarafından düzenlenen Hukuk Eğitiminde Yeni Yaklaşımlar: Hukuk Klinikleri sempozyumunda sunulmuştur.

11^ Ürdün Üniversitesi

12^ Bu makalenin orijinal başlığı Adalete Erişim: Çatışmadan etkilenen toplumlarda hukuk fakültesi kliniklerinin rolü’dür. Makalede de, farklı türlerdeki hukuk kliniklerinin, eğitim ve profesyonel olarak yararlı olduklarının ıspatlandığı yargı bölgelerinden başka bağlamlara trasfer edilebilirliği tartışılmaktadır. Özellikle de çatışma yaşamış veya hala yaşamakta olan ülkelere odaklanılmakta ve hukuk kliniklerinin ortamı iyileştirmek veya adalete erişmek için nasıl bir rol oyanayabilecekleri ele alınmakta ve sınırları aşabilecek yeterlilikte bir hukuk kliniği modeli olup olmadığı araştırılmaktadır. Bu makalede yer alan temel savlar üzerine kurulu bir sunumdan sonra tartışma ortamında temel- ele- alınacktır denmesi bence daha uygun olurdu. alınacaktır. Bu makalenin orijinal versiyonu basılmak üzere sunulmuştur.

13^ Klinik Programlar Direktörü, York Law School, University of York, York, YO10 5GD; Tel: [phone]; e-posta: [e-mail]
Richard Grimes 1977 yılında danışman avukat unvanına hak kazanmış ve önce bir hukuk merkezinde daha sonra da bir hukuk firmasında sermaye ortağı olarak çalışmış, çoğunlukla Hukuki Yardım kapsamında çok sayıda davaya bakmıştır. Kariyeri boyunca avukatlığın yanı sıra hukuk eğitimi ve araştırma faaliyetleriyle yakından ilgilenmiş ve bunların birbirini tamamladığına inanmıştır. İngiltere ve İrlanda’da üniversitelerde ders vermiştir. 1990 yılında Sheffield Hallam Üniversitesi’ne katılmış ve burada kurum içi hukuki danışmanlık hizmeti birimini kurmuştur. Bu programda, hukuk öğrencileri profesyonel denetime tabi olarak gerçek davalara bakmışlardır. 1995-1997 yılları arasında South Pacific Üniversitesi’ne atanmış ve burada Adalet ve Uygulamalı Hukuk Çalışmaları Enstitüsü Direktörlüğü yapmıştır. 1998 yılında Derby Üniversitesi’nde Hukuk Bölüm başkanlığına atanmış ve Hukuk Eğitimi hocalığı yapmıştır. 2000 yılında Öğretim Görevlisi ve Direktör olarak Hukuk Fakültesi’ne geçmiş aynı zamanda da Gönüllü Hizmetler ve Klinik Eğitimi Direktörlüğü yapmıştır. 2006’dan 2010 yılına kadar İngiltere’de çeşitli hukuk eğitimi projelerinde bağımsız danışman olarak çalışmıştır. Bu çalışmalarını daha sonra Afganistan, İran ve Nijerya’da devam ettirmiştir. Şu anda York Law School’da Klinik Programları Direktörü olarak görev yapmaktadır. Klinik hukuk eğitimi ve hukuk becerileri üzerine çok sayıda yayını bulunmaktadır. Yaparak öğrenme ve adalete erişim konularına kendisini adamıştır.

14^ pro bono publico tabiri ‘halkın menfaati için’ demektir ve gönüllü hizmet verilmesi anlamında kullanılır. Bu bağlamda, hukuki hizmetlerin avukatlar veya sivil toplum kuruluşları tarafından ücretsiz olarak verilmesi anlamına gelir. Devlet eliyle verlen ücretsiz hukuki yardımla karıştırılmamalıdır. Bu sonuncusu devletin kişi adına avukat tuttuğu veya hukuki giderleri karşıladığı bir sistemdir.

15^ Geçmiş yıllarda ve hala bazı İslam devletlerinde bu ‘uzman’ bir dini veya spiritüel lider olabilmektedir.

16^ İlginç bir şekilde hukuk kliniklerinin kıta Avrupası hukuk sistemine yerleşmesi yavaş olmuştur. Halbuki, eski Sovyet ülkelerinde bu sistem hemen yeşermiştir. Ancak son iki yıldır Fransa, İtalya ve İspanya’da da klinikler kurulmuştur. Anglo Sakson sisteminde ABD klinik hukuk geleneği çok eskiye dayanmaktadır. 1960’lara ve sivil haklar hareketine, bazılarına göre ise daha da eskiye dayanmaktadır. Birleşik Krallık’ta klinik hukuk eğitimi daha yakın zamanda ortaya çıkmıştır. Dünya çapındaki kliniklerin tarihçesi ve kliniklerle sosyal adalet gündemi ile ilgili bir analiz için bkz: Bloch (2010)

17^ BM (2008) sayfa 12 ve 19-20

18^ BM (2009) para 65

19^ age, para 76

20^ AdviceNow

21^ Street Law [Sokak Hukuku] terimi Georgetown Üniversitesi menşelidir. Halihazırda Street Law A.Ş. adlı kâr amacı taşımayan bir kuruluş, gerek ABD’deki gerekse dünya çapındaki çalışmaları desteklemekte ve koordine etmektedir. bkz.: www.streetlaw.org (Erişim tarihi: 3 Ocak 2013)

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