TC
SUPREME
CRIMINAL CHAMBER
CASE NO: 2015/13365
DECISION NO: 2016/6633
DATE OF DECISION: May 3, 2016
CAN LAWYERS TESTIFY ABOUT THEIR CLIENTS?
The decision rendered by the local court has been reviewed through the appeal process and, where deemed necessary, deliberated and finalized:
Decision
1- ) From the scope of the file, on 9.6.2005, at an as yet undetermined time, the front right door handle of a parked vehicle with license plate number … was pushed open, a … brand car stereo was stolen at the scene, no evidence related to the incident was found during the investigation, the investigation is ongoing, the vehicle theft occurred within the scope of vehicle theft incidents, the perpetrators were identified, and fingerprints were taken from two separate incidents, … … was arrested in Istanbul on May 4, 2006, the defendant’s attorney’s dated statements were the same, law enforcement officers played the tape at the magistrate’s court …
in the Central District, and they committed their actions in many vehicles between 1:00 a.m. and 5:00 a.m. 00 a.m., the vehicle doors were opened with a screwdriver or knife as if to open fruit juice, they came to Istanbul on the day the theft occurred, four separate vehicles belonging to the same neighborhood were parked on the street, they played the tape, the time difference, the darkness, and… They did not know the addresses, they committed theft, they did not know the vehicle models, and they did not remember the crime, so they made statements about the characteristics on the tape, and during the trial, the defendants’ denials turned into…
The defendants, who had returned and signed the statement without reading it, stating that they were under pressure, were present during the lawyer’s testimony… During the trial, while the witnesses were being heard, no pressure was exerted on the defendants during their statements, and they recounted the story of the actions comfortably.
The court determined that the evidence at hand pointed to a conviction for the crime and that the defendants needed to understand this. In the defense taken by law enforcement on 4.5.2006, all car stereo thefts recently committed in the district by law enforcement were read out: “The crimes were committed between 01:00 and 05:00, the car doors were pried open with a screwdriver or knife, there was a time delay, it was dark outside, and …‘they did not know the addresses, car models, tape specifications, and could not remember the subject of the crime’ in the form of a confession,
These are generally, in the statement, alleged to the extent of every detail of the alleged fault to ensure the process of personalization, the rest, which was attributed to the defendants instead, is not only the most abstract of the theft actions, but we conclude that we cannot reach the defendants from a car stereo stolen by the complainant from a car stereo that occurred in the statement dated 4.5.2006, In this sense, it cannot be abstractly linked to the act of theft. During the trial phase, together with the defendants, the issue of denial of the crime must also be taken into account, as evidenced by the loaded, lawful, unambiguous, and definitive evidence indicating the time the crime was committed.
In accordance with the principle of universal criminal law, even if there is insufficient and unconvincing evidence, the principle that “the defendant benefits from the doubt” applies. Since it has not been established that the defendants committed the crime of theft, a written conviction should be issued instead of an acquittal.
By way of acceptance,
2 – a ) Pursuant to Article 46/1-a of the Criminal Procedure Code No. 5271, lawyers must be explicitly represented in order to testify about the consent of persons whose information they have obtained due to their place of work or the judicial district in which they are located, and therefore due to their professional capacity.
The last paragraph of the same article even stipulates that the lawyer shall be compelled to declare consent. Article 36 of Law No. 1136 stipulates that lawyers are prohibited from disclosing matters entrusted to them or learned in the course of their duties, and that they must obtain the consent of the employer in order to testify about such matters. According to the regulation, during the investigation phase, the lawyer representing the defendants may be heard as a witness even if the defendants have not given their consent, and even if the right to refuse to testify has not been reminded to them, and their statements may be relied upon in the ruling.
3- ) The plaintiff parked his vehicle at 20:30, and the defendant, realizing that a theft had been committed the next morning at 07:00, made statements between 01:00 and 05:00. When daylight saving time began, the sun rose at 05:15, as indicated by the question asked in UYAP. The period up to the letter “e” in the first paragraph of Article 6 of the Turkish Penal Code,
The crime was committed at 4:15 a.m. on the night in question. Due to the fact that the crime was committed at 4:15 a.m. on the night in question, there is a specific deficiency. Pursuant to the principle of “benefit of the doubt,” the ruling should have been based on the assumption that the act was committed during daylight hours. The rulings established for the crime of sudden increase arising from the crime resulted in excessive punishment by increasing the penalty in accordance with Article 143 of the Turkish Penal Code.
4- ) In accordance with the decision of the Constitutional Court regarding the annulment of its Decision No. 2014/140 and Decision No. 2015/85 concerning Article 53 of the Turkish Penal Code, it is necessary to reassess the deprivation of rights under Article 53 of the Turkish Commercial Code, published in the Official Gazette dated November 24, 2015, and numbered 29542.
5- ) Pursuant to Article 100 of Law No. 6352, the total cost of the 3.50 TL summons issued in this case, pursuant to Article 324 of the Criminal Procedure Code, pursuant to the sentence added to the fourth paragraph of Article 106 of Law No. 6183 on the Collection Procedures of Public Debts, it is determined that the amount is less than the amount that should be written off in the article and therefore will not be collected as court costs in favor of the defendants.
CONCLUSION:
Since the defendants’ grounds for appeal and their defenses requiring reversal are deemed valid at this time, it was unanimously decided on May 3, 2016, that the judgment be REVERSED for the stated reason, contrary to the notification.