Pursuant to Article 26 of the Attorney Act, a trainee attorney may attend court hearings related to cases and matters handled by the supervising attorney and may perform duties at enforcement offices under the supervising attorney’s supervision and responsibility. If a trainee attorney becomes a victim of a crime during their internship, that crime is deemed to have been committed against a public official. You may review the sample Supreme Court decision.
4th Criminal Chamber
Case No.: 2020/10625
Decision No.: 2020/18808
“Text of the Judgment”
COURT: First Instance Criminal Court
OFFENSE: Insult
JURISDICTION: Conviction
DECISION
An appeal was filed against the decision rendered by the Local Court, and the case was reviewed taking into account the appeal period, the nature of the decision, and the date the offense was committed:
Since there were no grounds for dismissing the appeal, the matter proceeded to the next stage.
Based on a review of the transcripts, documents, and the reasoning reflecting the trial process that formed the basis of the judgment, no other cause was found at the scene of the incident.
However;
in the event that the defendant insulted the trainee attorney who accompanied the enforcement officer to carry out the seizure proceedings, considering that the official would be deemed a public official while performing the duties specified in Article 26, the question of whether the official met the conditions mentioned above; The decision to punish the defendant under Article 125/3-a due to an incomplete trial without conducting an investigation based on bar association records;
The Summary Trial Procedure is regulated by Article 24 of Law No. 7188 dated October 17, 2019, and Article 251 of the Criminal Procedure Code (CMK) No. 5271.
However, regarding the application of this regulation, subparagraph (d) of Transitional Article 5, added to the Code of Criminal Procedure No. 5271 by Article 31 of Law No. 7188, has been included; “As of January 1, 2020, the expedited trial procedure and the simplified trial procedure shall not apply to cases in which the prosecution phase has been initiated, a decision has been rendered, or the case has been concluded.”
.
The Constitutional Court (June 25, 2020, 2020/16, 2020/33; Official Gazette August 19, 2020, No. 31218), examined the matter through concrete norm review and determined that the phrase “the investigation phase has been completed” in subparagraph (d) of the aforementioned transitional provision was contrary to the principle of “simplified trial procedure” set forth in Article 38 of the Constitution, and ruled to annul it.
Although the Constitutional Court’s decision did not order the annulment of cases in which convictions had already been handed down, the trial phase for such cases continued until its conclusion, in accordance with Article 2/1-(f) and Article 251/3 of Law No. 5271. According to the provision, in the event of a conviction, a reduction of one-fourth of the final sentence is provided for, and this constitutes a positive regulation for cases where the appellate review is ongoing.
In its annulment decision, the Constitutional Court ruled that the new provision introduced in favor of the defendant for cases “in the trial phase” through Article 31 of Law No. 7188 and the Transitional Article 5 added to Law No. 5271 must be applied; and with regard to offenses covered by Article 251/1 of the same Law, there is an obligation to re-evaluate the case in accordance with Article 38 of the Constitution, Article 7 of the Turkish Penal Code No. 5237, and Articles 251 and other relevant provisions of the Code of Criminal Procedure No. 5271.
On December 8, 2020, by unanimous decision, it was ruled that the judgment must be set aside and, upon finding the defendant’s grounds for appeal to be well-founded, the judgment was annulled upon notification, and the case was remanded to the court of first instance to be continued and concluded starting from the stage prior to the reversal.