T.C.
SUPREME
19. Criminal Department
Main Number : 2018/3074
Decision No :2018/4708
Decision Date : 18.04.2018
RESOLUTION OF THE DECISION DISPUTE – IN FAVOR OF THE APPEAL REQUEST
THE RESULT IS NOT RULED IN THE FIRST INSTANCE TRIAL
WHETHER THE PROXY FEE CAN ALSO BE RULED –
THE POWER OF ATTORNEY THAT IS BOUND TO BE JUDGED AGAINST THE ACCUSED
THE FEE SHOULD ALSO BE DECIDED
SUMMARY: the Criminal Court of First Instance which had himself represented by a proxy, the attendee made by the defendant as a result of the trial, which will be given about “the provision on whether to an acquittal or criminal provisions of law, to be consulted to review the appeal against the path, following the decision of the Criminal Court of first instance, the study of Regional Justice Criminal Division of the court as a result of the retrial of the defendant and I have done the trial that decides an offence on conviction thrown about in the event, only the path of the law, not to judge the appeal, in fact, it was decided that if the first instance court had made the right and correct decision about the defendant in accordance with the law, it should also rule on the power of attorney fee, which should definitely be ruled in favor of the participant and against the defendant.
(5235 Pp. K. m. 35) (5271 Pp. K. m. 280, 289, 303, 324, 327) (1136 P. K. m. 164, 168)
A-) THE APPLICATION FOR THE RESOLUTION OF THE DECISION DISPUTE
Samsun Regional Court of Justice Board of Presidents with the Decision dated 12.05.2017, 2017/12 number and 2017/6 Decision numbered Samsun Regional Court of Justice 5. Samsun Regional Court of Justice with the decision of the Criminal Chamber dated 01.02.2017, 2016/49 Basis, 2017/116 Decision numbered 6. The decision of the Criminal Chamber dated 15.02.2017, 2016/202 Basis, 2017/243 numbered Decision35 of the Law No. 5235 on the Duties and Powers of the Establishment of Courts of First Instance of Judicial Jurisdiction and Regional Courts of Justice on disputes over power of attorney fees, entitled ”Duties of the Board of Presidents”. he wanted to be removed according to the article.
B-) THE OPINION OF THE CHIEF PUBLIC PROSECUTOR OF THE COURT OF CASSATION ON THE DECISION DISPUTE
AND THE DEMAND
5 of the Samsun Regional Court of Justice. and 6. In the request stated that there is a dispute between the Criminal Departments as to whether the power of attorney fee, which is not ruled in the first instance trial, can also be ruled or not, which is concluded in favor of the appeal request, “Dec. 2 and 14 of the Minimum Wage Tariff for Lawyers published in the Official Gazette dated 02.01.2017 and numbered 29936. with articles 2. in the section, the persons in whose favor the attorney’s fee will be ruled and the procedures and principles for the rightfulness of the attorney’s fee, the amount are regulated. As it is understood from the articles of the mentioned law, the power of attorney fee will be awarded for those who have concluded a trial in his favor and represent him with a proxy. If the results of the first instance trial and the Appeal trial are the same, there is no problem with the power of attorney fee to be ruled. That is, in the first degree of judgment, he himself
the proxy fee will be decided in favor of the defendant who is represented by a proxy and acquitted. If the participant appeals, as a result of the appeal trial with a hearing, the verdict of acquittal in the first instance is upheld, and if it is decided to reject the request for appeal, again, the appeal trial in favor of the defendant who has represented himself with a proxy A.A.Finish.T.the proxy fee stipulated by the will also be ruled. On the contrary, the court of appeal ruled that the decision of the local court was unlawful and acquitted
the law that is formed when the defendant decides on the abolition of his sentence and the conviction of the defendant will be the conviction of the defendant. If this law had been formed correctly at the beginning, the participating attorney would have been entitled to a power of attorney fee both in the first instance trial and in the appeal trial. In this case, in order not to hold the participant responsible for the wrong formation of the law in the trial of the first instance and to establish balanced justice, it is a requirement of fairness that the Criminal Department of the Regional Court of Justice, which accepts the request for appeal, also rules on the power of attorney fee, which cannot be ruled in the trial of the first instance. For the reasons explained, Samsun Regional Court of Justice 5. The “decision of the Criminal Department ruling on the sole surrogacy Fee” is contrary to the procedures and laws.”the opinion has been declared in the form of, as a result of the Decree Law No. 696 m. pursuant to Article 92/2 and paragraph 35/1 of the law No. 5235 amended by Article 1, Samsun Region
Courthouse Court 5. With the determination that the decision of the Criminal Chamber numbered 2016/49 and the decision numbered 2017/116 are contrary to the procedures and laws, the dispute has been requested to be resolved.
C-) DECISIONS ON THE REQUEST TO RESOLVE THE DECISION DISPUTE
Samsun District Court of Justice 5. The Criminal Chamber dated 01.02.2017, 2016/49 Basis, 2017/116 Decision numbered and Samsun Regional Court of Justice 6. Decisions of the Criminal Chamber dated 15.02.2017, 2016/202 Basis, 2017/243 Decision numbered.
D-) THE REGIONAL COURT OF JUSTICE SUBJECT TO THE RESOLUTION OF THE DECISION DISPUTE PUNISHMENT
SUMMARIES OF THE DECISIONS OF THE DEPARTMENTS
1. The path of the law of Appeal, during the examination of the CPC 280/1-c material required shall be given the provision that in case of granting a retrial, the court of First Instance and appeal to the judgment of the Criminal Court to the decision that it should be judged separate retainer Vakfıkebir 12.10.2016 date 2016/10 principles and decision by decision of the public officer because of his position 2016/353 the crime of insult to the criminal provision was made against the defendant during the trial and in the same judgment the decision on whether to participating in attorney fees in favor of the contract represented by the proxy itself has not been ordered. Following the application for a legal remedy of appeal by the participating deputy for this decision, the Samsun Regional Court of Justice, which conducted the appeal examination, is 6. The Criminal Department decided to open a hearing on the case and as a result of the trial, 15.02.2017
the date is 280/2 of the CMK with the decision No. 2016/202 and the decision No. 2017/243. in accordance with the article, the court of first instance decided to annul the decision, convict the accused of a discarded crime and, as a result, postpone the announcement of the verdict against the accused. In the same decision, it was decided that 1,980.00 Turkish liras for the first instance trial and 990 Turkish liras for the appeal trial were completed with a hearing in accordance with the provisions of the minimum wage tariff for lawyers, and the proxy fee was taken from the defendant and given to the Ministry of Health of the Republic of Turkey, who represented him with a katliam proxy. Appeal against the relevant decision on 21.03.2017
it has been finalized without being finalized.
2. During the examination of the legal way of appeal, in accordance with Article 280/1-c of the CMK, the decision to be made to reconsider the case in the provision that only the power of attorney fee for the appeal trial should be ruled on the decision of the Kavak Criminal Court of First Instance dated 17.08.2016, 2016/71 and 2016/321 Decision numbered 6831 accused of violating the Law
a decision of acquittal was made against him and in the same decision, the proxy fee was not ruled in favor of the participating institution that represented him with a proxy during the trial. Following the application for a legal remedy of appeal by the deputy of the institution participating in this decision, the Samsun Regional Court of Justice, which conducted the appeal examination, is 5. The Criminal Department decided to open a hearing on the case and as a result of the trial, the CMK decided on the basis of 2016/49 and 2017/116 dated 01.02.2017 with its decision numbered 116
In accordance with Article 280/2, the court of first instance decided to abolish the decision, convict the accused of a neglected crime and, as a result, postpone the announcement of the verdict against the accused. In the same decision, according to the provisions of the minimum wage tariff for lawyers, since the case was completed with more than one hearing only for the appeal trial, it was decided that the proxy fee of 1,980.00 Turkish liras should be taken from the defendant and given to the participating institution. The relevant decision was made on 03.04.2017 without appeal
it has been finalized.
E-) CONCEPTS, INSTITUTIONS AND LEGAL REGULATIONS RELATED TO DECISION DISPUTE
1. NO. 5235 OF THE COURTS OF FIRST INSTANCE OF JUDICIAL JURISDICTION AND THE REGIONAL COURTS OF JUSTICE
RELEVANT PROVISIONS OF THE LAW ON THE ORGANIZATION, DUTIES AND POWERS
Amended by Article 92 of the Law No. 5235 dated 20/11/2017 and Decree Law No. 696, entitled “Powers of the Board of Presidents” 35/3. article, “the court ex officio or regional division of the public prosecutor or the relevant law or criminal justice, Criminal Procedure, civil law, or according to the law, seek the help of those with a right to appeal, the court of justice in similar events regional final decisions issued by civil or criminal court or the Office of civil or criminal justice with the court between the other regional department given by the exact nature of
if there is a dispute between the decisions, they have introduced the rule ”to request a decision on this issue from the Supreme Court by adding their own opinions upon their request for the resolution of this dispute Decisively.
35/4 of the Law No. 5235 dated 20/11/2017 and amended by Article 92 of the Decree Law No. 696 entitled “Powers of the Board of Presidents”. article, “To fulfill other duties given by law.(Amended paragraph: 20/11/2017 – Decree-Law-696/92 art.; Exactly accepted: 1/2/2018-7079/87 art.) (3) requests to be made in accordance with subparagraph shall be forwarded to the Chief Public Prosecutor of the Court of Cassation in criminal cases and to the relevant civil chamber in civil cases. Supreme Court Chief Public Prosecutor’s Office dispute
if he believes that he has been found, he requests a decision to be made from the relevant criminal department. The decisions made by the department in accordance with this paragraph regarding the resolution of the dispute are final. The board of presidents meets in full and mostly makes decisions.
(October clause: 20/7/2017-7035/12 art.) The division of labor between the criminal and civil departments of the regional courts of Decency, taking into account the intensity and nature of incoming work, is determined by the Board of Judges and Prosecutors.” contains editing in the form.
2. RELEVANT PROVISIONS OF CMK NO. 5271
280/1 entitled ”Examination and prosecution in the district court of justice”. article;
(1) The regional court of justice, (…) (1) after examining the file and the evidence submitted with the file,
later;
a) procedural or substantive law in the decision of the court of first instance whether there is a breach of any law, or any deficiency in the evidence that is not in the process of proof in terms of the evaluation is in place when it detects that the appeal of the merits of the appeal denial, Article 303, paragraph I (a), (c), (d), (e), (f), (g) and (H) in the event of violation of paragraphs contained in the law of the merits of the appeal and appeal of denial of a breach is corrected,
b) (October: 20/7/2017-7035/15 art.) If the public prosecutor deems it appropriate to apply the lowest degree of punishment written in the law for the crime subject to conviction in accordance with the reason for applying to the appeal, the violation of the law will be corrected and the appeal application will be rejected on the merits.,
c) (October: 20/7/2017-7035/15 art.) Decision to dismiss the case without the need for further investigation of the incident or to correct the erroneous decision regarding security measures in cases where the violation of the law needs to be corrected and the appeal application rejected on the merits,
d) in the decision of the court of First Instance of the first paragraph of Article 289 (g) and (H) other paragraphs specified in paragraphs except in case of violation of the law because of the presence of corruption and deteriorating provision the provision to review the file again and hukmolunmak that it deems appropriate in its jurisdiction, the court of first instance or the court of First Instance to be sent to other,
e) In other cases, after taking the necessary measures (…) Decides to re-examine the case and start the trial preparation procedures.
(2) (October: 18/6/2014-6545/77 art.) At the end of the hearing, the regional court of justice rejects the appeal application on the merits or abolishes the judgment of the court of first instance and re-establishes the judgment.
(3) (October: 20/7/2017-7035/15 art.) If the decisions made in accordance with the first and second paragraphs are in favor of the defendant, if these issues can also be applied to other defendants who have not filed an appeal, these defendants also benefit from the Decisions made as if they had filed an appeal.
3. RELEVANT PROVISIONS OF THE LAW NO. 1136 ON ADVOCACY
a) 164/1 entitled ”Attorney’s fee”. article;
Attorney’s fee refers to the amount or value that is the equivalent of the lawyer’s legal assistance,
b) 168 entitled ”Preparation of attorney’s fee schedule”. article;
The administrative boards of the bar association prepare a tariff indicating the minimum amount of attorney’s fees to be collected from transactions in judicial places and other transactions every year in September and send it to the Union of Bar Associations of Turkey.
The tariff to be applied by the Board of Directors of the Union of Turkish Bar Associations, taking into account the proposals of the bar association’s boards of directors, is prepared by the end of October of that year and sent to the Ministry of Justice.
(October sentence: 16/6/2009-5904/35 art. So far prepared in the schedule; in the general budget, special provincial administrations, municipalities and villages of taxes, duties, fees, and financial obligations, and penalties and litigation and raise them in relation to the tariffs of the implementation of the Law No. 6183 on the procedure of collection of public receivables arising from the amount of attorney fees for all cases of lump-sum is determined. This tariff has not been decided by the Ministry within one month from the date of receipt by the Ministry of Justice, or the tariff
it becomes final if approved. However, the Ministry of Justice sends the tariff that it does not find appropriate back to the Union of Turkish Bar Associations for further discussion on the grounds that it shows. This tariff, which is sent back, is considered approved by the Board of Directors of the Union of Turkish Bar Associations by a two-thirds majority if it is accepted exactly, otherwise it is not approved; the result is notified to the Ministry of Justice by the Union of Turkish Bar Associations. the provisions of the sixth paragraph of Article 8 shall apply by comparison.
In the estimation of the attorney’s fee, the tariff in force at the time of completion of the legal assistance or the verdict at the end of the case is taken as the basis,
c) 169 entitled ”The amount of attorney’s fees to be charged to the judicial authorities against the party”. article; The attorney’s fee to be charged to the other party by the judicial authorities may not be less than the amount written in the attorney’s fee schedule and more than three times.
4. THE MINIMUM NUMBER OF LAWYERS PUBLISHED IN THE OFFICIAL GAZETTE DATED 02.01.2017 AND NUMBERED 29936
FARE SCHEDULE
a) ”Jobs covered by attorney’s fees” titled 2. article;
(1) The lawyer’s fee written in this Tariff is the equivalent of the lawsuit, work and transaction fee until the final verdict is obtained. The case pursued by the lawyer or the petition organized in relation to the work and other transactions carried out do not require a separate fee. In case of refusal or acceptance of the requests related to the amendment of the provisions, the lawyer’s fee cannot be imposed.
(2) On the other hand, the hearings of the works that are heard on appeal in the Court of Cassation, the Council of State, the Military Court of Cassation and the Court of Accounts, as well as on the application for appeal in the regional administrative and regional courts of justice, with enforcement proceedings require a separate fee.
b) Article 14 entitled ”Remuneration in criminal cases”. article;
(1) If it has been decided to postpone the announcement of the conviction or the verdict upon participation in the public trial, the attorney fee determined in the second part of the second part of the Tariff in favor of the participant who has a lawyer shall be charged to the defendant.
(2) Only in cases where a fine is imposed in accordance with a special law, statutes and decrees bearing a criminal provision, the lawyer’s fee to be determined in accordance with the Tariff may not exceed the amount of the fine imposed.
(3) In accordance with Articles 141 and continuation of the Criminal Procedure Code dated 4/12/2004 and numbered 5271, in applications filed with Heavy Criminal Courts for compensation, a lawyer’s fee is awarded in accordance with the third part of the Tariff. In so far, this fee to be ruled cannot be less than the fee in the twelfth row number of the second part of the second part.
(4) In the interest of the accused who has been acquitted and who has represented himself with a proxy, the attorney’s fee of the victim shall be awarded against the Treasury.
(5) If the decision of the court of first instance is annulled upon the acceptance of applications such as refutation, removal from internet broadcasting content, appeal against administrative fines or appeal against the decision of the court of first instance, the work is held without a hearing or a hearing, according to the second part of the first part 1. the lawyer’s fee is decided as stipulated for the next job. However, the amount of the administrative fine subject to the application is the second part of the Tariff, the first part 1. if the victim is below the fee stipulated for the next job, the lawyer’s fee is ruled as well as the administrative fine.
c) 2 of the same tariff. section 2. section 9 under the heading of ”Fees to be Paid for Legal Aid Made in Judicial Places and Enforcement and Bankruptcy Offices, the Subject of which is Not Money or Cannot be Evaluated with Money”. article;
1.980,00 TL for cases pursued in the Courts of First Instance
d) 2 of the same tariff. section 2. section 18 under the heading ”Fees to be Paid for Legal Aid Made in Judicial Places and Enforcement and Bankruptcy Offices, the Subject of which is Not Money or Cannot be Evaluated with Money”. article;
The regional administrative courts and the regional courts by way of appeal if it is followed by the follow-up a) to work with a hearing 990,00 TL, b) more than one trial lawyer and discovery operations required for jobs such as in the presence of the poet 1,980,00 TL ‘ foresees the payment of fees.
F-) JUSTIFICATION
The power of attorney fee is the value to which the lawyer is entitled as a result of the performance of the defense duty he undertakes against his client. Undoubtedly, this fee arises from the contractual relationship that takes place between the proxy and the lawyer. Decisively, this fee is due to the contractual relationship that takes place between the proxy and the lawyer. The lawyer by his client for Legal Services; a case consultation, deliberation, or administrative process may be as many as a reference to legal representation, in the case of a criminal proceeding in dispute as it is for the judiciary to the client
it can also take place in the form of representation or defense service in front of the organs. Before you reveal and defend the rights of the people entitled to judicial organs in order to ensure that due process of law lawyers legal services offered by the parties must be represented by a proxy, which resulted in favor of themselves in the event that criminal proceedings will be awarded attorney fees against the party of law and unfair it is indisputable that.
324 of the CMK No. 5271 entitled ”Judicial Expenses”. and in the continuation articles, ”attorney’s fees to be paid according to the tariff” are counted together with the trial expenses. In addition, in the judgments and decisions to be made by the courts, it is written in the same law that the costs of the trial and to whom they will be charged must be shown.
327 of the CMK No. 5271 entitled ”If it is decided that there is no place for acquittal or punishment, it goes away”. according to the article; “…a person is sentenced to pay expenses caused only by his own fault, … the expenses that this person has to pay in advance are assumed by the State Treasury …” he is the supervisor of the provision. According to the text of the Article, if a decision of acquittal is made against the defendant in the criminal trial and he represents himself with at least one attorney, the attorney fee is ruled in favor of the defendant, and this
there is also no hesitation that the fee should be paid by the State Treasury, which is the subject of unfair proceedings. However, if a decision is made that there is no place for punishment, it is understood that the power of attorney fee will not be imposed on an accused who has a defect according to the reason for the decision and who is believed to have caused a criminal case to be opened against him.
The way of appeal, which is one of the usual legal ways to apply against the provisions given by the courts of first instance in criminal proceedings, contains different features from the legal way of appeal. The provisions on the legal way of applying for an appeal are 272 to 285 of the CMK No. 5271. it is regulated between the articles and 280/1 of the same Dec. according to the article, which is presented in conjunction with the Regional Justice court file and after reviewing the evidence, procedural or substantive law in the decision of the court of first instance whether there is a breach of any law, or any deficiency in the evidence that is not in the process, discovers that the proof is in place in terms of assessment appeal if the appeal of the merits of denial, CMK 303/1. article ”a, c, d, e, f, g and h” in the event of the existence of violations contained in paragraphs, the violation of the law is corrected and the appeal application is rejected on the merits. If the public prosecutor deems it appropriate to apply the lowest degree of punishment written in the law for the crime subject to conviction in accordance with the reason for applying to the appeal, the violation of the law will be corrected and the appeal
289/1 of the CMK in the decision of the court of first instance on the rejection of the application on the merits, the decision on the rejection of the case without the need for further investigation of the incident, or in cases where the erroneous decision on security measures needs to be corrected, the rejection of the appeal application on the merits by correcting the violation of the law. article ”g and h” except for the other subparagraphs, in case of finding a reason for violation of the law specified in the other subparagraphs, the provision will be overturned and the file will be re-examined and ruled
it is clear by the wording of the Law that decisions should be made on sending the overturned judgment to the court of first instance or to another court of first instance that it deems appropriate in its jurisdiction, in other cases, after taking the necessary measures, the case should be re-examined and preparations for the trial should be started. 2 Of the same article. in accordance with paragraph 3 of the same article, at the end of the hearing, the district court of justice must either reject the appeal application on the merits or re-establish the judgment by abolishing the judgment of the court of first instance. in the paragraph, if the decisions made in accordance with the first and second paragraphs are in favor of the defendant, if these issues can also be applied to other defendants who have not filed an appeal, it is stipulated that these defendants can also benefit from the decision made as if they had filed an appeal.
In two separate cases, two different criminal courts of first instance located within the jurisdiction of the Samsun Regional Court of Justice decided to acquit one of the defendants for the crime committed against him, and another defendant decided that there is no place for sentencing, and it is clear that in both decisions of the criminal court of first instance, the attorney’s fee is not ruled in accordance with the Minimum Wage Tariff. After both of the decisions of the criminal court of first instance were subject to separate legal appeals, the Samsun Regional Courts of Justice 5. The Criminal Department and
6. As a result of the examination carried out by the Criminal Department, a hearing was opened and it was decided to re-examine the cases. As a result of the re-trial, the Criminal Departments of both Regional Courts of Justice decided to postpone the conviction of the defendants and the announcement of the sentences of the conviction. The reason for the Decisional dispute between the Criminal Departments of the Regional Courts of Justice is; Samsun Regional Court of Justice 6. In the decision of the Criminal Chamber dated 12.10.2016, both against the accused
although the power of attorney fee, which should be ruled by the court of first instance, but is not ruled, and the power of attorney fee, which should be ruled for the legal way of appeal, is ruled separately, Samsun Regional Court of Justice 5. This is due to the fact that in the decision of the Criminal Chamber dated 12.10.2016, only the power of attorney fee was ruled against the defendant for the appeal legal proceedings.
The mining law of appeal the court of First Instance of the Proceedings of the way through the procedure that contains the differences to be obvious during the trial himself represented by the proxy situations and the outcome of the trial in favor of a minimum wage law, the prevailing party in accordance with the regulation on the date of the decision being a necessity retainer ordered in response to the provision contrary to the law and the Local Court decided it was a judgment of acquittal of the defendant’s conviction and the abolition of the Regional Justice Court, who decided to Samsun 5. Not only for the Criminal Chamber to judge the legal way of appeal, but also if the correct and lawful determination had actually been made by the court of first instance and a decision had been made on the defendant’s conviction, it should have been ruled
it has been concluded that he should also rule on the proxy fee that will be required.
G-) RESULT
As a result of the trial conducted by the criminal courts of the first instance, in which the participant represented himself with a proxy, the defendant was charged under Article 223 of the CMK No. 5271. the regional courthouse, which examines the decisions of the relevant criminal court of first instance, after applying for a review of the legal way of appeal against the provisions “that there is no place for acquittal or punishment”, which will be issued in accordance with Article
280 of the criminal department of the court, CMK. according to the article retrial has done to give the judgment that decides the defendant as a result of an offence on conviction thrown about in the event, only the path of the law, not to judge the appeal, in fact, made the correct decision about the defendant and the court of first instance by participating in lawful if it had been in favor of defendants and against the rule, which is surely to be judged in addition to the attorney’s fee should be unanimous on 18.04.2018,
it was decided.
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