In accordance with Article 26 of the law on advocacy, a trainee lawyer may, under the supervision and responsibility of a lawyer, attend hearings on cases and works pursued by a lawyer in magistrates ‘courts, magistrates’ courts and enforcement examination authorities and perform work in enforcement directorates. If a trainee lawyer becomes a victim of a crime while the lawyer he is interning with is doing his job, the crime will be committed against a public official. You can review the sample Supreme Court Decision.
Criminal Department
Part Number: 2020/10625
Decision Number: 2020/18808
“text of jurisprudence”
COURT OF First Instance: Criminal Court of First Instance
OFFENSE : Insult
SENTENCE : Conviction
DECISION
The decision made by the Local Court was appealed, and the file was discussed according to the duration of the application and the nature of the decision and the date of the crime:
Since there are no reasons for the rejection of the appeal request, the merits of the work were considered.
In the examination conducted according to the minutes, documents and content of the justification reflecting the trial process in which the conscientious blood was formed; no other reasons were found on the spot.
But;
26 Of Law No. 1136, provided that the defendant has the written consent of the lawyer he is interning with, in the event that the defendant insults the trainee lawyer who is going to the foreclosure together with the bailiff, the participant. considering that he will be considered a public servant when performing the works listed in the article, the question of whether the participant meets the mentioned conditions, without investigating the relevant Bar records, it is decided that the defendant will be punished in accordance with Article 125/3-a of the Turkish Criminal Code with incomplete prosecution,
By my admission, too;
day 17/10/2019 and day 24 of the Law No. 7188. according to Article 251 of the CMK No. 5271. in the article, a Simple Trial Procedure is regulated.
However, with regard to the implementation of this regulation, it should be noted that Law No. 7188 No. 31. according to Article 5, which was added to CMK No. 5271. the provision “As of 01/01/2020, the prosecution phase has been passed, the serial procedure procedure and the simple trial procedure are not applied in the files that have been adjudicated or finalized” has been introduced with subparagraph (d) of the Article.
The Constitutional Court, which examines the issue through a concrete norm audit (25/06/2020, 2020/16, 2020/33; R.G. 19/08/2020, Issue: 31218), the provision in the temporary article 5/d mentioned in the same paragraph of the phrase “the prosecution stage has been passed”, in terms of the “simple trial procedure” contained in the 38 of the Constitution. considering it contrary to the article, he decided to cancel it.
In the decision of the Constitutional Court, although the cancellation of the files attached to the provision has not been decided, the prosecution phase continues until the finalization of the files attached to the provision in accordance with Article 2/1-(f) of Law No. 5271 and the same Law No. 251/3. in the event that a conviction is imposed in accordance with the article, the result will be a quarter discount from the sentence, and this situation will introduce a favorable regulation in terms of files that are still being reviewed by the appeal,
In the decision of the Constitutional Court to cancel; The new regulation introduced in favor of the accused is the 31st Law of the Law No. 7188. provisional 5, which was added to CMK No. 5271 in accordance with Article 5. 251/1 of CMK No. 5271, which has been reviewed by the appeal and is No. 5271, since it is pointed out that it should be applied in terms of files that have been “moved to the prosecution stage” with its article. in terms of crimes covered by Article 38 of the Constitution. article 7 of the Turkish Commercial Code No. 5237 and CMK No. 5271 No. 251 et al. the obligation to re-evaluate in accordance with the articles,
Since the reasons for the defendant’s appeal are seen on the spot, it was unanimously decided on 08/12/2020 that the VERDICT should be OVERTURNED in accordance with the communiqué, the file should be sent to the main/sentencing court to be continued and finalized starting from the pre-trial phase of the trial, starting from the pre-trial phase.