Lawyers Not Delivering The Money Collected Or Received To The Client And Acquiring Property
T.C. JUDICIARY
5th Criminal Chamber
Main article: 2015/11443
Decision: 2016/352
Date of Decision: 14.01.2016
THE OFFENSE OF ABUSE OF TRUST DUE TO SERVICE – LAWYERS DO NOT DELIVER THE MONEY THEY COLLECT OR RECEIVE TO THE CLIENT AND TAKE IT AS PROPERTY – THE DECISION OF ACQUITTAL BASED ON INCOMPLETE INVESTIGATION AND INSUFFICIENT GROUNDS IS INAPPROPRIATE – THE VERDICT IS REVERSED
SUMMARY: Considering the dates of the notice and complaint sent by the defendant lawyers to the participant, the established practice of the court that the actions of the lawyers in the form of not delivering the money collected or received by the lawyers due to their duty and authority after 01/01/2009 to the client who is the business owner will constitute the crime of embezzlement, and that the concept of victimization, which is one of the objective punishment conditions for the crime of misconduct, has a broader meaning than the concept of economic damage, Taking into consideration that the acts that result in the violation of all kinds of social, political and civil rights of the individual and causing damage to any interest should also be evaluated within this scope, it is inappropriate to decide to acquit the defendants of the imputed offenses based on incomplete examination and insufficient grounds instead of determining and appreciating the legal status of the defendants separately.
(1136 S. K. art. 34, 166, 171) (5271 S. K. art. 223)
Case and Judgment: The judgments rendered by the local court were appealed, the file was examined and the necessity was considered:
In the examination of the file; in order to collect the receivables subject to the enforcement files numbered 2004/5275 and 5762 of the … Directorate of Execution, the participant appointed one of the defendants … as his proxy with the general power of attorney dated 22/10/2004 and registered no. 0023863 of the … Notary Public. With the general power of attorney dated 22/10/2004 and numbered 0023863 of the Notary Public, he appointed one of the defendants … as his attorney, and with the authorization documents dated 19/01/2007 and 27/03/2007, he authorized the other defendant to take action in line with all the powers within the scope of the power of attorney, in this context, both defendants are duly authorized and authorized to collect the receivables of the participant in the enforcement proceedings files subject to the trial, on the other hand, without the knowledge and instruction of the participant about the defendant lawyers, the debtors of the enforcement proceedings … They ensured the removal of the liens placed on the title deeds of the immovables numbered 2872 block 19 parcel and 28931 block 3 parcel registered in the title deed in the …neighborhood of …belonging to …, and also they did not give the debtor … the 15. 000 TL, which they collected from the debtor … externally from the debtor … due to the aforementioned follow-up files, were not given to the creditor participant and kept it in their possession, and that a public lawsuit was filed with the request that they be punished separately for the crimes of abuse of office and abuse of trust due to service, that the defendants denied the accusations in their defenses at the stages, that the statements of …, whose statements were taken as witnesses, were taken as 15. 000 TL for the removal of the liens placed on the title deeds of the immovable properties of which he was a shareholder due to two files, in this context, he handed the money to the other defendant lawyer at the door of the execution office, then the defendant lawyer removed the liens, the participant …, on the other hand, the defendant … did not give him the 15. 000 TL that the defendant … collected from the debtor İzzet, that the liens on the immovables belonging to the debtor were removed without his consent, that there were no files followed by the defendant lawyers other than the aforementioned execution files, that the defendant …, in his petition dated 15/07/2013, stated that …. paid him approximately 15.000 TL for the files numbered 2004/5418-5793-6027 Esas of the … Enforcement Directorate, whose creditors were his other clients, and that he paid him approximately 15. 000 TL, that he notified these payments to the relevant files, that all his rights in the files continue, that they agreed to remove the lien on the real estate since the debtor made a partial payment and promised to pay the rest when he sold the real estate, that the basis for their not paying the participant is clearly regulated in Article 166 of the Attorneyship Law. Article 166 of the Attorneyship Law, that the other defendant stated that he did every transaction he did within the framework of the law and in line with his instructions, and that he reported the numbers of the execution, civil and criminal files they followed on behalf of the participant’s client at the bottom of his petition, that Neşe, one of the defendants, requested the removal of the liens placed on the immovables registered in the name of the debtor … with his petition dated 05/07/2011 to both execution files, and that upon this request … the Land Registry Directorate of the Land Registry Office dated 07/07/2011, with the journal nos. 22593 and 22852. It was notified to the … Directorate of Execution that the execution lien was abandoned on the immovables numbered 2872 block 19 parcel and 28931 block 3 parcel with the writings on the abandonment of the execution lien, and the participant … by the participant … Notary Public dated 14/09/2011 and with the journal no. 15952. On the same date, the participant applied to both execution files and dismissed the defendant attorneys, and the debtor … was dismissed from the attorneyship without his knowledge and consent. The Execution Office has written a letter to the Land Registry Directorate in line with the request and it has been reported that an execution lien has been established on the immovable registered in the name of 28931 block 3 parcel numbered immovable in line with the request, on the other hand…The Land Registry Directorate’s 22/07/2011 day and 24402 journal no. With the letter dated 22/07/2011 and numbered 24402, it was reported that while the 49/2400 shares of the immovable property numbered 2872 block 19 parcel were registered in the name of …, an execution attachment was made on it, but that the sale transaction was made with the date and journal number of the letter, again, one of the defendants … stated that they collected 3. 500 TL externally from the debtor to the file numbered 2004/5275 and 2.000 TL externally from the debtor to the file numbered 2004/5762 on 23/09/2011 after the dismissal,
Although the accusations are denied, the essence of the defense is based on the right of imprisonment, the right of imprisonment defined in Article 166 of the Attorneyship Law No. 1136 can only be used in proportion to the attorney fee receivables and expenses incurred. The right of imprisonment defined in Article 166 of the Attorneyship Law No. 1136 can only be used in proportion to the attorney fee receivables and the expenses incurred, the attorney’s holding an amount of receivables and values collected on behalf and account of his client in excess of the fee and expense receivables under the name of “right of imprisonment” is contrary to the purpose of this right in the law, as well as contrary to the professional rules of attorneyship, and the attorney who uses the right of imprisonment, In fact, this is a natural consequence of the lawyer’s obligation to be accountable to his/her client; in fact, Article 34 of the Attorneyship Law stipulates that “Lawyers must fulfill the duties they have undertaken in a manner befitting the sanctity of this duty, with diligence, integrity and honor, and in a manner befitting the respect and trust required by the title of attorney, and must act in a manner befitting the respect and trust required by the title of attorney, and must act in a manner befitting the sanctity of this duty, and must act in a manner befitting the respect and trust required by the title of attorney. Article 34 of the Advocacy Law stipulates that “Lawyers are obliged to fulfill the duties they have undertaken in a manner befitting the sanctity of this duty with care, integrity and honor, and to behave in accordance with the respect and trust required by the title of lawyer, and to comply with the professional rules determined by the Union of Bar Associations of Turkey.” and Article 43 of the Professional Rules of the Union of Bar Associations of Turkey stipulates that Article 43 of the Professional Rules of the Union of Turkish Bar Associations stipulates that “Moneys and other values received on behalf of the client shall be announced and given to the client without delay”, that the lawyer can only use the right of imprisonment in respect of the attorney fee receivables that are due, that although there is no explicit provision in the Law on when the attorney fee is due, Article 171/1 of the Attorneyship Law stipulates that Article 171/1 of the Attorneyship Law states that “…the attorney shall follow the work undertaken by the attorney in accordance with the provisions of the law and to the end even if there is no written contract.” and Article 2 of the “Attorneyship Minimum Fee Tariff states that “…the attorney’s fee is the fee for lawsuits, works and transactions until the final judgment is obtained. ” provisions, it should be accepted that the attorney’s fee receivable becomes due with the completion of the work undertaken, accordingly, the lawyer cannot demand his fee without following the work to the end and concluding it, unless there is a contract to the contrary, nor can he use his right of imprisonment at this point, since legal proceedings are carried out based on a single attorney agreement during the follow-up of more than one lawsuit based on a generally regulated power of attorney, Although it is possible to use the right of imprisonment of the receivable collected from a lawsuit against the attorney fee arising from all lawsuits, since each of the power of attorney granted separately for each lawsuit will be a separate attorney contract, in this case, the right of imprisonment should be possible separately for each lawsuit/contract,
In this respect, in order to reveal the material truth in the case subject to trial; the witness … stated that the money given by the witness … to the defendant … was only the money given by the participant …. To take the statements of the defendants again about whether it was given for the removal of the liens on the immovable properties numbered 2872 block 19 and 28931 block 3 parcels in order to collect the receivables subject to the enforcement proceedings files numbered 2004/5275 and 5762 Esas of the Enforcement Directorate, or whether it was given for the removal of the liens imposed by other creditors who are the attorneys of the defendant lawyers, and to eliminate the contradiction between the statement of the said person on 01/02/2012 taken at the … C.. Chief Public Prosecutor’s Office on 01/02/2012 and the contradiction between the last statements, the contradiction should be eliminated in case of a discrepancy between the last statements, the petition of the defendants … dated 15/07/2013 referral dated … By obtaining a certified and legible copy of the files numbered 2004/5418-5793-6027 Esas of the Enforcement Directorate and the enforcement, civil and criminal files that he declared that they followed on behalf of the participant in the same petition, and taking into account the explanations made above regarding the right of imprisonment, as of 05/07/2011, when the money subject to the lawsuit was collected from the witness, the defendant … ‘s attorney fee receivable from the participant, and if so, the amount thereof, the money was collected from the debtor externally, this was notified to the enforcement files, the dismissal letter was notified to the defendants, the creditor made a statement to the enforcement office that he dismissed the defendants, the notice sent by the defendant lawyers to the participant and the dates of the complaint were taken into consideration, With the established practice of our Chamber that the actions of the lawyers in the form of not delivering the money collected or received by the lawyers due to their duty and authority after 01/01/2009 to the client and acquiring property will constitute the crime of embezzlement, the concept of victimization, which is one of the objective punishment conditions for the crime of misconduct, has a broader meaning than the concept of economic damage, taking into consideration that the actions that result in the violation of all kinds of social, political, civil rights of the individual and causing damage to any interest should also be evaluated within this scope, deciding to acquit the defendants of the imputed offenses with incomplete examination and insufficient grounds instead of determining and appreciating the legal status of the defendants separately,
According to the acceptance;
Although it was decided that the defendants were acquitted because the legal elements of the crimes attributed to them did not occur, Article 223/2-a of the Code of Criminal Procedure was not included in the verdict and Article 232/6 of the same Code was violated,
Conclusion: Since it is contrary to the law and the appeals of the participant have been deemed appropriate in this respect, it was unanimously decided on 14.01.2016 to VACATE the convictions in accordance with Article 321 of the Code of Criminal Procedure, taking into account Article 8/1 of the Law No. 5320.
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