Suspension Of The Explanation Of The Judgment – Counter Power Of Attorney
2nd Criminal Chamber
Basis: 2011/9118
Decision: 2011/6579
The defendant S…. was sentenced to 6 months and 20 days imprisonment pursuant to Articles 142/1-f, 168/1, 62 of the Turkish Penal Code No. 5237, the announcement of the verdict was deferred pursuant to Article 231/5 of the Code of Criminal Procedure No. 5271, and it was decided to be subjected to a probation measure for 5 years pursuant to Article 231/8. Since it was decided to be subjected to supervised release measures for 5 years in accordance with Article 231/8 of the Criminal Procedure Law No. 5271 and to defer the announcement of the verdict, it was decided that there was no place for the appreciation of the attorney fee in favor of the participating institution, …The objection made by the attorney of the participant against the decision of the …Criminal Court of First Instance dated 11/03/2010 and numbered 2009/343, 2010/43 was accepted and the verdict was corrected to award an attorney fee in favor of the participating institution… The High Ministry of Justice against the decision of the …Assize Criminal Court dated 06/04/2010 and numbered 2010/281 different business dated 06/04/2010 and numbered 2010/281. 01.01.2011 and numbered 2010/637-3711, the case file was sent to our office with the notification of the Supreme Court of Appeals Chief Public Prosecutor’s Office dated 07.03.2011 and numbered 2011/62994 and read.
In the notification requesting reversal in favor of the law;
According to the scope of the entire file, the decision was objected to in terms of not awarding an attorney fee despite the decision to defer the announcement of the verdict, but in case of an appeal against the decision to defer the announcement of the verdict, the appeal authority may examine whether there are conditions for the decision to defer the announcement of the verdict and whether there is a violation of the law in the decision to defer the announcement of the verdict, Since there is no merit in making a written decision instead of rejecting the objection, since it is not deemed appropriate to make a written decision instead of rejecting the objection, since the unlawfulnesses in the content of the unexplained conviction cannot be audited, and such unlawfulnesses can only be examined by way of appeal when the case is decided to be dismissed or if the verdict is announced or a new verdict is established, the need to revoke the aforementioned decision in accordance with Article 309 of the Code of Criminal Procedure No. 5271. Pursuant to Article 309 of the Code of Criminal Procedure No. 5271, the need for reversal of the aforementioned decision has been notified based on the request for reversal in favor of the law.
IT IS NECESSARY TO CONSIDER:
With the decision of the …Criminal Court of First Instance dated 11.03.2010 and numbered 2009/343, 2010/43, it was decided to defer the announcement of the verdict for the offense of electricity theft in accordance with Article 231/5 of the Code of Criminal Procedure No. 5271. Upon the objection of the participant’s attorney that the attorney’s fee should not be ruled, the …Assize Criminal Court evaluated the conditions for the deferral of the announcement of the verdict and accepted that there was no inconsistency in the decision to defer the announcement of the verdict in the reasoning, but it was decided to accept the objection as the subject of the objection and to correct the verdict as “to take the attorney’s fee of 1000 TL from the defendant and to give it to the participant institution in accordance with the Attorney Minimum Fee Tariff in force on the date of the verdict.”.
In the 5th paragraph of Article 231 of the Law No. 5271, due to the regulation stating that “The deferral of the announcement of the verdict means that the established verdict does not have any legal consequences for the defendant”, in the event that the announcement of the verdict is deferred, in terms of this decision, which is subject to objection in accordance with paragraph 12 of the same article, the objection authority can only determine whether the conditions in Article 231 of the Law No. 5271. A limited evaluation can be made regarding whether the conditions in Article 231 of the Law No. 5271 are present or not, and as stated in the decision of the Criminal General Assembly of the Court of Cassation dated 03.02.2009 and numbered 2009/4-13 Esas, 2009/12, it would be contrary to the regulations in Articles 231 and 271 of the aforementioned law to review the judgment that has not yet come into existence in accordance with paragraph 5 of the said article.
Unlawfulnesses in the content of the verdict can only be subject to ordinary and extraordinary remedies if the verdict comes into existence legally. In this respect; In the face of the fact that the sentence of conviction, the announcement of which is deferred, can only be subject to appellate review after the announcement of the verdict, the decision of dismissal or the establishment of a new conviction, and if it becomes final without applying to the appeal law, it can be examined by the legal remedy of reversal in favor of the law, if the conditions are found, and only at this stage, the unlawfulness in the content of the verdict can be inspected, Since it is not possible to examine the unlawfulnesses included in the content of the judgment, which has not been explained and has not come into existence legally, it is deemed appropriate to accept the objection of the participant’s attorney regarding the content of the judgment, and the request for reversal in favor of the law is deemed appropriate due to the correction made in the judgment regarding the attorney’s fee, (…). ) Assize Court and finalized, dated 06. 04.04.2010 and numbered 2010/281 D.İş was unanimously decided on 30.03.2011 in accordance with subparagraph (a) of paragraph 4 of Article 309 of the Code of Criminal Procedure numbered 5271.