In The Case Reopened At The Court Of Appeals, Both The Attorney Fees For The Plaintiff And The Local Court Attorney Fees Were Ruled
T.C.
COURT OF CASSATION
19th CRIMINAL CHAMBER
CASE NO: 2018/3074
DECISION NO: 2018/4708
DATE OF DECISION: 04/18/2018
>>REQUEST FOR RESOLUTION OF DISAGREEMENTS BETWEEN CRIMINAL CHAMBERS OF REGIONAL COURTS OF APPEAL REGARDING ATTORNEY FEES – DETERMINATION OF ATTORNEY FEES
SUMMARY: Following the appeal against the first instance criminal court’s decision to acquit the defendant or find that there were no grounds for sentencing, the regional court of appeal criminal division, which reviewed the relevant first instance criminal court decisions, decides to retry the case and, as a result of the trial, convicts the defendant of the alleged crime, it must also rule on the attorney’s fees that would have been awarded in favor of the plaintiff and against the defendant if the first instance court had rendered a lawful and correct decision regarding the defendant, not only for the appeal proceedings but also for the original trial.
A-) APPLICATION FOR RESOLUTION OF THE CONFLICTING DECISIONS
The Samsun Regional Court of Appeals Council, with its Decision dated 12.05.2017, numbered 2017/12 and 2017/6, and the Samsun Regional Court of Appeals 5th Criminal Chamber’s ruling dated 01.02.2017, No. 2016/49, Decision No. 2017/116, and the Samsun Regional Court of Justice 6th Criminal Chamber’s ruling dated 15.02.2017, No. 2016/202, 2017/243 Decision dated 15.02.2017, regarding the dispute over attorney’s fees, in accordance with Article 35 titled “Duties of the Council of Presidents” of Law No. 5235 on the Establishment, Duties, and Powers of the Courts of First Instance and Regional Courts of Justice.
B-) OPINION AND REQUEST OF THE SUPREME COURT OF APPEALS PUBLIC PROSECUTOR’S OFFICE REGARDING THE DECISION DISAGREEMENT
The request states that there is a conflict between the 5th and 6th Criminal Chambers of the Samsun Regional Court of Appeals regarding whether attorney fees not awarded in the first instance trial can be awarded, as the appeal was granted in their favor. Articles 2 and 14 and Part 2 of the Minimum Attorney Fee Schedule published in the Official Gazette dated 02.01.2017 and numbered 29936 regulate the persons in whose favor attorney fees will be awarded and the procedures and principles for earning attorney fees, as well as the amount thereof. As understood from the articles of the law referred to, attorney fees will be awarded in favor of those who are represented by an attorney and whose trial results in their favor. There is no problem with the attorney fees to be awarded if the results of the first instance trial and the appeal trial are the same. That is, in the first instance trial, attorney fees will be awarded in favor of the defendant who is represented by an attorney and acquitted. If the participant appeals, and the appellate court, after a hearing, upholds the first instance acquittal and rejects the appeal, attorney’s fees as stipulated by the A.A.Ü.T. for the appellate proceedings will also be awarded to the defendant who represented himself through an attorney.
Conversely, if the appellate court decides that the local court’s judgment is contrary to the law and decides to overturn the acquittal and convict the defendant, the resulting law will be the defendant’s conviction. If this resulting law had been correct from the outset, the plaintiff’s attorney would have been entitled to attorney’s fees both in the first instance trial and in the appeal trial. In this case, in order not to hold the participant responsible for the incorrect establishment of the law in the first instance trial and to establish balanced justice, it is fair for the Criminal Chamber of the Regional Court of Appeals, which accepted the appeal request, to also rule on the attorney’s fees not awarded in the first instance trial.
For the reasons explained, the opinion was expressed that the decision of the 5th Criminal Chamber of the Samsun Regional Court of Justice “ruling on a single attorney’s fee” is contrary to procedure and law. Consequently, pursuant to Article 92/2 of Decree-Law No. 696, as amended by Article 35/1 of Law No. 5235, the 5th Criminal Chamber of the Samsun Regional Court of Justice ruled that the attorney’s fee should be awarded. 2 of Law No. 5235, as amended by Decree-Law No. 696, it was requested that the decision of the 5th Criminal Chamber of the Samsun Regional Court of Justice, numbered 2016/49 and 2017/116, be determined to be contrary to procedure and law and that the dispute be resolved.
C-) DECISIONS SUBJECT TO THE REQUEST FOR RESOLUTION OF THE DECISION DISAGREEMENT
Samsun Regional Court of Appeals 5th Criminal Chamber’s decision dated 01.02.2017, Case No. 2016/49, Decision No. 2017/116, and Samsun Regional Court of Appeals 6th Criminal Chamber dated February 15, 2017, Case No. 2016/202, Decision No. 2017/243.
D-) SUMMARIES OF THE REGIONAL COURT OF APPEAL CRIMINAL CHAMBER DECISIONS SUBJECT TO THE RESOLUTION OF THE DECISION DISAGREEMENT
1. Decision that, in the event that a decision is made to retry the case during the appeal review process pursuant to Article 280/1-c of the Criminal Procedure Code, separate attorney’s fees must be awarded for the first instance court and the appeal proceedings.
Vakfıkebir Criminal Court of First Instance, dated October 12, 2016, Case No. 2016/10 and Decision No. 2016/353, ruled that there were no grounds for sentencing the defendant for the crime of insulting a public official in the course of his duties and, in the same decision, did not award attorney’s fees to the participant who was represented by an attorney during the trial. Following an appeal against this decision by the plaintiff’s attorney, the 6th Criminal Chamber of the Samsun Regional Court of Appeals, which conducted the appeal review, decided to open a hearing on the case and, as a result of the trial, issued its decision dated February 15, 2017, 2016/202 Case No. and 2017/243 Decision No., to overturn the first instance court’s decision pursuant to Article 280/2 of the Criminal Procedure Code, to convict the defendant of the alleged crime, and ultimately to defer the pronouncement of the judgment against the defendant. The same decision ruled that attorney fees of 1,980.00 Turkish lira for the first instance trial and 990 Turkish lira for the appeal trial, as the case was concluded in one hearing, should be collected from the defendant and paid to the Ministry of Health of the Republic of Turkey, which represented the plaintiff through its attorney. The relevant decision became final on March 21, 2017, without any appeal.
2. Decision that, in the event that a decision to retry the case is made during the appellate review process pursuant to Article 280/1-c of the Criminal Procedure Code, only the attorney’s fees for the appellate proceedings should be awarded.
The Kavak Criminal Court of First Instance, in its decision dated August 17, 2016, Case No. 2016/71 and Decision No. 2016/321, acquitted the defendant of the offense of violating Law No. 6831 and, in the same decision, did not award attorney’s fees in favor of the participating institution, which was represented by counsel during the trial. Following an appeal filed by the representative of the participating institution against this decision, the 5th Criminal Chamber of the Samsun Regional Court of Appeals, which conducted the appeal review, decided to open a hearing on the case and, as a result of the trial, issued its decision dated February 1, 2017, Case No. 2016/49 and Decision No. 2017/116, to overturn the first instance court’s decision pursuant to Article 280/2 of the Criminal Procedure Code. 2016/49 Case No. and 2017/116 Decision No., that the decision of the court of first instance be overturned pursuant to Article 280/2 of the Criminal Procedure Code, that the defendant be convicted of the alleged crime, and that the pronouncement of the judgment against the defendant be deferred. In the same decision, it was decided that, in accordance with the provisions of the minimum attorney fee schedule, since the appeal trial was concluded with more than one hearing, the attorney fee of 1,980.00 Turkish lira would be collected from the defendant and paid to the participating institution. The relevant decision became final on 03.04.2017 without any objection.
E-) CONCEPTS, INSTITUTIONS, AND LEGAL REGULATIONS RELATED TO DECISION DISAGREEMENTS
1. RELEVANT PROVISIONS OF LAW NO. 5235 ON THE ESTABLISHMENT, DUTIES, AND POWERS OF THE COURTS OF FIRST INSTANCE AND REGIONAL COURTS OF APPEAL
Article 35/3 of Law No. 5235, amended by Article 92 of Decree Law No. 696 dated 20/11/2017, entitled “Powers of the Council of Presidents,” “Ex officio or at the request of the relevant civil or criminal division of the regional court of justice or the chief public prosecutor, where parties have the right to appeal under the Code of Civil Procedure or the Code of Criminal Procedure, in cases of inconsistency between final decisions rendered by the civil or criminal chambers of regional courts of appeal in similar cases, or between final decisions rendered by such a court and those rendered by the civil or criminal chambers of another regional court of appeal, upon their reasoned request for the resolution of such inconsistency, and request a decision from the Supreme Court on this matter, adding their own views.
Article 35/4, titled “Powers of the Council of Presidents,” amended by Article 92 of Decree-Law No. 696 dated 20/11/2017, states: “To perform other duties assigned by law. (Amended paragraph: 20/11/2017 – Decree Law No. 696/92; Accepted as is: 1/2/2018-7079/87) Requests to be made in accordance with paragraph (3) shall be forwarded to the Supreme Court Public Prosecutor’s Office in criminal cases and to the relevant civil chamber in civil cases. If the Chief Public Prosecutor’s Office of the Court of Cassation concludes that there is a conflict, it shall request a decision from the relevant criminal chamber. Decisions made by the chamber pursuant to this paragraph regarding the resolution of the conflict shall be final.
The Board of Presidents meets in full and makes decisions by majority vote.
(Additional paragraph: 20/7/2017-7035/12 md.) Taking into account the volume and nature of incoming cases, the division of labor between the criminal and civil divisions of regional courts of appeal shall be determined by the Council of Judges and Prosecutors.
RELEVANT PROVISIONS OF THE CRIMINAL PROCEDURE CODE NO. 2.5271
Article 280/1, titled “Examination and prosecution at the regional court of justice”;
(1) After examining the file and the evidence submitted with the file, the regional court of justice shall:
a) If it finds that there is no procedural or substantive violation of the law in the decision of the court of first instance, that there are no deficiencies in the evidence or proceedings, and that the assessment of the evidence is appropriate, it shall dismiss the appeal on its merits, If there are violations listed in subparagraphs (a), (c), (d), (e), (f), (g), and (h) of the first paragraph of Article 303, it shall correct the violation and dismiss the appeal on its merits.
b) (Added: 20/7/2017-7035/15) If the public prosecutor deems it appropriate to apply the lowest degree of punishment prescribed by law for the crime subject to conviction, in accordance with the reason for appealing, the appeal shall be dismissed on its merits after the illegality has been corrected.
c) (Added: 20/7/2017-7035/15) In cases where the case is dismissed without the need for further investigation or where an erroneous decision regarding security measures must be corrected, the appeal shall be dismissed on its merits after the legal violation has been corrected.
d) If there is a legal violation specified in the first and second paragraphs of Article 289, except for subparagraphs (g) and (h), the judgment shall be overturned and the file shall be sent to the court of first instance whose judgment was overturned or to another court of first instance within its jurisdiction that it deems appropriate for re-examination and judgment,
e) In other cases, after taking the necessary measures (…), the case shall be reheard and the preparatory proceedings for the hearing shall commence.
Decides.
(2) (Added: 6/18/2014-6545/77) At the end of the hearing, the regional court of appeal shall reject the appeal on its merits or overturn the judgment of the court of first instance and render a new judgment.
(3) (Added: 20/7/2017-7035/15) If the decisions rendered pursuant to the first and second paragraphs are in favor of the defendant, and if it is possible to apply these matters to other defendants who have not filed an appeal, these defendants shall also benefit from the decisions rendered as if they had filed an appeal.
3. RELEVANT PROVISIONS OF LAW NO. 1136 ON THE LEGAL PROFESSION
a) Article 164/1, titled “Attorney’s Fees”;
Attorney’s fees refer to the amount or value corresponding to the legal assistance provided by the attorney.
b) Article 168 titled “Preparation of the Attorney Fee Schedule”;
The bar association management boards shall prepare a schedule showing the minimum amounts of attorney fees to be charged for proceedings in courts and other proceedings within September each year and send it to the Union of Turkish Bar Associations.
The Turkish Bar Association Management Board, taking into account the proposals of the bar association management boards, prepares the applicable fee schedule by the end of October of that year and sends it to the Ministry of Justice. (Additional sentence: 16/6/2009-5904/35 md.) However, in the prepared tariff, the amount of attorney fees for cases related to taxes, fees, charges, and similar financial obligations belonging to the general budget, provincial special administrations, municipalities, and villages, as well as their increases and penalties, and for cases arising from the application of Law No. 6183 on the Collection Procedures of Public Receivables, shall be determined as a fixed amount. This tariff shall become final within one month of its receipt by the Ministry of Justice if the Ministry does not decide on it or if the tariff is approved. However, if the Ministry of Justice does not find the tariff appropriate, it shall return it to the Turkish Bar Association for further consideration, together with the reasons for its decision. If the returned tariff is accepted as is by a two-thirds majority of the Turkish Bar Association Management Board, it shall be deemed approved; otherwise, it shall be deemed not approved; the result shall be notified to the Ministry of Justice by the Turkish Bar Association. The provisions of the sixth paragraph of Article 8 shall apply mutatis mutandis.
In determining the attorney’s fee, the tariff in force on the date when the legal assistance is completed or the judgment is rendered at the end of the case shall be taken as the basis.
c) Article 169, titled “The amount of attorney’s fees to be charged to the opposing party by the judicial authorities”;
The attorney’s fees to be imposed on the opposing party by the judicial authorities may not be less than the amount specified in the attorney’s fee schedule or more than three times that amount.
4. MINIMUM ATTORNEY FEE SCHEDULE PUBLISHED IN THE OFFICIAL GAZETTE DATED 02.01.2017 AND NUMBERED 29936
a) Article 2 titled “Services covered by attorney fees”;
(1) The attorney’s fee specified in this Schedule covers the costs of the case, work, and proceedings until a final judgment is obtained. Petitions filed and other proceedings conducted by the attorney in connection with the case or proceeding do not require a separate fee. No attorney’s fee may be awarded in the event of the rejection or acceptance of requests for clarification of judgments.
(2) On the other hand, hearings for enforcement proceedings, appeals to the Court of Cassation, the Council of State, the Military Court of Cassation, and the Court of Accounts, and appeals to regional administrative and regional courts of appeal require separate fees.
b) Article 14, titled “Fees in Criminal Cases”;
(1) Upon participation in a public prosecution, if a decision is made to convict or to defer the announcement of the judgment, the attorney’s fees specified in the second section of the second part of the Schedule shall be charged to the defendant in favor of the participant who has legal representation.
(2) In cases where only a monetary penalty is imposed in accordance with special laws, regulations, and decrees carrying criminal penalties, the attorney’s fee determined according to the Schedule shall not exceed the amount of the monetary penalty imposed.
(3) In applications to the High Criminal Courts for compensation pursuant to Articles 141 et seq. of the Criminal Procedure Code No. 5271 dated 4/12/2004, attorney’s fees shall be imposed in accordance with the third part of the Tariff. However, the fee to be imposed shall not be less than the fee specified in the twelfth row of the second section of the second part.
(4) A fixed attorney’s fee shall be awarded against the Treasury in favor of the defendant who is acquitted and who was represented by counsel.
(5) In cases where applications such as retractions, removal of internet content, or objections to administrative fines heard in criminal courts are accepted, or where the decision of the court of first instance is overturned upon appeal, attorney’s fees shall be awarded as provided for in the first item of the first section of the second part, depending on whether the case was heard with or without a hearing. However, if the amount of the administrative fine subject to the application is below the fixed fee prescribed for the first item in the first section of the second part of the Tariff, attorney’s fees shall be awarded in the amount of the administrative fine.
c) Article 9 under the heading “Fees to be Paid for Legal Assistance Provided in Courts and Enforcement and Bankruptcy Offices that does not Involve Money or cannot be Evaluated in Monetary Terms” in Section 2, Part 2 of the same tariff;
1,980.00 TL for cases pursued in the Courts of First Instance
d) Article 18 under the heading “Fees to be Paid for Legal Assistance Provided in Courts and Enforcement and Bankruptcy Offices that do not Involve Money or cannot be Evaluated in Monetary Terms” in Section 2, Part 2 of the same tariff;
For appeals heard in Regional Courts of Appeal and Regional Administrative Courts, a) 990.00 TL for cases with one hearing, b) 1,980.00 TL for cases with multiple hearings and other proceedings requiring the presence of a lawyer, such as discovery.
F-) JUSTIFICATION
The attorney’s fee is the value earned by the attorney as a result of fulfilling the defense duties undertaken on behalf of the client. Undoubtedly, this fee arises from the contractual relationship between the client and the attorney. The legal services provided by the attorney to their client may include many legal representation procedures, such as non-litigation consultancy, legal opinion, or administrative application, or, as in the case of the dispute, representation or defense services provided to the client, who is a party to a criminal trial, before the judicial authorities. It is undisputed that, in addition to the legal assistance provided by lawyers to defend the rights of individuals before the judicial authorities and to ensure that justice is served, if the parties who prevail in the proceedings have represented themselves through a representative, the party who loses the case, whether in civil or criminal proceedings, will be ordered to pay the attorney’s fees.
Articles 324 et seq. of the Criminal Procedure Code No. 5271, titled “Trial Expenses,” also list “attorney fees payable according to the tariff” among the trial expenses. Furthermore, the same law stipulates that court rulings and decisions must indicate the trial expenses and to whom they are to be charged.
Pursuant to Article 327 of the Criminal Procedure Code No. 5271, titled “Expenses in the event of an acquittal or a decision that there are no grounds for punishment,” “…the person shall only be ordered to pay expenses arising from his own fault, …the expenses that this person was previously obliged to pay shall be borne by the State Treasury…” According to the text of the article, there is no doubt that in criminal proceedings, if the defendant is acquitted and is represented by at least one attorney, the attorney’s fees shall be awarded in favor of the defendant and shall be paid by the State Treasury, which caused the unjust trial. However, if a decision is made that there are no grounds for punishment, it is understood that attorney’s fees shall not be awarded in the case of a defendant who is found to be at fault and who is deemed to have caused a criminal case to be brought against them, based on the reasoning of the decision.
The appeal route, which is one of the ordinary legal remedies available against judgments handed down by courts of first instance in criminal proceedings, has different characteristics from the cassation route.
The provisions governing appeals are set out in Articles 272 to 285 of the Criminal Procedure Code No. 5271, According to Article 280/1 of the same Code, if the regional court of appeal, after examining the file and the evidence submitted with it, finds that there is no procedural or substantive violation of the law in the decision of the court of first instance, that there is no deficiency in the evidence or proceedings, and that the assessment in terms of proof is appropriate, it shall dismiss the appeal on its merits. Article 303/1 “a, c, d, e, f, g, and h” of the Criminal Procedure Code, the appeal shall be dismissed on the merits after the legal violation is corrected. If the public prosecutor deems it appropriate to apply the minimum penalty prescribed by law for the crime in question, in accordance with the grounds for appeal, the appeal shall be dismissed on its merits after rectifying the legal violation, and the case shall be dismissed without the need for further investigation, or in cases where the erroneous decision regarding security measures must be rectified, the appeal shall be dismissed on its merits after rectifying the legal violation. if the decision of the court of first instance contains a reason for illegality specified in the provisions of Article 289/1 of the Criminal Procedure Code, except for subparagraphs “g” and “h”, the judgment shall be overturned and the file shall be sent to the court of first instance whose judgment was overturned or to another court of first instance within its jurisdiction that it deems appropriate for re-examination and judgment, In other cases, it is clear from the wording of the Law that decisions must be made to retry the case and commence trial preparations after taking the necessary measures. Pursuant to paragraph 2 of the same article, at the end of the hearing, the regional court of appeal must either reject the appeal on its merits or overturn the first instance court’s judgment and issue a new judgment. Furthermore, paragraph 3 of the same article stipulates that if the decisions rendered pursuant to paragraphs 1 and 2 are in favor of the defendant, and if it is possible to apply these provisions to other defendants who have not filed an appeal, these defendants may also benefit from the decision as if they had filed an appeal.
In two separate cases before two different first instance criminal courts within the jurisdiction of the Samsun Regional Court of Appeal, one defendant was acquitted of the charges against him, while another defendant was found not guilty. It is clear that neither of the two first instance criminal court decisions awarded attorney’s fees in accordance with the Minimum Attorney’s Fee Schedule. After both first instance criminal court decisions were separately appealed, the 5th Criminal Chamber and 6th Criminal Chamber of the Samsun Regional Court of Appeals held hearings and decided to retry the cases. As a result of the retrial, both Criminal Chambers of the Regional Courts of Justice ruled to convict the defendants and to postpone the announcement of the convictions. The reason for the discrepancy between the decisions of the Criminal Chambers of the Regional Courts of Justice was that the Samsun Regional Court of Justice 6th Criminal Chamber’s decision dated 12.10.2016 ruled separately on the attorney’s fees that should have been awarded by the court of first instance but were not, as well as the attorney’s fees that should have been awarded for the appeal proceedings, whereas the Samsun Regional Court of Justice 5th Criminal Chamber of the Samsun Regional Court of Appeal dated October 12, 2016, only awarded attorney’s fees against the defendant for the appeal proceedings.
Given that it is clear that the appellate review procedure and the trial procedures of the courts of first instance contain differences, and that it is mandatory to award attorney’s fees in accordance with the minimum attorney’s fee schedule in effect on the date of the decision in favor of the party who represented themselves through counsel during the trial and was found to be in the right, The Samsun Regional Court of Appeal, 5th Criminal Chamber, ruled that the local court’s decision was unlawful, overturned the acquittal, and convicted the defendant. Criminal Chamber of the Samsun Regional Court of Justice, which decided that the acquittal should be overturned and the defendant should be convicted, concluded that it should have awarded the attorney’s fees that would have been awarded if the court of first instance had made a correct and lawful determination and ruled on the defendant’s conviction, not only for the appeal proceedings but also for the attorney’s fees that would have been awarded if the court of first instance had made a correct and lawful determination and ruled on the defendant’s conviction.
G-) CONCLUSION
Following the appeal against the decisions of acquittal or dismissal of charges to be rendered against the defendant pursuant to Article 223 of Criminal Procedure Code No. 5271 as a result of the trial conducted by the first instance criminal courts, where the participant was represented by a lawyer, if the criminal division of the regional court of appeal, which reviews the relevant first instance criminal court decisions, decides to retry the case in accordance with Article 280 of the Criminal Procedure Code and, as a result of the trial it conducts, issues a decision convicting the defendant of the alleged crime, then not only for the appeal proceedings, but also for the attorney’s fees that would have been awarded in favor of the plaintiff and against the defendant if the first instance court had rendered a lawful and correct decision on April 18, 2018, by unanimous decision.