Notification To The Trainee Lawyer – Court Of Cassation Decision
T.C.
JUDICIARY
GENERAL ASSEMBLY OF LAW
E. 2017/2-1287
K. 2019/90
T. 7.2.2019
* DIVORCE REQUEST BASED ON THE CAUSE OF DESTRUCTION OF THE MARRIAGE UNION ( There is No Written Consent of the Lawyer Regarding the Notification of the Reasoned Decision to the Trainee Lawyer and the Notification of the Decision to the Trainee Lawyer as an Employee is Invalid and the Appeal Request is in Time – When the Witness Statements and the Criminal File on the Parties are Evaluated Together, the Defendant Man is Faulty to Cause Divorce / Resisting the Decision to Reject the Case Requires Reversal )
* NOTICE TO THE INTERNSHIP LAWYER (The Intern can only attend the hearings related to the cases and affairs pursued by the lawyer in the Civil and Criminal Courts of Peace and Enforcement Courts under the supervision and responsibility of the lawyer with the written consent of the lawyer and carry out the affairs in the Enforcement Directorates – The Relationship Between the Lawyer and the Intern Lawyer is a Legal Relationship and Not Based on the Employment Contract or Service Contract)
* IMPROPER NOTIFICATION (Lawyer Trainee Does Not Have the Title of Permanent Employee or Employee Listed in the Notification Law – As There is No Written Consent of the Lawyer Regarding the Notification of the Reasoned Decision to the Trainee Lawyer, the Notification of the Decision to the Trainee Lawyer in the Title of “Employee” is Invalid / The Appeal Request Made as of the Date when the Plaintiff’s Attorney Declared That He Was Notified of the Notification is Within the Time Period)
* DETERMINATION OF THE NEGLIGENT SPOUSE (It is understood that the parties mutually inflicted physical violence on each other in the fight between the spouses and that they were tried and sentenced for the incident and that they did not come together after this incident – When the Witness Statements and the Criminal File are evaluated together, it is understood that the Defendant Man is at fault to cause divorce / The Plaintiff Woman’s Divorce Case Should be Accepted)
1136/m.15,23,26,46
4721/m.166/1,184
6100/m.255
7201/m.11,17,32,37
SUMMARY : The lawsuit is related to the divorce claim based on the reason of the breakdown of the marriage union.
It has been accepted that the lawyer trainee can only enter the hearings related to the cases and affairs pursued by the lawyer in the civil courts of peace, criminal courts of peace and execution courts and execution offices under the supervision and responsibility of the lawyer with the written consent of the lawyer; the relationship between the lawyer and the trainee lawyer is not based on an employment contract or service contract, but is a legal relationship and the lawyer trainee does not have the title of permanent employee or employee as stated in Article 17 of the Notification Law. Since it is understood that the lawyer trainee does not have the title of permanent employee or employee listed in Article 17 of the Notification Law; as there is no written consent of the lawyer regarding the notification of the reasoned decision to the trainee lawyer, the notification of the decision to the trainee lawyer as an “employee” is invalid. Since the appeal request made as of the date when the plaintiff’s attorney declared that he was aware of the notification was in due time, the additional decision of the local court was reversed and lifted, and the appeal against the decision to resist was examined on the merits.
Although the judge has the right of discretion as to whether the marriage union has been shaken or not, and if it has been shaken to such an extent that the common life between the spouses is unbearable, each of the spouses can file for divorce as a rule, the Court of Cassation interprets this provision as that the spouse with full fault cannot file a lawsuit.
The witness of the plaintiff (woman) stated that “her mother was beaten for years during the marriage, but she endured it, and the last few incidents were reflected to the courthouse”, and the other witness stated that “the defendant constantly belittled his wife and did not want her at home”, and there is not enough evidence and facts to accept that the witnesses stated the facts as if they did not happen.
On the other hand, with the decision of the Criminal Court of Peace, it is understood that the parties mutually inflicted physical violence on each other in the fight between the spouses, they were tried and sentenced for this incident, it was decided to defer the announcement of the conviction, the decision was finalized and the parties did not come together after this incident; When the aforementioned witness statements and the criminal file are evaluated together, it is understood that the defendant man is defective enough to cause divorce, so the plaintiff woman’s divorce case should be accepted. While the reversal decision of the Special Chamber, which points out the same issues and adopted by the General Assembly of Civil Chambers, should be complied with, resisting the previous decision is contrary to the procedure and the law and requires a reversal.
THE CASE : At the end of the trial held due to the “divorce” case between the parties, the decision dated 12.07.2012 and numbered 2011/310 E., 2012/403 K., given by Karacabey 1st Civil Court of First Instance as the Family Court, on the appeal of the plaintiff’s attorney, with the decision of the 2nd Civil Chamber of the Court of Cassation dated 16.04.2013 and numbered 2012/23641 E., 2013/10736 K;
“Unless there is serious and convincing evidence and facts to the contrary, the main thing is that the witnesses tell the truth (6100 s. CCP Article 255). Kinship or other affinity cannot in itself be considered as a reason to devalue the witness statement. There is no sufficient evidence and facts in the case to accept that the witnesses testified as if something that did not happen happened. In that case, the words of the witnesses who are very close to the events and who testified that the defendant husband constantly inflicted violence, insulted and humiliated his wife should be valued, and considering the finalized judgment of the criminal court due to the mutual acts of violence between the parties, while it should be decided to divorce the plaintiff woman by accepting her request, it is contrary to the procedure and the law to establish a judgment as written without taking these aspects into consideration, and it required to be reversed.”
The case was reversed and the file was returned to its place and at the end of the retrial, the court resisted the previous decision.
After it was understood that the petition for appeal was filed in due time and the documents in the file were read, it was examined by the General Assembly of Civil Chambers:
DECISION : The case is related to the request for divorce based on the reason of the breakdown of the marriage union.
The plaintiff (woman) attorney claimed that the defendant constantly humiliated, insulted and beat his client, did not take his client’s little daughter from his first wife even though he undertook to adopt her as a foster child, did not provide material and moral assistance to his client while marrying his daughter, and did not even attend the wedding, and decided to divorce the parties in accordance with Article 166/1 of the TMK. Pursuant to Article 166/1 of the Civil Code, the parties requested a decision to divorce and to collect 500,00TL precautionary and poverty alimony, 20.000,00TL pecuniary damages and 20.000,00TL non-pecuniary damages from the defendant together with interest.
The defendant (male) defended the dismissal of the case.
One of the plaintiff witnesses heard by the court was the plaintiff’s daughter from a previous marriage, this witness had problems with the defendant, the other plaintiff witnesses were close relatives of the plaintiff and their knowledge and experience did not coincide with the defendant witness statements, according to the defendant witness statements, there was no incompatibility between the parties, and in the criminal case, both of them were tried for mutual injuries, Apart from this last investigation, as stated by the plaintiff witnesses, the plaintiff did not have a complaint due to the defendant’s act of insult or injury, some of the statements of incompatibility in the plaintiff witness statements remained in the past and the parties came together again, there was no incompatibility between the parties that would require divorce, and the provision of Article 184 of the TMK and the provision that “The judge cannot rule for divorce unless he conscientiously believes in the existence of the facts put forward as a reason for divorce” and “the law does not protect anyone’s rights based on fault. It was decided to dismiss the case in accordance with the provision of Article 184 of the Civil Code, which states that “The judge cannot rule for divorce unless he conscientiously believes the existence of the fact put forward as a reason for divorce” and the provision that “the law does not protect anyone from obtaining rights based on his fault.”.
Upon the appeal of the plaintiff’s attorney, the decision was reversed by the Special Chamber for the reasons explained in the title section above.
Upon the appeal of the plaintiff’s counsel, the decision of the Court of Appeals General Assembly of Civil Chambers was reversed by the Court of Cassation upon the appeal of the plaintiff’s counsel, on the grounds that “a short decision with the qualifications sought by the procedure and a reasoned decision in accordance with it were not prepared”.
The Local Court, by complying with the reversal decision of the Civil General Assembly of the Court of Cassation, stated that the previous fights between the parties cannot be made the subject of the lawsuit, that it is necessary to focus on who started the fight and insulted in the last incident subject to the criminal case cited as grounds for the lawsuit, that the statement given by the plaintiff in the prosecutor’s office and the statement given in court are different, and that in his statement in the form of a confession given in the prosecutor’s office, he said to his wife, “Get out of here, I said under my feet and pushed him in the back of his neck”, it was actually the plaintiff who insulted and caused the fight, the defendant slapping the plaintiff after being treated in such a way by his wife is not a situation that would be unusual in Turkish customs, the statements of the plaintiff’s daughter would not be impartial against her stepfather, and even if the witness stated that the plaintiff was constantly beaten by the witness, it was decided to resist on the grounds that the marriage continued after the beating.
The decision of resistance was appealed by the counsel of the plaintiff (woman).
The court’s additional decision on the rejection of the appeal request on the grounds that the appeal request was not in due time was appealed by the plaintiff’s attorney.
The dispute that came before the General Assembly of Civil Chambers through resistance is whether the defendant man was at fault in the incident subject to the divorce case and whether the lawsuit filed by the plaintiff woman should be accepted according to the result to be reached here.
During the discussions held in the General Assembly of Civil Chambers, before proceeding to the merits of the case, the preliminary issue of whether the procedure regarding the notification of the reasoned decision regarding the resistance to the plaintiff’s attorney was in accordance with the procedure, and therefore, whether the additional decision dated 02.07.2014 regarding the rejection of the appeal request from the time limit should be removed was discussed as a preliminary issue.
As it is known; according to the first sentence of Article 11 of the Notification Law No. 7201; “Notification shall be made to the attorney in the works pursued through the attorney”.
Article 17 of the Notification Law No. 7201 titled “Practice of profession and art in a certain place or at home” states;
“If those who practice their profession or art continuously in a certain place are not present in that place, the notification shall be made to one of their permanent officers or employees in the same place, and if one of the officers or employees of those who practice their profession or art at home is not present, the notification shall be made to the persons living in the same residence or one of their servants”.
Article 26 of the Regulation on the Implementation of the Notification Law, titled “Notification to persons engaged in professions and arts” states;
“Notification can also be made to those who continuously practice their profession or art in a certain place.
In case the addressee is not present at the workplace, the notification shall be made to one of the officers or employees working continuously in the same place.
If the addressee performs his profession or art in his residence, if he is not present, one of his officers or employees shall be notified. In the absence of any of these, the notification shall be made to the persons who reside permanently in the same residence or to one of their servants”.
Considering the existing regulations, if those who are constantly practicing their profession or art in a certain place are not present in that place, the notification to be made to them should be made to one of the permanent officers or employees of that person in the same place. In other words, in order for the notification made in the form of the permanent employee of the addressee to be valid, the person to whom the notification is made on behalf of the addressee must actually be the permanent employee of the addressee, and if the addressee cannot be found, the notification must be made by fulfilling the formal procedures specified in the legislation above. Otherwise, the notification is irregular.
In the concrete case, the decision of resistance dated 02.07.2014 was served to the plaintiff’s attorney, Attorney İ.E., and the notification part reads as follows: “The addressee was asked at the address. Since he went to the courthouse, it was served to G.K. who works at the same workplace” and the notification was made on 13.08.2014 with the signature of the notification officer and G.K..
In his appeal petition dated 22.09.2014, the plaintiff’s attorney stated that G.K. was his intern and that he was not aware of the notification process because the intern did not know the importance of the matter. With the “file document completion” system, a letter was written to the relevant court to investigate whether the person named on the date of notification was a lawyer trainee or not, and in the reply dated 05.02.2019, it was reported that G.K. was a lawyer trainee registered with the Bursa Bar Association and completed his internship with the lawyer between 08.04.2014 and 09.10.2014 with Av.İ.E. (the plaintiff’s attorney).
In this case, it is undisputed that the reasoned decision was notified on behalf of the plaintiff’s attorney to Attorney G.K., who is an intern on 13.08.2014, and first of all, in terms of solving the preliminary problem, it is necessary to examine whether the notification made to the attorney intern can be considered as a duly and valid notification.
Article 23 of the Attorneyship Law No. 1136, as amended by the Law No. 4667, regulates the internship and the duties of the intern, and the second paragraph of the article reads as follows: “The intern is obliged to attend hearings with the lawyer, to do the lawyer’s work in courts and administrative authorities, to organize case files and correspondence, to participate in training activities organized by the bar association, and to fulfill other duties assigned by the bar association board of directors and to be shown in the regulation. Interns are obliged to comply with the rules of the profession and the principles set forth in the regulations”.
Article 26 of the same Law regulates the “Work that the interns may perform”; these are listed as follows: “After starting their internship with the lawyer, the interns, with the written consent of the lawyer and under his/her supervision and responsibility, may attend hearings in civil courts of peace, criminal courts of peace and courts of execution in relation to the cases and affairs pursued by the lawyer and may carry out the work in the execution offices.” The last paragraph of the article states that this authorization will end with the issuance of the certificate of completion of internship or deletion from the internship list.
Article 46 of the same Law stipulates that the lawyer may have his/her work followed up by an intern or a secretary under his/her own responsibility; the lawyer or an intern may examine the case and follow-up files without a power of attorney; the request for such examination must be fulfilled by the relevant parties; and the lawyer who does not submit a power of attorney shall not be given a copy or photocopy of the papers or documents in the file.
On the other hand, Article 37 of the Notification Law No. 7201 titled “Notification to Lawyer Clerks and Trainees” states that “Notification of the date and time of the next hearing to the lawyer clerks and trainees, whose capacity is determined by the judicial authority during the hearing, shall be deemed as notification to the lawyer.”
In Article 19 of the Turkish Bar Association Attorney Internship Regulation, the works that the intern can do are regulated; the article reads as follows;
“After starting his/her internship with the lawyer, the intern, with the written consent of the lawyer and under the supervision and responsibility of the lawyer, may attend the hearings related to the cases and affairs pursued by the lawyer in the civil courts of peace, criminal courts of peace and courts of execution and may carry out the works in the executive offices.
This authorization ends with the issuance of the certificate of completion of internship or the deletion of his/her name from the internship list.
The trainee may take samples from the case files by photocopying and similar means with the written consent of the lawyer with whom the trainee is interning.
The trainee may also examine case and follow-up files without a power of attorney or written consent.”
In Article 20 of the same Regulation, it is stated that the lawyer with whom the internship is carried out will submit a report at the end of the first three months and at the end of the internship period, the last report will be the final report, and in the reports, the intern’s continuation of the internship, professional interest, susceptibility to the principles and rules of the profession, the hearings he attended, the works he carried out with a certificate of authorization, his researches and practices and similar studies will be evaluated.
As can be seen, it is accepted that the lawyer trainee can only attend hearings related to the cases and affairs pursued by the lawyer in the civil courts of peace, criminal courts of peace and execution courts and execution offices under the supervision and responsibility of the lawyer with the written consent of the lawyer.
On the other hand, Article 15 of the Attorneyship Law No. 1136 states: “Attorneyship internship is one year. In accordance with the provisions of this section, the first six months of the internship shall be conducted in the courts and the remaining six months shall be conducted with a lawyer who has at least five years of seniority (this five-year seniority calculation includes the periods spent in the service written in Article 4 of the Law).” Accordingly, legal internship is a legal obligation and is carried out in order to gain professional knowledge and experience. Therefore, the relationship between the lawyer and the trainee lawyer is not based on an employment contract or a service contract, but is a legal relationship. For this reason, it is evident that the lawyer trainee does not have the title of a permanent employee or a contractor as stipulated in Article 17 of the Notification Law.
In light of these explanations, as there is no written consent of the lawyer regarding the notification of the reasoned decision to the trainee lawyer in the file, the notification of the reasoned decision dated 02.07.2014 to the trainee lawyer Gizem Koşar as an “employee” is invalid.
However, Article 32 of the Notification Law states that “even if the notification is made in violation of the procedure, it shall be deemed valid if the addressee is aware of the notification. The date declared by the addressee shall be deemed as the date of notification.” In accordance with the provision, the appeal request made on 22.09.2014 as of 15.09.2014, when the plaintiff’s attorney declared that he was aware of the notification, is in time.
For the reasons stated above, it was decided by majority vote to revoke the additional decision of the local court dated 11.11.2014 regarding the rejection of the appeal request of the plaintiff’s attorney as it was not in time, and the preliminary problem was overcome in this way and the appeal of the plaintiff’s attorney against the decision of resistance was examined on the merits.
As for the examination of the merits;
It is useful to evaluate the relevant legal regulations for the solution of the dispute.
Article 166/I-II of the Turkish Civil Code (TCC) No. 4721 titled “Breaking of the marriage union” reads as follows
“If the marriage union is shaken to such an extent that they cannot be expected to maintain a common life, each of the spouses may file for divorce.
In the cases specified in the paragraph above, if the fault of the plaintiff is more severe, the defendant has the right to object to the lawsuit filed. However, if this objection is in the nature of abuse of right and if there is no benefit worth protecting for the defendant and children in the continuation of the marriage union, divorce may be granted”.
Pursuant to the first paragraph of the aforementioned article, two main conditions must be fulfilled in order to decide for divorce on the grounds that the marriage union has been shaken from its foundations. The first one is that the union of marriage has been shaken from its foundations and the other one is that the common life has become unbearable. The above-mentioned article, which regulates the general grounds for divorce, gives the judge the right of discretion on many issues that are not concretized or specified in detail.
Pursuant to the aforementioned provision, if the marital union has been shaken to such an extent that the common life between the spouses is unbearable, each of the spouses may file for divorce as a rule, but the Court of Cassation interprets this provision as that the spouse with full fault cannot file a lawsuit. As a matter of fact, a similar principle was also mentioned in the decision of the Court of Cassation dated 04.12.2015 and numbered 2014/2-594 E., 2795 K.
In the event that the marriage union has been shaken to the extent that the spouses cannot be expected to maintain a common life, the defendant has the right to object to the lawsuit filed if the fault of the plaintiff is more severe (Art. I66/II of the TCC).
Although this provision grants the defendant the right of objection, the sanction for the abuse of this right is also specified in the same provision.
Indeed, according to the last sentence of Article I66/II of the TCC, if the objection is in the nature of abuse of right and there is no benefit worth protecting for the defendant and the children in the continuation of the marriage union, divorce may be granted.
It should be noted that, pursuant to Article 255 of the Code of Civil Procedure No. 6100, unless there is serious and convincing evidence and facts to the contrary, the main thing is that the witnesses tell the truth. Kinship or other affinity cannot be considered as a reason to devalue the witness statement in itself.
When the concrete case is evaluated in the light of all these explanations; N.Ş., who was heard as a witness for the plaintiff (woman), stated that “her mother was beaten for years during the marriage, but she endured it, the last few incidents were reflected to the court”, and the other witness S.C. stated that “the defendant constantly belittled his wife and did not want her at home”. There is no sufficient evidence and facts in the file to accept that the witnesses stated facts that did not happen as if they had happened.
On the other hand, in the incident dated 09.04.2011, with the decision of Karacabey Criminal Court of Peace dated 22.06.2011 and numbered 2011/297 E., 2011/884 K., it is understood that the parties mutually inflicted physical violence on each other in the fight between the spouses, they were tried and sentenced for this incident, it was decided to defer the announcement of the conviction, the decision was finalized and the parties did not come together after this incident.
In this case, when the aforementioned witness statements and the criminal file are evaluated together, since it is understood that the defendant man is defective enough to cause divorce, the plaintiff woman’s divorce case should be accepted.
In that case, it is against the procedure and the law to resist the previous decision, while the Special Chamber’s reversal decision, which points out the same issues and adopted by the General Assembly of Civil Chambers, should be complied with.
CONCLUSION : For the reasons explained above, the additional decision of the local court dated 11.11.2014 regarding the rejection of the appeal request of the plaintiff’s attorney is reversed and abolished with the majority of votes, and the appellate objections of the plaintiff’s attorney are accepted and the decision to resist is reversed for the reasons shown in the Special Chamber reversal decision. In accordance with Article 429 of the Code of Civil Procedure No. 1086, which is being applied with reference to the “Provisional Article 3” added to the Code of Civil Procedure No. 6100 by Article 30 of the Law No. 6217, it was unanimously decided on 07.02.2019 to return the advance appeal fee to the depositor, in case of request, in accordance with Article 440 of the same Law, to be open for decision correction within fifteen days from the notification of the decision.