Trainee Lawyer Being A Crime Victim
Pursuant to Article 26 of the Attorneyship Law, the trainee lawyer may, under the supervision and responsibility of the lawyer, attend the hearings related to the cases and affairs pursued by the lawyer in the courts of peace, criminal courts of peace and execution examination authorities and perform the works in the executive directorates. If the trainee lawyer becomes the victim of a crime while doing the work of the lawyer with whom the trainee lawyer is interning; the crime is committed against a public official. You can examine the Sample Court of Cassation Decision.
Criminal Chamber
Principal Number: 2020/10625
Decision Number: 2020/18808
“Case Law Text”
COURT :Criminal Court of First Instance
CRIME : Insult
CONVICTION : Conviction
DECISION
The file was discussed according to the duration of the appeal, the nature of the decision and the date of the offence:
Since there were no reasons for the rejection of the appeal request, the merits of the case were discussed.
In the examination made according to the content of the minutes, documents and justification reflecting the trial process in which the conscientious opinion was formed; other reasons were not found to be relevant.
However;
In the incident where the defendant insulted the participant, a trainee lawyer who went to the foreclosure together with the bailiff, considering that the participant will be considered as a public official while performing the works listed in Article 26 of the Law No. 1136, provided that the participant has the written approval of the lawyer with whom the participant is doing his internship, deciding to punish the defendant according to Article 125/3-a of the Turkish Penal Code with incomplete prosecution without investigating whether the participant meets the mentioned conditions from the relevant Bar Association records,
According to the acceptance;
With Article 24 of the Law dated 17/10/2019 and numbered 7188, Simple Trial Procedure was regulated in Article 251 of the Criminal Procedure Code numbered 5271.
However, regarding the implementation of this regulation, with the subparagraph (d) of the provisional Article 5 added to the Code of Criminal Procedure No. 5271 with the Article 31 of the Law No. 7188; “As of 01/01/2020, serial procedure and simple trial procedure shall not be applied in the files that have been passed to the prosecution phase, adjudicated or finalised”.
The Constitutional Court (25/06/2020, 2020/16, 2020/33; R.G. 19/08/2020, No.: 31218), which examined the issue through concrete norm review, decided to cancel the provision in the aforementioned provisional article 5/d by deeming the phrase “proceeded to the prosecution phase” contrary to Article 38 of the Constitution in terms of “simple trial procedure” in the same subparagraph.
In the decision of the Constitutional Court, although the annulment was not decided in relation to the adjudicated files, in the face of the fact that the prosecution phase continues until finalisation in relation to the adjudicated files as per Article 2/1-(f) of the Law No. 5271, and that a one-fourth reduction is envisaged from the final penalty in case of a conviction as per Article 251/3 of the same Law, and that this situation brings a favourable arrangement in terms of the files pending appellate review,
In the annulment decision of the Constitutional Court; since it is pointed out that the new regulation brought in favour of the defendant should be applied in terms of the files “passed to the prosecution phase” with the provisional article 5 added to the Code of Criminal Procedure No. 5271 pursuant to Article 31 of the Law No. 7188, the necessity of re-evaluation in accordance with Article 38 of the Constitution and Articles 7 of the Turkish Penal Code No. 5237 and 251 et seq. of the Code of Criminal Procedure No. 5271 in terms of the crimes examined on appeal and falling within the scope of Article 251/1 of the Code of Criminal Procedure No. 5271,
Since it required to be reversed and the reasons for the appeal of the defendant … were deemed appropriate, it was unanimously decided on 08/12/2020 to VACATE THE VERDICT in accordance with the notification, and to send the file to the original / conviction court to continue and conclude the trial starting from the stage before the reversal, and to send the file to the original / conviction court, on 08/12/2020.
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