Whether Lawyers Can Testify About Their Clients
T.C.
COURT OF APPEALS
17th CRIMINAL CHAMBER
CASE NO: 2015/13365
DECISION NO: 2016/6633
DATE OF DECISION: May 3, 2016
>WHETHER LAWYERS MAY TESTIFY ABOUT THEIR CLIENTS.
The judgment rendered by the local court was appealed and reviewed, and the matter was discussed and considered:
DECISION
1- )From the file, it was determined that on June 9, 2005, at an unknown time, the right front door handle of the complainant’s vehicle with license plate number … parked on … was forced open and the … brand car stereo was stolen. During the investigation at the scene, no evidence was found. While the investigation into the incident was ongoing, the defendants … and …, whose fingerprints were identified in two separate incidents of car stereo thefts in …, were apprehended in Istanbul on May 4, 2006. In their statements to the police on the same date in the presence of their defense counsel …, the defendants admitted to stealing stereos from numerous vehicles in the central district of … and the district of …, they carried out their actions between 1:00 a.m. and 5:00 a.m., opening the car doors with a screwdriver or fruit knife, and on June 9, 2005, they came from Istanbul to … for the purpose of theft, stealing car stereos from four separate vehicles parked on several streets in the same neighborhood, they stated that they could not remember the addresses where they committed the thefts, the vehicle models, or the characteristics of the stereos involved in the crime due to the passage of time, the darkness of the night, and their lack of familiarity with …, during the trial phase, the defendants denied the charges, stating that they had never come to … and that they had signed the statement without reading it due to pressure from law enforcement, During the defendants’ statements, the lawyer … who was present stated that no pressure was applied during the defendants’ statements and that they described their actions comfortably. In light of the court’s decision to convict the defendants of the alleged crime based on the available evidence; In their defenses taken by the police in the presence of their defense counsel on May 4, 2006, the defendants stated that in all the car stereo thefts that had occurred recently in the district of … and which had been read to them by the police, “they had committed their acts between 1:00 a.m. and 5:00 a.m., opening the doors of the vehicles with a screwdriver or fruit knife, due to the passage of time, the darkness of the night, and their lack of knowledge about …, they could not recall the addresses where the thefts occurred, the vehicle models, or the characteristics of the car stereos involved in the crime.” In their statements, they did not provide any details that would personalize the alleged crime, and no site identification procedure was conducted with the defendants thereafter. it cannot be concluded from the abstract confession regarding the majority of car tape thefts that occurred on May 4, 2006, that the car tape belonging to the complainant was stolen by the defendants. In this sense, the abstract confession cannot be linked to the theft, and considering that the defendants denied the crime during the trial, there are no legal, unambiguous, conclusive, sufficient, and convincing evidence to prove that the defendants committed the alleged crime. Therefore, in accordance with the universal principle of criminal law that “the benefit of the doubt goes to the defendant,” the defendants should be acquitted rather than convicted in writing, as it has not been established that they committed the alleged theft.
According to the acceptance,
2- ) Article 46/1-a of the Criminal Procedure Code No. 5271 stipulates that lawyers may testify about information they have learned in their capacity as lawyers or in the course of their judicial duties only with the express consent of the person they represent, and the last paragraph of the same article stipulates that even with such consent, a lawyer cannot be compelled to testify. Article 36 of the Lawyers’ Act No. 1136 also prohibits lawyers from disclosing matters entrusted to them or learned in the course of their duties, and stipulates that they may only testify about such matters with the consent of the client. In light of the provision in Article 46 of the Criminal Procedure Code No. 5271, which is in line with the above, the defendant’s attorney, who assumed the role of defense counsel during the investigation phase, was heard as a witness and his statements were used as evidence, even though there was no consent given by the defendants and the right to refuse to testify was not reminded.
3- )Considering the complainant’s statement that he parked his vehicle at 8:30 p.m. and realized the theft the next morning at around 7:00 a.m., and the defendants’ statements that they committed the crime between 1:00 a.m. and 5:00 a.m., When considering the daylight saving time adjustment in the UYAP inquiry, the sun rises at 5:15 AM, and pursuant to Article 6/1-e of the Turkish Penal Code, the time period up to 4:15 AM must be considered nighttime, Since it is not definitively established that the alleged crime was committed during the nighttime period, the principle of “benefit of the doubt” requires that the act be deemed to have been committed during daytime hours. However, in the rulings regarding the alleged crime, an increased sentence was imposed in accordance with Article 143 of the TCK,
4- )The decision of the Constitutional Court of the Republic of Turkey to annul Article 53 of the Turkish Penal Code, numbered 2014/140 and 2015/85, published in the Official Gazette dated November 24, 2015, and numbered 29542 , necessitates a reassessment of the deprivation of rights under Article 53 of the TCK in accordance with the annulment decision,
5) The total summons expenses of 3.50 TL incurred due to this case are less than the amount to be written off pursuant to the sentence added to the fourth paragraph of Article 324 of the Criminal Procedure Code by Article 100 of Law No. 6352, The amount is less than the amount that should be waived under Article 106 of Law No. 6183 on the Collection Procedures for Public Debts, and therefore, the failure to consider that this amount should not be imposed on the defendants as litigation expenses,
CONCLUSION: This warrants reversal, and the defendants’ and their counsel’s grounds for appeal are deemed valid for this reason. Therefore, the judgment is reversed as contrary to the notice of appeal for the stated reason, and the decision was made unanimously on May 3, 2016.