T.O
SUPREME
19. CRIMINAL DEPARTMENT
PRINCIPAL NO: 2018/3074
DECISION NO: 2018/4708
DECISION DATE: 18.04.2018

> > REQUEST FOR SETTLEMENT OF DISPUTES BETWEEN THE CRIMINAL DEPARTMENTS OF THE DISTRICT COURT COURT ON THE POWER OF ATTORNEY FEE–DISCRETION OF THE POWER OF ATTORNEY FEE

Summary: Following the application for a judicial review of the appeal against the provisions ” there is no room for acquittal or punishment” which will be given against the defendant as a result of the trial conducted by the Criminal Courts of the first instance, where the participant has represented himself by a proxy, the criminal Department of the District Court Court, which examines the decisions of the, in fact, if the court of the first instance had decided about the defendant in accordance with the law and was correct, it should also rule on the power of attorney fee, which is absolutely to be ruled in favor of the participant and against the defendant.

A -) APPLICATION FOR RESOLUTION OF DECISION DISPUTE

Samsun district courthouse court with the decision of the board of Presidents dated 12.05.2017, number 2017/12 and Decision No 2017/6 Samsun district courthouse Court 5. Samsun district court of Justice with Decree No. 01.02.2017 dated, 2016/49 basis, 2017/116 decision 6. Law No. 5235 on the establishment duties and powers of judicial courts of First Instance and District Court Courts for disputes on the power of attorney fee between the Decree No. 15.02.2017 of the criminal Department, 2016/202 basis, 2017/243, entitled” duties of the Board of Presidents” 35. he asked for it to be removed in accordance with the clause.

B -) OPINION AND REQUEST OF THE CHIEF PUBLIC PROSECUTOR OF THE COURT OF CASSATION ON THE DISPUTE OF DECISION

Samsun District Courthouse Court 5. and 6. The request for appeal among the criminal departments concluded in favor of, the first degree judge not ruled in the power of attorney fee can be ruled, there is a dispute on the claim stated, ” 02.01.2017 dated and 29936 no.Of The Official Gazette published in the Attorney’s minimum wage tariff 2 and 14. with Articles 2. in this section, the persons who will be judged in favor of the attorney’s fee and the procedures and principles of merit of the attorney’s fee, the amount are regulated. As it is understood from the articles of the mentioned law, the fee of attorney shall be decided for the person who has concluded a trial in his favour and who represents him by proxy. If the results of the first instance trial and the appeal trial are the same, there is no problem with the power of attorney. That is, the retainer fee will be ruled in favor of the defendant who represented him by proxy in the first instance trial and acquitted him. A. in the case of appeal by the participant, the first instance acquittal sentence shall be upheld as a result of the trial appeal, and in the case of rejection of the request for appeal shall be upheld in favor of the defendant who has represented himself by proxy.A.Finish.T.the surrogacy fee stipulated by the council will also be ruled out.

Conversely, when the court of Appeal decides that the Local Court provision is unlawful and decides that the acquittal provision should be abolished and the conviction of the defendant shall be the conviction of the accused. If this formed law had initially occurred correctly, the participating deputy would have been entitled to a retainer fee in both the first instance trial and the trial of Appeal. In this case, in order not to hold the participant responsible for the improper establishment of the law and to establish a balanced justice, it is by right that the Criminal Department of the District Court Court, which accepts the appeal request, should also rule on the power of attorney fee, which is not determined in the first instance trial.

Samsun district courthouse Court for the reasons described 5. The Penal Department’s “decision ruling on a single retainer fee” is procedural and against the law.”the opinion has been declared in the form of, as a result, 696 numbered KHK m. Samsun district court 5 in accordance with article 92/2 and Article 35/1 and paragraph of Law No. 5235 amended by Article 5. The dispute has been requested to be settled by finding that the Penal Department’s decision no 2017/116, based on 2016/49, is in violation of procedures and laws.

C -) DECISIONS SUBJECT TO RESOLUTION OF DECISION DISPUTE

Samsun District Courthouse Court 5. Criminal Department dated 01.02.2017, 2016/49 basis, 2017/116 Decision No. and Samsun district courthouse Court 6. Decisions of the penal department dated 15.02.2017, 2016/202 basis, 2017/243 decision no.

D) SUMMARIES OF THE DECISIONS OF THE CRIMINAL DEPARTMENTS OF THE DISTRICT COURT COURT SUBJECT TO RESOLUTION OF THE DECISION DISPUTE

1. In case the case is decided to be reconsidered in accordance with Article 280/1-c of the CMK during the investigation of the way of Appeal law, the decision that the court of First Instance and the trial of Appeal should be ruled on the attorney fees separately for the court of First Instance and the court of Appeal

The decision of Vakfıkebir Criminal Court of First Instance dated 12.10.2016, 2016/10 and 2016/353 decided that there is no place for the defendant to be sentenced for insulting the public official for his duty and in the same decision, the attorney fee was not ruled in favor of the participant who represented him by proxy during the trial. Samsun district court 6, which carries out the appeal review after the application of the appeal law by the participating deputy for this decision. The criminal Department has decided to open a hearing on the case, and as a result of the trial, by Decision No. 280/2 of the CMK dated 15.02.2017, 2016/202 basis and Decision No. 2017/243. in accordance with the article, the court of first instance has decided to abolish the decision, to convict the defendant of a thrown-out crime and, consequently, to suspend the disclosure of the sentence against the defendant. In the same decision,as the case was concluded with a trial of 1,980.00 Turkish lira for the first instance trial and a trial of appeal, it was decided that the retainer fee of 990 Turkish lira should be taken from the defendant and given to the Ministry of health of the Republic of Turkey, which represents the participant by proxy. The relevant decision was finalized without appeal on 21.03.2017.

2. In case the case is decided to be reconsidered in accordance with Article 280/1-c of the CMK during the appeal legal process review, it is decided that the power of attorney fee should be ruled only for the appeal trial.

Kavak Criminal Court of First Instance’s decision no. 2016/71 and 2016/321 dated 17.08.2016 acquitted the defendant on the charge of contravention of law no.6831 and in the same decision, the attorney fee was not ruled in favor of the participating institution who represented him by proxy during the trial. Samsun district court 5, which carries out the appeal review after the application of the appeal law by the deputy of the participating institution for this decision. The criminal Department has decided to open a hearing on the case and as a result of the trial, the CMK’s decision no.280/2 of 2016/49 and Decision No. 2017/116 dated 01.02.2017. in accordance with the article, the court of first instance has decided to abolish the decision, to convict the defendant of a thrown-out crime and, consequently, to suspend the disclosure of the sentence against the defendant. In the same decision,it was decided that the attorney’s fee of 1,980.00 Turkish lira should be taken from the defendant and given to the participating institution, since the case was concluded with more than one trial for appeal only according to the provisions of the minimum wage tariff. The relevant decision was finalized on 03.04.2017 without appeal.

E -) CONCEPTS, INSTITUTIONS AND LEGAL REGULATIONS RELATED TO DECISION DISPUTE

1. THE RELEVANT PROVISIONS OF THE LAW NO. 5235 ON THE ESTABLISHMENT, DUTIES AND POWERS OF THE COURTS OF FIRST INSTANCE OF JUDICIAL JURISDICTION AND THE COURTS OF DISTRICT COURTS

35/3 of the law No. 5235 dated 20/11/2017 and amended by Article 92 of the Decree No. 696, entitled “powers of the Board of Presidents”. “if there is a dispute between the law or criminal departments of the district court or the chief prosecutor of the Republic, who has the right to appeal under the law of Civil Procedure or the Code of Criminal Procedure, or between the decisions of the civil or criminal departments of the District Court in similar cases, or between the decisions of the, adding his own views, he introduced the rule” to ask the Supreme Court to make a decision on this matter.

35/4 of the law No. 5235 dated 20/11/2017 and amended by Article 92 of the Decree No. 696 entitled “powers of the Board of Presidents”. its article states, ” to carry out other duties given by law.(Amended paragraph: 20/11/2017-KHK-696/92 md.; Exact admission: 1/2/2018-7079/87 md.) (3) requests to be made according to me number, criminal cases of the Supreme Court of the Republic Attorney General, civil cases are forwarded to the relevant legal department. If the Public Prosecutor’s Office of the Supreme Court finds that there is a dispute, it requests a decision from the relevant criminal Department. The decisions made by the agency in accordance with this paragraph regarding the settlement of the dispute are final.

The board of presidents convenes fully and decides by majority.

(Additional clause: 20/7/2017-7035/12 md. The Department of labor between the criminal and legal departments of the courts of the district is determined by the Board of judges and prosecutors, taking into account the intensity and nature of the incoming work.”includes arrangement in the form of.

RELEVANT PROVISIONS OF CMK NO. 2.5271

Entitled” Review and prosecution in District Courthouse court ” 280/1. substance;

(1) the District Court of justice, ( … ) (1) after reviewing the file and the evidence presented with the file;

a) procedural or substantive law in the decision of the court of first instance whether there is a breach of any law, or any deficiency in the evidence that is not in the process of proof is in place in terms of assessment when it detects that the appeal of the merits of the appeal denial, Article 303, paragraph I (a), (c), (d), (e), (f), (g) and (H) in the event of violation of paragraphs contained in the law is corrected, and the appeal of a denial of the merits of a breach of Appeal,

b) (annex: 20/7/2017-7035/15 md.) If the public prosecutor considers it appropriate to apply the lowest degree of punishment written in the law for the crime subject to conviction in accordance with the reason for appeal, the application for appeal shall be rejected on the basis of Correction of the violation of the law.,

c) (Annex: 20/7/2017-7035/15 md.) The decision to dismiss the case without the need for further investigation of the incident or the incorrect decision regarding security measures should be corrected in cases where the violation of the law is corrected and the application for appeal is rejected on the basis of,

(d) in the case of a reason for a violation of the law mentioned in the first paragraph of Article 289 (g) and (h) other than paragraphs (h) in the decision of the court of first instance, the provision shall be impaired and the file shall be sent to the court of first instance, whose provision is impaired for reexamination and adjudication, or to any other court of First Instance,

e) in other cases, after taking the necessary measures ( … ), the case shall be re-examined and the proceedings shall be started for the preparation of the trial.,

He decides.

(2) (supplement: 18/6/2014-6545/77 md.) At the end of the hearing, the District Court rejects the appeal or re-establishes the provision by removing the provision of the court of first instance.

(3) (supplement: 20/7/2017-7035/15 md. If the decisions made in accordance with the first and second paragraphs are in favor of the defendant, if these matters have the opportunity to be applied to other defendants who have not requested an appeal, these defendants shall also benefit from the decisions made as if they had requested an appeal.

3. RELATED PROVISIONS OF LAW NO. 1136

a) entitled” Attorney’s fee ” 164/1. substance;

Attorney’s fee refers to the amount or value that is equivalent to the legal aid of the lawyer.

B) entitled” preparation of Attorney’s fee tariff ” 168. substance;

Each year, within the month of September, the board of Directors of the bar association prepares a tariff showing the minimum limits of the attorney’s fee to be received from the judicial procedures and other transactions and sends it to the Union of Bar Associations of Turkey.

By the Board of Directors of the Union of Bar Associations of Turkey, the tariff to be applied by taking into consideration the proposals of the boards of Directors of the bar association is prepared by the end of October of that year and sent to the Ministry of Justice. (Additional sentence: 16/6/2009-5904/35 md.) So much that the tariff prepared; general budget, special provincial administrations, municipalities and villages belonging to tax, painting, fees and similar financial obligations and their raises and penalties and tariffs related to the cases and 6183 public receivables collection procedure arising from the application of the law for all kinds of attorney fee amount is determined as maktu. This tariff is finalized if no decision is made by the Ministry or if the tariff is approved within one month from the date it reaches the Ministry of Justice. However, the Ministry of Justice will send the tariff, which it does not approve, back to the Union of Bar Associations of Turkey for further discussion. This returned tariff shall be deemed approved and otherwise unapproved if accepted by the Board of Directors of the Bar Association of Turkey by two thirds majority; the result shall be notified to the Ministry of justice by The Bar Association of Turkey. The provisions of the sixth paragraph of Article 8 are applied in comparison.

In the discretion of the attorney’s fee, the tariff in force on the date of completion of the legal aid or the conclusion of the case shall be based.

c) entitled” amount of attorney’s fee to be charged to the judicial authorities ” 169. substance;

The attorney’s fee to be charged by the judicial authorities to the other party may not be less than and more than three times the amount written in the attorney’s fee tariff.

4. LAWYERING MINIMUM WAGE TARIFF PUBLISHED IN THE OFFICIAL GAZETTE DATED 02.01.2017 AND NUMBERED 29936

a) 2.” works covered by the Attorney’s fee”. substance;

(1) the lawyer fee written in this tariff is the equivalent of the case, work and transactions fee until the final provision is obtained. The case pursued by the lawyer or the petition organized in relation to the work and other transactions do not require separate fees. In case of rejection or acceptance of requests for the interpretation of the provisions, the attorney’s fee may not be decided.

(2) on the other hand, the hearings of the works seen on appeal in the Court of Appeals, the Council of State, The Military Court of Appeals and the Court of accounts, and on appeal in the district administrative and District Court Courts, with follow-up of execution, require separate fees.

B) 14, entitled” charge in criminal cases”. substance;

(1) if, upon participation in the public trial, it is decided to suspend the conviction or the explanation of the provision, the attorney’s fee determined in the second part of the second part of the tariff in favor of the participant who has a deputy shall be charged to the defendant.

(2) in cases where a fine is imposed only according to the special laws, regulations and decrees which carry a penalty provision, the attorney’s fee to be determined according to the tariff shall not exceed the amount of the fine imposed.

(3) in applications made to Heavy Criminal Courts for compensation according to the articles 141 and continuation of the Criminal Procedure Law No. 5271 dated 4/12/2004, the lawyer’s fee shall be decided in accordance with the third part of the tariff. So much so that this fee to be adjudicated cannot be less than the fee in the twelfth rank number of the second part of the second part.

(4) for the benefit of the accused who has been acquitted and who has represented himself by proxy, the cost of attorney shall be determined against the Treasury.

(5) in the case of rejection in criminal courts, removal from internet publication content, acceptance of applications such as objection to administrative fines, or removal of the decision of the court of first instance upon appeal of the decision of the court of first instance, the work shall be without trial or trial, Part Two, Part 1. for the next job, the attorney’s fee shall be adjudicated as prescribed. However, the amount of the administrative fine subject to the application is part two of the tariff first part 1. for the next job, the attorney’s fee is determined as much as the administrative fine if it is below the prescribed fee.

c) 2 of the same tariff. Part 2. Section 9 under the heading” fees to be paid to Legal Aid made in jurisdictions and enforcement and Bankruptcy offices and whose subject is not money or cannot be assessed with money”. substance;

1.980.00 TL for the cases pursued in the courts of First Instance

d) 2 of the same tariff. Part 2. section 18 under the heading” fees to be paid to Legal Aid made in jurisdictions and enforcement and Bankruptcy offices and whose subject is not money or cannot be assessed with money”. substance;

Followed by the regional courts the regional administrative courts by way of appeal if it is seen for a follow-up, a) to work with a hearing 990,00 TL , b) required more than one trial and discovery operations for jobs such as lawyer in the presence of the poet in the 1980,00 TL ‘ foresees the payment of fees.

F -) JUSTIFICATION

The power of attorney is the value that the attorney is entitled to as a result of the performance of his or her defense duty against his or her client. No doubt, this fee arises from the contractual relationship between the proxy and the lawyer. The lawyer by his client of Legal Services; case consultation, deliberation, or administrative process as a reference for many legal representation, as may be the case in a criminal proceeding as it is in dispute with the side of his client in front of the judicial bodies may be in the form of services or defense that you represent. Before the judicial organs in order to ensure that you reveal and defend the rights of the people entitled to due process of law which resulted in favor of the legal services offered by lawyers with the parties themselves must be represented by a proxy in the event that attorney fees will be awarded against the party Law and it is indisputable that in criminal proceedings unfair.

324 of CMK No. 5271, entitled “expenses of judgment”. and in the continuation articles” attorneys ‘fees to be paid according to the tariff” are counted together with the costs of the trial. In addition, it is written in the same law in the same way that the decisions and decisions to be made by the courts should be shown the costs of the trial and to whom it will be imposed.

327 of the CMK No. 5271 entitled” goes if the decision is made that there is no place for acquittal or punishment”. according to the article; “…the person is sentenced to pay only the expenses caused by his own fault, …the expenses that this person has to pay in advance, shall be undertaken by the state Treasury…” According to the text of the article, there is no doubt that in the case of a criminal trial an acquittal is decided on the defendant and if he has represented himself with at least one deputy, the retainer fee should be decided in favor of the defendant and that this fee should be paid by the state Treasury, which However, if a decision is made that there is no place for punishment, it is understood that a defendant who is found to have a fault according to the reason of the decision and who is deemed to have caused a criminal trial will not be charged with Attorney.

The way of Appeal, which is one of the usual ways of law to be applied against the provisions given by the courts of First Instance in criminal proceedings, has different characteristics than the way of law.

The provisions of the application for appeal act, 272 to 285 of the CMK No. 5271. the articles are regulated between 280/1 of the same law. according to Article 303/1 of the CMK, if the District Court finds that there is no violation of procedure or principle in the decision of the court of First Instance after examining the file and the evidence presented with the file, that there is no deficiency in the evidence or proceedings, and that the evaluation in terms of proof is appropriate, article ” a,c,d,e,f, g and h” in the presence of violations of the provisions of the law by correcting the violation of the appeal to be rejected from the basis, in case the public prosecutor considers it appropriate to apply the lowest degree of punishment written in the law for the crime subject to conviction in accordance with the reason of the appeal, the, correction of the illegality and rejection of the appeal from the basis, in the decision of the court of First Instance, CMK 289/1. in the case of a reason for a violation of the law stated in the other paragraphs of Article “g and h”, it is clear by the word of the law that the provision should be broken and the file sent to the court of first instance, whose provision is broken for re-examination and adjudication, or to another court of first instance, which In accordance with paragraph 2 of the same article, at the end of the trial, the District Court of Appeals must either reject the appeal on the basis of or re-rule by removing the court of first instance provision, as well as Article 3 of the same. in the paragraph, if the decisions made in accordance with the first and second paragraphs are in favor of the defendant, these matters have the opportunity to apply to other defendants who have not requested an appeal, these defendants can also benefit from the decision made as if they had requested an appeal.

Samsun district court of justice two different first instance criminal courts located within the boundaries of the judicial environment in two separate cases on one of the defendants for the crime of acquittal as a result of the decision on the other defendants for the penalty is not allowed to be decided, both first instance Criminal Court decisions in accordance with the minimum wage tariff After both of the first instance Criminal Court decisions are subject to separate appeals for appeal, Samsun district court courts 5.Criminal Division and 6. As a result of the investigation conducted by the criminal Departed.

Samsun district court 5, which decided that the provision of the local court was unlawful and decided the removal of the acquittal sentence and the conviction of the accused, in the face of the fact that the trial procedures of the courts of First Instance with the procedure of judicial review by the appellant and the party who represented him by proxy during the trial It was concluded that the Criminal Chamber should not only judge by the law of Appeal, but also the retainer fee, which would have to be ruled if the court of First Instance had actually made a correct and lawful determination and decided on the conviction of the defendant.

G -) RESULT

As a result of the trial conducted by the Criminal Courts of the first instance, where the participant had him represented by a deputy, CMK No. 223 of 5271 about the defendant. 280 of the criminal Department of the District Court Court, CMK, which reviews the relevant first instance Criminal Court decisions, following the application for judicial review against the provisions ” that there is no room for acquittal or punishment” which will be given in accordance with the article. in the event that the defendant decides to reconsider the case in accordance with the article and decides on the conviction of the defendant for the offence as a result of his trial, it was decided unanimously on 18.04.2018 that he should also rule on the power of attorney fee, which must be ruled in favor of the participant and against the defendant, not only for.