Can Lawyers Testify About Their Clients ?

28 Apr Can Lawyers Testify About Their Clients ?

T.C.
SUPREME
17. CRIMINAL DEPARTMENT
PRINCIPAL NO: 2015/13365
DECISION NO: 2016/6633
DECISION DATE: 3.5.2016

WHETHER LAWYERS CAN TESTIFY AGAINST THEIR CLIENTS.

The sentence given by the local court was examined by appeal and discussed and considered as necessary:

DECISION

1- )From the scope of the file, at an undetermined time on the day 9.6.2005, the plaintiff parked on plate door handle right front of the vehicle is opened by being pushed found … … brand car stereo was stolen at the scene where investigations, any evidence obtained could not be continued as the investigation about the incident, car theft incidents that occur within the scope of the identified culprits fingerprints from 2 separate incidents … and …’S caught in Istanbul on 4.5.2006, the defendants counsel dated the same statements in law enforcement in peace … , … central and … in the district of many vehicles stolen tape, their actions at night between 01.00-05.00 hours, the doors of the vehicles opened with a screwdriver or fruit knife, besides other events on 9.6.2005 in order to steal from Istanbul …’they came to, the same neighborhood in a few streets parked on 4 separate vehicles stolen tape, passing time, the weather is dark and … ‘yi do not know the addresses, vehicle models and, the lawyer present during the trial said that the accused did not apply any pressure during the trial, and that they described their actions in a comfortable manner, and that the court understood that with the evidence available, the defendants’convictions for discarded crime were decided.; In their defense taken by law enforcement dated 4.5.2006, the defendants, … in their actions regarding the theft of all the auto tapes that occurred recently in the district and read to them by law enforcement,“they carried out their actions at night between 01.00-05.00, opened the doors of the vehicles with a screwdriver or fruit knife, passing time, the weather is dark and … ‘yi do not know the addresses, vehicle models and, in this sense, abstract confession and theft can not be associated with the act of theft, the accused in the trial stage, when the denial of the crime is also taken into account, shows that they committed the charged crime, in accordance with the law, free of suspicion, and the fact that they have not given any details to the accused in the, considering that there is insufficient and credible evidence, “the defendant shall benefit from the suspicion” in accordance with the principle of universal criminal law, since it is not fixed that the crime of theft was committed by the defendants, the decision should be made in writing instead of their acquittal.,

Acceptance is according to,

2 -) in Article 46/1-a of CMK No. 5271, it is stipulated that the consent of the clearly represented person is required for lawyers to testify about the information they have learned because of these attributes or because of their judicial duty, and in the last paragraph of the same article, the lawyer cannot be forced to testify even if there is consent; 36 of the law Article 46 of the CMK No. 5271, which states that lawyers are prohibited from revealing the matters which they have been entrusted to them or learned in accordance with their duties, and that they must have obtained the consent of the business owner in order to testify about these matters. in the face of the same regulation as the article, the lawyer who acts as a defender in the investigation phase of the defendants … is heard as a witness, although there is no consent process given by the defendants and the right to abstain from testimony is not reminded, and their statements are based on the verdict.,

3- ) The vehicle is parked at 20.30, the next day at 07.00 in the morning understood the theft incident, the actions of the defendants, 01.00 and 05.00 hours between the statements on the way they carried out the sun is born at 05.15 hours when considering the application of daylight hours in the UYAP inquiry, TCK 6/1-e article in accordance with 04.15 hours to be accepted as the, in accordance with the principle of” the defendant benefits from the suspicion”, the provision should be established with the admission that the action was committed during the day, whereas in the provisions established for the expulsion offence, the article 143 of the TCK should be established. adjudication of the excess penalty by making an increase in accordance with the article,

4 -) T.C. Constitutional Court, Tck 53. Article 53 of the Turkish penal code in accordance with the cancellation decision no.2014/140 and decision no. 2015/85 was published in the Official Gazette No. 29542 on 24.11.2015. necessity to re-evaluate the deprivation of rights in the article,

5 -) this case made due to the total invitation expense of TL 3.50 6352 Act No. 100. Article 324 of CMK. in accordance with the sentence added to the fourth paragraph of Article 6183 of the law No. 106 on the collection procedure of Public receivables. failure to take into account that it is less than the amount required to be left in the article and therefore will not be charged to the defendants as a trial expense,

Conclusion: it was decided unanimously on 03.05.2016 that the reason for the appeal of the defendants … and … defence was deemed appropriate in this respect, and that the verdict was overturned in violation of the communiqué for the reason described.