T.R. SUPREME COURT
- Criminal Chamber
Basis: 2015/11443
Decision: 2016/352
Decision Date: 14.01.2016
CRIME OF ABUSE OF CONFIDENCE DUE TO THE SERVICE – LAWYERS FAILED OR DELIVERED THE MONEY COLLECTED OR DELIVERED FROM THE CLIENT FAILING TO DELIVE THE CLIENT TO ITS CLIENT – INCOMPLETE REVIEW AND INSUFFICIENT REASON SUPPLEMENT
SUMMARY: Considering the warning and complaint dates sent by the accused lawyers to the participant, the established practice of the office that the actions of the lawyers in the form of not delivering the money collected or received due to their duties and powers after 01/01/2009 to the employer client and acquiring property will constitute the crime of embezzlement. and that the concept of victimization, which is one of the objective punishment conditions in terms of the crime of misconduct, has a wider meaning than the concept of economic damage, and that actions that result in the violation of all kinds of social, political and civil rights of the individual and causing damage to any of their interests should be evaluated within this scope. Taking this into consideration, it would be wrong to decide for the defendants to be acquitted of the crimes charged with incomplete examination and insufficient justifications, instead of separately determining and appraising their legal status.
(1136 S. K. art. 34, 166, 171) (5271 S. K. art. 223)
Case and Decision: The judgments given by the local court were appealed and the file was examined and the necessary was considered:
In the examination of the file; that the participant … appointed … as his attorney with the general power of attorney of the Notary Public, dated 22/10/2004 and journal number 0023863, for the purpose of collecting the receivables of the Enforcement Directorate which are the subject of the enforcement files numbered 2004/5275 and 5762. With the authorization documents dated 01/2007 and 27/03/2007, it was stated that the other defendant was authorized to act in line with all the powers within the scope of the power of attorney, and that both defendants were duly authorized and responsible for the collection of the receivables of the participant in the execution proceedings, which is the subject of the trial, on the contrary, the accused Lawyers that they ensured the removal of the liens placed in the title deed records of the immovables with no. 2872, 19 parcels and 28931 parcels 3, which are registered in the deed belonging to …, which is one of the debtors of the follow-up files, without the knowledge and instruction of the participant, and that the liens placed due to the execution files in question are removed from the debtor …’ Receive the 15,000 TL they have collected externally from Because of two files in the land registry records of the immovables of which … was a shareholder for 15,000 TL. He agreed with the accused … to remove the liens placed, in this context, he handed over the money to the other accused lawyer at the door of the enforcement office, then the accused lawyer lifted the liens, and the participating … did not give him the 15,000 TL collected by the accused … from the debtor İzzet, In the petition dated 15/07/2013, one of the defendants stated that the liens on the immovables belonging to the debtor were lifted without their consent, and that, apart from the execution files in question, the accused lawyers did not have the file they followed, it was stated in the petition dated 15/07/2013 that the creditors of … were their other clients. He accepted to remove the lien on the real estate since the Directorate of IRA paid him approximately 15,000 TL for the files numbered 2004/5418-5793-6027, reported these payments to the relevant files, all his rights in the files continue, when the debtor makes a partial payment and promises to pay the rest when the real estate is sold. One of the defendants, Neşe, stated that the reason for their non-payment to the participant is clearly regulated in Article 166 of the Attorneyship Law, that the other defendant did everything within the framework of the law and in accordance with his instructions, and that he reported the numbers of the execution, civil and criminal files they followed under his petition on behalf of his client. that the debtor requested the removal of the liens placed on the immovables registered in the name of … with his petition dated 05/07/2011 submitted to both enforcement files, With his articles on the subject of ini, it was notified to the Enforcement Directorate … that the enforcement of the immovables on the 2872 block 19 parcel and the 28931 block 3 parcel number were notified, that the attendee applied to both execution files on the same date, declared that he dismissed the accused lawyers, that the liens on the immovables registered in the name of the debtor, without his knowledge and consent, were lifted and demanded a new lien on the immovables.
On the other hand, with the letter of the Land Registry Directorate on the sale of 22/07/2011 and 24402 journal no. 49/2400 of the immovable property no. 49/2400 was registered in the name of …, but it was reported that a foreclosure transaction was made on it, but the sale was made with the date of the article and the journal number, again from the defendants … that they collected 3.500 TL from the debtor in the file numbered 2004/5275 of the Enforcement Directorate, It is understood that they separately reported that they had collected 2.000 TL from the debtor on 23/09/2011, after the dismissal, in the file numbered 2004/5762,
Although the accusations are denied, the essence of the defense is based on the right of imprisonment, the right of imprisonment defined in Article 166 of the Attorneyship Law No. 1136 can only be used in proportion to the attorney’s fee receivables and expenses incurred, The receivables and values collected by the lawyer on behalf of and on behalf of his client are greater than the fee and expense receivables. retaining a certain amount of money under the name of “the right to imprisonment” is contrary to the purpose of enacting this right in the law, as well as against the professional rules of attorneyship. amount of fee and expense receivables, and after informing the other party about the subject and after a settlement to be made when necessary, he should use his right to imprisonment in proportion to his receivables, in fact, this situation is a natural consequence of the lawyer’s obligation to give account to his client. In the 34th article of the Law, “Lawyers are obliged to fulfill their duties with due care, integrity and dignity, befitting the sanctity of this duty, to act in accordance with the respect and trust required by the title of attorney, and to comply with the professional rules determined by the Union of Turkish Bar Associations.” In Article 43 of the Professional Rules, “Moneys and other values received on behalf of the client are announced and given to the client without delay.” 171/1 of the Attorneyship Law. “The lawyer shall follow the work he undertakes in accordance with the provisions of the law and to the end, even if there is no written contract.” and “…attorneyship fee, which is regulated in Article 2 of the Minimum Attorney Fee Tariff, is in return for the fee for litigation, work and transactions until the final judgment is obtained.” In accordance with the provisions of the provisions of the law, it must be accepted that the attorney’s fee becomes due with the completion of the undertaken work. Although it is possible to use the right of imprisonment against the attorney’s fee arising from all cases, since legal action is taken based on a single attorney’s agreement, it is possible to use the right of imprisonment against the attorney’s fee arising from all cases. it should be possible separately for a case/contract,
In this respect, in order to reveal the material truth in the event subject to trial; Is it only for the removal of the liens on the immovables no. 2872 no 19 and no 28931 no 3 parcel, which the witness … gave to the accused … only for the purpose of collecting the receivables of the participant …, which are the subject of the enforcement proceedings of the Execution Directorate with the number of 2004/5275 and 5762, as a shareholder? or if there is a re-declaration about whether the liens placed by other creditors, who are the attorneys of the accused lawyers, were given for the removal of the liens placed, and in case there is a conflict between the statement of the person mentioned in this regard, dated 01/02/2012 and the last statements of … As mentioned in the petition dated /07/2013, the execution, legal and criminal files that the Enforcement Directorate declared that they followed on behalf of the participant in the same petition, after obtaining a certified and legible copy of the files numbered 2004/5418-5793-6027 … taking into account the explanations made, the collection of the money in question from the witness As of 05/07/2011, when it was announced, whether or not the accused … has an attorney’s fee due from the participant, and after an expert report is received on the amount, if any, the money is collected externally from the debtor, it is notified to the execution files, the dismissal is notified to the defendants, the creditor is brought to the enforcement office. declaration of dismissal
Considering the warning and complaint dates sent by the accused lawyers to the participant, our Office has established that the actions of the lawyers in the form of not delivering the money collected or received due to their duties and powers after 01/01/2009, but rather acquiring property, will constitute the crime of embezzlement. and that the concept of victimization, which is one of the objective punishment conditions in terms of the crime of malfeasance, has a wider meaning than the concept of economic damage, and that actions that result in the violation of all kinds of social, political and civil rights of the individual and causing damage to any of their interests should be evaluated within this scope. taking into account, instead of determining and appraising the legal status of the accused separately, it is decided to acquit them of the crimes charged with insufficient examination and insufficient justifications,
According to the acceptance;
Although the defendants were acquitted because the legal elements of the crimes against them were not formed, article 223/2-a of the CMK was not included in the judgment, and Article 232/6 of the same Law was not included. opposition to the
Conclusion: 8/1 of the Law No. 5320, as it is unlawful and the appeal objections of the participant are deemed appropriate in this respect. It was unanimously decided on 14.01.2016 that the provisions be quashed pursuant to Article 321 of the CMUK, taking into account the article.
