According to article 26 of the Attorneyship Law, a trainee lawyer may attend the hearings related to the cases and works followed by the lawyer at the peace courts, criminal courts of peace and enforcement investigation authorities, and perform the works in the enforcement offices, under the supervision and responsibility of the lawyer. If the trainee lawyer becomes a victim of a crime while the lawyer is doing his internship; the crime is committed against a public official. You can review the sample Supreme Court Decision. th
4th Criminal Chamber
Base Number: 2020/10625
Decision Number: 2020/18808
“Justice Text”
COURT: Criminal Court of First Instance
CRIME: Insult
JURISDICTION: Conviction
DECISION
The judgment rendered by the Local Court was appealed, and the file was discussed according to the duration of the application, the nature of the decision and the date of the crime:
Since there were no grounds for refusal of the appeal, the matter was passed on.
In the examination made according to the minutes, documents and justification content reflecting the trial process in which the conscientious opinion was formed; Other reasons were not seen in situ.
However;
In the event where the accused insulted the intern lawyer who went to the foreclosure together with the bailiff, the issue of whether the attendant fulfils the aforementioned conditions, considering that the attendee will be considered a public official while performing the works listed in Article 26 of the Law No. Deciding to punish the accused by Article 125/3-a of the TCK with incomplete prosecution without being investigated from the bar association records,
According to the acceptance;
The Simple Trial Procedure was regulated in Article 24 of Law No. 7188 of 17/10/2019 and Article 251 of the CMK No. 5271.
However, concerning the implementation of this regulation, with Article 31 of the Law No. 7188, paragraph (d) of the temporary article 5 added to the CMK numbered 5271; The provision “As of 01/01/2020, the rapid trial procedure and simple trial procedure shall not be applied in the cases where the prosecution phase has been initiated, adjudicated or finalized”.
Examining the issue through concrete norm control, the Constitutional Court (25/06/2020, 2020/16, 2020/33; RG 19/08/2020, No: 31218) stated that the provision in the aforementioned provisional article 5/d states that the phrase “prosecution phase has passed”. in the same paragraph, considering it contrary to Article 38 of the Constitution in terms of “simple trial procedure” and decided to annul it.
Although the Constitutional Court’s decision did not decide to annul the files that were adjudicated, the prosecution phase continued until the finalization regarding the files that were adjudicated by Article 2/1-(f) of Law No. 5271, and Article 251/3 of the same Law. If a sentence of conviction is given according to the article, a reduction of one quarter from the final sentence is foreseen, and this situation brings a favourable regulation in terms of the files whose appeal examination is ongoing,
In the annulment decision of the Constitutional Court; Since it is pointed out that the new regulation brought in favour of the accused should be applied in terms of files that have been in the “prosecution phase” with the temporary article 5 added to the CMK numbered 5271 by Article 31 of the Law No. 7188, 251/1 of the CMK no. In terms of the crimes covered by the article; Article 38 of the Constitution and 7 of the TCK numbered 5237 and 251 et al. of the CMK numbered 5271. obligation to re-evaluate by the
It was unanimously decided on 08/12/2020 that the judgment be quashed by the communiqué, as it required reversal and the defendant’s reasons for appeal were seen on the spot, and that the case be sent to the main/sentencing court to be continued and concluded, starting from the stage before the reversal of the proceedings.
