Penal General Assembly 2016/1421 E. , 2020/461 K.
“text of jurisprudence”
Who made the decision
Supreme Court of Appeals Chamber : (Closed) 21. Criminal Department
Court : Penalty of First Instance
Number : 166-72
As a result of the trial held in the public case filed against the accused … for forgery and fraud in an official document, the accused, 5237 numbered 204/1 and 53 of the Turkish Penal Code. 3 years and 6 months in prison in accordance with articles, 2 years and 8 months in prison in accordance with Articles 503/1, 522/1 of the TCC No. 765, and 10.125 TL judicial fine and deprivation of rights issued by the Yenişehir Criminal Court of First Instance dated 02.03.2011 and numbered 166-72, the Court of Cassation examining the file upon the appeal of the defendant 11. By the Criminal Department dated 24.06.2014 and numbered 11777-12380;
“11 of the Notification Law No. 7201. according to the article, the notification should be made to the attorney in the works followed by the attorney, the defense attorney who is present at the interrogation of the accused and decided in his absence. …’a communique to be a document that has been placed in the file, if not found, otherwise the communication with counsel for the defendant duly reasoned decision and submission of the document on the case, adding the refund of the appeal petition for the supply of the file to be sent to the scene of the Depositary to the public prosecutor of the Supreme Court” to the Local Court and to counsel for the defendant, it has been decided upon the announcement of the reasoned decision, the provisions of, as a result of the appeal of the defendant’s defense, the Supreme Court examined the file in accordance with the additional communiqué issued by the Chief Public Prosecutor of the Supreme Court (Closed) October 21. By the Criminal Department dated 02.12.2015 and numbered 9300-5769;
“35 of the Notification Law. in accordance with Article 32 of the said Law, although the notification process carried out on 08.07.2011 is not in accordance with the procedure. as stated in the article, ‘even if the notification is made in violation of the procedure, it will be valid with the knowledge of the addressee’, when he was taken to prison on 01.11.2012, 20/4 of the Law No. 5275. the defendant who is aware of the provisions in accordance dated 27.12.2012 of Appeals decision on the defendant’s arrest is paid after the legal period with the instructions and only attended to the query, then a power of attorney as it does not no the AV is determined not to take part in the judging process. … with the understanding that the defendant does not have a defense, the defendant and the Hunt. 8/1 of the Law No. 5320 of the …’s vaki appellate claims. 317 of the CMUK No. 1412, which must be applied in accordance with Article. in accordance with the article, the refusal ”has been decided.
The Chief Public Prosecutor’s Office of the Court of Cassation dated 14.10.2016 and numbered 243107;
“…In the examination of the file, the defense of the accused was taken with instructions, Edremit 3 on the defense of the accused. The Criminal Court of First Instance dated 26.09.2008 and 2008/168 Mut.when the numbered instruction interrogation transcript was examined, the defendant said, ‘I understood my rights as a defendant. I’ll make a statement. However, my proxy is Av. … I want to be immune from the trial I’m going to have with him.’ Av, which he made a statement in the form and stated as the defense of the defendant’s defense. … in the presence of the accused and his defense attorney, they did not participate in the subsequent hearings at the main court, the decision was made in the absence of the accused and his defense attorney, the reasoned decision was issued directly to the defendant instead of the defendant’s defense attorney, Article 21/2 of the Notification Act. in accordance with article 06.07.2011, the defendant was made to the address specified as mernis address, when the notification was examined, the defendant left the address, the notification was made to the signature of the village headman, it was not mentioned that the notification was affixed to the door, therefore the notification was irregular,
on 01.11.2012, the accused, who was apparently taken to prison for the execution of the file subject to the appeal, appealed the verdict on 27.12.2012, the Court sent the file to the defendant’s defense for notification of the verdict, the verdict was notified to the defendant’s defense on 19.08.2014, the defendant’s defense also appealed the verdict on 26.08.2014 that’s understood.
Firstly, instead of notifying the defendant’s defense attorney, who is interrogating the defendant before the defendant, of the decision, it is irregular to notify the defendant directly, therefore, it is during the appeal period that the defendant’s defense has made on the notification made to the defendant’s defense afterwards,
Again, that was improper notice dated 06.07.2011 against the accused in prison, the defendant has been notified of the absence of notification as to whether a provision such as a document, the defendant is taken to prison when 5275 law, in the absence of a document that is issued pursuant to the file between 20/4, such a document is issued, accepted, even if the decision had been notified of the decision who does not know the contents of the defendant could not, because he said that the defendant has appealed from the judgment and taken to prison must have aware of the provisions on the date 27.12.2012, again, since it cannot be mentioned that the decision was duly notified before 19.08.2014, the date on which the defendant’s defense was notified, it was understood that the appeal of the defendant dated 27.12.2012, made before 19.08.2014, should be accepted in any case within the deadline.
For these reasons, the accused and his defense counsel are in the process of their appeals and the file should be examined on the merits of the appeal,”the appeal has applied to the legal route with the opinion.
CMK’s 308. the Court of Cassation, which conducts an examination in accordance with Article 21 (Closed). The file sent by the Criminal Department to the First President of the Court of Cassation with the bet that the reasons for objection with the date of 24.10.2016 and the number 10050-6306 were not considered in place, was evaluated by the Criminal General Assembly and the decision was made on the grounds explained.
ON BEHALF OF THE TURKISH NATION
DECISION OF THE CRIMINAL GENERAL ASSEMBLY
According to the scope of the appeal, the examination was made limited to the provisions of the conviction established for forgery and fraud crimes in the official document about the accused.
The dispute between the Special Chamber and the Chief Prosecutor of the Republic of the Court of Cassation, which should be resolved by the General Assembly of Decriminalization; Edremit 3 on 26.09.2008 upon the capture of the accused. It is related to determining whether the Lawyer … who is with him in his defense in the Criminal Court of First Instance has earned the title of defender, in this context, how the reasoned decision notification should be made and whether the accused’s appeal dated 15.02.2013 can be accepted during the period.
From the scope of the examined file;
In the public case filed against the accused … for forgery and fraud in an official document, the accused’s statement was not taken during the investigation phase, and in the prosecution phase, Edremit 3. In the Criminal Court of First Instance, “I understood my rights. I’ll make a statement. But my deputy is Av. … I will do it together with.” and then last name in conjunction with the defense Attorney, made the continuation of the proceedings, the defendant and the defense attorney …’s participate in hearings, Lawyer …’s do not give power of attorney to file a judgment as a result, the Criminal Court by the defendant and the lawyer Larissa’s absence, the defendant was established provisions for crimes of forgery and fraud convictions,
For notification of the reasoned decision to the defendant; t type Metris closed Penitentiary in writing and sent to No. 1, Defendant No. 1 in Silivri on 18.03.2011 L-type closed prison where the answer is transferred to Silivri, No. 1 of the L-Type sent to the penitentiary Closed on 16.04.2011 if you post the answer was given that the defendant was evacuated, and both, in writing, the decision stated that the defendant be notified of an,
In this case, the Local Court, the defendant’s Edremit 3. During his testimony in the Criminal Court of First Instance, he said, “Soğanyenmez Mah. … In the notification part regarding the notification issued to the address ”Edremit /Balıkesir“; the information that the notification was returned with a bet since the defendant is not known by name; in the notification part regarding the notification made to the address ”… Çataltepe Köyü Kestel / Bursa”, which appeared as the defendant’s mernis address at that date, is 21 of the Notification Law. 2 of the article. according to paragraph 21 of the Notification Law, however, it contains information that the reasoned decision was notified to the signature of village headman azasi Ünal Yılmaz on 08.07.2011. 2 of the article. in the notification made in accordance with paragraph, there is no indication that the notification containing the address of the consoler is affixed to the door of the building at the address shown,
21 of the Notification Law by the Local Court. 2 of the article. the provisions on the notification under paragraph 01.11.2012 arrested and taken to prison, and on is able to confirm the defendant in prison, the accused person involved in the case, the penalty of imprisonment for crimes ictimal dated 08.11.2012 14 months to 5 years prison sentence containing the provisions of the sign and was given a copy has muddetname,
Yenişehir District Criminal Court to the public prosecutor and the Defendant dated 27.12.2012 petition to the Supreme Court by filing two separate provisions was sent without the knowledge of the execution stopped by to talk about because it is demanded that it be able to confirm whether these demands are rejected, where the petitioner has appealed by the Defendant dated 15.02.2013 with the provisions drawn up by the Local Court and the Supreme Court and the file was sent to the minutes dated 18.02.2013,
The Court of Cassation, which examined the provisions appealed by the accused, 11. According to the Criminal Department; “11 of the Notification Law No. 7201. in accordance with the article, the notification must be made to the attorney in the works followed by the attorney, the defense attorney who is present at the interrogation of the accused and decided in his absence. …’a communique to be a document that has been placed in the file, if not found, otherwise to duly reasoned decision and submission of the counsel for the defendant in case of a notification on it with the document, the refund of the appeal petition for the supply of adding the file to the public prosecutor of the Supreme Court of the scene to be sent to the secretary-general” in line with this decision and it has been decided, the reasoned decision of the Local Court the defendant to counsel the defendant also appeals were mudafisince of the provisions on notification on 19.08.2014 26.08.2014, The Supreme Court of Cassation, which examined the file with the additional communiqué issued by the Chief Public Prosecutor’s Office (Closed), October 21. The Criminal Department said, “35 of the Notification Law. in accordance with Article 32 of the said Law, although the notification process carried out on 08.07.2011 is not in accordance with the procedure. as stated in the article, ‘even if the notification is made in violation of the procedure, it will be valid with the knowledge of the addressee’, when he was taken to prison on 01.11.2012, 20/4 of the Law No. 5275. the defendant who is aware of the provisions in accordance dated 27.12.2012 of Appeals decision on the defendant’s arrest is paid after the legal period with the instructions and only attended to the query, then a power of attorney as it does not no the AV is determined not to take part in the judging process. … it is understood that the defendant is not a defender of the accused, the defendant and the Hunt. 8/1 of the Law No. 5320 of the …’s vaki appellate claims. 317 of the CMUK No. 1412, which must be applied in accordance with Article. refusal in accordance with the article” decided,
The defendant’s defense appealed the provisions on the notification made, and in another petition filed on the same date, he said, “With the reasoned decision sent, I think your court sent a notification to me about a mistake in the above-mentioned decision numbered file. As a matter of fact, a power of attorney has never been issued to me in this file and the defense of this file has never been undertaken by me. It is not possible for me to gain the title of deputy without my power of attorney in the file. I think that the fact that I participated in the investigation as the defendant’s defense attorney in a statement at the investigation stage may have caused this inaccuracy. However, a power of attorney has never been issued to me personally by the defendant. The reasoned decision sent to me must be communicated to the accused. For this reason, I respectfully inform the accused to issue a new notification and not to take into account the notification sent to me by mistake.” in which he declares that,
It is understood.
Dec. 36 of the Constitution entitled “Freedom to seek rights”. the first paragraph of the article;
“Everyone has the right to a fair trial with claims and defense as a plaintiff or defendant before judicial authorities by using legitimate means and means …”,
40 entitled ”Protection of fundamental rights and freedoms”. the first and second paragraphs of the article are;
“Everyone whose rights and freedoms recognized by the Constitution have been violated has the right to request that the opportunity to apply to the competent authority be provided without delay.
The State, in its transactions, must specify which legal remedies and authorities the relevant persons will apply to and their duration … ”is regulated in the form of Article 36 of our Constitution. article 40, in which everyone has the right to a fair trial as a plaintiff or defendant in front of judicial authorities by using legitimate means and means, claims and defense. in the Article, it is stated that everyone whose rights and freedoms recognized by the Constitution are violated has the right to request that the opportunity to apply to the competent authority be provided without delay.
34 of the CMK entitled ”Justification of decisions”. the second paragraph of the article;
“In the decisions, the legal method, duration, authority and forms that can be applied for are specified.”,
40, titled ”Making it obsolete.” item;
“(1) A person who has passed a period of time without fault may request reinstatement.
(2) In the event that the right to apply for legal remedy is not notified to him, the person shall be deemed to be perfect.” is arranged in the format of CMK’s 34. in the article, it is emphasized that the notification of the legal remedy in the judgments and decisions; The legal remedy, the authority, the form and the period to which the application may be made must also cover. 40 of the same Law. in the first paragraph of the article, it is stated that a person who has spent a period of time without a defect may request reinstatement, and in the second paragraph, if the right to apply for legal recourse is not notified to him, the person will be considered perfect.
At this stage, it is useful to focus on the announcement and notification of decisions, as well as the request and duration of the appeal.
35 of the CMK No. 5271 entitled ”Announcement and Notification of Decisions”. 2 of the article. in the paragraph; “Except for those related to protection measures, the decisions of the judge or court against which the legal remedy may be applied shall be notified to the person concerned who is not present.”in order for the appeal examination to be carried out by including the provision, it is regulated as a legal obligation that those who have the right to apply to the legal way of appeal should be made aware of the decision by interpretation or notification.
8 of the CMUK No. 1412, Law No. 5320. in accordance with Article 310, which must be implemented as of the date of the decision. the first paragraph of the article; “The appeal request shall be made by submitting a petition to the court that issued the verdict within one week of the interpretation of the verdict or by a statement to be made to the clerk of the police. The declaration is recorded in the minutes and the minutes are certified to the judge.”the second paragraph is “If the interpretation of the sentence was in the absence of the accused, this period begins from the date of notification.”it is stated that the appeal period will begin with the interpretation of the judgment in the decisions made against the person and with the notification of the reasoned decision in the decisions made in the absence.
Freedom is safeguarded by the Constitution and other laws of the rights of persons, and should be duly notified the parties of the state for the use of this right and appeals process after the announcement of the demand and time to the process, people who are the addressee of what to address, and 7201 ingredients which act notification should be made considering the investigation and notice of matters that are of great importance.
10 of the Notification Law No. 7201 entitled “Notification at a known address”. in the article;
“The notification is made at the last known address of the person to whom the notification will be made.
If it is understood that the last known address is not suitable for notification or notification cannot be made, the address of the addressee’s place of residence located in the address registration system is considered the last known address and the notification is made here.
So much so; It is permissible to make a notification everywhere, provided that the person to whom the notification will be made applies or accepts it.” is included in the arrangement.
Accordingly, the notification is first made at the last known address of the person to whom the notification will be made. The address may be the address of the addressee’s place of residence or work. In the determination of the last known address, the declaration of the person requesting the notification, the notifications of the addressee or other interested parties or the existing documents are taken as a basis. However, notices, reported to the issuing authority to address communications to be understood that is not conducive to notice at this address or in case of failure, the interlocutor’s Services Act No. 5490 population, according to the address in the address registration system (MERNIS) the last known address of the notification will be made here and will be regarded as (Canan Ruhi, Ahmet Cemal Ruhi, notice law, Seçkin yayınevi, s. 82.).
The form of notification to the address in the address registration system (MERNIS) is 21 of the aforementioned Law entitled “Impossibility of notification and refraining from notification”. 2 of the article. in the joke;
“Address shown in the address of the addressee the addressee at that address and the address registration system, continuously formed, or never separated from that address, even though the notification to be notified of documents Mukhtar officer, or chief of police or the officer or one of the members of the board of elders to be delivered in return for signature and delivery to the door of the building at the address shown on your notice of address-containing pastes. The date on which the notification is affixed to the door is considered the date of notification.” is explained in the format.
In terms of our subject, it is also necessary to mention in which cases the notification that is contrary to the procedure will be valid.
Article 32 of the Notification Law No. 7201 entitled “Provision of notification contrary to procedure”. article;
“Even if the notification is made in violation of the procedure, it is considered valid if the addressee has complied with the notification.
The date declared by the addressee, the date of notification is added.”,
53 of the Regulation on the Implementation of the Notification Law entitled “Provision of the Notification contrary to the Procedure”. item;
“(1) The notification is valid if the addressee has learned about the notification, even if it has been made in violation of the procedure. Otherwise, the notification is deemed not to have been made. If the addressee receives the notification document or invitation in any way or learns the content of them, he is deemed to have learned the notification.
(2) The date on which the addressee declares that he has learned about the notification is accepted as the date of the notification
(3) If the notification has been made in violation of the procedure, it is not possible to claim and prove that the addressee has learned about the notification and the date of it.”it has been accepted that the notification will be valid on the date on which the defendant declares that he has learned about the notification or reveals it with his actions and actions.
According to the practices carried out by the General Assembly of the Court of Cassation and the Criminal Chambers in a way that leaves no room for hesitation, the appeal period will not begin to process if the sentence established in the absence of the right to appeal is not duly notified to those who have the right to appeal, it is assumed that the appeal petitions filed on learning are in due course.
On the other hand, the Notification Law No. 7201 is entitled “Proxy and legal notification” 11. article;
“Notification is made to the proxy in the works followed through the proxy. If the proxy is more than one, it is sufficient to notify one of them. If the notification has been made to more than one representative, the date of notification made to the first of them is considered the date of the original notification. However, the provisions of the Code of Criminal Procedure regarding the notification of decisions to the defendants are reserved.”it is regulated as an order that the notification should be made to the proxy in the works followed through the proxy by being placed under the provision in the form of.
At this stage, it is also useful to examine whether it is mandatory to have a power of attorney given to the lawyer by the defendant in order to gain the title of defender in terms of our subject.
149 of the CMK entitled “The choice of the defense of the suspect or the accused”. article;
“The suspect or accused may benefit from the assistance of one or more defenders at each stage of the investigation and prosecution; if he has a legal representative, he may also choose a defender for the suspect or accused.
During the investigation phase, up to three lawyers may be present to take statements.
At every stage of the investigation and prosecution stages, the right of a lawyer to interview a suspect or accused, to take a statement or to be present during the interrogation and to provide legal assistance cannot be prevented or restricted.”it is clear that there is no obligation for the lawyer who provides legal assistance to the suspect or accused to submit a power of attorney to the court.
Article 261 of the CMK entitled “The right of a lawyer to apply”. in the article; “A lawyer may apply for legal remedies provided that he does not contradict the explicit desire of the persons he undertakes to defend or act as a lawyer.” in the absence of a clear opposition of the accused in the file with the provision, the lawyer was given the right to appeal and again 149 of the CMK. similarly, the article does not stipulate an obligation such as the attorney’s power of attorney should be found.
A power of attorney agreement between the parties is necessary for the acquisition of the title of defender and the exercise of the powers Decertified by this duty. This agreement does not necessarily have to be in the form of a notarized or even written power of attorney, and in criminal trial law, it is sufficient to duly notify the court that the lawyer has been appointed a proxy. However, it is known that in practice, it is common to authorize a lawyer with a power of attorney, which is usually issued by a notary.
In this context, there is no doubt that the lawyer, whom the accused came to the trial together and reported that he accepted as his defender before the judge, will gain the title of defender, and he can also apply for legal remedies, provided that he does not oppose the explicit desire of the defendant, whom he is an assistant to.
The same conclusion was reached in the decisions of the Criminal General Assembly dated 09.12.1974 and numbered 282-447, dated 20.04.1992 and numbered 86-105, dated 20.10.1975 and numbered 7-7 of the Case Law Unification Council in terms of this issue.
In the light of these explanations, when the subject of dispute is evaluated;
21 of the Notification Law of the provisions of the conviction established by the Local Court for forgery and fraud in the official document about the accused. 2 of the article. according to the notification dated 08.07.2011 made in accordance with paragraph finalized on 01.11.2012 taken to the prison for the execution of these provisions on the defendant, the provisions petition dated 15.02.2013 has appealed, and the Supreme Court of Appeals in accordance with viewing the file 11. By the Criminal Department; 11 of the Notification Law. according to the article, followed by the deputies notice stating that the defendant should be made to the attorney in the prosecution of receipt of the statement with the defense lawyer in the order that you wanted to do’a lawyer …a decision should be made by a notification deposited on 19.08.2014 the Local Court on the date of notification of the decision upon appeal by the attorney for the defendant on the date of the provisions of imprisonment is understood to have been 26.08.2014.
Private dairec viewing the file; the defendant duly 08.07.2011 on the notification date, but on 01.11.2012 taken to the prison when it is the defendant who is aware of the provisions of Appeals after the legal period, and then participating in the query with the instructions on the defendant’s arrest did not submit a power of Attorney, no Av does not participate in the trial process. …’counsel for the defendant and the defendant’s counsel for not having the title of the reasons of the appeal were dismissed prompt;
Edremit on capture during the prosecution phase 3. In the Criminal Court of First Instance, “I understood my rights. I’ll make a statement. But my deputy is Av. … I will do it together with.” and then the defense Lawyer with the last name of the defendant, who his lawyer or attorney is a written contract between the agency between the parties to the presence of an attorney does not have to be submitted to the court of the nature of proof, Criminal Procedure Law in the lawyer’s representative to the court being duly notified that there had been enough, given that the defendant, upon capture, the received testimony before the start of a lawyer …’s defense attorney and his attorney duly reporting to the court by indicating that he would do with the defender’s defense also reported the presence of the receipt of the defendant in court, and thus does not have a power of attorney lawyer in the file, although …’S to win the title mudafilik should be considered.
In this case, 11 of the Notification Law No. 7201. in the face of the fact that the notification must be made to the proxy in the works followed by the proxy in accordance with Article 11 of the Court of Cassation, the notification that is valid regarding the notification of the reasoned decision within the scope of the file is mandatory. The Criminal Division of its decision after the notification of the notification dated 19.08.2014 counsel to the defendant before the local court, it cannot be duly considered, the defendant gave notice of counsel as a result of the petition of Appeal on time in the history of 26.08.2014,
On the other hand, under file, in the case of the defendant in prison for the execution of the provisions taken to the prison on 01.11.2012 notification of the reasoned decision of admittance in the absence of a document, only those involved in the case, the penalty of imprisonment for crimes ictimal dated 08.11.2012 14 months to 5 years prison sentence containing the provisions muddetname sign and where the defendant has made a copy on the specified date, the defendant, about the imprisonment provisions that would apply to the path of the law, the authority, and from the contents of muddetname show the duration, the punishment which the court, the amount of the penalty which would be able to understand and crimes that are not even understood in this way, the misleading nature of the defendant notice of the final State in which issues are considered together when the defendant in his appeal by the date of the appeal petition dated 15.02.2013 time on learning should be considered,
It is concluded.
In this respect, since the Lawyer … has gained the title of defense attorney of the accused, the defendant and his defense are in the period of appeal petitions, and the provisions established about the accused must be examined on the merits within the scope of both appeal requests, the file must be examined on the merits of the provisions established about the accused with the decision of the First Presidential Board of the Court of Cassation dated 22.12.2016 and numbered 398 with the decision of the Court of Cassation 21. Due to the closure of the Criminal Department, the Court of Cassation, to which the works belonging to this Department were transferred in accordance with the same decision, was held on the 11th. A decision should be made to be submitted to the Chief Public Prosecutor of the Court of Cassation for submission to the Criminal Chamber.
result:
For the reasons explained;
1- ACCEPTANCE of the appeal of the Chief Public Prosecutor of the Court of Cassation,
2- Court of Cassation (Closed) 21. The decision of the Criminal Chamber dated 02.12.2015 and numbered 9300-5769 on the rejection of the appeal requests related to the provisions of the conviction established for forgery and fraud in the official document on the accused is ANNULLED,
3- With the decision of the First Presidential Board of the Court of Cassation dated 22.12.2016 and numbered 398 for the purpose of examining the merits of the provisions of the file established about the accused, the Court of Cassation 21. Due to the closure of the Criminal Department, the Court of Cassation, to which the works belonging to this Department were transferred in accordance with the same decision, was held on the 11th. It was unanimously decided during the negotiation held on 17.11.2020 to be submitted to the Chief Public Prosecutor’s Office of the Court of Cassation to be sent to the Criminal Department.
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