In accordance with Article 26 of the legal profession act, a trainee lawyer, under the supervision and responsibility of a lawyer, may enter into hearings related to cases and work followed by a lawyer in magistrates ‘courts, Magistrates’ criminal courts and enforcement examination authorities, and perform work in executive directorates. If a trainee lawyer becomes a victim of a crime while the lawyer he is interning next to is making progress; the crime is committed against a public official. You can look at the example Supreme Court decision.
Criminal Division
Base Number: 2020/10625
Decision Number: 2020/18808
“Case Law Text”
Court :Criminal Court of First Instance
Offense: insult
Sentencing: conviction
DECISION
The sentence given by the Local Court was appealed, the file was discussed according to the duration of the application and the nature of the decision and the date of the crime:
As there were no reasons for the refusal of the appeal request, the work was moved to its merits.
In the examination according to the minutes, documents and content of the justification reflecting the hearing process in which conscientious blood was formed, other reasons were not seen in place.
But;
26 of law 1136, provided that the defendant insults the trainee lawyer who went into foreclosure with the bailiff, provided that the participant has the written consent of the lawyer with whom he was interned. considering that he will be considered a public official while performing the work counted in the article, the question of whether the participant carries the said conditions, without investigating the relevant Bar records, the incomplete prosecution and the decision to punish the accused in accordance with Article 125/3-a of the Turkish Criminal Code,
By admissions;
17/10/2019 day and 24 of Law No. 7188. article 5271 of Code of Criminal Procedure 251. a simple trial procedure is arranged in the article.
However, with regard to the application of this Regulation, 31 of law 7188. article 5271 added to Code of Criminal Procedure provisional 5. according to Paragraph (d) of the article; “as of 01/01/2020, the prosecution phase has been passed, the serial procedure of reasoning and the simple procedure of trial are not applied in the files that have been adjudicated or finalized”.
The Constitutional Court, which examines the issue through concrete norm audit (25/06/2020, 2020/16, 2020/33; P.G. 19/08/2020, issue: 31218), the provision in the mentioned provisional Article 5/d, “the prosecution phase has been passed” in the same paragraph, 38 of the Constitution in terms of “simple trial procedure”. he ruled against the article and decided to cancel it.
Although the decision of the Constitutional Court did not decide to cancel the files related to the provision, the stage of prosecution in relation to the files related to the provision of Article 2/1-(f) of the law No. 5271 should continue until the conclusion and 251/3 of the same law. according to the article, if the conviction is given, the result is a quarter reduction in the sentence, which means that the appellate review brings lehe regulation in terms of ongoing files,
In the decision of the Constitutional Court to cancel; the new regulation introduced in favor of the defendant, Law No. 7188 31. in accordance with article 5271, the provisional 5 added to the Code of Criminal Procedure . article 251/1 of CMK 5271, which has been reviewed on appeal, since it is stated that it should be applied in terms of files that have been “proceeded to the prosecution phase”. from the point of view of crimes covered by Article 38 of the Constitution. article 5237 of Turkish Criminal Code 7 and 5271 of Code of Criminal Procedure 251 et al. obligation to re-evaluate in accordance with the articles,
It was unanimously decided on 08/12/2020 that the sentence should be overturned in accordance with the communique, that the trial should be resumed and sent to the main/sentencing court to be concluded starting from the pre-sentence stage.
