Criminal General Assembly 2016/1421 E. , 2020/461 K.
“text of jurisprudence”
Who made the decision
Office of the Supreme Court : (Closed) 21. Criminal Department
Court of First Instance : Criminal
Number : 166-72
As a result of the trial, the defendant was found guilty of forgery and fraud in the public case filed in the official document about the defendant, TCC No. 5237 204/1 and 53. in accordance with Articles 3 years and 6 months imprisonment, Penal Code No. 765 503/1, 522/1 every 2 years and 8 months imprisonment and judicial 10.125 in accordance with articles deserve to be punished with a penalty of deprivation TL Yenişehir dated and numbered by the defendant of the provisions of the Criminal Court upon an appeal by 02.03.2011 166-72, the Supreme Court of viewing the file 11. By the Criminal Department dated 24.06.2014 and numbered 11777-12380;
“Article 11 of the Notification Law No. 7201. in accordance with the article that notification should be made to the deputy in the cases followed by the deputy, the defense attorney who is present at the interrogation of the accused and is decided in his absence is the Av. …’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 by the defendant’s defense, the Supreme Court examined the file in accordance with the additional communique issued by the Prosecutor General’s Office of the Supreme Court (Closed) October 21. By the Criminal Department dated 02.12.2015 and numbered 9300-5769;
“Article 35 of the Notification Law. in accordance with Article 32 of the said Law, although the notification process made on 08.07.2011 is not in accordance with the procedure. as stated in article 20/4 of Law No. 5275 when he was taken to prison on 01.11.2012, because ‘even if the notification was made in violation of the procedure, it will be valid upon the learning of the addressee’. 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. … while it is understood that the accused is not a defender of the accused, the accused and the Av. … 8/1 of the Law No. 5320 on the actual appeal requests. article 317 of CMUK No. 1412, which must be applied in accordance with its article. according to the article ”refusal” has been decided.
The Prosecutor General’s Office of the Supreme Court is dated 14.10.2016 and numbered 243107;
“…During the examination of the file, the defendant’s defense was received with instructions, regarding the defendant’s defense Edremit 3. The Criminal Court of First Instance has a decision dated 26.09.2008 and dated 2008/168.when the numbered instruction was examined in the interrogation report, the defendant said, ‘I understood my rights as a defendant. I’ll make a statement. But it is the Hunt that is my proxy. I want to be immune from the trial I’m going to have with him. Av, which he made a statement in the form of ‘and stated as a defender of the defendant’s defense. …, which was taken before the defendant and his defense counsel did not participate in the subsequent hearings in the main court, the decision was made in the absence of the defendant and his defense counsel, the reasoned decision was issued directly to the defendant instead of the defendant’s defense, 21/2 of the Notification Act. according to article 06.07.2011, the defendant’s mernis address was made to the specified address, when the notification was examined, the defendant left the address, it was stated that 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, it was understood that the accused, who was taken to prison for the execution of the file subject to appeal, appealed the decision on 27.12.2012, the decision was notified to the defendant’s defense on 19.08.2014 after the Department sent the file to the defendant’s defense for notification of the decision, the defendant’s defense also appealed the decision on 26.08.2014 it is understood.
Firstly, instead of notifying the defendant’s defense counsel who is questioning the defendant in front of the defendant, it is illegal to notify the defendant directly, so it is during the appeal period that the defendant’s defense made after the notification to the defendant’s defense,
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 communicated before 19.08.2014, the date on which the defendant’s defense was notified, it was understood that the defendant’s appeal dated 27.12.2012, made before 19.08.2014, should be accepted in any case within the period of time.
For these reasons, the appeal has been appealed to the law with the opinion that the defendant and his defense are on the duration of their appeals and that the file should be examined on the merits of the appeal”.
CMK’s 308. the Supreme Court, which conducts an examination in accordance with Article (Closed) 21. Since the reasons for the appeal were not considered in place by the Criminal Court dated 24.10.2016 and numbered 10050-6306, the file sent to the First President of the Supreme Court of Cassation with a bet was evaluated by the General Assembly of the Punishment and decided on the grounds described.
ON BEHALF OF THE TURKISH NATION
THE DECISION OF THE CRIMINAL GENERAL ASSEMBLY
According to the scope of the appeal, the examination was carried out limited to the provisions of the conviction established for forgery and fraud offences in the official document about the accused.
The dispute between the Special Department and the Prosecutor General’s Office of the Supreme Court, which must be resolved by the General Assembly of the Criminal Court; Edremit 3 on 26.09.2008 upon the decapitation 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, the reasoned decision notification should be made and whether the defendant can be accepted during the appeal petition dated 15.02.2013.
From the scope of the examined file;
In a public case filed for forgery and fraud in an official document about the defendant …, the defendant’s statement was not taken during the investigation phase, and during the prosecution phase, Edremit 3 upon capture. In the Criminal Court of First Instance he said: “I understood my rights. I’ll make a statement. But my deputy is Av. … I’ll do it together with him.” 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 addition, in the Local Court, the defendant’s Edremit 3. “Soganyenmez Mah,” he said during his testimony in the Criminal Court of First Instance. … Edremit/Balıkesir” address of the notification of the notification issued in part, the defendant’s name is not recognized by the notification of the information that was returned to bet; on that date the defendant as the address that appears mernis “… Çataltepe Dark Kestel/Bursa address” part of the notification to the notification, the notification of the Act 21. article 2. in accordance with paragraph 21 of the Notification Law, however, there is information that the reasoned decision was notified to the signature of the village headman azas Ünal Yılmaz on 08.07.2011. article 2. in the notification made in accordance with the paragraph, there is no statement that the notice containing the address of the consoler is affixed to the door of the building at the address shown,
21 of the Law on Notification by the Local Court. article 2. 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,
Yenisehir 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 Supreme Court, which examines the provisions appealed by the defendant, 11. By the Criminal Department; “Article 11 of the Notification Law No. 7201. in accordance with the article that notification should be made to the deputy in the cases followed by the deputy, the defense lawyer who is present at the interrogation of the accused and is decided in his absence is Av. …’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 (Closed), which examined the file with an additional communiqué issued by the Prosecutor General’s Office of the Supreme Court, October 21. As for the Criminal Department, “Article 35 of the Notification Law. in accordance with Article 32 of the said Law, although the notification process made on 08.07.2011 is not in accordance with the procedure. as stated in article 20/4 of Law No. 5275 when he was taken to prison on 01.11.2012, because ‘even if the notification was made in violation of the procedure, it will be valid upon the learning of the addressee’. 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. … while it is understood that the accused is not a defender of the accused, the accused and the Av. … 8/1 of the Law No. 5320 on the actual appeal requests. article 317 of CMUK No. 1412, which must be applied in accordance with its article. refusal in accordance with the article”where it was decided to,
In another petition filed on the same date as the defendant appealed the provisions on the notification made by the defense, he said, “With the reasoned decision sent, your court sent me a notification on a mistake that I think is in the numbered file of the above decision. As a matter of fact, I have never been granted a power of attorney in this file and I have never taken on the defense of this file. It is not possible for me to earn the title of deputy without my power of attorney in the file. I think that the fact that I participated in the investigation as a defender of the accused in a statement at the stage of the investigation may have caused this inaccuracy. However, I have never been granted power of attorney by the defendant. The reasoned decision sent to me must be communicated to the defendant. For this reason, I respectfully inform the defendant that the re-notification will be issued and that the notification sent to me by mistake will not be taken into account.”he made a statement in the form of,
It is understood.
Article 36 of the Constitution entitled “Freedom to seek rights”. dec. the first paragraph of the article;
“Everyone has the right to a fair trial with a claim and defense as a plaintiff or defendant before the judicial authorities, 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 is obliged to specify in its transactions the ways and authorities to which the relevant persons will apply and their duration …” and is regulated by Article 36 of our Constitution. in its article, everyone has the right to a fair trial with claims and defense as a plaintiff or defendant before the judicial authorities by using legitimate means and means, 40. in its article, it is stated that everyone whose rights and freedoms recognized by the Constitution have been violated has the right to request the provision of the opportunity to apply to the competent authority without delay.
34 of the CMK entitled “Reasoned decisions”. the second paragraph of the article;
“In decisions, the path, duration, authority and forms of the law that can be applied for are specified.”,
40, titled “Making it obsolete.” item;
“(1) A person who has spent a period of time without fault may request reinstatement.
(2) In the event that the right to apply in accordance with the law is not notified to him, the person is considered to be flawless. it is organized in the format ” CMK’s 34. in its article, it is emphasized that the notification of the path of the law on provisions and decisions must also cover the path, authority, form and duration of the law that can be applied for. 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 the path of the law is not notified to him, the person will be considered perfect.
At this stage, it is useful to explain and communicate the decisions, as well as focus on the request for appeal and its duration.
Article 35 of the CMK No. 5271 entitled “Disclosure and Notification of Decisions”. article 2. in the paragraph; “Except for those related to protection measures, decisions of judges or courts that may be appealed against by law shall be notified to the relevant person who is not present.” in order to conduct an appeal review by including the provision, it is regulated as a legal obligation that those who have the right to apply to the appeal law should be provided that they learn the decision by exegesis or notification.
8 of CMUK No. 1412 and 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 states: “A request for appeal is made by filing a petition to the court that issued the decision within a week after the interpretation of the decision, or by a statement to the registrar. The statement is entered into the minutes and the minutes are certified by the judge. the second paragraph of the ”If the interpretation of the provision took place in the absence of the accused, this period starts from the date of notification.”it was stated that the appeal period will begin with the interpretation of the judgment in decisions made against the face, and in decisions made in the absence of the reasoned decision will begin with the notification of the reasoned decision.
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 be notified.
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 settlement located in the address registration system is considered the last known address and the notification is made here.
So much so that it is permissible to be notified everywhere provided that the application or acceptance of the person who will be notified is accepted.” the arrangement has been included.
Accordingly, the notification is first made at the last known address of the person to be notified. The address may be the address of the addressee’s residence or place of work. In determining the last known address, the statement of the person requesting the notification, the notifications of the addressee or other interested parties, or 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 (MERNIS) in the address registration system is 21 of the said Law entitled “Impossibility of notification and avoidance of notification”. article 2. in the paragraph;
“The address shown is the address of the addressee in the address registration system, even if the addressee has never lived at that address or has constantly left that address, the notification officer delivers the document to be notified to one of the heads or elders of that place or to the police chief or officers for signature and affixes the notice containing the consoler’s address to the door of the building at the address shown. The date on which the notification is affixed to the door is considered the date of notification. it is described in the format “.
In terms of relevance to our topic, it is also necessary to mention in which cases the notice of violation of procedure will be valid.
32 of the Notification Law No. 7201 entitled “Provision of a notification that is contrary to procedure”. the substance;
“Even if the notification has been made in violation of the procedure, it is considered muteber if the addressee has canceled the notification.
The date declared by the addressee is considered the date of the notification.”
53 of the Regulation on the Application of the Notification Law entitled “Provision of the Notification contrary to Procedure”. item;
“(1) The communiqué is valid if the addressee has learned the communiqué, even if it has been made in violation of the procedure. Otherwise, it is considered that the notification has not been made. If the addressee receives the notification document or invitation in any way, or finds out the contents of them, he is considered to have learned the notification.
(2) The date on which the addressee declares that he has learned the communique is considered the date of the communique
(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 the notification and its history.”it has been accepted that the notification will be valid on the date when the defendant declares that he has learned about the notification or reveals it with his state and movements.
According to the practices maintained by the Criminal General Assembly of the Supreme Court and the Criminal Departments in such a way as not to cause hesitation; Since the appeal period will not begin to work if the provision established in absentia is not duly communicated to those who have the right to appeal, it is accepted that the appeals filed on learning are in due course.
On the other hand, Article 11 of the Notification Law No. 7201 entitled “Notification to the deputy and legal representative”. the substance;
“Notification is made to the deputy in the cases that are followed up through the proxy. If there are more than one proxy, it is enough to notify one of them. If the notification has been made to more than one proxy, the date of notification to the first of them is considered the actual date of notification. However, the provisions of the Code of Criminal Procedure on the notification of decisions to the accused are reserved.”it has been arranged as an order that notification should be made to the proxy in the cases that are followed up through the proxy by making provision in the form of “.
At this stage, it is also useful to examine whether it is necessary to have a power of attorney issued by the defendant to the lawyer in order to gain the title of defender in terms of relevance to our subject.
149 of the CMK entitled ”The choice of a suspect or defendant as a defender”. the substance;
“The suspect or the accused may benefit from the assistance of one or more lawyers at all stages of the investigation and prosecution; if he has a legal representative, he may also choose a lawyer for the suspect or the accused.
At the investigation stage, up to three lawyers can be present to take statements.
The right of the lawyer to interview the suspect or accused at all stages of the investigation and prosecution stages, to take statements or to be with him during the interrogation and to provide legal assistance cannot be blocked or restricted. it is clear that there is no obligation for a lawyer who is arranged in the form of “a lawyer who provides legal assistance to a suspect or defendant to submit a power of attorney to the court.
261 of the CMK entitled ”The right of the lawyer to apply”. also in the article; “A lawyer may apply to legal remedies provided that they are not contrary to the express desire of the persons he is defending or acting for.” in the absence of a clear opposition of the accused in the file with the verdict, the lawyer was granted the right to appeal, and again in accordance with Article 149 of the CMK. similarly, the article does not provide for an obligation such as the attorney’s power of attorney must be found.
In order to gain the decency of a defender and to exercise the powers recognized by this duty, a power of attorney agreement between the parties is required. This agreement does not necessarily have to be in the form of a notarized or even written power of attorney, and in criminal procedure law, it is sufficient to duly notify the court that a lawyer has been appointed as a proxy. However, in practice, it is generally known that it is common to authorize a defender with a power of attorney issued by a notary.
In this context, there is no hesitation that the lawyer whom the accused has informed that he has accepted as his defender in the presence of the judge by coming to the hearing together will earn the title of defense lawyer and that he can also apply to the law provided that he does not oppose the express desire of the accused to whom he is an assistant.
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, and the Case Law Unification Board dated 20.10.1975 and numbered 7-7 in terms of this issue.
In the light of these explanations, the subject of the dispute is evaluated;
The provisions of the convictions established by the Local Court for forgery and fraud in the official document about the defendant are set out in Article 21 of the Notification Code. article 2. 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; Article 11 of the Notification Code. 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. … although it has been decided to reject the appeals of the defendant and his defense on the grounds that the defendant does not have the title of defense of the defendant;
Edremit on capture in the prosecution phase 3. In the Criminal Court of First Instance he said: “I understood my rights. I’ll make a statement. But my deputy is Av. … I’ll do it together with him.” 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, Article 11 of the Notification Law No. 7201. in accordance with Article 11 of the Supreme Court of Cassation, the notification applicable to the notification of a reasoned decision within the scope of the file is mandatory for the notification of the proxy in cases followed by the proxy. 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 has been concluded.
As a result of this, the lawyer … has earned the title of defense counsel of the accused, the defendant and his defense are in the process of appeals, and the provisions established about the defendant must be examined on the basis of both appeals, the file must be examined on the basis of the First Presidential Council of the Supreme Court dated 22.12.2016 and numbered 398 in order to examine the merits of the provisions established about the defendant, the Supreme Court 21. The 11th Supreme Court of Cassation, to which the works belonging to this Department were transferred in accordance with the same decision due to the closure of the Criminal Chamber. It should be decided that it should be transferred to the Prosecutor General’s Office of the Supreme Court for submission to the Criminal Chamber.
result:
For the reasons described;
1- ACCEPTANCE of the appeal of the Prosecutor General’s Office of the Supreme Court,
2- Supreme Court (Closed) 21. The decision of the Criminal Court dated 02.12.2015 and numbered 9300-5769 on the dismissal of appeals requests relating to the convictions established for forgery and fraud in the official document on the accused relating to the abolition of,
3- With the decision of the First Presidential Council of the Supreme Court dated 22.12.2016 and numbered 398 for the purpose of examining the merits of the dossier, the provisions established on the accused, the Supreme Court 21. The 11th Supreme Court of Cassation, to which the works belonging to this Department were transferred in accordance with the same decision due to the closure of the Criminal Chamber. At the meeting held on 17.11.2020, it was unanimously decided that he should be transferred to the Prosecutor General’s Office of the Supreme Court of Cassation to be sent to the Criminal Department.
