T.C. SUPREME COURT
5.Criminal Department
Based on: 2015/11443
Decision: 2016/352
Date of Decision: 14.01.2016
CRIME OF ABUSE OF TRUST DUE TO SERVICE – FAILURE TO DELIVER THE MONEY COLLECTED OR DELIVERED BY LAWYERS TO THE CLIENT WHO OWNS THE BUSINESS AND TO ACQUIRE GOODS – INCOMPLETE EXAMINATION AND INSUFFICIENT GROUNDS FOR AN ACQUITTAL DECISION TO BE MADE – VIOLATION OF THE PROVISION
SUMMARY: the accused by lawyers sent a cease and desist letter to participate were taken into consideration and the date of the complaint, and the lawyers have the powers and duties after the date of 01/01/2009, due to the business owner is not charged or received money and goods delivered to the client in the form of the acquisition of the crime of embezzlement of actions that would constitute the crime of abuse of office, apartment resident with the application of punishment is one of the conditions in terms of the objective concept of victimhood, which has a broader meaning that the concept of individual economic loss, social, political, the violation of civil rights movements cause injury being caused by any of the issues that should be considered as well, after considering the determination of the legal status of the defendants and appreciation instead of separate crimes is missing and thrown their decision to review the acquittal of isabetsiz on insufficient grounds.
(1136 P. K. m. 34, 166, 171) (5271 Pp. K. m. 223)
Case and Decision: The provisions issued by the local court were appealed, the file was examined and considered as necessary:
In the examination of the file; attendee, Enforcement Directorate and numbered 2004/5275 5762 files that are the subject of enforcement based on the collection of receivables for the purpose of the day and of the notary public Journal … 22/10/2004 0023863 no.with a power of Attorney General lu …one of the defendants’representative of yu, and which he arranged to 19/01/2007 and 27/03/2007-time authorization under a power of attorney to the other defendant in the matter of authorizing me to take action in accordance with all the powers of, in this context, both defendants on trial in the following files on the attendee’s also the executive regarding the collection of receivables assigned and they are duly authorized to, in turn, the accused Lawyers, without the knowledge and instructions of the participant, provided that the liens placed on the title deeds of real estate No. 2872 island 19 parcels and 28931 island 3 parcels registered in the title deed in the neighborhood of one of the debtors of the follow-up files due to the aforementioned enforcement files were removed, additionally, the following files due to owe’skin externally collected by hand 15.000 TL creditor to participate they did not give the alleged misconduct and abuse of trust and responsibility they held that crimes be punished because of public demand for the service separately opening the case, the defendants denied the accusations thrown in the phase of the defence, witness statements received …’s £ 15,000 in real estate foreclosures a shareholder in exchange for property records for the removal of two files because you made a deal with the defendant imposed … , in this context, the money, the other defendant, lawyer, was delivered by hand at the door of the Executive Office, then the defendant’s lawyer foreclosures removed, participating in …’s the glory of the defendant charged from the borrower itself does not 15.000 TL if, on the debtor’s immovable property without the consent of foreclosures if you removed the files except for the executive in question, the defendant followed the lawyers declared the file exists, one of the Defendants …’s money order in the petition dated 15/07/2013, …’s Executive Directorate of creditors with other clients 2004/5418-5793-6027 Main numbered to the files itself is approximately £ 15,000, paid the relevant files in the files of continuing these payments, the debtor makes a partial payment, reporting all the rights, and when a promise to pay the rest when you sell real estate from foreclosure on real estate that have agreed to remove themselves, she won’t have to pay to participate in the rest of the law of 166. in the article clearly laid out, each of the other defendants expressed within the framework of laws and the process made in accordance with the instructions and followed the bottom of the petition on behalf of a client that is joined to the executive, reported the numbers of civil and criminal files of one of the defendants, both of joy given to the execution file with the petition dated 05/07/2011 money order placed on the removal of the debtor on behalf of the registered immovable property foreclosures that there is a prompt, this is the blog of the land registry office on demand 07/07/2011, 22593 and 22852 evmiye no.lu with his articles on the abandonment of executive lien, the executive lien abandonment process was carried out in real estate numbered 2872 island 19 parcels and 28931 island 3 parcels … The Executive Directorate was notified, by the participating … Notary Public dated 14/09/2011 and 15952 yevmiye no.lu that the accused Lawyers were dismissed by applying for both execution files of the participant on the same date, except for the knowledge and consent of the registered immovable property on behalf of the borrower, stating that on foreclosures was removed in accordance with the request of the request to place a lien on immovable property by the executive bureau and moved to the Land Registry Office No. 3 written by muzekker island 28931 parcel premises in line with the demand, it was reported that the process was conducted executive property foreclosures that, in return for the land registry office for the day and 22/07/2011 24402 Journal no.2872 Lu No. 19 on sales with the article name on immovable property registered in the name of executive stock … 49/2400 parcel foreclosures that are made while in the process, however, the date of the sales process are made in writing and Journal it was reported that that number, again, one of the Defendants …’s main file from the debtor to the … 2004/5275 Executive Directorate, they were charged externally 3.500 TL numbered, numbered from the debtor to the file main 2004/5762 of $ 2,000 charged externally they keep after reporting separately on 23/09/2011 understood,
166 of the Law No. 1136 on Advocacy, in which the essence of the defense is based on the right to imprisonment, although the breakthrough charges are denied. defined in Article imprisonment the right, only the attorney’s fee claims and expenses can be used at the rate, the lawyer, on behalf of his client receivable that has been collected and the costs, fees, and costs more than a set amount of “right to jail under the name of” listening to the trickle of holding this right of it is contrary to the purpose of the law as it is against the rules of professional lawyers, and also using the right lawyer to prison, claims he collected on behalf of his client, without delay, to the business owner reports, in fact, this is a natural consequence of the obligation of the lawyer to answer to his client, as a matter of fact, 34 of the Law on Advocacy. in its article, “Lawyers are obliged to perform their duties in a manner befitting the sanctity of this duty with care, accuracy and honor and to act in accordance with the respect and trust required by the title of lawyer and to comply with the professional rules established by the Turkish Bar Association.”, Article 43 of the Professional Rules of the Turkish Bar Association. in the article, “The money and other values received on behalf of the client are announced and given to the client without delay.” where there are provisions, a lawyer can exercise his right to imprisonment only in terms of receiving a power of attorney fee that is due, although there is no clear provision in the Law on when the attorney’s fee will be due, 171/1 of the Lawyer’s Code. according to the provisions of the law and even if there is no written contract, the lawyer follows up the work he has taken on until the end.” and “Article 2 of the Minimum Wage Tariff for Lawyers. “…the attorney’s fee is the equivalent of the litigation, business and transactions fee until the final decision is reached.” in accordance with the provisions of the receivables from the attorney’s fee, due at the end of the work undertaken should adopt when you become that, accordingly, contrary to the attorney without a fee or contract until the end of the job will not ask for jail and follow sonuclandirmad cannot use at this point as the right to, in general, a power of attorney that were made on the basis of an edited during the multiple litigation, legal action based on the only law a contract is made for, you will get a case from the case into account all the attorney’s fee is charged from the use of the right of imprisonment, if possible, each case has been given a power of attorney, a separate contract separately for each of imprisonment in this case it was going to be right to each case/contract separately for it should be possible,
In this respect, in order to reveal the material truth in the event subject to trial; the witness …’s money given to the accused …’s only for the collection of the receivables subject to the Enforcement proceedings No. 2004/5275 and 5762 of the Enforcement Directorate of the participating …’s shareholders for the purpose of the removal of liens on real estate numbered 2872 island 19 and 28931 island 3 parcels, or for the removal of liens imposed by other creditors who are the Attorneys’ deputies of the accused, the person mentioned in this regard is … C.Prosecutor general’s office received in 01/02/2012-time expression with mubayenet between the last statement in the event of the conflict is resolved after one of the Defendants …’s mentioned in the petition dated 15/07/2013 money order, Enforcement Directorate 2004/5418-5793-6027 Main numbered and legible copy of the files participating in the same supply of approved petition on behalf of the executive stated they were following, civil and criminal exchanged between files on the file above to prison and the case is also taken into account the explanations on the right, which was accused of money on 05/07/2011 as of the date of witnesses collected from …’S join is whether the attorney’s fee has become due and will receive, if there is in the matter of the amount for expert report after the money have been collected from the debtor externally, because this is reported to the execution file, upon notification to the accused of azilname, the creditor Enforcement Agency of their position in the statement of the defendants resides, a cease and desist letter sent by lawyers to participate the date of the complaint and the accused were taken into consideration, and the lawyers have the powers and duties after the date of 01/01/2009, due to the business owner is not charged or received money and goods delivered to the client in the form of the acquisition of the crime of embezzlement of actions that would constitute the crime of abuse of office in our apartment with applications built with the objective of punishment in terms of the concept of victimhood is one of the conditions of economic loss which the concept has a broader meaning that individual, social, political, the violation of civil rights movements cause injury being caused by any of the issues that should be considered as well, after considering the review and appreciation instead of separate determination of the legal status of the defendants and acquitted of crimes to be decided on insufficient grounds thrown missing,
By admission, too;
Although the defendants were acquitted of the fact that the legal elements of the crimes committed against them were not formed, the provision did not include Article 223/2-a of the CMK, 232/6 of the same Law. opposition to the article,
Conclusion: Since it is against the law and the appeals of the participant have been considered in place as of this moment, Law No. 5320 has 8/1. according to Article 321 of the CMUK. the VIOLATION of the provisions in accordance with the article was decided unanimously on 14.01.2016.
