Republic of Turkey
SUPREME COURT OF APPEALS
19th Criminal Chamber
Case No: 2018/3074
Decision No: 2018/4708
Decision Date: 18.04.2018
RESOLUTION OF CONFLICT OF DECISIONS – IN FAVOR OF THE APPEAL REQUEST
WHETHER ATTORNEY’S FEES, WHICH WERE NOT AWARDED IN THE FIRST INSTANCE TRIAL, SHOULD ALSO BE AWARDED –
THE ATTORNEY’S FEES THAT MUST BE AWARDED AGAINST THE DEFENDANT SHOULD BE AWARDED SEPARATELY
SUMMARY: Following the appeal against the judgments of “acquittal or no punishment” given to the defendant as a result of the trial conducted by the first instance criminal courts where the plaintiff was represented by an attorney, It has been ruled that if the regional court of appeal’s criminal division, after reviewing the relevant first-instance criminal court decisions, decides to retry the case and, as a result of the trial, convicts the defendant of the alleged crime, it must also award legal fees, which would certainly have been awarded in favor of the plaintiff and against the defendant if the first-instance court had rendered a lawful and correct decision against the defendant, not only for the appeal process but also for other legal fees. (Law No. 5235, Article 35) (Law No. 5271, Articles 280, 289, 303, 324, 327) (Law No. 1136, Articles 164, 168)
A-) APPLICATION FOR RESOLUTION OF THE CONFLICT OF DECISIONS
The Samsun Regional Court of Appeals Presidents’ Board, with its decision dated 12.05.2017, numbered 2017/12 and 2017/6, resolved the conflict between the decision of the 5th Criminal Chamber of the Samsun Regional Court of Appeals dated 01.02.2017, numbered 2016/49 and 2017/116, and the decision of the 6th Criminal Chamber of the Samsun Regional Court of Appeals dated 15.02.2017, numbered 2016/202. The court, in its ruling numbered 2017/243, requested that the disputes regarding attorney fees be resolved in accordance with Article 35, titled “Duties of the Board of Presidents,” of Law No. 5235 on the Establishment, Duties, and Powers of First Instance Courts and Regional Courts of Appeal. B-) OPINION AND REQUEST OF THE CHIEF PUBLIC PROSECUTOR’S OFFICE OF THE SUPREME COURT OF APPEALS REGARDING THE DISPUTE OF DECISION
The request states that there is a dispute between the 5th and 6th Criminal Chambers of the Samsun Regional Court of Appeals regarding whether attorney’s fees, which were not awarded in the first instance trial, can be awarded to the party whose appeal was decided in their favor. It further states: “Articles 2 and 14 of the Minimum Fee Tariff for Attorneys, published in the Official Gazette dated 02.01.2017 and numbered 29936, regulate the persons in whose favor attorney’s fees will be awarded, the procedure and principles for the entitlement of attorney’s fees, and their amount. As understood from the articles of the aforementioned law, attorney’s fees will be awarded to the party whose trial was decided in their favor and who was represented by an attorney. If the results of the first instance trial and the appeal trial are the same, there is no problem with the attorney’s fees to be awarded. That is to say; in the first instance trial…” If the defendant, who was represented by counsel, is acquitted, attorney’s fees will be awarded in favor of the defendant. If the plaintiff appeals, and the first-instance acquittal is upheld or the appeal is rejected, attorney’s fees as stipulated by the Turkish Code of Civil Procedure will also be awarded in favor of the defendant, who was represented by counsel, for the appeal proceedings. Conversely, if the appellate court decides that the local court’s judgment is unlawful, overturns the acquittal, and convicts the defendant, the resulting legal outcome will be the defendant’s conviction. If this legal outcome had been correct from the outset, the plaintiff’s counsel would have been entitled to attorney’s fees in both the first-instance and appeal proceedings. In this case, in order to avoid holding the plaintiff responsible for the incorrect legal outcome of the first-instance proceedings and to establish balanced justice, it is a matter of fairness for the Regional Court of Appeals Criminal Chamber, which accepts the appeal, to also award attorney’s fees that could not be awarded in the first-instance proceedings. It was stated that “the decision of the 5th Criminal Chamber of the Samsun Regional Court of Appeals, which ruled for a single attorney’s fee, is contrary to procedure and law.” Consequently, in accordance with Article 35/1 of Law No. 5235, as amended by Article 92/2 of Decree Law No. 696, it was requested that the decision of the 5th Criminal Chamber of the Samsun Regional Court of Appeals, case number 2016/49, decision number 2017/116, be determined as contrary to procedure and law and that the dispute be resolved. C-) DECISIONS SUBJECT TO THE REQUEST FOR RESOLUTION OF THE CONFLICT OF DECISIONS
Decisions of the 5th Criminal Chamber of the Samsun Regional Court of Appeals dated 01.02.2017, case number 2016/49, decision number 2017/116, and the 6th Criminal Chamber of the Samsun Regional Court of Appeals dated 15.02.2017, case number 2016/202, decision number 2017/243.
D-) SUMMARIES OF THE DECISIONS OF THE REGIONAL COURT OF APPEALS CRIMINAL CHAMBERS SUBJECT TO THE RESOLUTION OF THE CONFLICT OF DECISIONS
1. Regarding the decision that, in the event of a retrial of the case pursuant to Article 280/1-c of the Code of Criminal Procedure during the appeal process, separate attorney fees should be awarded for both the first instance court and the appeal proceedings, the Vakfıkebir Criminal Court of First Instance, in its decision dated October 12, 2016, numbered 2016/10 and 2016/353, ruled that there was no need to impose a sentence on the defendant for the crime of insulting a public official due to their duties, and in the same decision, no attorney fees were awarded in favor of the plaintiff who was represented by counsel during the trial. Following the appeal filed by the participating lawyer against this decision, the 6th Criminal Chamber of the Samsun Regional Court of Appeals, which conducted the appeal review, decided to hold a hearing regarding the case and, as a result of the trial, with its decision dated 15.02.2017, numbered 2016/202 and 2017/243, it decided to overturn the first instance court decision in accordance with Article 280/2 of the Code of Criminal Procedure, to convict the defendant of the alleged crime, and consequently to postpone the announcement of the verdict against the defendant. In the same decision, it was decided that the defendant should pay 1,980.00 Turkish Lira for the first instance trial and 990 Turkish Lira for the appeal trial, since the case was concluded in one hearing, as attorney fees, and that these fees should be given to the Ministry of Health of the Republic of Turkey, which was represented by counsel. The relevant decision became final on 21.03.2017 without objection. 2. In the event that a retrial is ordered pursuant to Article 280/1-c of the Code of Criminal Procedure during the appeal process, the decision to award only attorney’s fees for the appeal proceedings was made by the Kavak Criminal Court of First Instance on August 17, 2016, with case number 2016/71 and decision number 2016/321, acquitting the defendant of the crime of violating Law No. 6831, and in the same decision, no attorney’s fees were awarded in favor of the participating institution, which was represented by counsel during the trial. Following the appeal filed by the participating institution’s representative against this decision, the 5th Criminal Chamber of the Samsun Regional Court of Appeals, which conducted the appeal review, decided to hold a hearing regarding the case and, as a result of the trial, with its decision dated 01.02.2017, numbered 2016/49 and 2017/116, it decided to overturn the first instance court’s decision in accordance with Article 280/2 of the Code of Criminal Procedure, to convict the defendant of the alleged crime, and consequently to postpone the announcement of the verdict against the defendant. In the same decision, it was decided that 1,980.00 Turkish Lira in attorney’s fees should be collected from the defendant and given to the participating institution, in accordance with the provisions of the minimum attorney fee tariff, since the case was concluded with more than one hearing for the appeal proceedings alone. The relevant decision became final on 03.04.2017 without any objection. E-) CONCEPTS, INSTITUTIONS AND LEGAL REGULATIONS RELATED TO CONFLICT OF DECISIONS
1. LAW NO. 5235 ON THE ESTABLISHMENT, DUTIES AND POWERS OF FIRST INSTANCE COURTS AND REGIONAL COURTS OF JUDICIAL JURISDICTION
RELATED PROVISIONS
Article 35/3 of Law No. 5235, titled “Powers of the Board of Presidents,” as amended by Article 92 of Decree Law No. 696 dated 20/11/2017. Article 35/4, titled “Powers of the Board of Presidents,” of Law No. 5235, as amended by Article 92 of Decree Law No. 696 dated 20/11/2017, establishes the rule that “In cases where there is a conflict between final decisions given by the relevant civil or criminal chambers of the regional court of appeal or between final decisions given by the civil or criminal chambers of this court and another regional court of appeal, the Supreme Court may be requested to resolve this conflict, with reasoned explanation, by the relevant civil or criminal chambers of the regional court of appeal or the Chief Public Prosecutor, adding their own opinions, to request a decision on this matter.” Article 3 of the law states: “To perform other duties assigned by law. (Amended paragraph: 20/11/2017 – Decree Law-696/92 art.; Accepted as is: 1/2/2018-7079/87 art.) Requests made in accordance with paragraph (3) are forwarded to the Supreme Court Chief Public Prosecutor’s Office in criminal cases and to the relevant civil chamber in civil cases. If the Supreme Court Chief Public Prosecutor’s Office concludes that there is a dispute, it requests a decision from the relevant criminal chamber. The decisions given by the chamber in accordance with this paragraph regarding the resolution of the dispute are final. The Board of Presidents meets with all members present and decides by majority.
(Added paragraph: 20/7/2017-7035/12 art.) Taking into account the intensity and nature of the incoming cases, the division of labor between the criminal and civil chambers of the regional courts of appeal is determined by the Council of Judges and Prosecutors.”
2. RELEVANT PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE NO. 5271
Article 280/1 titled “Examination and prosecution in the regional court of appeal”; (1) The regional court of appeal, (…) (1) after examining the file and the evidence submitted with the file,
then;
a) If the appellant determines that there is no procedural or substantive legal irregularity in the decision of the first instance court, that there are no deficiencies in the evidence or proceedings, and that the assessment of the evidence is appropriate, the appeal shall be rejected on its merits; if there are violations in subparagraphs (a), (c), (d), (e), (f), (g) and (h) of the first paragraph of Article 303, the legal irregularity shall be corrected and the appeal shall be rejected on its merits;
b) (Added: 20/7/2017-7035/15 art.) If the public prosecutor deems it appropriate to apply the lowest degree of punishment prescribed by law for the crime subject to conviction, in accordance with the reason for appealing, the legal irregularity shall be corrected and the appeal shall be rejected on its merits;
c) (Added: 20/7/2017-7035/15 art.) In cases where the case is dismissed without the need for further investigation or where an erroneous decision regarding security measures needs to be corrected (d) If the first instance court’s decision contains a reason for illegality as specified in the subparagraphs of the first paragraph of Article 289, excluding subparagraphs (g) and (h), the judgment shall be overturned and the case shall be sent back to the first instance court whose judgment was overturned or to another first instance court within its jurisdiction that it deems appropriate for re-examination and judgment,
e) In other cases, after taking the necessary measures, the case shall be retried and the preparatory proceedings for the hearing shall begin. (2) (Added: 18/6/2014-6545/77 art.) At the end of the hearing, the regional court of appeal shall reject the appeal on its merits or overturn the first instance court’s judgment and issue a new judgment. (3) (Added: 20/7/2017-7035/15 art.) If the decisions given in accordance with the first and second paragraphs are in favor of the defendant, and if it is possible to apply these matters to other defendants who have not filed an appeal, these defendants shall also benefit from the decisions as if they had filed an appeal.
3. RELEVANT PROVISIONS OF LAW NO. 1136 ON LAWYERS
a) Article 164/1 titled “Lawyer’s Fee”;
Lawyer’s fee refers to the amount or value that is the consideration for the lawyer’s legal assistance.
b) Article 168 titled “Preparation of the Lawyer’s Fee Tariff”;
The boards of directors of the bar association shall prepare a tariff showing the minimum limits of lawyer’s fees to be received from proceedings in courts and other proceedings each year in September and send it to the Union of Turkish Bar Associations. The fee schedule to be applied is prepared by the Board of Directors of the Union of Turkish Bar Associations, taking into account the proposals of the bar association boards of directors, and sent to the Ministry of Justice by the end of October of that year. (Added sentence: 16/6/2009-5904/35 art.) However, in the prepared fee schedule; the amount of attorney fees for general budget, provincial special administrations, municipalities and villages’ taxes, fees, charges and similar financial obligations and their surcharges and penalties, as well as cases related to the fee schedules and all kinds of cases arising from the application of the Law No. 6183 on the Collection Procedure of Public Receivables, is determined as a fixed amount. This fee schedule becomes final if the Ministry of Justice does not make a decision within one month from the date it reaches the Ministry of Justice, or if the fee schedule is approved. However, if the Ministry of Justice does not find the fee schedule appropriate, it sends it back to the Union of Turkish Bar Associations for further consideration, along with the reasons it has given. If this returned fee schedule is accepted as is by a two-thirds majority of the Board of Directors of the Union of Turkish Bar Associations, it is considered approved; otherwise, it is considered not approved. The result is reported to the Ministry of Justice by the Turkish Bar Association. The provisions of the sixth paragraph of Article 8 shall be applied by analogy. In determining the attorney’s fee, the tariff in effect on the date the legal assistance is completed or the judgment is given at the end of the case shall be taken as the basis.
c) Article 169 titled “Amount of attorney’s fees to be charged to the opposing party by the judicial authorities”; The attorney’s fee to be charged to the opposing party by the judicial authorities cannot be less than the amount written in the attorney’s fee tariff and cannot exceed three times that amount.
4. MINIMUM ATTORNEY FEE TARIFF PUBLISHED IN THE OFFICIAL GAZETTE NUMBER 29936 DATED 02.01.2017
a) Article 2, titled “Works Covered by Attorney Fees”;
(1) The attorney fee specified in this Tariff is the fee for the lawsuit, work, and procedures until a final judgment is obtained. Petitions and other procedures prepared in relation to the lawsuit or work followed by the attorney do not require a separate fee. Attorney fees cannot be awarded in case of rejection or acceptance of requests for clarification of judgments. (2) On the other hand, hearings in enforcement proceedings, appeals before the Court of Cassation, Council of State, Military Court of Cassation, and Court of Accounts, and appeals before regional administrative and regional courts of justice require a separate fee.
b) Article 14, titled “Fees in Criminal Cases”;
(1) If a conviction or a decision to postpone the pronouncement of judgment is made upon participation in a public prosecution, the attorney’s fee determined in the second section of the second part of the Tariff shall be charged to the defendant in favor of the participating party represented by counsel. (2) In cases where only a monetary penalty is imposed according to special laws, regulations, and decrees containing criminal provisions, the attorney’s fee to be determined according to the Tariff cannot exceed the amount of the imposed monetary penalty. (3) In applications made to the High Criminal Courts for compensation according to Articles 141 and subsequent articles of the Criminal Procedure Code No. 5271 dated 4/12/2004, attorney’s fees shall be awarded in accordance with the third part of the Tariff. However, this fee to be awarded cannot be less than the fee specified in the twelfth item of the second section of the second part. (4) A fixed attorney’s fee shall be awarded against the Treasury in favor of the defendant who is acquitted and represented by counsel. (5) In cases where applications such as retraction, removal from internet publication content, and appeals against administrative fines are accepted in criminal courts, or if the decision of the first instance court is overturned upon appeal, attorney fees are awarded as stipulated in the first item of the first section of the second part of the Tariff, depending on whether the case is heard or not. However, if the amount of the administrative fine subject to the application is less than the fixed fee stipulated in the first item of the first section of the second part of the Tariff, attorney fees equal to the administrative fine are awarded. c) Article 9 under the heading “Fees to be Paid for Legal Assistance Provided in Courts and Enforcement and Bankruptcy Offices that are Not Monetary or Cannot Be Valued in Monetary Terms” in the second section, second part of the same tariff;
For cases pursued in the Courts of First Instance, 1,980.00 TL
d) Article 18 under the heading “Fees to be Paid for Legal Assistance Provided in Courts and Enforcement and Bankruptcy Offices that are Not Monetary or Cannot Be Valued in Monetary Terms” in Section 2, Part 2 of the same tariff;
For cases pursued in the Regional Courts of Appeal and Regional Administrative Courts through the appeal process, a) For cases with one hearing, 990.00 TL, b) For cases with more than one hearing and other procedures requiring the presence of a lawyer, such as on-site inspections, 1,980.00 TL attorney’s fee shall be paid.
F-) REASONING
Attorney’s fees are the value that an attorney is entitled to as a result of fulfilling the defense duty undertaken for their client. Undoubtedly, this fee arises from the contractual relationship between the client and the attorney. The legal services provided by the attorney to their client can be many legal representation actions such as out-of-court consultation, opinion, or administrative application, or, as in the case at hand, it can be in the form of providing representation or defense services before the judicial organs to a client who is a party to a criminal trial. It is undeniable that attorney’s fees will be awarded against the losing party in both civil and criminal proceedings if they are represented by an attorney, along with legal assistance provided by lawyers to defend the rights of individuals before the judicial organs and to ensure that the truth is revealed. Articles 324 and subsequent articles of the Code of Criminal Procedure No. 5271, titled “Trial Expenses,” also list “attorney’s fees payable according to the tariff” together with trial expenses. Furthermore, the same law mandates that courts must indicate the costs of litigation and who will bear them in their judgments and decisions. According to Article 327 of the Code of Criminal Procedure No. 5271, titled “Costs in case of acquittal or decision that there is no ground for punishment,” the following provision applies: “…a person is only ordered to pay the costs arising from their own fault, …the costs that this person was previously obliged to pay are borne by the State Treasury…” According to the text of the article, there is no doubt that in criminal proceedings, if a decision of acquittal is given for the defendant and they are represented by at least one lawyer, attorney’s fees should be awarded in favor of the defendant, and these fees should be paid by the State Treasury, which caused the wrongful trial. However, it is understood that if a decision of no punishment is given, attorney’s fees will not be awarded to a defendant who, according to the reasoning of the decision, is found to be at fault and is deemed to have caused the criminal case to be opened against them.
The appeal process, one of the ordinary legal remedies against judgments rendered by first-instance courts in criminal proceedings, has different characteristics from the cassation appeal process. The provisions regarding the appeal process are regulated in Articles 272 to 285 of the Code of Criminal Procedure No. 5271. According to Article 280/1 of the same Code, if the regional court of appeal, after examining the file and the evidence submitted with it, determines that there is no procedural or substantive legal irregularity in the first-instance court’s decision, that there are no deficiencies in the evidence or proceedings, and that the assessment regarding proof is appropriate, the appeal shall be rejected on its merits. If the violations listed in subparagraphs “a, c, d, e, f, g, and h” of Article 303/1 of the Code of Criminal Procedure exist, the legal irregularity shall be corrected, and the appeal shall be rejected on its merits. It is clear from the wording of the law that if the public prosecutor deems it appropriate to apply the lowest degree of punishment prescribed by law for the crime subject to the conviction, in accordance with the reason for appealing, the appeal should be rejected on its merits after correcting the illegality, the case should be dismissed without the need for further investigation, or in cases where an erroneous decision regarding security measures needs to be corrected, the appeal should be rejected on its merits after correcting the illegality, if there is a reason for illegality in the decision of the first instance court specified in the subsections of Article 289/1 of the Code of Criminal Procedure, excluding subsections “g and h”, the judgment should be overturned and the file should be sent to the first instance court whose judgment was overturned or to another first instance court within its jurisdiction that it deems appropriate for re-examination and judgment, and in other cases, after taking the necessary measures, the case should be retried and preparations for the hearing should begin. According to the second paragraph of the same article, at the end of the hearing, the regional court of appeal must either reject the appeal on its merits or overturn the first-instance court’s judgment and issue a new one. Furthermore, the third paragraph of the same article stipulates that if the decisions given pursuant to the first and second paragraphs are in favor of the defendant, and if it is possible to apply these provisions to other defendants who have not filed an appeal, these defendants may also benefit from the decision as if they had filed an appeal. In two separate cases within the jurisdiction of the Samsun Regional Court of Appeal, two different first-instance criminal courts issued acquittals for one defendant and a decision that there was no need to impose a sentence on the other defendant. It is clear that in both first-instance criminal court decisions, no attorney’s fees were awarded in accordance with the Minimum Attorney Fee Tariff. Following separate appeals against both first-instance criminal court decisions, the 5th and 6th Criminal Chambers of the Samsun Regional Courts of Appeals reviewed the cases and decided to reopen them. As a result of the retrial, both Criminal Chambers of the Regional Courts of Appeals convicted the defendants and suspended the pronouncement of the sentences. The reason for the discrepancy in decisions between the Criminal Chambers of the Regional Courts of Appeals is that in the decision of the 6th Criminal Chamber of the Samsun Regional Court of Appeals dated October 12, 2016, the defendant was awarded both attorney’s fees that should have been awarded by the first-instance court but were not, and attorney’s fees that should have been awarded for the appeal proceedings, while in the decision of the 5th Criminal Chamber of the Samsun Regional Court of Appeals dated October 12, 2016, the defendant was only awarded attorney’s fees for the appeal proceedings.
Given the obvious differences between the appellate review procedure and the trial procedures of the first instance courts, and considering that it is mandatory to award attorney’s fees in accordance with the minimum attorney’s fee schedule in effect at the time of the decision, in favor of the party who was represented by counsel during the trial and who prevailed in the trial, it has been concluded that the Samsun Regional Court of Appeals, 5th Criminal Chamber, which decided that the local court’s judgment was unlawful, overturned the acquittal, and convicted the defendant, should have awarded attorney’s fees not only for the appellate review but also for the attorney’s fees that would have been awarded if the first instance court had made a correct and lawful finding and issued a decision convicting the defendant.
G-) CONCLUSION
Following the appeal against the judgments of “acquittal or no punishment” issued by the first instance criminal courts where the plaintiff was represented by a lawyer, pursuant to Article 223 of the Code of Criminal Procedure No. 5271, the regional court of appeal’s criminal chamber, which examines the relevant first instance criminal court decisions, decides to reopen the case pursuant to Article 280 of the Code of Criminal Procedure and, as a result of the retrial, decides to convict the defendant of the alleged crime. In this case, it was unanimously decided on April 18, 2018, that the court should also award legal fees, which would have been awarded in favor of the plaintiff and against the defendant if the first instance court had rendered a legally sound and correct decision against the defendant.