Expenditure in Case of Decision Not to be Acquitted or Sentenced

2022-02-28T14:34:34+00:00 4 August 2021|

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CMK Article 327

(1) The person against whom it is decided that there is no need for acquittal or punishment is sentenced to pay only the expenses arising from his own fault.

(2) Expenses that this person has to pay in advance are borne by the State Treasury.

As a natural consequence of the principle that makes the payment of trial expenses a condition of conviction, if the person against whom a public lawsuit is brought is acquitted and has not been sentenced with a penalty or security measure, the expenses belong to the State Treasury. The obligatory payments of the acquitted person, which are required by the case, are also undertaken by the State Treasury. Although this is the rule, the person against whom a public lawsuit has been brought is responsible for the expenses arising from negligence and fault, not attending the hearing where the expert or witnesses will be heard or confronted, and the necessity of renewing these proceedings, and accusing himself.

JURISDICTION 2nd CRIMINAL DEPARTMENT Principle: 2012/27929 Decision: 2013/605 Date: 21.01.2013 CMK Article 327

Expenditure in Case of Decision Not to be Acquitted or Sentenced

The file was examined and the need was considered;

In the examination made, it was determined that the scope of the appeal request of the participating attorney was limited to the decision of the defendant on 28.01.2006 for the crime of electrical energy theft and the acquittal of the crime of breaking the seal;

I- In the examination of the appeal against the verdict given for the crime of breaking the seal; Pursuant to the second paragraph of the temporary article 2 of the Law No. 6352, the decision of the Supreme Court of Appeals Chief Public Prosecutor’s Office dated 12/07/2012 is only related to the provision established for the theft of electrical energy, and since the provision dated 01/12/2010, which was previously established for the crime of breaking the seal, is valid. In the examination made, it was determined that the verdict dated 19/07/2012 re-issued in terms of It is understood that the attorney, who participated in the public lawsuit filed against the accused for the crime of electrical energy theft and breaking the seal, requested to participate only in terms of the crime of electrical energy theft with a petition dated 07.03. REJECTING the appeal request of the participant’s attorney, who has no right to appeal the decision, given for the crime of reversing, in accordance with Article 317 of the CPC No. 1412,

II- In the case of appeal against the verdict given for the theft of electrical energy; As explained in the decision of the Criminal General Assembly of the Supreme Court of Appeals, numbered 415-92, dated 13.03.2012, litigation expenses are regulated between articles 324 and 330 of the STD numbered 5271. With the regulation stating “Fees and attorney’s fees to be paid according to their tariff, and payments made during the investigation and prosecution phases are litigation expenses”, the scope of litigation expenses is stated in the first paragraph of Article 325, titled “defendant’s liability”; As a rule, it has been determined that the accused will be responsible for the costs of the trial only if a penalty or security measure is imposed on the accused, with the regulation stating, “In case of being sentenced to a penalty or a security measure, all trial expenses will be charged to the accused”.

In the first paragraph of Article 327 of the aforementioned Law, titled “if it is decided that there is no need for acquittal or punishment, it will go away”; It is regulated as “The person against whom it is decided that there is no reason to be acquitted or punished, will only be sentenced to pay the expenses arising from his own fault”. will be responsible. Against the understanding of what should be understood from his own fault in the justification of the article, it is understood that “the person against whom a public lawsuit has been brought is liable for the expenses arising from reasons such as negligence and fault, not attending the hearing where the expert or witnesses will be heard or confronted, and the necessity of renewing these proceedings, and accusing himself”; According to the Provisional Article 2/2 of Law No. 6352 and Article 223/4 of CMK No. 5271, which was published in the Official Gazette dated 05.07.2012 and entered into force on the same day, for the accused who is tried for the crime of electrical energy theft, fully compensated for the damage of the participating institution. Since it was decided that there was no room, there was no procedural and illegal aspect in the provision regarding not being held responsible for the attorney’s fee, which is counted as litigation expenses.

According to the evidence gathered at the hearing, the reason, and the judge’s opinion and discretion, the appeal objections were not appropriate, and it was unanimously decided to reject the appeal request of the attending attorney and to APPROVE the verdict.

IF IT HAS BEEN DECIDED THAT THERE IS NO PENALTY IN THE DECISIONS OF THE COURT OF JURISDICTION, THE EXPENSES OF THE JURISDICTION ARE AT THE FEES THAT THE PERSON HAS TO PAY ONLY AGAINST THEIR OWN FAILURE AND AT THIS MATTER.

CRIMINAL DEPARTMENT E. 2020/22956 K. 2021/20561 T. 24.6.2021

CASE: By appealing the judgment given by the Local Court, the file was discussed according to the duration of the application, the nature of the decision and the date of the crime:

DECISION: Since there were no grounds for rejection of the appeal requests, the matter was passed on to the merits.

In the examination made according to the minutes, documents and justification content reflecting the trial process in which the conscientious opinion was formed;

Other grounds for appeal against the act and the alleged crime were not seen as appropriate, and no illegality was found to affect the verdict.

However;

1-) If it is accepted that the insult was committed mutually in accordance with Article 129 of the TCK, it should be decided that there is no room for a penalty under Article 223/4-c of the CMK, but it is decided that there is no room for punishment,

2-) 129/3 of the TCK. Since the decision that there is no need to impose a penalty according to the article 328 of the CMK, the participant who has represented himself by proxy in accordance with the attorney’s minimum fee schedule, is not charged an attorney’s fee,

CONCLUSION: As the appeal claims of the participating … attorney and the defendant’s counsel were deemed on the spot, unlawfully, the verdict was OVERFINED, however; 8/1 of Law No. 5320, since these contradictions are correctable without the need for a retrial. Pursuant to Article 322 of the CMUK numbered 1412, the points of the appealed decision were partially removed, in accordance with the communiqué, by removing the phrase “there is no room for a penalty order” in accordance with the Article 223/4-c of the CMK. 13/1 of the Attorney’s Minimum Fee Tariff in force on the date of the decision, since the participant … had himself represented by a proxy, the phrase “not to be paid” is included in the clause of the provision regarding litigation expenses. It was unanimously decided on 24/06/2021 that the sentence be APPROVED AND CORRECTED, with the addition of the phrase “to collect the attorney’s fee of 1,500.00 TL from the accused and to be given to the participant, pursuant to the article.

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