A witness is defined in the Turkish Language Association (TCK) dictionary as a person whose knowledge and experience are sought during a hearing. The institution of testimony, which plays a crucial role among the evidence that serves the ultimate goal of reaching the truth in criminal proceedings, is regulated in detail in the Code of Criminal Procedure. It should be noted that Article 6 of the ECHR, which regulates the right to a fair trial, also contains a specific provision regarding testimony, specifically stipulating that witnesses for the prosecution and defense must be heard under the same conditions and that the prosecution’s testimony must not be privileged.
A witness is considered a public official according to Article 6 of the TCK. A defendant cannot be heard as a witness in a case where he or she is on trial. A victim may be a witness. According to Article 236/1 of the CMK, when a victim is heard as a witness, the provisions regarding testimony, except for the oath, apply to the victim. According to Article 201 of the CMK, a criminal defense attorney may directly question the witness.
CALLING WITNESSES
Witnesses are summoned using a summons. The summons informs them of the consequences of failure to appear. In cases involving detained witnesses, a decision to bring witnesses forcibly may be made without a summons. The decision states the reasons for bringing witnesses this way, and the procedure applied to witnesses who present a summons.
This summons may also be made by means such as telephone, telegram, fax, or email. However, the consequences attached to the summons do not apply in this case.
The court may order the court officials in writing to ensure that witnesses deemed necessary to be heard immediately during the hearing are present on the date and time specified. The court may only issue this order during the prosecution phase.
WHAT HAPPENS IF A WITNESS DOES NOT APPEAR DESPITE THE SUBJECT?
Witnesses who fail to comply with the summons are brought forcibly, and the costs incurred by their failure to appear are assessed and paid in accordance with public debt collection procedures. However, if the witness brought forcibly later provides reasons justifying their failure to appear, the costs awarded against them are waived.
REFUSAL TO TESTIFY TESTIMONIAL
Testifying is mandatory in criminal proceedings, and a person who must be heard as a witness for a trial cannot arbitrarily abstain from testifying. The law has set forth specific limitations regarding the circumstances under which they may abstain from testifying. Accordingly, the following may apply:
The suspect or defendant’s fiancée.
The suspect or defendant’s spouse, even if they are no longer married.
Ancestral line or lineal line of the suspect or defendant by blood or in-law.
Blood relatives of the suspect or defendant, including the third degree, or in-laws, including the second degree.
Those related to the suspect or defendant by adoption.
Those who are unable to understand the importance of abstaining from testifying due to their youth, mental illness, or intellectual disability may be heard as witnesses with the consent of their legal representative. If the legal representative is the suspect or defendant, they cannot decide on their abstention.
A person may abstain from testifying both during the investigation and prosecution phases.
-Persons who may hesitate to testify are informed of their right to do so before being heard. These individuals may also refuse to testify at any time while being heard.
PERSONS WHO HAVE THE RIGHT TO REFUSE TO TESTIFY DUE TO THEIR PROFESSION AND PERMANENT ACTIVITIES
Lawyers, their interns, or assistants may refrain from testifying due to information they acquire in their capacity or due to their judicial duties. Furthermore, these individuals are obligated to refrain from testifying even with the consent of the person concerned.
Physicians, dentists, pharmacists, midwives, their assistants, and all other members of the medical profession or arts receive information about their patients and their relatives through their capacity.
Information obtained by financial advisors and notaries regarding individuals they serve through their capacity.
For the groups mentioned in paragraphs 2 and 3, provided the person concerned consents, these individuals may not refrain from testifying.
For the groups mentioned in paragraphs 2 and 3, these individuals may not refrain from testifying if the person concerned consents.
REFUSAL TO TESTIMONIAL AGAINST THEMSELVES OR THEIR RELATIVES
Even if a witness testifies, they may hesitate to answer questions that could subject them or the individuals listed in the first paragraph of Article 45 to criminal prosecution. The witness is informed in advance of their reluctance to answer. The purpose of this is to prevent the witness from lying to protect themselves or their relatives.
OATH DURING TESTIMONIAL
First and foremost, the following individuals are heard without an oath:
Those under fifteen years of age at the time of the hearing.
Those who cannot grasp the nature and importance of the oath due to their lack of discernment.
Those suspected, accused, or convicted of complicity in the crimes under investigation or prosecution, or of favoring the offender due to these crimes, or of destroying, concealing, or altering criminal evidence.
-If a witness is among those legally required not to take an oath but has taken an oath, their testimony is considered, in practice, to be an unsworn witness’s testimony.
– At every stage of the investigation and prosecution phase, the witness to be heard is sworn. While the hearing of a witness who is required to take an oath without taking an oath is grounds for reversal, Court of Cassation decisions indicate that reversal is not granted if the witness’s testimony is not material to the merits. If necessary, or if there is uncertainty about whether a witness should be heard as a witness, their oath may be postponed until after their testimony. The form of the witness’s oath, regulated by law, consists of the verbal utterance of the relevant sentence.
HEARDING WITNESSES
Each witness is heard individually and without the presence of subsequent witnesses. Witnesses may be confronted with each other and the suspect only in cases where delay would be detrimental or in cases concerning identification.
Article 212 of the CMK states that if a witness states that they cannot recall a matter, the relevant section of the record containing their previous statement is read to them to help them recall it. When a contradiction is found between a witness’s testimony at trial and their previous testimony, the contradiction is resolved by reading their previously recorded testimony. The provisions are provided below.
RE-HEARDING A WITNESS
If a witness who has been examined under oath needs to be heard again during the same investigation or prosecution, the oath taken may not be administered again, but rather a reminder of their previous oath.
POINTS TO BE ASKED TO THE WITNESS FIRST AND THE HEARD OF THE WITNESS
The witness is first asked personal questions. If revealing the witness’s identity would be detrimental to the witness, their identity may be kept confidential.
THINGS TO BE SAID TO THE WITNESS AND QUESTIONS TO BE ASKED
The witness is informed about the matter they will testify to and is presented with the defendant, or if the defendant is not present, their identity is revealed. Questions may be asked of the witness if necessary. In Criminal Procedure, these questions are called cross-examination.
UNREASONABLE REFUSAL TO TESTIFY AND TAKING AN OATH
Anyone who refrains without legal cause will be charged with the costs arising from this and may also be sentenced to disciplinary detention for a period not exceeding three months until the conclusion of the case. Upon fulfilling their testimony obligation, they will be released immediately.
COMPENSATION AND EXPENSES TO BE PAID TO THE WITNESS
The witness will be compensated in proportion to the time lost during the testimony. If the witness has to travel to appear, travel expenses, accommodation, and food expenses at the location where they are called to testify will also be covered. However, these expenses will not be reimbursed for a witness who is present by the defendant.
CONFIDENTIAL WITNESS
If the identities of those to be heard as witnesses would pose a grave danger to themselves or their relatives, necessary measures will be taken to ensure their identities remain confidential. The Witness Protection Law requires a serious and grave danger condition for the application of this provision to a witness. Secret witnessing is only applicable to crimes committed within the scope of an organization’s activities.
Secret witnessing; Although it can be criticized for disrupting the balance between the prosecution and defense, both the ECHR and the Constitutional Court do not find secret testimony unlawful and decide that the right to a fair trial is violated if the verdict is formed solely based on the testi mony of a secret witness.