Refraining from Testifying and Persons Who May Refrain from Testifying
1-) The following people may refrain from testifying:
a) The suspect or defendant’s fiancee,
b) Spouse of the suspect or defendant, even if there is no marriage bond left,
c) Ancestors or descendants of the suspect or defendant through blood or beech kinship,
d) The suspect or defendant’s blood relatives, including third degree, or in-law relatives, including second degree,
e) Those who have a filial bond with the suspect or defendant.
2-) Those who are not in a position to understand the importance of refraining from testifying due to their youth, mental illness or mental weakness can be heard as witnesses with the consent of their legal representatives. If the legal representative is a suspect or a defendant, he cannot decide whether these people should refrain.
3-) Those who may hesitate to testify are informed that they may refrain from testifying before being heard. “These people can always refrain from testifying while being heard.”
The right to refrain from testifying can be exercised both during the investigation and prosecution phases.
The witness who has the right to refrain from testifying has the right to request to be heard under oath or without oath.
The existence of an engagement can be understood by facts showing that the parties have the intention to marry.
If the verdict is based solely on the statements of the witness who has the right to refrain from testifying, failure to remind the right to refrain is considered a procedural error that affects the outcome.
Hesitation Due to Profession and Occupation
Even if the person concerned has consent, lawyers’ right to refrain from testifying due to the nature of their professional activities is an absolute right. If the person concerned consents, members of the profession other than lawyers do not have the right to refrain from testifying.
The benefits of revealing the material truth for society and the trust relationships of professionals with the people they will testify about were discussed and it was found that it would be more beneficial for the social fabric if the trust was not damaged.
Professional secrets are not considered for journalists. For example, if someone is killed while they are busy shooting a news story, the journalist must testify and has no right to hesitate. The journalist is obliged to describe the event he witnessed as a witness. However, the journalist is not obliged to disclose the news sources he learned about because of the news he wrote.
Informing the Reason for Refraining from Testifying
Those who have the right to refrain from testifying must report the facts that cause them to refrain from testifying, upon request of the relevant judicial authority.
Participant or defendant subjects are not given the right to request the witness to inform the court of the facts that constitute a reason for hesitation.
The judge may make the witness swear an oath regarding the reason for refraining from testifying.
Refraining from Testifying Against Oneself or One’s Relatives
Even if the witness testifies, he may refrain from answering questions that may subject his relatives to criminal prosecution as stated in Article 45 of the Criminal Procedure Code.
The purpose of the article is to prevent the witness from lying to protect himself or his relatives from criminal prosecution.
When asking questions, the witness must be reminded that he has the right to refrain from answering questions that may lead to criminal prosecution against his relatives.