Witnessing and secret witness in criminal trial
As it is known, there is the principle of freedom of evidence in criminal procedure. For this reason, there are no formal rules of proof in criminal proceedings, as in civil proceedings (for example obligation of proof by deed). Any evidence obtained through legal means can be taken as basis for a decision by evaluating and discussing it. Although there is no prohibition in this regard, it is possible to classify evidence in criminal law as statements, documents and indicative evidence. Witness evidence is evaluated in the category of statement evidence.
When investigating material facts in criminal trials, the most frequently used type of evidence is undoubtedly witness statements. Since ancient times, many events have been clarified with witness evidence, but many errors in judgment have also been made. Sometimes the witnesses were tortured and their statements were suppressed, and sometimes the witnesses knowingly made false statements. Modern criminal law has changed by learning from old mistakes, and these drawbacks have been tried to be eliminated as much as possible in the legislation. For example, witnesses were given the right to refrain from testifying, the obligation to swear was introduced, and some rules were adopted to avoid being pressured, the details of which we will discuss below.
So far, in our explanations, we have tried to briefly touch upon the deliberate manipulation or pressure of witnesses. But these are not the only drawbacks of witness evidence. First of all, it should be noted that; A witness is a person who, although not a party to the proceedings, conveys the event through his five senses, within his knowledge and experience. Witnesses describe the events they witnessed through their own perception filter. For this reason, it is not possible to evaluate witness statements independently of psychology. Some psychological research has shown that people can misremember or change events they witnessed in the past. For example, creating false memories can affect the authenticity of witness statements, which are very important for criminal proceedings. In particular, the memories of children who are exposed to leading questions may change, causing them to remember events that have not happened as if they had happened. Details on the subject can be found in Rod Plotnik's book Introduction to Psychology.
One of the drawbacks mentioned above, deliberately making false statements to witnesses due to pressure or hostility, is also taken into consideration by the judicial authorities. For example, hostility between the defendant and the witness undermines trust in witness statements. On the other hand, it should be said that the third issue, that is, creating false memories, is not examined as much as it should be in practice. A decision of the 4th Criminal Chamber of the Supreme Court of Appeals on the subject is as follows:
"In criminal proceedings, where it is possible to prove the crimes charged against the defendant with all kinds of evidence obtained in accordance with the law, in order to reject an evidence, it is necessary to show justified, reasonable and acceptable legal reasons, such as the fact that it is contrary to reason, logic, scientific data, physical laws, concrete situation known to everyone, presumptive information obtained from daily life in the ordinary course of life, or it is revealed that the witness is lying, witnesses R.D. and S.D., defendant İ.K. In the face of his statements that he insulted and threatened A. D., the acquittal was given on the legal and insufficient grounds that "there is no clear, precise, sufficient and convincing evidence to convict the defendant of the crimes of threat and insult" without showing the legal reasons for not accepting the evidence in the form of witness statements," 2015/61 K.
Witness statements must be evaluated carefully due to the drawbacks we are trying to explain. Particularly trials in which the only evidence consists of witness statements should be considered separately. One of the reasons why we touch upon this issue and evaluate it specifically is the evaluation that "the woman's declaration is essential", which is misunderstood or misapplied in our law. In recent times, such an opinion has been reached in the public opinion and wrong practices have also supported this opinion. We will discuss the details of the issue in another review, but it should be noted that when trying to reach the material truth through witness statements, different practices cannot be caused due to gender. Although it is accepted that the statements of the victim woman can be evidence under some conditions, the same cannot be said for every incident. Our explanations on this subject are included in our article titled Crime of Sexual Harassment.
CHARACTERISTICS OF WITNESS STATEMENTS
Under this heading, we will include the characteristics of testimony.
1- There is no witness from the defendant.
First of all, as we stated in the definition above, a witness is a third person who is not a party to the proceedings. In this respect, it should be stated from the beginning that the title of defendant prevents testimony. On the other hand, CMK 50/1-c. In the article, there is a provision that those who are suspected, accused or convicted of participating in the crimes that are the subject of investigation or prosecution, or of favoring the criminal due to these crimes, or of destroying, concealing or altering criminal evidence, can be heard as witnesses. This provision conflicts with the defendant's rights. Because while it is mandatory to testify, the defendant has the right to remain silent. In our opinion, it is not right for the two provisions to be included in the law in this way.
2- The victim can be heard as a witness.
It is possible for the person or persons who were the victims of the incident to be heard as witnesses. Because in Article 236 of the CMK; "If the victim is heard as a witness, the provisions regarding testimony apply, except for oath." It is arranged as follows. In addition, it is accepted that those who have been harmed by a crime and complainants can also testify. Whether complainants can testify or not is not regulated in the law. However, in practice, it is seen that those who were harmed by the crime and those who participated in it are heard as witnesses. We do not agree with the view that the complainant can be heard as a witness by analogy. However, in its decision below, the Supreme Court ruled that the complainant could be a witness. The relevant part of the decision is as follows:
"M.B., who complained about the absence of any other eyewitnesses in the incident, should be heard as a witness in accordance with Article 236 of the CMK No. 5271, considering that he was also an eyewitness to the incident, and while the legal status of the defendants should be determined according to the result, a written judgment should be made as a result of incomplete investigation," Y2CD. 2014/21413 K.
Although there is no obstacle to the testimony of the victim or complainant, the same cannot be said in terms of drawbacks. Although the situation can be understood to some extent since the victim is not a complainant, the situation is much different for the complainants. It would not be legally correct to impose the responsibility of being objective on these people or to accept that they are objective. In such cases, it is necessary to approach the statements of these people with caution and evaluate these statements together with other evidence. However, sometimes there may be no witnesses or evidence other than the victim or complainant. In such cases, the defendant's defense counsel and the judge must ask the victim the right questions and shed light on the incident. In case of doubt, a verdict should be made in favor of the defendant, and especially conviction should not be made based solely on the victim's statements. As we briefly mentioned above, this situation, which has become a bleeding wound in practice, should not be allowed to violate the principles of universal law. Criminal law is a branch of science, and it is impossible for feelings or romance to find a place in science. In addition, "It is better to release ten criminals than to punish a single innocent person," which is also mentioned in Dostoyevsky's work "Karamozov Brothers" and has become one of the basic principles of modern criminal law. principle should not be forgotten.
3- Children and disabled people can also testify.
Children, the elderly, physically and mentally disabled individuals can testify.
4- The witness only narrates the events he heard or saw.
Other than this, it cannot make an evaluation. As it is known, witness statements are used to shed light on the incident. However, the personal opinions of the witnesses are not important for the trial. Based on these explanations, it is expected that the people in the judging authority will have an opinion.
5- The witness is considered a public official and must tell the truth.
According to Article 6 of the Turkish Penal Code, witnesses are considered public officials. In addition, witnesses are obliged to report the truth. Because false testimony is regulated as a crime in Article 272 of the Turkish Penal Code.
6- Acquitted accomplices may be heard as witnesses.
7- Lawyers can be heard as witnesses.
Attention should be paid to the obligation of confidentiality here. Even if the owner of the secret consents, the lawyer has the discretion to disclose this secret.
8- People heard by the law enforcement are not accepted as witnesses.
Witness statements can only be taken by the investigation or prosecution authorities. Information reports prepared by law enforcement forces cannot be taken as basis for a decision unless they are verified before the court.
"In order to constitute the crime of giving false testimony, untruthful testimony must be made before the person or board authorized to hear witnesses, or before the court or the person or board legally authorized to hear witnesses by taking an oath. Considering that the law enforcement does not have the authority to hear witnesses, it should be accepted that the crime has not occurred." Y4CD 2009/12656 K.
In addition, information reports prepared by the law enforcement will only have the quality of evidence if the law enforcement is authorized. If law enforcement attempts to obtain information without being authorized by the prosecutor's office, the illegality of this evidence will come to the fore.
9- The witness tells verbally what he knows.
10- If there are contradictions between witness statements, these contradictions are reminded and attempts are made to resolve them.
Confrontation is done when necessary.
11- If the evidence of the incident consists of the statements of a witness, this witness must be heard at the hearing. (CMK article 210)
The relevant part of the decision of the Supreme Court Criminal General Assembly dated 17/3/2021 and numbered E.2019/37533, K.2021/118 is as follows:
"In order for all evidence to be discussed during the prosecution phase, this evidence must, as a rule, be presented in a public hearing and in the presence of the defendant. Although this rule is not without exception, if a conviction is based solely or to a decisive extent on the statements given by a person whom the defendant did not have the opportunity to question and interrogate during the investigation or prosecution phase, the rights of the defendant may be restricted to an extent incompatible with the guarantees of Article 6 of the ECHR. If there is only one witness to the incident and based on the testimony of only one witness "If a verdict is to be made, this witness must be heard at the hearing and the parties must be given the opportunity to ask questions."
12- In cases that have passed for a long time, the statements of the witness during the investigation phase are preferred.
CALLING WITNESSES
The regulation regarding the summoning of witnesses is included in Article 43 of the CMK. The relevant article is as follows:
"Witnesses are summoned with a summons. The consequences of not coming are stated in the summons. In cases of detainees, a decision may be made to bring witnesses by force. The reasons for bringing them in this way are stated in the decision letter, and the same procedure is applied to the witnesses who come with a summons.
This call can also be made using means such as telephone, telegram, fax, and e-mail. However, the results linked to the call sheet do not apply in this case.
The court may order the officers in writing to ensure that the witnesses deemed necessary to be heard immediately during the continuation of the hearing are present on the day and time specified.
The provisions of this article can only be applied if the person is heard as a witness before the public prosecutor, judge or court."
According to the justification of the article;
The article brings innovations in the field of testimony, which constitutes one of the most important evidence. Witnessing is a social duty in which the public interest is important, and individuals are obliged to fulfill this duty.
In order for witnesses to fulfill these obligations, they must first be summoned by invitation. Although this is the basis, it has been deemed appropriate to use telephone, telegraph, fax and similar means of communication in order to ensure speed in the trial, and it has been accepted that the invitation can also be made by these means. These procedures are also included in comparative criminal justice law.
The legal consequences of not appearing upon invitation will be notified to the witness in writing in cases made in writing such as invitations, telegrams, faxes, and verbally in calls made by telephone. Depending on the type of call in which the notification is made and the legal consequences are notified, it will be documented by obtaining the signature of the person concerned or by preparing a report by the officer.
In cases where the court deems it necessary due to detainees or urgent matters and the characteristics and nature of the case, the court may depart from the explained rule and issue a notice for witnesses, the reasons for bringing them by force will be shown in the warrant, and the provisions regarding witnesses who come with an invitation will be applied.
The court may determine that the case can reach the verdict stage if it hears a person who did not appear during the hearing or who is determined to be involved in the case at that stage. In order to enable the cases to be concluded in a short time, the third paragraph of the article accepts that in this and similar cases, the court may order the officers in writing to bring the witness to the hearing.
The fourth paragraph of the article includes special provisions regarding summoning and taking statements regarding the testimony of the President: The main rule is that the President cannot be called as a witness; His statement as a witness will be taken by going to his home. If the President wishes, he can also send his declaration in writing; However, the principle is that the statement is recorded in the minutes by the judge.
According to the last paragraph of the article, the Prime Minister, ministers and members of the Turkish Grand National Assembly will essentially be heard by the competent court or authority; However, they can also be heard in Ankara courts.
WITNESS NOT COMING TO COURT DESPITE SUMMON
Article 44 of the Criminal Code stipulates that a witness who does not appear despite the summons will be brought by force. According to the relevant article:
"Witnesses who are duly summoned but do not appear without giving an excuse are brought by force, and the expenses caused by their failure to appear are assessed and made to pay in accordance with the collection of public receivables. If the witness who is brought by force later states the reasons that would justify his failure to appear, the expenses decided against him are abolished. "The decision to bring by force; If contact information such as telephone, telegram, fax, e-mail is in the file, it is notified to the witness by using these tools.
The decision to forcibly bring soldiers in actual service is executed through military authorities."
It has been stated that the witness who does not appear will be sentenced to pay the expenses he/she will cause. However, if the witness provides a valid excuse, he is relieved of this obligation. The excuse is considered valid in cases such as health problems or planned work.
The following point should also be noted here. The public prosecutor also has the authority to make a decision to forcibly bring in a witness who does not appear. Therefore, witnesses must comply not only with the call from the court but also with the call of the prosecution.
Do not hesitate to testify
In our explanations above, we stated that testimony has been a tool used to obtain evidence since ancient times and that witnesses have been forced to testify by various methods. Modern law aims to conduct the trial in a manner befitting human dignity. Observance of human rights results in the conclusion that no one can be forced to make statements against himself or his relatives. Based on this, regulations have been made in our legislation stating that some people may refrain from testifying in some cases. However, kinship ties are not the only reason to refrain from testifying. Just as there are people who can withdraw from testifying due to their profession and occupation, the right to refrain from testifying against themselves or their relatives is also recognized by law. The last form of hesitation from testifying is hesitation about information that is considered a state secret.
The right to refrain from testifying is a right granted to some people due to certain special circumstances. Rights cannot be called to account. In other words, to the person who wants to hesitate to testify, "Why are you afraid to testify?" "Do you have something to hide?" Questions like this cannot be asked. Refraining from testifying cannot be interpreted against the defendant. For this reason, a person who wants to refrain from testifying can use this right without any worry.
The person who has the right to refrain from testifying should definitely be reminded of his right to refrain. Otherwise, the witness' statements cannot be taken as basis for the verdict. The Supreme Court considers the failure to remind the witness of his right to refrain as a reason for reversal.
The reasons for refraining from testifying are clearly stated in the law. We will try to make our statements within this systematic framework.
1-AVOIDING TESTIMONY DUE TO RELATIONSHIP
According to Article 45 of the CMK, the following persons may refrain from testifying:
- a)The suspect or the defendant's fiancee.
- b) Spouse of the suspect or defendant, even if there is no marriage bond left.
- c) Ancestor or descendant of the suspect or accused through blood or beech kinship.
- d) The suspect or defendant's relatives by blood, including the third degree, or by in-laws, including the second degree.
- e)Those who have a filial bond with the suspect or defendant.
Persons other than those listed above do not have the right to refrain from testifying due to kinship ties.
According to the second paragraph of the article; Those who are not in a position to understand the importance of refraining from testifying due to their youth, mental illness or mental weakness may 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.
Those who have the right to withdraw should definitely be reminded of this right. Finally, the Supreme Court sees the reminder of the right to refrain as a reason for reversal. An example decision on the subject is as follows:
"The witness, who is the aunt of the defendant and has the right to refrain from answering questions that may subject him to criminal prosecution, and whose statement is taken as the basis for the decision, must be explained and notified in advance that he has the right to refrain from testifying and taking the oath." Y2.CD. 2011/34388 K.
So when should one refrain from testifying? The answer to this question is given in the third paragraph of Article 45 as follows:
"People who may hesitate to testify are informed that they may refrain from testifying before being heard. These people may refrain from testifying at any time while being heard."
As clearly stated in the relevant article, the witness may refrain from testifying before or during the hearing. The Supreme Court ruled that the witness whose statement was previously taken may also refrain from testifying, and in this case, his old statements cannot be taken as basis for the decision. The relevant decision is as follows:
"Witnesses who did not exercise their right to refrain from testifying at the beginning, later exercised their right to refrain from testifying during the prosecution phase. Article 245 of the C.C.U.K. No. 1412, titled "The statement of the witness who subsequently used his right to refrain from testifying", stipulated that "Even the written statement of the witness who was heard before the hearing and used his right to refrain from testifying for the first time during the hearing cannot be read." In the 2nd paragraph of Article 210 of the C.C.C., titled "Documents that will not be read at the hearing", it is stated that "When a person who may refrain from testifying, the minutes of his previous statement cannot be read", in the first sentence of the 1st paragraph of Article 217 of the same law, it is stated that "The judge can only base his decision on the evidence brought to the hearing and discussed in his presence" and titled "Documents and minutes that must be read at the hearing" In the first paragraph of Article 209, provisions have been made: "Interrogation minutes of the defendant interrogated through regent or rogatory, documents to be used as evidence such as minutes of testimony of the witness heard through regent or rogatory, examination and discovery reports, and other documents, summaries of criminal records and documents containing information about the defendant's personal and economic situation are read at the hearing." When a witness who has not exercised this right before refrains from testifying at the hearing, the minutes of his previous statement cannot be read. In accordance with the provision in the first paragraph of Article 217, the judge may base his decision on the evidence brought to the hearing and discussed in his presence, so the statements made by the witness by not exercising his right to refrain from testifying at an earlier stage cannot be taken as basis for the decision. YCGK 2014/180 K.
2- HESITATION FROM WITNESSING DUE TO PROFESSION AND CONTINUOUS EFFORTS
Those who may refrain from testifying due to their profession and constant occupations and the subjects and conditions for hesitation are as follows:
As we mentioned above, lawyers, their interns and assistants may refrain from testifying even if the person concerned has consent. This right of choice is not granted to other professional groups.
The right to refrain from all the groups listed above is only related to the information they have learned due to their profession. These people are not given the right to hesitate regarding the information they have acquired outside of their profession and permanent occupations.
It is mandatory for people belonging to the specified professional groups to refrain from testifying.
3- WITNESSING REGARDING INFORMATION CONCERNING A STATE SECRET (CMK article 47)
The article indicates the conditions under which civil servants and other public officials may testify about secrets related to the security or fundamental external interests of the State that they have learned due to their duties and that they are obliged to keep.
The hearing of those mentioned as witnesses is subject to the permission of the head of the office to which the secret belongs. Against the negative statement of the chief, the court may appeal to the relevant minister on the grounds that this testimony is mandatory for the case to be concluded. The judge does not have the authority to hear these people without the permission of the chief or the minister whose negative statement is appealed against. The witness statement determined by the judge without permission will not be the basis for the decision as it will have been obtained illegally.
The purpose of all these changes is to create an effective penalty system. While doing this, state secrets are also protected and efforts are made to balance the benefits.
In the last paragraph of the article, it is explained that persons who can testify with permission will continue to be bound by this condition even though their duties have ended." (Justification of Article 47 of the CMK)
Do not hesitate to testify against oneself or one's relatives
It is a universal principle in Article 48 of the Criminal Procedure Code and is also regulated in the Constitution: "No one can be forced to make a statement accusing himself or his relatives specified in the law or to show evidence in this regard." The principle is included.
As we have stated in many places above, a person cannot be forced to testify against himself or his relatives. Because it is forbidden to access evidence from the defendant, any unrest that may occur among relatives due to testimony should also be taken into consideration.
As stated in the justification of the article; The meaning of the rule introduced is that the witness who made the statement can use the opportunity in question in terms of some questions in the article.
These people can only use their right to refrain from opening a criminal investigation against themselves or their relatives. It cannot be avoided to answer questions that may lead to the filing of a civil lawsuit.
People with the right of withdrawal are limited to the following people:
- The suspect or the defendant's fiancee.
- Spouse of the suspect or defendant, even if there is no marriage bond left.
- The lineal or descendant of the suspect or the accused, whether by blood or in-laws.
- The suspect or defendant's blood relatives, including the third degree, or in-laws, including the second degree.
- Those who have a filial bond with the suspect or defendant.
INFORMING THE REASON FOR HEIDENING TO TESTIFY
According to Article 49 of the CMK; When deemed necessary by the president of the court or the judge or the public prosecutor, in the cases specified in Articles 45, 46 and 48, the witness shall state the facts that constitute the basis for refraining from testifying and, when necessary, be made to take an oath in this regard.
48. In terms of the article, the witness does not have to show reasons.
HEARING OF WITNESSES
The essential thing in hearing witnesses is to hear the witness before the court. This rule stems from the principles of directness and face-to-faceness. However, in some cases, it is also possible to hear the witness through rogatory. As a matter of fact, the Constitutional Court has developed some criteria for witness statements to be the basis for conviction. This issue is expressed in the following Constitutional Court decision:
"The Constitutional Court, in its decisions regarding the right to question witnesses, stated that a three-stage test should be applied to evaluate whether the acceptance of witness statements obtained before or outside the trial as evidence in the conviction harms the fairness of the trial. Accordingly;
i. First of all, it must be sought whether there is a valid reason for the witness or witnesses not being present at the hearing.
ii. Secondly, it should be evaluated whether the statement given by the witness or witnesses whom the defendant did not have the opportunity to question or interrogate is the sole or decisive evidence on which the conviction is based.
iii. "If it is determined that the testimony of the witness or witnesses who were not given the opportunity to question or be interrogated at the hearing is the only or decisive evidence, the third stage should be to establish whether sufficient counterbalancing assurances have been provided in order to compensate for these obstacles/difficulties that the defense party has been exposed to."
In another recent Constitutional Court decision, it was concluded that not being given the opportunity to question witnesses violated the right to a fair trial. According to the decision of the Constitutional Court dated 02.0.2025:
"During the trial process, the applicant was given the opportunity to explain the events from his own perspective and present his evidence. There is also other evidence in the file that supports the witness statements. However, no information or documentation could be found as to why the Court did not listen to the witnesses within its jurisdiction through means such as the Audio and Video Information System (SEGBİS) in a way that would allow the applicant to ask them questions. The applicant did not have the opportunity to get a personal impression of the answers given while he was not present during the determination of the statements of the witnesses. Therefore, He could not draw the Court's attention to the witness's reactions, so the reliability of the witness's statements could not be tested. On the other hand, it does not seem possible to say that relying on evidence other than the unquestioned witness statement in reaching the verdict compensates for the limitation suffered by the defense due to not being given the opportunity to question the witness whose statements were the basis for the conviction. As a result, it was understood that although the witness statements, whose reliability and accuracy have not been tested, were taken as the basis for the decision to a decisive extent, counterbalancing guarantees were not provided to compensate for the difficulties faced by the defense. In this context, it was concluded that the failure to hear the witness at the hearing or through SEGBİS damaged the fairness of the trial as a whole.
For the reasons explained above, it must be decided that the right to question witnesses within the scope of the right to a fair trial guaranteed by Article 36 of the Constitution has been violated." 2023/4176 N.N.K
Each witness is heard separately and without the presence of subsequent witnesses.
Before being heard, the witness is informed by the presiding judge or the judge about the incident about which he will testify.
CMK 58/1. According to the article; The witness is first asked for his/her name, surname, age, job and place of residence, address of workplace or temporary residence, and telephone numbers, if any. If necessary, questions are asked about situations that will enlighten the judge about the extent to which his testimony can be trusted, especially his relations with the suspect, defendant or victim.
The above questions are intended to form an opinion about the extent to which the witness' statements can be trusted.
The witness is not interrupted while he is being heard. The witness must be shown the defendant or told who he is. Again, directing the witness is prohibited.
If the witness says that he cannot remember an issue, the relevant part containing his previous statement is read to help him remember. It is only possible to read the witness' old statements in case of contradiction. If there is no contradiction, the witness' old statements are not read.
The judge, the prosecutor, the defendant's defense attorney and the participating attorney have the right to ask direct questions to the witness. The defendant and the participant can ask questions through the judge. If there is only one witness, the defendant must be given the opportunity to ask questions.
Witnesses can only be confronted with each other and the suspect until the prosecution phase, in cases where delay is dangerous or in cases where identification is required. Confrontation can only be done at the prosecution stage. However, in cases where delay is harmful, confrontation can also be made at the investigation stage. A precedent decision regarding confrontation is as follows:
"In the face of the defendant's defense that he pushed the participant only to protect himself, that he did not hit the participant with adze, and his statement that he did not see the person who hit the participant's head with adze, it is understood that the witnesses who stated that they saw the person who hit the participant's head with adze gave the description information of the person who hit the participant during the prosecution phase, but no identification or confrontation process was carried out during the investigation and prosecution phase. Y3. CD. 2018/9254 K.
Images or sounds during the examination of witnesses may be recorded. However;
a) Victim children,
b) Persons who cannot be brought to the hearing and whose testimony is mandatory to reveal the material truth,
This record is mandatory in your testimony.
Audio and video recordings obtained by applying the provision of the third paragraph are used only in criminal proceedings.
EXPLAINING TO THE WITNESS THE IMPORTANCE OF HIS DUTY (CMK 53)
To the witness;
a) The importance of telling the truth before being heard,
b) If he does not tell the truth, he will be punished for the crime of false testimony,
c) He will swear to tell the truth,
d) It is explained that the court cannot leave the courtroom without the express permission of the presiding judge or the judge.
GIVING OATH TO WITNESSES (CMK 54)
Witnesses take an oath separately before testifying. If there is any doubt about whether it is necessary or whether it is appropriate for a person to be heard as a witness, the oath can be postponed after the testimony.
During the investigation phase, public prosecutors also swear the witnesses.
Form of the Oath (CMK 55)
The oath to be given to the witness before the testimony is "I swear on my honor and conscience that I will tell the truth what I know." and if it is given after the testimony according to Article 54, "I swear on my honor and conscience that I speak truthfully what I know." It is in the form.
Everyone stands up as the oath is taken.
Fulfillment of the Oath, Oath of the Deaf or Dumb (CMK 56)
The witness swears by repeating or reading it out loud.
Deaf or mute people who can read and write swear by writing the oath form and signing it. Deaf or mute people who cannot read or write swear by a sign through an interpreter who understands the signs.
HEARING THE WITNESS AGAIN
When the witness who was heard under oath needs to be heard again during the same investigation or prosecution phase, the oath may not be given again and it may be enough to remind him of his previous oath. (CMK 57)
"For the defendant who does not speak Turkish sufficiently, an interpreter is not required to be present in the sessions where some witnesses and the victim are heard, after the expert is sworn in. In the last session, it is against the law to take the defendant's defense on the merits and ask for his last word through the translator who is not reminded of his old oath or not made to take the oath again."
PROTECTION OF THE WITNESS
Some regulations regarding the protection of witnesses have been made in Article 58 of the Criminal Procedure Code. The first of these regulations is the introduction of the institution of secret testimony and the second is the hearing of witnesses without those who have the right to be present. We will explain both issues below.
Also, it should not be forgotten that there are detailed regulations in the Witness Protection Law regarding the protection of witnesses. We will include the provisions of both laws in a mixed manner in our explanations.
First of all, it should be noted that certain conditions are required to protect the witness. The first of these conditions was sought in terms of crime. In order for a witness protection order to be issued, the crime to be witnessed must have been committed within the scope of organizational activities. (CMK article 58/5) The following statements are included in the justification of the article:
"One of the facts that have been proven in criminal trial processes and therefore cannot be ignored is the reluctance of people to testify. Particularly in recent times, increasing organizations for the purpose of committing crimes, gangs formed to share the ever-growing city rents, statements in some media that the crime and criminals are not being followed carefully and effectively enough, negative evaluations that testimony will be of no use, daily news about criminal networks called "mafia" and other psychological factors that can be added to these, people testify. They are hesitant and even afraid to do so. The way to eliminate these negative effects is to ensure the complete security of the witnesses. For this reason, it has been accepted in the second paragraph that the public prosecutor, the president of the court or the judge can allow the witness to show another address where the invitation can be reached, in order to hide the addresses of the witness, in case of danger for himself or another person, such as his family.
In addition, according to Article 3 of the Witness Protection Law; The provisions of this Law may be applied regarding the crimes listed below:
- a)Crimes requiring aggravated life imprisonment, life imprisonment and a lower limit of ten years or more imprisonment in the Turkish Penal Code No. 5237 dated 26/9/2004 and special laws containing criminal provisions.
- b) Crimes that require a minimum prison sentence of two years or more, committed within the framework of the activities of an organization established to commit acts deemed crimes by law, and crimes committed within the framework of the activities of a terrorist organization.
In order to provide protection to witnesses, revealing the identities of those who will be heard as witnesses must pose a serious danger to themselves or their relatives. If this condition is not met, it will not be possible for the witness to benefit from protection. As a matter of fact, as can be seen from the following decision, the Supreme Court also makes decisions in this direction:
"As stated in the second and third paragraphs of Article 58 of the CMK No. 5271, beyond a general fear that revealing the identities of witnesses who are judicial law enforcement officers poses a serious danger to themselves or their relatives, that being heard in the presence of witnesses will pose a serious danger to the witnesses, and that this danger cannot be prevented in any other way or that it will pose a danger in terms of revealing the material truth, threats, pressure, damage to life and property directed at the witnesses, arising directly from the defendant. "In the absence of any determination indicating the existence of a concrete fear that the investigation will be done, it should be accepted that the evaluations included in the justification of the provision subject to the decision to resist by the Local Court, stating that the examination of the witnesses before the court by determining their clear identity information will harm the fight against crime and criminality in terms of ongoing or future investigations, are evaluations based on assumption and not in accordance with the procedure and law." YCGK 2020/42 K.
Article 4 of TKK regulates who will benefit from witness protection. Accordingly, the people who will benefit from protection are:
a) Those who are heard as witnesses in criminal proceedings and the victims of crimes who are heard as witnesses in accordance with Article 236 of the Criminal Procedure Code No. 5271 dated 4/12/2004.
b) The fiancée of those wiretapped in accordance with the provisions of subparagraph (a), their spouse even if there is no marriage bond left, their lineal or descendants by blood or in-law relationship, blood relatives up to and including the second degree or in-law relatives up to and including the second degree, and those with whom they have a close relationship by adoption.
What are Witness Protection Measures?
The aim is to protect the witness even after testifying. In this regard, some precautions need to be taken. These measures are:
TKK article 5
a) His/her identity and address information are recorded and kept confidential and a separate address is determined for notifications to be made to him/her.
b) Hearing without those who have the right to be present at the hearing, or listening in a private environment by changing the audio or video.
c) Placement of detainees or convicts in penal institutions and detention centers appropriate to their situation.
ç) Providing physical protection.
d) Changing and editing identity and other relevant information and documents:
1) Changing and editing criminal records, military service, tax, population, social security and similar information and records.
2) Changing and editing official documents such as identity card, driver's license, passport, marriage certificate, diploma and all kinds of licenses.
3) Carrying out transactions for the exercise of rights regarding movable and immovable assets.
e) Providing financial aid for temporary subsistence purposes.
f) Changing the workplace or field of work of the employee or changing any educational and training institution where the student is attending.
g) Ensuring that he/she lives in another settlement within the country.
ğ) Ensuring temporary placement in another country in accordance with international agreements and the principle of reciprocity.
h) Changing the physiological appearance through or without the need for plastic surgery and rearranging the identity information accordingly.
(2) One or more of the measures written in this article can be applied simultaneously.
However, if the same result can be achieved with a lighter measure, this is also taken into account.
TMK art. 20
It should also be noted that when the identity of the witness needs to be disclosed during the hearing, the "protective measures" specified in Article 20 of the Anti-Terrorism Law No. 3713 dated 12/4/1991 can be applied to the witness by the judge's decision. These measures can only be taken if the disclosure of the witness's identity poses a serious danger to himself or others.
These protection measures; Upon request, regulations are made on issues such as changing the physiological appearance through plastic surgery, changing the population registration, driver's license, marriage certificate, diploma and similar documents, regulating the military service, rights regarding movable and immovable assets, protection of social security and other rights.
WHAT IS A SECRET WITNESS?
As we stated above, the institution of secret testimony, which is an exceptional method, has been accepted for the purpose of protecting the witness. CMK 58/2. According to the article; If revealing the identities of the people to be heard as witnesses would pose a serious danger to themselves or their relatives; Necessary precautions are taken to keep their identities confidential.
In some cases, taking the statements of witnesses has very bad consequences for them. For this reason, witnesses may hesitate to testify and sometimes make false statements. In order to eliminate this drawback and facilitate access to the material truth, the institution of secret testimony was introduced and it was regulated that the witness could be protected both during and after the statements were taken.
We have mentioned the conditions of protection in our explanations above under the title of witness protection.
Concerning the concealment of the identity of the secret witness, the CMK only states that the necessary precautions will be taken, but does not specify what the measures are. In this respect, it is possible to say that the judge is free to take any precautions. The measures are listed above.
The witness, whose identity is kept secret, is obliged to explain why and under what circumstances he learned about the events he witnessed. Confidentiality does not apply here.
In order to keep his identity confidential, the personal information of the witness is kept by the public prosecutor, judge or court. These are the people authorized to allow the witness to testify secretly. Another consequence of the provision is that secret testimony can also be made during the investigation phase.
PROCEDURE IN HEARING SECRET WITNESSES
Two different methods have been adopted in hearing secret witnesses. The first of these is that the witness is heard by taking precautions to hide his identity, and the second is that the witness is heard without those who have the right to be present at the hearing. Hearing without those who have the right to be present at the hearing; It is the hearing of a witness without the presence of the parties, without being brought to the place of hearing, by changing his/her image and voice in a way that prevents recognition. In this case, the witness's image and voice are changed and transferred to the hearing place, the parties can perceive the witness's image and voice live, and the witness can see and hear the parties.
Listening in a private environment by changing the sound or image; The witness is present in the presence of the parties, at the place where the hearing is held, and the recognition of the witness is prevented by changing his/her voice or image. In this case, the witness is at the place where the hearing is held and can see and hear the parties. However, the witness is in a specially prepared section. An example of this situation is listening to a witness who is behind the glass or behind the curtain or in the cabin by preventing them from being identified.
As we have stated, in accordance with the principle of directness, witnesses should be heard in the presence of those who have the right to be present and those who have the right to ask questions should be able to use these rights. Otherwise, the right to a fair trial will be violated.
CMK 58/3. According to the article; "If hearing the witness in the presence of those present would pose a serious danger to the witness and this danger cannot be prevented otherwise or would pose a danger in terms of revealing the material truth, the judge may listen to the witness without those who have the right to be present. Audio and video transmission is made during the hearing of the witness. The right to ask questions is reserved."
It is understood from the provision that two conditions must be present for this type of listening. The first of these is the possibility of preventing the danger in other ways, and the second is the absolute right to ask questions. Otherwise, the wiretapping will be of no importance as the principle of fair trial will be violated.
The following regulations regarding the wiretapping procedure are made in Article 9 of the Witness Protection Law:
A decision of the Supreme Court Criminal General Assembly, which includes comprehensive evaluations regarding the secret witness, is shared below:
In summary in the ECHR's decision regarding the conditions of secret testimony (Ellis, Simms and Martin v. England, Chamber Decision);
- There must be a justifiable reason to keep the identity of the witness confidential,
- The court must decide whether the statement of the secret witness is the sole or essential element for a conviction,
- If the sole or main basis for the conviction is the testimony of the secret witness, his actions must be subject to detailed examination.
Under these circumstances, it has been stated that there is a public interest in the confidential hearing of witnesses. In the same decision, he requested effective cross-examination and rejected the application, finding that the reliability of the secret witness's statement was evaluated fairly and appropriately. The same principles were repeated in the decision of the other chamber of the ECHR dated 11.12.2011 (Application no: 26766/05).
It is possible for the defendant to be heard as a witness regarding other crimes committed by his accomplices in which he did not participate. There is no obstacle for a person to hold two titles (witness-defendant) as long as he does not participate in the same crime.
The ECHR also accepts the testimony of accomplices. According to the court, it does not matter that the statement was given by a defendant and not by a witness. If this statement is concrete enough to be the basis of conviction, it is evidence for the prosecution, regardless of whether it is given by a witness in the narrow sense of the word or by someone who is also a defendant. Because, according to the court, the term witness has an "autonomous" meaning in the ECHR system. As a result, the guarantees provided to the witness by Articles 6/1 and 6/3-d of the ECHR may also come into play for persons who are defendants and whose statements can be considered as "testimony". In this context, according to the ECHR, the participant in the crime may be the victim of the incident, the complainant may be a secret/non-confidential investigator or a witness appointed by the state.
Although it is against the principles of secret testimony, publicity of the prosecution, directness of the trial, and the discussion of evidence in the presence of all trial subjects during the prosecution phase and reaching the material truth, the legislator has taken the risk of giving up these principles in order to reach the material truth in the investigations and prosecutions regarding the crimes committed within the framework of the activities of criminal organizations.
Witness Protection Law and CMK 58/2-5. Provisions regarding the protection of witnesses are included in the paragraphs. In order to apply for secret witness evidence according to these regulations,
1- CMK 58/5. While the article requires that the act subject to testimony be an act committed within the framework of the activities of a criminal organization, all crimes committed outside the activities of the organization are excluded from the scope. The Witness Protection Law stipulates that the minimum sentence for organized crimes should be two years or more. There is no lower limit set for crimes that are considered only within the scope of the activities of a terrorist organization (Art. 3/1-b. of ...). In addition, all crimes requiring aggravated life imprisonment, life imprisonment and a lower limit of ten years or more imprisonment, even if not committed within the scope of the organization, have been evaluated within the scope of the Witness Protection Law.
2- Hearing the witness in the presence of the parties must pose a serious danger to the witness or his/her relatives, and this danger must not be prevented in any other way. In accordance with Article 1 of the Witness Protection Law, the dangers must be grave and serious. The nature of the danger should be determined not by the subjective perception of the witness, but by the evaluation to be made by the competent authorities according to the characteristics of each concrete event.
The ECHR does not accept that the witness was not heard due to a general fear in the witness. (AL-KHAWA and Tahery/England-ECHR Grand Chamber Decision) The fear must originate directly from the defendant on trial or his relatives. If there is no such concrete reason for fear, the existence of the witness's fear must be supported by other evidence. For this purpose, first of all, the concrete threats and pressures faced by the witness or his/her relatives should be determined by the law enforcement officers and presented to the competent authority, and the competent authority should take these matters into consideration and decide whether the witness's fears are justified. Additionally, if deemed necessary, it should be evaluated whether the fear can be eliminated with special measures and alternatives.
The witness's fear of embarrassment when he comes face to face with the defendant or his concern about the loss of reputation that he will suffer when it is revealed that he is the person making an untrue statement cannot be considered within the scope of the concept of "grave danger".
The person who will make this evaluation is the public prosecutor during the investigation phase. The police or gendarmerie has no discretion in this matter. For this reason, secret witnesses must be heard by the public prosecutor in the investigation. During the prosecution phase, the court that will hear the witness will make the evaluation. The court should not continue this status of a witness who is given secret witness status even though the conditions are not met during the investigation phase. If the conditions exist, the measures in Article 5 of Law No. 5726 should be implemented.
The ECHR found the failure to investigate the consistency and basis of the witness's justification for concealing his identity to be contrary to Article 6 of the Convention ( Visser et al./Netherlands 2002. ). On the other hand, the ECHR accepts that the identities of police officers and public officials serving in a similar status should be kept secret only in the presence of special conditions ( Vanmechelen v. Holland 1997. ).
CMK 58/2. In order to prevent the identity of the secret witness from being revealed, the court may take the measures specified in Article 9 of the Witness Protection Law No. 5726.
During the prosecution phase, secret witnesses can be heard without those who have the right to be present, or in the presence of the parties, only by transferring their images and sounds to the courtroom in another room outside the hearing room, changing their audio and video if necessary, or by being present in the courtroom, but not in a booth, curtain, etc. It can be listened to by taking measures to prevent recognition such as.
Just as the secret witness is obliged to explain why he learned about the events he witnessed, the truthfulness of his statement should be checked with this information, and the defendant and the parties should be prevented from asking questions that would reveal the identity of the witness.
However, regardless of the method of hearing, CMK 58/3. According to the last sentence of the article, "those who have the right to ask questions have the right to ask questions".
Article 9/8 of the Witness Protection Law. According to the article, the secret witness statement cannot be taken as the basis for the decision alone. In particular, a conviction cannot be made solely on the basis of a confidential witness statement, unless there is additional evidence. It does not matter if there is more than one secret witness heard. A conviction cannot be based solely on confidential witness statements as a type of evidence.
Article 36/1 of the Constitution. According to the article, it is stated that everyone has the right to claim and defend and a fair trial before the judicial authorities, as plaintiff and defendant, by using legitimate means and means.
According to paragraph (1) and paragraph (d) of paragraph (3) of Article 6 of the ECHR, everyone accused of a crime has the right to interrogate or have the prosecution witnesses interrogated, and to request that the defense witnesses be summoned and heard under the same conditions as the prosecution witnesses.
In the face of these regulations, the court must evaluate and decide on the requests of the defendant or the defendant to hear witnesses, as well as the witnesses of the prosecution, within the framework of the right to a fair trial.
In order for all evidence to be discussed during the prosecution phase, as a rule, this evidence must be presented in a public hearing and in the presence of the defendant. Although this rule is not without exception, if a conviction is based solely or to a decisive extent on statements made by a person whom the defendant did not have the opportunity to question or interrogate during the investigation or prosecution phase, the defendant's rights may be restricted to an extent incompatible with the guarantees of Article 6 of the ECHR. If there is only one witness to the incident and a verdict will be made based on the testimony of only one witness, this witness must be heard at the hearing and the parties must be given the opportunity to ask questions.
During the criminal trial against a person, it is necessary to ask questions to witnesses, to be able to confront them, and to have the opportunity to test the accuracy of the witnesses' statements in order to have a fair trial. Thus, the accused person will be able to reveal the weak/unreliable points of the witness statements against him and test their reliability in the presence of others in accordance with the principle of adversarial trial, to produce results in his favor with the questions he asks in terms of the credibility and trustworthiness of the witness, and to ensure that the trial authority perceives the event in dispute not only as put forward by the prosecution but also through the arguments of the defense.
Paragraph (1) of Article 6 of the ECHR and subparagraph (d) of paragraph (3) of the same article indicate that the defendant should be given the opportunity to object to the statements of the witness who testified against him, either at the time the witness statement was taken or at a later stage of the trial (Sadak et al./Turkey; No. 29900/96, 29901/96, 29902/96, 29903/96, p.67). (YCGK 2020/25 K.)
AVOIDING WITNESSING AND OATING WITHOUT REASON
CMK ARTICLE 60.
COMPENSATION AND EXPENSES TO BE GIVEN TO THE WITNESS
The witness summoned by the public prosecutor, the president of the court or the judge is given compensation in proportion to the time lost according to the tariff prepared by the Ministry of Justice every year. If the witness had to travel to be present, travel expenses, accommodation and nutrition expenses in the place where he is called to testify are also covered.
The compensation and expenses to be paid pursuant to the provision of the first paragraph are paid without any taxes, duties or fees.
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