A witness is defined in the TDK dictionary as a person whose knowledge and manners are referred to at a hearing. The testimony system, which has an important role among the evidence serving the purpose of achieving the final truth of the criminal trial, has been organized in detail in the CM Dec. It should be noted that the ECHR regulates the right to a fair trial 6. in its article, there is also a special regulation on testimony, and the issue of listening to the witnesses of the claim and defense on the same terms and not giving privileges to the diagnoses of the prosecution is specifically regulated.
The witness is TCK, 6. according to its article, he is considered a public servant. A defendant cannot be heard as a witness in a trial case. If the victim is a witness, he can be a witness, according to CMK 236/1, when the victim is heard as a witness, the provisions on testimony, except for the oath, also apply to the victim. According to CMK 201, the criminal lawyer may ask the witness a direct question.
CALLING OF WITNESSES
Witnesses are called with a call sheet. The consequences of not showing up are reported on the call sheet. A decision may also be made to forcibly bring witnesses to work in detention without sending a call sheet. The reasons for bringing this way are indicated in the decision article and the process about the witnesses who came with the call paper is applied to them.
This call can also be made using tools such as telephone, telegram, fax, electronic mail. However, the results that are attached to the call sheet are not applied in this case.
The court may order the officers in writing to have the witnesses, who are deemed necessary to be heard immediately during the continuation of the hearing, ready on the day and time specified by them. The court can issue this order only at the stage of prosecution.
WHAT IF THE WITNESS DOESN’T SHOW UP DESPITE THE CALL?
Witnesses who do not comply with the call are brought in by force and the expenses caused by their non-arrival are assessed and the collection of public receivables is duly paid. However, if the witness who was brought by force reports the reasons that justify his not coming first, the costs ruled against him will be removed.
DO NOT HESITATE TO TESTIFY
Testimony is mandatory in a criminal trial, and a person who needs to be heard as a witness for a trial cannot arbitrarily withdraw testimony. In which cases the law considers it permissible for him to abstain from testifying. According to this;
The suspect or the defendant’s fiancée.
The spouse of the suspect or accused, even if there is no marital bond left.
If the suspect or the accused has a blood type or a beech type, the parent or child
Blood of the suspect or accused, including in the third degree, or in-laws, including in the second degree.
The suspect or Dec accused and those who have adopted ties between them.
He may hesitate to testify.
– Those who are not able to understand the importance of abstaining from testifying due to their age, 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 accused, he cannot make a decision on the reservations of these persons.
Testimony may be withdrawn both at the stage of investigation and at the stage of prosecution.
-Those who may be afraid of testifying are informed that they may be afraid of testifying before being listened to. These people can always refrain from testifying while they are resting.
THOSE WHO HAVE THE RIGHT TO ABSTAIN FROM TESTIMONY DUE TO THEIR PROFESSION AND CONSTANT EFFORTS
Lawyers or their interns or assistants may hesitate to testify because of the information they have learned about these adjectives or because of the judicial duty they are charged with. Moreover, even with the consent of the person concerned, these persons must abstain from testifying.
Information that physicians, dentists, pharmacists, midwives and their assistants and all other members of the medical profession or arts learn about their patients and their relatives due to these adjectives.
The information that the consultants and notaries assigned in financial affairs have learned about the people they serve because of these adjectives.
in the event that the consent of the person concerned is found for the groups mentioned in articles 2 and 3, these persons cannot withdraw from the testimony.
DO NOT HESITATE TO TESTIFY AGAINST HIM OR HIS RELATIVES
Even if the witness testifies, he may hesitate to answer questions that may lead to criminal prosecution of himself or the persons referred to in the first paragraph of Article 45. The witness is informed in advance that he may hesitate to answer. The purpose here is to prevent the witness from lying in order to protect himself or his relatives.
OATH OF WITNESS
First of all, the following persons are listened to without oath;
Those who have not reached the age of fifteen at the time of rest.
Those who are unable to comprehend the nature and importance of the oath due to their lack of discernment power.
Those suspected, accused or convicted of participating in crimes subject to investigation or prosecution, or favoring an offender for these crimes, or destroying, hiding or altering evidence of a crime.
-If the witness has sworn even though he is one of the witnesses who are legally required not to swear, the statement of this witness is considered to be the statement of the witness without an oath in practice.
– At each stage of the investigation and prosecution phase, the witness who will be heard is sworn in. Although the reason for the violation is that the witness who is supposed to swear must be heard without swearing, if the statement of this witness is not effective on the merits, it is not decided to break it, it is seen in the decisions of the Supreme Court. If necessary, or if there is a hesitation as to whether a person should be listened to as a witness, his oath may be left until after his testimony. The form of the witness’s oath is regulated by law and consists in saying the relevant sentence aloud.
LISTENING TO WITNESSES
Each witness is heard separately and without subsequent witnesses present. Witnesses can be confronted with each other and with the suspect only in cases where it is inconvenient to delay or identification is required until the prosecution stage.
In CMK 212; if the witness says that he cannot remember a point, he is helped to remember it by reading the relevant part of the minutes containing his previous statement. When a contradiction is found between the witness’s statement at the trial and his previous statement, the previously taken statement is read and the conflict is Deciphered, and its provisions are included.
RE-HEARING OF THE WITNESS
When the witness who is heard under oath needs to be heard again at the same stage of investigation or prosecution, it may be sufficient not to be sworn again and to be reminded of the previous oath.
QUESTIONS TO BE ASKED TO THE WITNESS FIRST AND LISTENING TO THE WITNESS
The witness is first asked personal questions. If it is inconvenient for him to reveal the identity of the witness, then his identity can be kept secret.
THINGS TO SAY TO THE WITNESS AND QUESTIONS TO ASK
The witness is heard without interruption by informing him about the subject he is going to testify about and showing the accused or telling him his identity if the accused is not ready. If necessary, the witness can be asked a question. In Criminal Procedure, these questions are called cross-examination.
DO NOT HESITATE TO TESTIFY AND SWEAR FOR NO REASON
Expenses arising from this are charged to the person who hesitates for no legal reason, and disciplinary detention may also be given in any case for not more than three months until the case is over. If he fulfills his obligation to testify, he is immediately released.
COMPENSATION AND EXPENSES TO BE PROVIDED TO THE WITNESS
The witness is given a compensation commensurate with the time he has lost in the process of testifying. If the witness had to travel to be ready, travel expenses and residence and nutrition expenses at the place where he was called to testify are also covered. However, these expenses are not paid to the witness prepared by the defendant.
SECRET WITNESS
If the appearance of the identities of the persons who will be listened to as witnesses will pose a serious danger to themselves or their relatives, the necessary measures will be taken to keep their identities secret. The Witness Protection Law calls for a severe and serious danger condition in order for this provision to be applied to the witness. The institution of secret testimony finds its application only in crimes committed within the framework of the activity of an organization.
Although confidential testimony may be criticized for disturbing the balance between the prosecution and the defense authorities, both the ECHR and the Dec find confidential testimony unlawful and decide to violate the right to a fair trial if the provision is only based on the statement of a confidential witness.
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