Testimony and Secret Witnesses in the Code of Criminal Procedure

Testimony and Secret Witnesses in Criminal Procedure: Current Issues and Application Areas

In criminal proceedings, witness testimony is one of the most important pieces of evidence for the accurate and complete administration of justice. Statements from individuals who have knowledge of the manner in which the crime was committed, the perpetrators, or the victims' circumstances are of great importance to courts in uncovering the truth. However, in some cases, anonymous witnesses is employed to protect the witness's safety and public order. Particularly in cases involving terrorism, organized crime, drug trafficking, and organized crime, disclosing the identities of witnesses poses a serious risk to the safety of both the witness and their relatives.

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1. The Concept and Importance of Testimony

Testimony is the act of a person who has knowledge, observations, or experience regarding the commission of a crime disclosing this information before the court. the Code of Criminal Procedure (CMK), testimony is considered one of the most important tools for upholding the principle of freedom of evidence.

The importance of testimony can be summarized as follows:

• It contributes to clarifying the incident and uncovering the material truth.

• Along with other evidence, it plays a decisive role in proving a crime.

• It supports the objectivity of court decisions and the right to a fair trial.

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2. Witness Rights and Responsibilities

2.1. Witness Rights

• Right to refuse to testify: According to Articles 45-46 of the Code of Criminal Procedure, a witness is not obliged to answer questions that are incriminating in nature regarding themselves or their close relatives.

• Witness security: A witness may request protection if they are under duress or threat.

• Witness fees: A witness may request fees to compensate for any financial loss incurred due to their participation in the case.

2.2. Obligations of the Witness

• Appearing when summoned to court,

• Giving a truthful statement,

• Confirming their statements by oath (with some exceptions).

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3. The Secret Witness Practice

Article 58 of the Code ofCriminal Procedure regulates the institution of confidential witnesses. According to this article, if disclosing the witness's identity would endanger their safety or life, the witness's identity may be kept confidential.

• The witness's identity is not explicitly stated in the file.

• Sound and image may be distorted during listening.

• The witness is heard in court via the SEGBİS system.

The purpose of the confidential witness system isboth to ensure that justice is served and to protect the safety of the witnesses.

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4. The Evidential Value of a Secret Witness

The statements of a secret witness are not sufficient for conviction on their own in a trial. They must be supported by other evidence. "the benefit of the doubt goes to the accused ," convictions based solely on secret witness testimony may be considered a violation of the right to a fair trial. Therefore, in practice, secret witness statements are always evaluated in conjunction with other evidence.

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5. Current Problems in Testimony and Anonymous Testimony

5.1. Witness Safety

In some cases, witnesses may be subjected to threats and coercion from the perpetrator or organization. This makes it difficult for the witness to reveal the truth.

5.2. Reliability of Secret Witness Testimony

The accuracy of statements made by confidential witnesses is a matter of debate. Because their identity is unknown, the witness's reliability, background, and the consistency of their statements may not be questioned.

5.3. Right to Defense

Restricting the right of the defendant and their counsel to cross-examine a confidential witness can weaken the right to defense. This is considered a serious problem in terms of the right to a fair trial.

5.4. Issues of Digital Testimony

Technical malfunctions and communication breakdowns during testimonies given via SEGBİS (a Turkish electronic court system) can affect the reliability of the testimony.

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6. Effective Protection Methods in Witness Testimony

In advanced legal systems, the following measures are commonly implemented to ensure the safety of witnesses:

• The witness's identity must be kept confidential

• Identity and relocation programs,

• Listening via SEGBIS,

• Testifying under the protection of law enforcement.

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7. Court of Cassation Practices

The Supreme Court has emphasized in numerous rulings that the statements of confidential witnesses alone cannot form the basis of a judgment and that supporting evidence is always required.

• Supreme Court Criminal General Assembly: "Statements from secret witnesses cannot be considered sufficient evidence for a verdict unless supported by corroborating evidence."

• Supreme Court 16th Criminal Chamber: Although the testimony of a secret witness is of critical importance in terrorism and organized crime cases, the reliability of these statements must be meticulously examined.

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8. International Perspectives and ECHR Opinions

The European Court of Human Rights frequently addresses the use of anonymous witnesses within the framework of the right to a fair trial.

• Kostovski v. Hollanda (1989): It was ruled that the testimonies of a secret witness alone were not sufficient for conviction.

• Doorson v. Netherlands (1996): Secret testimony is acceptable, but it should not be applied in a way that completely eliminates the defendant's right to a defense.

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9. Proposed Solutions

1. Statements from confidential witnesses must be supported by concrete and objective evidence.

2. New technological solutions should be developed to protect the right to defense (for example, partial facial concealment while allowing for effective cross-examination).

3. Witness protection programs should be strengthened, and the safety of victims should be enhanced.

4. Technical infrastructure problems in digital witnessing processes must be resolved.

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10. Conclusion

In criminal proceedings, witness testimony is an indispensable element in uncovering the truth. While the use of anonymous witnesses is an important tool for ensuring witness safety, it must be applied in a balanced manner with the right to a fair trial and the right to defense. The increasing use of anonymous witnesses today, particularly in the areas of terrorism, organized crime, and digital crimes, has raised debates from both legal and ethical perspectives.

For a fair trial, the statements of anonymous witnesses alone should not be considered sufficient evidence; they must be supported by concrete evidence, and the process must be conducted in a way that does not infringe upon the right to defense.

Gozdenur Turna