Can a Conviction Be Based on the Testimony of a Witness Who Could Not Be Questioned?
This article provides general information. Legislation, time limits and amounts may change over time; obtain an up-to-date assessment of your specific situation.
If the testimony of a witness whom the defendant had no opportunity to examine becomes the sole or decisive evidence for a conviction in a criminal case, this may raise a serious issue under the right to a fair trial. Attorney Gizem Gonce discusses the scope of the right to examine witnesses and the legal remedies that may be available if this right is violated.
In criminal proceedings, it is not enough for the defendant simply to learn the allegations against them. The defense's ability to challenge the evidence relied on for the accusation and, where necessary, to put questions to witnesses against the defendant is also among the fundamental elements of the right to a fair trial.
In its decisions on the right to examine witnesses, the Constitutional Court considers, in particular, how decisive the statement of a person whom the defendant could not examine was to the conviction, and whether the resulting disadvantage to the defense was remedied.
Attorney Gizem Gonce answers questions
Does a defendant have the right to examine a witness against them?
Attorney Gizem Gonce: Yes. Under Article 36 of the Constitution and Article 6 of the European Convention on Human Rights, the rights to a fair trial and to a defense require that the defendant be given an opportunity to examine, or have examined, witnesses against them.
As a rule, evidence must be capable of being discussed at a hearing, and the defense must be able to respond to it. Some exceptions may apply to protect a witness, because of a victim's particular circumstances, or for other valid reasons. The key is that such exceptions must not restrict the right to a defense disproportionately.
If a witness does not appear in court, is the resulting conviction automatically invalid?
Attorney Gizem Gonce: No. The fact that a witness could not be heard at trial does not, by itself, mean that the conviction is automatically invalid. The court must examine whether there was a valid reason why the witness could not be brought before it, the evidentiary value of the statement, and whether safeguards were provided to remedy the disadvantage to the defense.
Closer scrutiny is required in particular if the statement of the witness whom the defense could not examine was the sole or decisive evidence for the conviction. The nature of the other evidence and the opportunities given to the defense also affect the outcome.
What criteria does the Constitutional Court apply on this issue?
Attorney Gizem Gonce: Three central questions arise in the Constitutional Court's case law on the right to examine witnesses:
Was there a valid reason for not making the witness available at the hearing?
Was the statement of the witness whom the defense could not examine the sole or decisive evidence for the conviction?
Were sufficient counterbalancing safeguards provided to remedy the disadvantage suffered by the defense?
These factors are assessed together. A fair balance must be struck between protecting the witness and the defendant's right to a defense, particularly in cases where it is necessary to protect vulnerable victims or witnesses.
What can be done if the right to examine a witness is thought to have been violated?
Attorney Gizem Gonce: First, it is important to make any requests to hear or examine the witness properly during the proceedings and to have them entered in the record. The defense should set out specifically why it objects to the witness's statement and how that statement affected the decision.
If a conviction has been entered, it should be examined whether appeal and cassation are available in the particular case, along with the filing deadlines and legal grounds that may be raised. After ordinary remedies have been exhausted, an individual application to the Constitutional Court may also be considered if the applicable conditions are met.
If the Constitutional Court finds a violation, can the case be retried?
Attorney Gizem Gonce: A finding of a violation does not mean that an acquittal will be ordered directly in every case. A retrial may be necessary to remedy the consequences of the violation. The course to follow depends on the Constitutional Court's decision and the nature of the violation.
For this reason, each claim concerning the right to examine witnesses must be assessed in the context of the case as a whole. The connection between a restriction of the right to a defense and its effect on the fairness of the conviction must be set out concretely.
Legal assessment
The right to examine witnesses is one of the fundamental safeguards that enables the defense to be conducted effectively in criminal proceedings. However, the fact that a witness could not be heard at trial does not automatically amount to a violation of rights. The reason for the witness's absence, the weight of the statement in the conviction, and the safeguards offered to compensate the defense must be assessed together.
Attorney Gizem Gonce emphasizes that in criminal cases, the right to a fair trial includes not only having evidence in the case file, but also giving the defense an effective opportunity to challenge it.