Press Release No: Individual Application 52/20

Press Release concerning the Judgment Finding a Violation of the Right to Examine a Witness due to the Inability to Examine the Witness whose Testimony Constituted the Decisive Evidence for Conviction

On 2 June 2020, the Second Section of the Constitutional Court found a violation of the right to examine a witness under the scope of the right to a fair trial, safeguarded by Article 36 of the Constitution, in the individual application lodged by Hasan Ballı (no. 2017/21825).

The Facts

The complainant H.B. filed a criminal complaint against several persons including the applicant, alleging that they had forced him to sign a promissory note by tying him up by the wrists and ankles. At the end of the proceedings, the applicant was sentenced to imprisonment by the incumbent assize court for plundering and depriving the complainant of his liberty. Arguing that he did not have the opportunity to examine the witness charging him with the said criminal offences, the applicant appealed the first instance decision which was ultimately upheld by the Court of Cassation. 

The Applicant’s Allegations

The applicant maintained that his right to examine a witness had been violated as he could not examine, at the hearing, the witness whose statements constituted a main basis for his conviction.

The Court’s Assessment

In the present case, S.K., a co-accused of the applicant, was heard by the court through the Audio-Visual Information System (“SEGBİS”). In his defence submissions, S.K. gave testimony against the applicant. It is explicit that the applicant must be afforded the safeguards inherent in the right to examine a witness in the face of S.K.’s testimony.

The first instance court did not indicate any justified reason for the failure to examine S.K. -whose arrest had been ordered- at the hearing. Therefore, in the present case, the relevant public authorities failed to fulfil their obligation to justify the applicant’s being deprived of his right to examine a witness. Given the relevant information and documents concerning the applicant’s case as well as the reasoning of the decision, it has been observed that S.K.’s testimony constituted the decisive evidence for the applicant’s conviction.   

At the hearing when the applicant’s defence submissions were taken, the first instance court read out S.K.’s testimony against the applicant who was given the opportunity to submit his challenges and defence submissions against it both in writing and orally. These processes may be considered as a reparatory opportunity. However, in his subsequent statements before the first instance court, the complainant H.B. noted that the applicant had not been present at the incident scene and among those who had committed the imputed offences. 

Regard being had also to the complainant’s subsequent statements, it has been considered that the reparatory opportunity afforded to the applicant was not indeed capable of remedying the impugned restriction imposed on his right of defence. The Court has accordingly concluded that in the present case, the incumbent court’s reliance on the testimony of the witness, who had not been examined at the hearing, in convicting the applicant had undermined the overall fairness of the proceedings.

Consequently, the Court has found a violation of the right to examine a witness.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.