The rights protected by the CMK 236 system
Special hearing methods protect both the best interests of the child and the reliable obtaining of the statement. Repeated and leading interviews may increase the risk of secondary victimization. It must be examined under what conditions, by whom and with what kind of recording the hearing was conducted.
Related guide: Crimes Against Sexual Inviolability: TCK 102–105, Elements of the Offenses, Penalties, Evidence and Court of Cassation Case Law.
The Child Monitoring Center at the investigation stage
For the offenses listed in CMK Article 236/5, the statement of a child victim at the investigation stage is taken at a special center, through an expert and under the supervision of the public prosecutor. Keeping the audio and video recordings in accordance with the procedure helps ensure that the statement can be examined at later stages of the proceedings.
Interview preparation and the expert
The expert's qualifications and the method of interviewing the child are assessed according to the child's age, communication skills and special needs. In the interview, a question that is legally decisive must be clarified without being put in a leading manner.
Preservation of the recordings
It matters when the video and audio recordings were made, in what format they are kept, who has had access to them and how they were placed in the file; a transcript alone does not always replace the whole recording.
The forensic interview room and re-hearing
Under CMK Article 236/4, a decision to take a statement in a special setting may be given with regard to the characteristics of the child or the victim. As to a second hearing, the necessity of reaching the material truth must be supported by reasons. Instead of a face-to-face meeting with the child, the suitability of a recording, questions put through an expert, or protected methods may be assessed.
The defense's right to put questions
The defense's questioning of evidence does not require the child to be confronted directly with the defendant in every case. However, for an account that is the decisive or sole evidence of the accusation, the defense must be given effective means of challenge and of submitting questions, in a manner compatible with fair trial law. Where a party cannot hear the statement directly at the hearing, what matters is whether alternative safeguards were actually put into operation.
Court of Cassation decisions and incomplete examination
In its decision of 23.10.2023, E.2023/10401, K.2023/6614, the 9th Criminal Chamber of the Court of Cassation (Yargıtay 9. Ceza Dairesi) dealt with incomplete examination as regards the discussion of the ÇİM statement at the hearing and the examination of the recordings with the parties. By contrast, in the decision of 14.06.2023, E.2023/3951, K.2023/4240, the fact that the defendant's defense counsel had had an opportunity to put questions at an earlier stage was influential in assessing the objection that defense rights had been violated. These two decisions show that a procedural safeguard must be assessed not merely in form but in terms of the concrete opportunity to use it.
Practical review of the protection of the child
The dates of the first application and interviews, the number of hearings, the recording file, the transcript, the identity of the expert, any claim of leading questions, whether the video was watched at the hearing, and the parties' statements must each be determined separately in the file. If the necessary recordings are missing, the appeal must clearly discuss which inquiry the court did not carry out and why.
Handling video recordings at the hearing
A video recording may reduce the need for the child to tell the same event again and again. However, the mere presence of the recording in the file does not mean that its content was actually examined and discussed at the hearing. The time information in the records, the integrity of the transcription of the recording, whether the questions were understandable and the defense's opportunity to put a counter-view must be reviewed. This assessment can be made without presupposing that the child be confronted directly with the defendant.
Expert interviewing technique and the limits of evidence
A procedure conducted with a forensic interviewing technique must contain safeguards that reduce the form of questioning and preserve the naturalness of the account. However, a presumption of unquestionable accuracy cannot be attached to every recording in which the interviewing expert appears. The child's age, communication capacity, the support tools used, the influence of earlier accounts, the continuity of the recordings and the robustness of the report must be examined. The expert's opinion must not be allowed to take the place of the court's own assessment of the evidence.
Making objections and appeals concrete
Where it is claimed that the right of defense was restricted, it must be shown which question could not be asked and why, which decisive contradiction that question would have served to resolve, and how the court assessed the alternative safeguards offered. For the victim's side, what matters is the necessity of the request for a re-hearing and whether a less traumatizing option was possible. For both sides, a procedural objection should be tied to a concrete act rather than to an abstract phrase such as “the hearing was incomplete.”
Special interview and recording safeguards under CMK Article 236
Taking the statement of a child victim in the presence of an expert, in a manner suited to the child's development and, where necessary, in a special setting, serves the protection of the child. What matters is in which procedural act the video and audio recording was made, the integrity of the recording, the evaluation of all the questions and answers, and the proper inclusion of the recording in the file. Unnecessary repetition of the same event to the same child must be prevented; however, where the material truth makes it necessary, the special procedure must be supported by reasons.
Adversarial proceedings without a face-to-face meeting
In circumstances where a direct confrontation of the child with the defendant would be harmful, the defense's right to put questions should not be regarded as removed altogether. Methods such as putting the questions through an expert, examining the video recording at the hearing and clarifying the decisive dispute through an appropriate procedure may be assessed according to the specific case. In the reasoning reached in the decision of the 9th Criminal Chamber of the Court of Cassation of 23.10.2023, E.2023/10401, K.2023/6614, the failure to evaluate the child's statement at the hearing and the procedural deficiency concerning the recording were grounds for reversal. Decision record.
Balancing the ban on repeating a statement against necessary additional inquiry
CMK Article 236 aims to prevent the re-traumatization of the child. Even so, where the first recording cannot be read or watched at the hearing, where there is a decisive contradiction or where necessary questions remain unasked, the court is required to examine whether intervention is necessary. If a new statement is needed, the decision must show whether a lighter method would be sufficient and what expert support will be provided to protect the child.
Presenting the opposing approach accurately
In its decision of 14.06.2023, E.2023/3951, K.2023/4240, the 9th Criminal Chamber of the Court of Cassation held that the fact that defense counsel had put questions to the victim at an earlier hearing, and so could not take part in the later forensic interview room statement, was not automatically unlawful. This approach shows that there is no mechanical rule that questions must be ensured separately at every interview, and that the opportunity for effective questioning must be assessed within the proceedings as a whole. Decision record.
How video recordings are placed in the file and discussed at the hearing
The existence of an ÇİM/AGO audio and video recording must be examined together with whether the recordings were placed in the file completely and in a suitable format, to whom access was given, the record of any processing carried out on the recording, and the parties' opportunity to assess the content at the hearing. If there are differences between the written transcript and the recording, the original content must be checked. Private-life and child data must be protected as regards confidentiality, copying of the evidence and the conditions of access for the parties.
Making the opportunity to put questions effective for the defense
In cases where the statement is the sole or decisive evidence, how the questions could be put and how the answers were evaluated become even more important. That a lawyer was able to put questions at one stage does not automatically mean that all disputes were resolved in every specific file; conversely, a face-to-face meeting at every stage is not required either. What matters is that a fair procedure, safe for the child, is established within the proceedings as a whole.
The ÇİM statement and questioning at the hearing: comparing two decisions
In its decision of 23.10.2023, E.2023/10401, K.2023/6614, the 9th Criminal Chamber of the Court of Cassation emphasized that the child's statement must be properly evaluated at the hearing and that the parties must be given the opportunity to comment on the video recording. In the Chamber's decision of 14.06.2023, E.2023/3951, K.2023/4240, the fact that defense counsel had earlier put questions to the victim was significant in that being unable to attend the later AGO stage could not be regarded as an automatic violation. The common yardstick behind the different outcomes is whether there was an opportunity for effective review within the proceedings as a whole. First decision · Second decision.
Necessity in hearing the child again, and the less traumatizing method
The safeguards under CMK Article 236 are aimed at preventing the child from having to tell the same event again without need. Nevertheless, where there is a critical contradiction, a missing question or a recording not placed in the file, it must be made concrete whether additional steps are needed to bring out the material truth. A direct face-to-face meeting with the child should not be regarded as necessary before the adequacy of options such as examination of the interview recording by the parties, comparison of the written transcript with the original, and putting questions through an expert has been examined. The reasoning must show both the best interests of the child and the right to question.
The original video recording, the transcript and privacy
The existence of a recording of the statement does not prevent a separate inquiry into the integrity of its content and its proper preservation. The interview dates, the start and end of the recording, and whether there is a difference between the transcript submitted to the file and the original video must be determined. Images or health data that could reveal the child's identity must not be carried into public publications. Technical access authorization and the defense's statutorily required right of inspection must be determined separately; a confidentiality ground must not be applied in such a way as to remove entirely the discussion of the evidence at the hearing.
Conclusion
In assessments concerning hearings at the Child Monitoring Center, in the forensic interview room and under CMK 236, the relationship between the statutory elements of the offense or procedural step and the concrete evidence must be established clearly. The reasoning of the court's decision must address the decisive points of the prosecution and the defense, and the legislation applicable on the date of the incident must be observed. The protection of the victim and the safeguards of a fair trial are not opposed to each other; they are complementary obligations of a state governed by the rule of law.
Frequently Asked Questions
Must the child give a statement again at every hearing?
No. CMK Article 236 aims to prevent unnecessary repetition; where it is necessary, it must be supported by reasons.
Is an ÇİM recording enough on its own for a conviction?
Like any evidence, its content, reliability and relationship with the other evidence are assessed.
Can the defense question a child victim?
Effective questioning and the opportunity to test the statement must be ensured through protective methods, according to the concrete conditions.
Are the AGO and the ÇİM the same institution?
No; although their functions are close, their institutional and procedural structures differ.
Sources and legal bases
- Law No. 5237 Turkish Penal Code (relevant articles and general provisions)
- Law No. 5271 Code of Criminal Procedure (relevant evidentiary and procedural provisions)
- Güneş & Güneş — Index of offenses under the Turkish Penal Code and special laws
- Court of Cassation, 9th Criminal Chamber, 23.10.2023, E.2023/10401, K.2023/6614
- Court of Cassation, 9th Criminal Chamber, 14.06.2023, E.2023/3951, K.2023/4240