Can a Verdict Be Reached in a Criminal Case Without Hearing Witnesses and Experts? The Right of Defense and Court of Cassation Case Law

Can a decision be made in a criminal case without hearing a witness or expert?

Not every request to be heard is mandatory; however, the defense’s right to test the evidence is essential

The purpose of criminal procedure is to reach the material truth by lawful methods and to deliver a fair judgment. This purpose requires neither that everyone named by the defense be heard without limit nor that the proceedings be completed merely by reading written records. The court must assess together what facts the person whose hearing is requested would clarify, whether the existing evidence is sufficient, the likely effect of the evidence on the judgment, and the reasons for the request.

A witness and an expert perform different legal functions. A witness describes the information he or she perceived about a past event. An expert examines a matter whose resolution requires special or technical knowledge; an expert cannot make the legal characterization of the event in place of the judge (CMK Art. 63, Art. 67(3)). A scientific opinion obtained by a party under CMK Art. 67(6) likewise does not have the same procedural status as a report of an expert appointed by the court. It is therefore not correct to transfer the criteria laid down for not hearing a witness, in every detail, directly to an expert. [1, 14, 16]

The most important distinction for the hearing is this: The presence of written evidence in the file does not by itself show that its content was effectively questioned by the defense. The reliability of a witness’s account can be tested with questions; the method, calculation, supporting records and uncertainties in an expert’s report can be clarified by oral explanation. Conversely, it is not necessary in every case to have the same expert read out again a report that has been properly submitted, discussed and sufficiently explained in the file.

The difference between a witness, an expert and a specialist who prepares a scientific opinion

Does reading out a witness’s earlier statement take the place of hearing the witness at the hearing?

Under CMK Art. 59, the witness must first describe the event from his or her own knowledge

CMK Art. 59 provides that, after the subject on which the witness will testify has been explained, the witness is given the opportunity to describe what he or she knows. Not interrupting the witness’s account unnecessarily makes it possible to see what the witness recalls spontaneously about the event. Questions may then be put to clarify missing or uncertain points. A witness saying that he or she accepts the earlier statement is not the automatic equivalent of a proper hearing of the witness at the hearing. [1, 4]

In the decision of the Criminal General Assembly of the Court of Cassation (Yargıtay Ceza Genel Kurulu) of 30.03.2022, E. 2020/193, K. 2022/215, the Assembly discussed moving directly to the stage of direct questions after the witnesses were asked whether they accepted their earlier statements. The Assembly found it contrary to procedure that the witnesses were not allowed to describe their knowledge of the event freely. The grounds for quashing in the concrete decision and the other procedural problems must be taken into account together; the decision should not be generalized to mean that every question-and-answer method by itself invalidates a conviction. [4]

CMK Art. 210: Where the evidence of the event is a single witness’s statement, hearing is mandatory

CMK Art. 210(1) provides that where the evidence of an event consists of the statements of a witness, the witness must be heard at the hearing. In that case, reading out the record of the earlier hearing or a written statement does not, as a rule, take the place of the hearing. This explicit provision shows the importance given in criminal procedure to the witness’s live account. Yet it cannot be thought that the right to question disappears entirely merely because there is more than one witness; in that case the Constitutional Court’s assessment of the weight of the statement in the judgment gains separate importance. [1, 11]

Under CMK Art. 210(2), if a person who may refuse to testify exercises that right at the hearing, the record of his or her earlier statement cannot be read out. This special prohibition must not be placed in the same category as a witness who has died, cannot be found or could not be heard for another reason.

The exceptions in CMK Art. 211 are not a power to be satisfied with a record without limit

CMK Art. 211 allows earlier records to be read out where a witness or an accomplice of the defendant has died, cannot be found, or cannot attend for health or other insurmountable reasons, and in the other cases provided for in the article. Reading out a record with the joint consent of the persons concerned is also separately regulated. The court must show from the concrete file why the witness could not be brought and under which exception the earlier statement was read out. Whether the defense had previously been able to question the witness, and the weight of the statement in the conviction, must also be examined. [1, 11]

If the earlier statement and the account at the hearing conflict, CMK Art. 212 applies

If a witness does not recall a detail, the relevant part of the earlier statement may be read out to help the witness remember. If there is a contradiction between the earlier statement and the account at the hearing, the contradiction is identified and an attempt is made to clarify it. The aim of this step is not to force the witness to repeat the old record exactly, but to bring out the reason for the difference. For example, where there are two different accounts of the place, time, lighting conditions in which the event was seen, or the person’s relationship to the event, the relevant statements must be assessed together. [1]

What questions may be put to witnesses, and how is the right to ask questions exercised?

CMK Art. 58(1): Inquiry into identity, relationships and reliability

The witness is first asked for identity and contact details; where necessary, the witness’s relationships with the suspect, defendant or victim and circumstances that matter for the reliability of the account are inquired into. In this respect, CMK Art. 58(1) aims not only at having the witness state the outcome of the event but also at making it understood why the witness’s knowledge can be trusted. A relationship of kinship or hostility does not by itself invalidate the statement; it is a fact that must be assessed together with the other evidence. [1]

Questions may be asked about whether a witness saw the event personally or heard of it from someone else, at what distance he or she was at the scene, with whom he or she spoke after the event, or whether the certainty of the account rests on observation or on guesswork. The court may intervene in irrelevant questions or questions that create pressure; but this supervision is not a power to treat every follow-up question that would test the witness’s knowledge as unnecessary.

CMK Art. 59(2) and Art. 201: Clarifying questions and direct questioning

CMK Art. 59(2) permits additional questions to clarify the matters described and to assess the circumstances on which the knowledge rests. CMK Art. 201, for its part, grants the public prosecutor, defense counsel, and the lawyer attending the hearing as an attorney-in-fact the power of direct questioning of the defendant, the intervening party, the witness, the expert and other persons summoned to the hearing. The defendant and the intervening party put their questions through the presiding judge or the judge. Members of the panel may also exercise the power provided in the article. [1]

The presiding judge’s re-framing of the lawyer’s question each time, or the passing of questions only through the judge, does not replace the procedure CMK Art. 201 grants to the lawyer. At the same time, the judge ensures the order of the hearing; the judge may intervene in questioning methods that are unrelated to the dispute, demeaning, repetitive or unlawful. A lawyer’s direct questioning does not mean that the management of the hearing passes entirely to the lawyer. [1, 17]

Can only “yes” or “no” questions be put to a witness?

No. The CMK contains no general rule limiting all questions to a “yes” or “no” answer. Open-ended questions that have the event explained, and short questions aimed at establishing a contradiction, may both be used. However, a question must target a single concrete matter; it must not conceal several assumptions, and it must not be turned into a tool of pressure that forces the answer in a particular direction.

For the defense, the strongest questioning is not that which draws automatic conclusions from the witness’s silence or agitation, but that in which the opportunity to observe, the source of the information, contradiction with the earlier account and consistency with the other evidence are tested with concrete questions.

Can the judge prevent the witness from looking at the lawyer who asks the question?

Ensuring the order of the hearing and preventing the witness from being put under pressure are within the judge’s power. However, it cannot be said that an instruction to “answer only facing the bench” is legally mandatory in every case. If such a direction in effect renders the hearing of the witness and the defense’s follow-up questions ineffective, its concrete effect must be assessed. A procedural violation cannot be reached merely on the basis of which way a person is looking; the real criteria are whether the lawyer’s question can be asked, whether the witness’s reply is understood, and whether the necessary follow-up question can be put.

Questioning the defendant and the right to remain silent

That questions may be put to the defendant under CMK Art. 201 does not remove the defendant’s right against self-incrimination and right to remain silent. The defendant must be informed of these rights; the method of questioning must not be turned into obtaining a confession by compulsion. Extending by analogy to the defendant’s detriment a procedural provision regulated for the witness is unacceptable. The matter to be clarified at the hearing and the procedural capacity of the person being questioned must be determined separately. [1]

How does the right to refuse to testify and the right not to answer affect the opportunity to ask questions?

CMK Art. 45 and Art. 48 regulate different safeguards

CMK Art. 45 regulates the right to refuse to testify on account of certain kinship relationships listed in the law. CMK Art. 48 guarantees the witness’s right to refuse to answer specific questions that could expose the witness or the persons in Art. 45(1) to criminal prosecution. These two rights are not the same: a person may have the right to refuse to testify altogether, and, where he or she is a witness, may decline to answer a question that could incriminate himself or herself or a relative. The special grounds for refusal in CMK Art. 46, relating to professional confidentiality and secrecy, must also be taken into account. [1, 17]

Must the CMK Art. 48 warning be given before every question?

The law provides that the right to refuse to answer must be notified to the witness in advance. Mechanically repeating the same formula before every question is therefore not, by itself, a statutory requirement. However, if the nature of a newly put question, as one that could incriminate the witness or a relative protected by the law, becomes evident, any doubt about the right must be removed and the witness must be given a choice he or she can actually exercise. Prior information must not become a general ground for doing away with questioning altogether. [1]

The exercise of the right to refuse is neither a lie nor an admission of an offense

A witness’s exercise of the right cannot, by itself, be treated as proof that there is suspicion of an offense against the witness or that the fact the witness did not disclose is true. Conversely, if the court treats every question as falling under Art. 48 without discussing the question’s connection with the risk of criminal prosecution, the defense’s opportunity to test the witness’s account may be narrowed unnecessarily. The content of the question, the scope of the right and its importance in the proceedings must be made concrete.

Can the statement of an incriminating witness not brought to the hearing be used as a basis for conviction?

The three-stage assessment of the ECtHR and the AYM

Article 6(3)(d) of the European Convention on Human Rights (ECHR) guarantees the defendant’s right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions. The Schatschaschwili v. Germany judgment of the ECtHR Grand Chamber and the Constitutional Court’s case law on questioning witnesses focus, where an incriminating witness statement that could not be questioned at the hearing is used, on three interconnected questions: [3, 11, 12]

1. Has a sufficient and concrete reason been shown for the witness not being brought to the hearing or for the defendant not being given the opportunity to question the witness?
2. Is the witness’s unquestioned statement the sole, decisive or significantly weighty evidence for the conviction?
3. Have sufficient counterbalancing procedural safeguards been provided to remedy the difficulty faced by the defense?

This assessment is not a mechanical three-box test. Just as the lack of a valid reason may not always lead to a finding of violation by itself, the fact that the statement is not the only evidence does not automatically remove the court’s obligation to evaluate the remaining procedural safeguards. The judgment as a whole and the defense’s actual opportunities are examined together.

The Ömer Akgün decision: Why was SEGBİS not used?

In the AYM decision Ömer Akgün, App. No. 2020/31577, of 29.04.2025, the witness who was important for the conviction was not heard in a procedure before the trial court and in which the defendant could question the witness. The AYM examined why, when the witness was heard by letters rogatory (istinabe), the opportunity to ask questions by simultaneous audio and video was not provided; the decisiveness of the witness statement in the judgment; and the compensatory safeguards. As a result, it held that the right to question witnesses had been violated and ordered a retrial as redress. A finding of violation does not mean that the applicant is automatically acquitted. [11]

The Constitutional Court’s 2025 norm review decision: Letters rogatory are an exceptional method

In its decision of 10.09.2025, E. 2024/217, K. 2025/180, the General Assembly of the Constitutional Court assessed the objections of unconstitutionality directed at the provisions on letters rogatory (istinabe) in CMK Art. 180 and Art. 209, and rejected the request for annulment as to the rules it examined on the merits. The decision was published in the Official Gazette of 24.12.2025, No. 33117. That the request for annulment was rejected does not mean that courts may hear a witness by letters rogatory in every concrete case or limit the right to ask questions at the hearing without reasons. [19]

The High Court explained that direct hearing before the court that will deliver the judgment is the principle, and that letters rogatory are a procedure that may be resorted to only in cases of necessity, as a last resort. Where a single witness statement is the sole evidence of the conviction, the requirement of direct hearing under CMK Art. 210(1) is preserved. If the statement is decisive, the concrete reason for not hearing the witness, the defense’s opportunity to ask questions and the counterbalancing safeguards are examined together. The possibility of simultaneous audio-visual hearing under CMK Art. 180(5) and the notification safeguards in Art. 181 must also be observed. The finding of constitutional conformity in norm review and whether the right to question witnesses was violated in a concrete criminal case are separate assessments. [1, 11, 19]

The same test is not applied to a defense witness and to an incriminating witness

In its Grand Chamber judgment in Murtazaliyeva v. Russia, the ECtHR developed separate criteria for the refusal of a witness whom the defense wants heard: Is the request to hear the witness relevant to the charge and sufficiently reasoned; has the court assessed that relevance and given sufficient reasons for the refusal; and has the refusal impaired the fairness of the proceedings as a whole? In files where the relevance of the request is already obvious, an artificial level of detail cannot be demanded of the defense. The ECtHR found no violation in this respect in the concrete application. [13]

This distinction is especially important: the refusal of a witness in the defendant’s favor whom the defense wants to call and the complete inability to question an incriminating witness used in a conviction are different events with different structures of assessment. Both concern the right of defense, but the reasons for refusal and the effect on the judgment cannot be resolved with the same formula.

Anonymous witnesses, vulnerable victims and audio-visual hearing

Protecting a witness’s life safety or privacy may be a legitimate aim. The special protection procedures in CMK Art. 58 and the provisions of CMK Art. 236 on hearing children and vulnerable victims apply within their statutory conditions. A protective measure must not unnecessarily render the defense’s right to ask questions ineffective; it must be assessed to what extent the alternative procedure allows questioning and testing of reliability. It cannot be said that physical face-to-face presence is mandatory in every proceeding or that the right to question has necessarily been exercised if SEGBİS has been set up. [1, 11, 18]

When an expert report is in the file, is it necessary to hear the expert at the hearing?

CMK Arts. 63, 67 and 68: The distinction between technical knowledge and judicial assessment

An expert is not a second decision-making authority that replaces the judge’s general knowledge of law. CMK Art. 67(3) prohibits an expert from making a legal characterization outside his or her own field of special or technical knowledge in the report and in oral explanations. The question “Is the defendant guilty?” is not for the expert but for the court; the question “What technical interruption or alteration is there in the audio recording examined?” may be the subject of an expert examination. [1, 16]

Under CMK Art. 68(1), the court may summon the expert to the hearing on its own motion or at the request of the persons concerned. The hearing of the expert in the courtroom after every report, without exception, is not a statutory requirement. On the other hand, where it cannot be understood on what the conclusion in the report rests, where there is a material contradiction with an earlier report, or where a critical technical objection raised by the defense is never examined, leaving a request for a hearing without an answer merely by saying “the report is in the file” may weaken the reviewability of the judgment. [1, 10, 16]

Why can an expert report not simply be passed over by reading it out?

If the report states that a digital record was examined but does not explain the source record, the method, the date or the integrity check, the reader cannot follow how the technical conclusion was produced. If it is said that a person can be recognized in an image but the light, resolution, image quality or comparison criterion are not shown, the conclusion is open to dispute. If alternative causes have not been assessed in a forensic medicine report, that uncertainty may call for explanation. The reliability of an expert opinion derives not from the title of the institution or person preparing it, but from whether its scientific basis can be reviewed.

Oral hearing of the expert does not remedy every deficiency. Some problems may require the raw data to be brought into the file, a supplementary report, the appointment of an expert from a new field of expertise, or a different technical examination. Whatever method the court chooses, it must be able to show how it assessed the technical objection raised by the defense that is important for the judgment.

The time limits for objecting to the report and for a scientific opinion must not be confused

CMK Art. 67(5) provides that when the report is completed, the persons concerned are given a period to notify an objection or a request for a new expert examination; the three days in the same paragraph relate not to a general period for objection but to the giving of a reasoned decision if the request is refused. The period in HMK (Code of Civil Procedure) Art. 281 for civil proceedings is not transferred automatically to criminal proceedings. A scientific opinion may be obtained from a specialist under CMK Art. 67(6); but an additional period cannot be requested on that ground alone. In addition, other grounds, such as the lack of access to the annexes to the report or the lack of a genuine opportunity to prepare a defense, are assessed separately under their own conditions. [1]

Questions that may be put to an expert or to a specialist who prepares a scientific opinion

If a specialist who prepares a scientific opinion is brought to the hearing, must he or she be heard?

CMK Arts. 67(6) and 68(3): The specialist’s opinion is a defense opportunity

The defense may obtain a scientific opinion from a specialist in the same field against the technical report on which the indictment relies. That this person is not an expert appointed by the court does not make the opinion worthless in itself; but the scientific basis of the opinion, the data used and its reliability are discussed like any other evidence. CMK Art. 68(3) refers to the provisions on experts as regards hearing at the hearing the specialist who prepares a scientific opinion. [1, 16]

The opinions of experts and specialists are not required to agree. What is essential is that the decisive objection in the report prepared by the defense is not excluded, and that the court gives reasons for its choice between different technical explanations. Relying on one report without assessing the opposing view at all, and finding the opposing view insufficient with reasons, are different acts.

CMK Art. 178: Bringing in a person who was not summoned or whose summons was refused

CMK Art. 178 provides that if a request to summon a witness or specialist named by the defendant or the intervening party is refused, these persons may be brought directly to the court and heard. The same article also states that requests made for the purpose of prolonging the case will be refused. This last sentence was added by Article 4 of Decree-Law No. 676 and adopted verbatim by Article 4 of Law No. 7070; the reference to Law No. 7073 is not correct. [1]

This provision means neither that every specialist present must necessarily be heard at length without stating the subject of the request, nor that a request may be easily refused by the formula “it prolongs the proceedings.” The expertise of the person whose hearing is requested, the concrete matter he or she would explain, the earlier written assessment, the existing reports, the timing of the request and presence at the hearing must be examined together.

1st Criminal Chamber of the Court of Cassation, 2025: Failure to hear a specialist brought in is a ground for quashing

In its decision of 14.10.2025, E. 2025/654, K. 2025/7061, the 1st Criminal Chamber of the Court of Cassation held that the refusal, on an abstract ground not in accordance with the law, of the request to hear expert specialists whom defense counsel had stated were present was a restriction of the right of defense. The decision dismissing the appeal on the merits (istinaf) was quashed without examining the other grounds relating to the merits. In the same decision the request for release was refused. A procedural quashing therefore does not mean the defendant’s automatic acquittal or release. [5]

7th Criminal Chamber of the Court of Cassation, 2024: A different outcome on the same issue, and the later course of the decision

In the first quashing judgment of the 7th Criminal Chamber of the Court of Cassation of 09.10.2024, E. 2024/4895, K. 2024/8624, the failure to hear a specialist who was present was treated as a problem. However, upon the objection of the Chief Public Prosecutor’s Office at the Court of Cassation, the Chamber lifted the earlier quashing by its decision of 11.12.2024, E. 2024/7167, K. 2024/11441. The majority took into account the assessment of the specialist opinion submitted earlier, the different technical reports and the time allowed to the defense; it affirmed the judgment after correcting a separate error in the attorney’s fee. The dissenting opinion maintained a critical approach as to the failure to hear the specialist. [6]

What these two decisions show together is that different facts produce different legal outcomes. The first quashing should not be presented as if it were the latest decision in force; the dissenting opinion in the last decision should not be reported as the majority view. In applying the rule, the content of the request to summon the specialist, the earlier technical examinations and the reasons for refusal are decisive.

Constitutional Court, 2016: Not every refusal to hear a specialist is a violation

In the Constitutional Court decision Yahya Murat Demirel and Hüsnü Barbaros Olcay, 17.02.2016, App. No. 2013/7996, with regard to the complaints about specialists and experts, access to the existing technical reports in the file, the opportunity to object to them and the opportunity to present a contrary scientific opinion were assessed. It was taken into account that two specialists had already been heard at the hearing and that the opinion of the third specialist had entered the file in writing, and that it had not been made concrete why the third specialist also had to be heard orally. These complaints were found inadmissible as manifestly ill-founded. It is not correct to report the finding of a violation of the reasonable time requirement, made in respect of a different complaint in the decision, as if it were the outcome of the complaint about the hearing of the specialist. [10]

This decision shows situations in which written examination and other defense opportunities against the report may be regarded as sufficient; but it cannot be relied on to justify the refusal of every request for a hearing where an important technical objection is not assessed at all. Read together with the decisions of the 1st and 7th Criminal Chambers of the Court of Cassation, which reached different results, the concreteness of the request and the effectiveness of the opportunities for counter-examination appear as common criteria of assessment.

The ECtHR Matytsina decision: A genuine opportunity to contest the expert opinion

In the ECtHR’s Matytsina v. Russia judgment, the procedural imbalance in the handling of expert and specialist opinions was discussed in terms of equality of arms and adversarial proceedings. Without wholly equating the roles of expert and witness, the Court emphasized that the defense must be able to test an adverse technical assessment effectively. The finding of violation rests not on a universal rule of mandatory face-to-face hearing for every expert, but on the defense having been placed at a substantial disadvantage in the concrete proceedings. [14]

Can audio and video recordings be used as a basis for judgment without being viewed at the hearing?

A transcript is not in every case equivalent to the recording itself

Including an audio or video recording in the file as a written transcript may in some cases make examination easier. However, where the context, interruptions, time sequence, tone of voice, the person’s movement or the technical quality of the footage are disputed, reaching a judgment only on the basis of still frames or transcribed statements may create a material deficiency. The recording should be viewed at the hearing using technical means and opened to the parties’ statements; where necessary, the original recording and the method of examination should be discussed. This step is carried out together with the duties of protection regarding personal data and special interception procedures. [1, 7]

2025 decision of the 9th Criminal Chamber of the Court of Cassation

In its decision of 18.11.2025, E. 2025/4278, K. 2025/8655, the 9th Criminal Chamber of the Court of Cassation considered that the footage submitted by defense counsel was not viewed at the hearing and that the request was refused although there was no obstacle to hearing the witnesses who were present. Pointing to a restriction of the right of defense, the Chamber quashed the decision dismissing the appeal on the merits (istinaf). The judgment in question also contained a typographical error. [7]

2026 decision of the 9th Criminal Chamber of the Court of Cassation: Discussion of the victim’s statement

In its decision of 05.02.2026, E. 2021/25553, K. 2026/741, in examining an acquittal on a charge of sexual abuse of a child, the 9th Criminal Chamber of the Court of Cassation held it to be an incomplete examination that the victim, who was the sole witness of the event, was not heard at the prosecution stage or, where that was not possible, that the video-recorded statement taken during the investigation was not viewed at the hearing and discussed with the parties. The judgment quashed in this decision is an acquittal. The purpose of the procedural rules is not only to quash convictions but to ensure that judgment is reached with a lawful and sufficient examination for all parties. Before a decision to hear the child again is made, the protective provisions of CMK Art. 236, which limit repeated hearings, must be observed with care. [8]

Hearing the officers who prepared a record as witnesses in 2026 Court of Cassation case law

In its decision of 19.02.2026, E. 2021/7419, K. 2026/1897, the 10th Criminal Chamber of the Court of Cassation drew attention to the contradiction between the content of a law enforcement incident record concerning an allegation of drug trafficking and the defendant’s defense. It stated that the officers whose signatures appear on the record should be heard as witnesses and that the defendant’s legal position should be assessed according to the result, and quashed the judgment. [9]

This decision should not be read as meaning that all officers must necessarily be heard on every law enforcement record. The distinguishing features of the concrete decision are that the record formed the basis for an important element of the event, that the defendant denied it, and that this difference needed to be explained for the purposes of the judgment. Accepting the facts contained in every document bearing the name of a record as true without discussion would not accord with the principle of immediacy (doğrudan doğruyalık) in criminal procedure.

What should be done if the court refuses a request to hear a witness or expert?

The request to be heard must be reasoned by the concrete dispute, not by the person’s name

CMK Art. 177 provides that the defendant must, in requesting that a witness or expert be summoned or that defense evidence be collected, submit a petition at least five days before the hearing indicating the events to which the request relates. CMK Art. 179 contains supplementary rules on notifying names and addresses within a reasonable time. By contrast, CMK Art. 207 prevents evidence from being refused merely because it was notified late. The time limit for procedural planning and the fact that mere lateness is not an absolute ground for refusing evidence must be assessed together. [1]

In addition to the person’s name, the following must be clear in the request: what event will be explained; with which report, record or witness account it conflicts; how the expected explanation might affect the material elements of the offense, the defendant’s participation, or the legal position; what concrete questions will be put to the person; and why the existing examination is insufficient. Identifying the questions and the report pages in advance makes the relevance of the request to the subject visible.

The “prolonging the case” ground under CMK Art. 206(2) and Art. 178

The court may apply the grounds for refusal provided in the law. However, the volume of the case file, the number of earlier sessions or the fact that a schedule has been set for judgment does not in itself show that the request merely aims to prolong the case. A request may in fact be irrelevant or repetitive; in that case, the decision must explain why that concrete evidence is regarded as having no effect on the outcome. Particularly with respect to a witness or specialist who is present under CMK Art. 178, the court’s reasons for refusal must be clear enough to be reviewed on appeal (istinaf) and cassation (temyiz). [1, 5, 6]

Recording the refused question, the objection and the reason for refusal in the hearing record

When there is an objection as to whether a question under CMK Art. 201 may be asked, the presiding judge decides. CMK Art. 192(2) provides that, where an objection is raised that the presiding judge’s measures for managing the hearing are not legally acceptable, the court decides. The scopes of these mechanisms differ; it cannot be assumed that every refused question is separately subject to an independent legal remedy. [1]

The defense should request that the full or intelligible content of the refused question, the fact to which the question relates, the reason for refusal and the objection on this point be entered in the hearing record. The probative function of the record is important under CMK Arts. 219–222. Describing the deficiency only in a petition prepared later does not itself alter the official record. If there is a duly made official audio and video recording, it may be requested that the relevant part be preserved and assessed; this does not legitimize the parties’ recording the hearing without permission.

Sample grounds for a request that may be used at the hearing

Sample for a witness: “There is an unresolved difference between the witness’s account in the investigation and the place and time information stated at the hearing. Since this matter may affect the assessment of the defendant’s presence at the scene, we request that the relevant part of the earlier statement be taken up under CMK Art. 212 and that the witness be asked questions on the angle of view, the distance and the source of the knowledge.”

Sample for an expert: “Although the conclusion section of the expert report states that the integrity of the recording was verified, the source records of the files examined, the method used and the results of the checks are not explained. Our written objection to the report brings out this uncertainty. Under CMK Art. 68, we request that our request that the expert give an oral explanation, that the relevant records be added to the file and that our questions be put be considered.”

Sample for a specialist present at the hearing: “Our specialist, who prepared a scientific opinion and whose summons was not accepted by the court, is present at the hearing. Our request to hear the specialist concerns the difference in method between the two technical reports in the file and the effect of this difference on the proof of the accusation. We request that the fact of presence, the subject on which the hearing is requested and, in case of refusal, the reason for refusal be entered in the record, and that an assessment be made having regard to CMK Arts. 178 and 68.”

These texts are only examples of procedural explanation; they must be reformulated to suit the concrete case file and not used as an actual petition.

How is the restriction of the defense raised on appeal, cassation and individual application?

Under CMK Art. 289(1)(h), not every refusal is an absolute ground for quashing

CMK Art. 289(1)(h) regards the limitation of the right of defense by a court decision on matters important for the judgment as a case of definite violation of the law. However, the refusal of a procedural request is not, by itself, sufficient for the application of this provision. The importance for the judgment of the refused question or evidence, and the consequence of the limitation placed on the defense, must be explained. As regards the right to a reasoned decision, the conditions of Art. 289(1)(g) may also be assessed separately. The sufficiency of the discussion of evidence is also examined under CMK Arts. 216–217. [1]

An application to a legal remedy should make concrete the date of the relevant session, the text of the interim decision, the person not heard or the question not asked, the fact to which that step relates, the extent to which the judgment relies on that evidence, and what other opportunities were given to the defense. For purposes of proof, the hearing record, the relevant petitions, specialist opinions, annexes to the report and, if any, the official video and audio recordings should be cited together.

The time limits for legal remedies and the conditions for application are assessed separately

Under CMK Arts. 273 and 291, the general time limit for appeal (istinaf) and cassation (temyiz) is, under the relevant current provision, two weeks from the notification of the reasoned judgment. However, whether the legal remedy is open, the appealability threshold, which provision applies to which decision period, and transitional provisions such as provisional Art. 6 of the CMK must be examined separately in the concrete file. For earlier judgments, the former regime of application may be at issue. One should not rely on this general period alone without examining the time-limit and remedy information of the earlier judgment. [1]

After the ordinary remedies have been exhausted, individual application to the AYM is assessed, in accordance with Law No. 6216 Art. 47(5), as a rule within a period of thirty days and subject to the admissibility conditions. For the ECtHR, the general period of four months under ECHR Art. 35 and the rule of exhaustion of domestic remedies apply. These routes are not an additional ordinary objection mechanism available against every interim decision of the court. [2, 3]

A finding of violation does not directly lead to acquittal, release or compensation

A quashing or a finding of rights violation concerning the restriction of the defense may require the unlawfulness to be remedied and, where necessary, a retrial. But acquittal, conviction, release, compensation and retrial are decisions subject to different conditions. Indeed, in the 2025 procedural quashing by the 1st Criminal Chamber of the Court of Cassation, the request for release was separately refused; and in the AYM’s Ömer Akgün decision, the redress linked to the violation of the right to question witnesses was assessed separately. [5, 11]

Practices that render the defense ineffective, and their legal assessment

A hearing cannot be turned into a symbolic stage completed by reading out records

Workload, the conclusion of proceedings within a reasonable time and the prevention of irrelevant repetition are legitimate needs. But these needs must not remove the practical operation of the CMK’s provisions on presenting and discussing evidence at the hearing. Giving the witness no opportunity at all for an oral account, failing to have a legally important question answered, or reading out only the concluding sentence of a technical report may weaken the factual and legal foundations of the decision.

Practice’s contenting itself with general sentences such as “there is a report in the file,” “the witness’s earlier statement was read out,” and “the request aims to prolong the case” does not remove the obligation to give reasons according to the nature of each dispute. The court must explain why the evidence forming its decision is sufficient; the defense must explain which important question remained unanswered. This approach is as important for the right of defense as it is for proceedings that are accurate, reviewable and concluded within a reasonable time.

The court, the prosecution and the defense have separate responsibilities

The task of the court that manages the hearing is not to take the place of the prosecution or the defense but to ensure lawful adversarial proceedings. The public prosecutor must observe the duty to investigate evidence both in favor of and against the suspect at the investigation stage; the defense must explain what concrete matter the witness or specialist it requests would clarify. Effectiveness in proceedings arises not from removing the opportunity to discuss evidence but from correctly identifying the problem that needs to be discussed.

The court’s habitual refusal of a legally important and concretized request disrupts the functioning of criminal procedure just as much as the defense’s claim to call every specialist or witness without showing necessity. Statutory safeguards must be visible not only in the text but in the hearing record and in the reasoned judgment.

Doctrinal assessment: Immediacy and adversarial proceedings must be understood together

Mahmut Gökpınar’s academic study on the immediacy of evidence explains the importance, for the substitution of evidence, of the direct assessment of personal evidence such as witnesses at the hearing. İbrahim Dülger’s study of expert examination addresses the separate position of the expert’s role as a source of technical knowledge and the specialist’s opinion. Fatih Selami Mahmutoğlu’s work on refusal to testify points to the problems at the intersection of the witness and intervening-party capacities and the defense’s right to put questions. These views are not binding rules that replace the current statutory provision; they are scholarly assessments that help explain distinctions in practice. [15, 16, 17]

In conclusion, the principles of orality and immediacy require not only that the court see a document but that, where necessary, the accuracy of that document can be discussed with the parties. In a well-managed hearing, therefore, the aim is not to ask as many questions as possible but for the important questions that may affect the judgment to be asked properly and for their answers to be reviewable.

Conclusion

Reaching a verdict in a criminal case without hearing a witness or expert may be lawful, or it may constitute a material procedural deficiency that violates the right of defense, depending on the nature of the event and the evidence. The factors that determine which outcome follows are the importance of the event the person whose hearing is requested would explain, the weight of the evidence in the judgment, the other available evidence, the opportunity to ask questions and present a contrary view, and the concrete reasons for refusal given by the court.

The system of mandatory hearing of witnesses in CMK Art. 210(1) must be distinguished from the power to hear experts in Art. 68; the safeguard regarding the hearing of a person brought in under Art. 178 must also not be overlooked. Making visible in the hearing record the important question that was not asked and the content of the refused request for a hearing facilitates later review on appeal or cassation. The aim of reaching the material truth is a reason not to give up the defense’s opportunity to test the evidence, but to use that opportunity effectively within the law.

Frequently asked questions

Must all witnesses be heard at the hearing in a criminal case?

No. The statutory exceptions and the importance of the concrete evidence are assessed. However, if the evidence of the event consists solely of one witness’s statement, CMK Art. 210(1) imposes a special obligation to hear the witness. The safeguards of the AYM and the ECtHR apply separately to decisive incriminating statements that could not be questioned.

Can a lawyer question a witness without going through the judge?

Yes. A lawyer attending the hearing as defense counsel or attorney-in-fact may, under CMK Art. 201, put questions directly in a manner consistent with the order of the hearing. The defendant and the intervening party, however, ask their questions through the judge or the presiding judge.

Can only yes or no questions be put to a witness?

No. The CMK has no such general limit. Open-ended and clarifying questions may be put; the court’s power of supervision is preserved as regards questions that are irrelevant, create pressure or disrupt the order of the hearing.

May a witness decline to answer a question that could incriminate him or her?

Yes. If the conditions under CMK Art. 48 are met, the person may decline to answer questions that could expose himself or herself or the relatives named in the law to criminal prosecution. The right must be notified in advance; there is no obligation to repeat it mechanically before every question.

If a witness accepts an earlier statement, is there no need for the witness to give the account again?

Not in every case. Giving the witness the opportunity to describe what he or she knows under CMK Art. 59 and putting questions about the earlier statement are separate stages. The Criminal General Assembly’s decision of 30.03.2022 shows the importance of this distinction.

Is an anonymous witness necessarily brought face to face with the defendant?

No. The statutory conditions for protecting identity may arise. However, the defense’s right to test the statement and the need for protection are assessed together; what matters is the adequacy of the opportunities given to the defense under the alternative procedure.

If there is an expert report, must the expert be present at the hearing?

Not in every case. However, if an important technical point of the report needs to be explained, an oral hearing may be requested under CMK Art. 68. The reason for refusal is assessed according to the importance of the evidence for the judgment.

Can a specialist who prepares a scientific opinion be heard at the hearing?

Yes. CMK Art. 68(3) provides for this possibility. The provision of CMK Art. 178 on directly bringing in a witness or specialist whose summons was refused is also taken into account, together with its exception for requests aimed at prolonging the case.

Is there a two-week period to object to an expert report in every criminal case?

No. In criminal procedure, the period under CMK Art. 67(5) is given in accordance with procedure; the general period for objecting to an expert report in civil proceedings does not apply automatically. The notification and the period given in the concrete file must be examined.

Can hearing by SEGBİS be sufficient for the right to question witnesses?

It can. However, the intelligibility of sound and image, the ability of defense counsel and the defendant to exercise effectively the right to put questions or to request that questions be put, and the remedying of connection problems must be assessed. The mere fact that a connection was established is not sufficient in every case.

Can a witness be heard through another court or via SEGBİS?

Under the statutory conditions, hearing a witness by simultaneous audio and video connection is possible. Letters rogatory (istinabe), by contrast, are not the rule but an exceptional route that may be resorted to in cases of necessity. The importance of the witness statement in the judgment, notification of the day of the hearing to the parties and the defense’s ability to put questions effectively are decisive. The AYM decision of 10.09.2025, E. 2024/217, K. 2025/180 explains this distinction.

If a witness brought to court is sent away without being heard, is the decision quashed?

It depends on the concrete circumstances. The conditions of CMK Art. 178, what the person would explain, the reason for refusal and the effect on the judgment are assessed. An unlawful and important restriction of the defense may be a ground for quashing; not every refusal is an automatic quashing.

What should be done if a request to put a question is refused?

It should be requested that the content of the refused question, its relevance and the reason for refusal be entered in the hearing record. Where necessary, a procedural request or written statement on the management of the hearing may also be submitted. The concrete record and interim decision matter for review on appeal.

Does a failure to hear a witness automatically lead to acquittal or release?

No. Remedying the procedural violation may require quashing or a retrial. Decisions on acquittal, conviction and detention are made under different conditions.

How should the restriction of the defense be presented on appeal?

At which session which request was refused, to which fact the evidence relates, its importance for the judgment, the opportunity not provided to the defense and the reasons for the refusal decision should be stated together. The assessment under CMK Art. 289(1)(h) is made not on an abstract complaint but on this concrete link.

Sources and legal bases

1 — Law No. 5271, Code of Criminal Procedure (Ceza Muhakemesi Kanunu). In particular Arts. 45–48, 58–59, 63, 67–68, 177–181, 192, 201–202, 206–207, 210–222, 236, 267, 273, 286, 289, 291 and provisional Art. 6. Ministry of Justice – legislation record.

2 — Law No. 6216 on the Establishment and Rules of Procedure of the Constitutional Court (Anayasa Mahkemesinin Kuruluşu ve Yargılama Usulleri Hakkında Kanun). Arts. 45–47. Official Legislation Information System.

3 — European Convention on Human Rights. Arts. 6 and 35. European Court of Human Rights – Turkish text of the Convention.

4 — Criminal General Assembly of the Court of Cassation (Yargıtay Ceza Genel Kurulu), 30.03.2022, E. 2020/193, K. 2022/215. The witness’s acceptance of the earlier statement and free account at the hearing. Full text of the decision.

5 — 1st Criminal Chamber of the Court of Cassation (Yargıtay 1. Ceza Dairesi), 14.10.2025, E. 2025/654, K. 2025/7061. Hearing specialists brought in, and restriction of the defense. Full text of the decision.

6 — 7th Criminal Chamber of the Court of Cassation (Yargıtay 7. Ceza Dairesi), 11.12.2024, E. 2024/7167, K. 2024/11441. Lifting of the earlier quashing upon the Chief Public Prosecutor’s objection; assessment of the majority and the dissenting opinion. Full text of the decision.

7 — 9th Criminal Chamber of the Court of Cassation (Yargıtay 9. Ceza Dairesi), 18.11.2025, E. 2025/4278, K. 2025/8655. Viewing the video recording and hearing the witnesses who were present. Full text of the decision.

8 — 9th Criminal Chamber of the Court of Cassation (Yargıtay 9. Ceza Dairesi), 05.02.2026, E. 2021/25553, K. 2026/741. The victim’s statement and the discussion of the video-recorded statement at the hearing. Full text of the decision.

9 — 10th Criminal Chamber of the Court of Cassation (Yargıtay 10. Ceza Dairesi), 19.02.2026, E. 2021/7419, K. 2026/1897. Hearing as witnesses the officers who signed the incident record. Full text of the decision.

10 — Constitutional Court (Anayasa Mahkemesi), Yahya Murat Demirel and Hüsnü Barbaros Olcay, 17.02.2016, App. No. 2013/7996, in particular §§ 44–62. Complaints concerning expert and specialist opinions. Official decision.

11 — Constitutional Court (Anayasa Mahkemesi), Ömer Akgün, 29.04.2025, App. No. 2020/31577, in particular §§ 17–28. Violation of the right to question witnesses and retrial. Official decision.

12 — ECtHR, Schatschaschwili v. Germany (Grand Chamber), 15.12.2015, App. No. 9154/10, §§ 100–131, 160–165. HUDOC.

13 — ECtHR, Murtazaliyeva v. Russia (Grand Chamber), 18.12.2018, App. No. 36658/05, §§ 158–177. HUDOC.

14 — ECtHR, Matytsina v. Russia, 27.03.2014, App. No. 58428/10, in particular §§ 168–195, 203–208. HUDOC.

15 — Mahmut Gökpınar, “Ceza Muhakemesinin Temel Bir İlkesi Olarak Delillerin Doğrudan Doğruyalığı” [The Immediacy of Evidence as a Fundamental Principle of Criminal Procedure], Akdeniz Üniversitesi Hukuk Fakültesi Dergisi, 14/2, 2025, pp. 937–986, DOI: 10.54704/akdhfd.1450583. DergiPark record and abstract.

16 — İbrahim Dülger, “Ceza Muhakemesi Kanunundaki Bilirkişi İncelemesine İlişkin Düzenlemelerin Değerlendirilmesi” [An Evaluation of the Provisions on Expert Examination in the Code of Criminal Procedure], Ankara Hacı Bayram Veli Üniversitesi Hukuk Fakültesi Dergisi, 11/1, 2007, pp. 657–678. DergiPark article record.

17 — Fatih Selami Mahmutoğlu, “Ceza Yargılamasında Katılanın, Aynı Zamanda CMK 45. Maddede Öngörülen Kişilerden Biri Olması Halinde, Tanıklıktan Çekilme Hakkını Kullanıp Kullanamayacağı Sorunu” [Whether an Intervening Party Who Is Also One of the Persons Listed in CMK Article 45 May Exercise the Right to Refuse to Testify in Criminal Proceedings], Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 19/2, 2013. DergiPark.

18 — Berrin Akbulut, “Sanığın Duruşmaya SEGBİS Aracılığıyla Katılması ve Esas Hakkında Mütalaa ile Son Söz Uygulaması” [The Defendant’s Participation in the Hearing via SEGBİS and the Practice of the Opinion on the Merits and the Last Word], Türkiye Adalet Akademisi Dergisi, 63, 2025. DergiPark.

19 — General Assembly of the Constitutional Court (Anayasa Mahkemesi Genel Kurulu), 10.09.2025, E. 2024/217, K. 2025/180. Letters rogatory (istinabe), immediacy and the right to question witnesses under CMK Arts. 180 and 209; rejection of the request for annulment in norm review (Official Gazette 24.12.2025, No. 33117). AYM Norm Decisions Database; text of the decision.