- Type of decision: Individual application
- Court: AYM Plenary Assembly
- Application: İ.L. - 2020/9807
- Date of decision: 24.02.2026
- Official Gazette: 22.10.2026 / 33408
- Right examined: Right to examine witnesses
- Joined application: 2023/10094
Different outcomes for the two offences
| Offence examined | Outcome regarding the right to examine witnesses | Vote |
|---|---|---|
| Sexual abuse of children | No violation | Unanimous |
| Deprivation of liberty | Violation | Majority |
The decision was given following the examination of individual application No. 2020/9807 and application No. 2023/10094, which was joined to that file. The examination focused on the opportunity to challenge statements used against the applicant in the criminal proceedings and on whether the proceedings as a whole were fair. These findings on the right to examine witnesses should not be read as a general assessment of all the elements of the offences or of every objection that may be raised against the proceedings. [1, §§ 1-4, 63, 116 and operative part]
The events and the course of the proceedings
Criminal proceedings were brought against the applicant for sexual abuse of children and deprivation of liberty on account of acts directed at three children who were siblings. The children's statements at the investigation stage were taken at the Child Monitoring Centre (Çocuk İzlem Merkezi), and the interviews were recorded in audio and video. The high criminal court (Ağır Ceza Mahkemesi), taking into account the children's ages and the likelihood of re-traumatisation, did not consider it necessary to hear them again at the hearing. In the first trial the statement records were read out, but the video recordings were not viewed at the hearing. [1, §§ 12, 16-21, 96]
The defence's request to hear H.Y. and N.T. as witnesses was also rejected on the ground that their accounts would not contribute to the trial. The defence carried its objections concerning the contradictions between the statements and its inability to examine the witnesses to the review on appeal. The judgments concerning the offence of deprivation of liberty became final by the decision of the 20th Criminal Chamber of the Istanbul Regional Court of Appeal dated 12 December 2019. The judgments concerning sexual abuse of children went on to appeal review before the Court of Cassation. [1, §§ 18-25, 97]
After the Court of Cassation's decision to quash, and only in the proceedings concerning sexual abuse, the children's video statements were viewed at the hearing in the presence of the applicant and his defence counsel. The defence was given the opportunity to submit its views and objections about these recordings. The conviction judgments, issued anew, became final by the Court of Cassation's affirming decision of 2 November 2022. Accordingly, although the two offences were linked to the same events, the procedural safeguards provided until finalisation were not the same. [1, §§ 26-33, 98, 109-110]
The three-stage review of the right to examine witnesses
The AYM interprets the concept of a witness more broadly than a person's status in the criminal file. A victim who provides information about the event attributed to the accused may also be treated as a witness for the purposes of the right to examine witnesses. The vulnerable position of child victims, in turn, requires methods that both protect them and enable the defence to be conducted effectively to be considered together. The Court reviews this balance in three stages. [1, §§ 72-78, 87]
A valid reason for not hearing the witness at the hearing
At the first stage, it is examined whether the failure to bring the witness to the hearing rested on a valid reason. The likelihood that a child will be traumatised again carries weight in this assessment. In the İ.L. decision, the AYM found that not bringing the children, in view of their psychological condition, into a hearing environment in which they would face the accused in person was based on a valid reason in both sets of proceedings. This finding, however, did not make it unnecessary to examine the other safeguards. [1, §§ 88, 99]
The weight of the statement in the conviction
The second stage is whether the statement of the person who could not be examined was the sole or decisive evidence for the conviction. The AYM established that the children's father had not witnessed the events directly and was relaying the children's accounts. It therefore accepted that the statements the children gave at the Child Monitoring Centre carried decisive weight in the conviction for both offences. The greater the weight of the evidence, the more important the assessment of the counterbalancing facilities afforded to the defence becomes. [1, §§ 89, 100-101]
Counterbalancing safeguards afforded to the defence
At the third stage, it is examined whether the difficulties that the inability to put questions to the witness creates for the defence were remedied by sufficient procedural safeguards. Putting questions through an expert in a forensic interview room, examining the audio and video recording, discussing the evidence supporting the statement, and being able to raise concrete objections effectively may be assessed in this context. Which method is sufficient depends on the circumstances of the file and on the protection the safeguards provide together. [1, §§ 90-94]
Questions through the forensic interview room and an expert
A forensic interview room can allow a child to be heard without meeting the accused directly in the courtroom. Under the method described by the AYM, the defence's questions are conveyed, through a technical link and an expert, in a form the child can understand. In this way both the protection of the child and the defence's testing of the statements are taken into account. [1, §§ 86, 90]
Examining the audio and video recording
Viewing the recording at the hearing enables the court and the defence to assess how the interview was conducted and the demeanour shown during the statement. However, observing a recording is not the same facility as putting new questions. The adequacy of the recording is assessed together with the evidence corroborating the statement, the concrete contradictions alleged and the earlier opportunities for examination. [1, §§ 91-94]
Why no violation was found for the sexual abuse offence
In the proceedings after the quashing, the AYM treated the viewing of the video recordings in the presence of the applicant and his defence counsel as a safeguard that gave the defence the opportunity to assess the children's demeanour while giving their statements. The applicant was able to recount the events from his own perspective and to submit his evidence. The children's father was heard at the hearing, and the forensic interviewer psychologist's report on the children's communication and narrative characteristics was also taken into account. [1, §§ 104-105]
The Court also pointed out that the defence had not specified on which points the statements conflicted or why those contradictions made it necessary to hear the children again. The fact that no obstacle to access to the statement records was alleged, that the recordings were viewed at the hearing, and that the relevant hearing record was served on the applicant made it possible to raise objections by comparing the recordings with the written statements. [1, §§ 106-107]
While stating that hearing the children again in the forensic interview room would have provided a higher level of safeguard, the AYM concluded that, in the particular circumstances of this file, the existing safeguards were sufficient together. It unanimously held that the right to examine witnesses had not been violated as regards the offence of sexual abuse of children. This result does not mean that merely having the video viewed will be sufficient in every file. [1, §§ 91, 107-108 and operative part C/1]
Why a violation was found for the deprivation of liberty offence
The judgment on the offence of deprivation of liberty had become final without the children's video statements being shown to the applicant at a hearing. When the judgment was being rendered on this offence, neither the court nor the defence had the opportunity to observe the children's demeanour during their statements. Nor had any reason been given as to why the children were not heard again through the forensic interview room or why the recordings were not viewed. [1, §§ 102, 109]
The facilities provided following the Court of Cassation's quashing in the sexual abuse case were not reflected in the judgment on deprivation of liberty, which had become final at the appeal stage. The AYM also drew attention to the way offences linked to the same events diverged because of different appeal processes. In conclusion, it held that the defence, which was unable to examine the decisive statements, had not been afforded sufficient counterbalancing safeguards and that the fairness of the proceedings as a whole had been undermined. The finding of a violation was adopted by a majority. [1, §§ 109-113 and operative part C/2]
The approach of the dissenting opinion
Yıldız Seferinoğlu did not agree with the finding of a violation concerning the offence of deprivation of liberty. The dissenting opinion argued that, because the two applications rested on the same events and evidence, the safeguards had to be assessed within the file as a whole, and that the other safeguards found sufficient for the sexual abuse offence should also be taken into account for the second offence. The majority, for its part, based its position on the difference in the procedural facilities provided for each offence before the judgment became final. [1, §§ 109-113; dissenting opinion §§ 2-9]
The significance of the decision in practice
The main conclusion to be drawn from the decision is that the protection of the child and the right of defence must be secured together through concrete methods. Where a direct confrontation between the child and the accused is considered undesirable, it is important to consider avenues such as putting questions through a forensic interview room and an expert. The reasons for the method used, the weight of the statement in the judgment and the facilities available to the defence should be shown in the decision in an intelligible way. [1, §§ 87-94, 102-103]
On the defence side as well, specifying the claim of contradiction is decisive. Explaining which statements conflict on which point, why the questions sought to be asked are necessary and how the requested measure would contribute to resolving the dispute makes it easier for the request to be assessed. This is the practical consequence of the assessment in paragraph 106 of the decision in particular; a violation review is carried out on the basis of each file as a whole. [1, § 106]
Recording the interview at the Child Monitoring Centre and giving the defence the opportunity to examine, or to have examined, the witness serve different functions. While accepting that viewing the recordings is an important safeguard, the AYM expressly stated that it is not an automatic standard of sufficiency for all cases. Where necessary, hearing the child again under conditions that ensure the child's protection may be essential for establishing the material truth. [1, §§ 90-94]
Retrial and the legal effect of the decision
To remedy the consequences of the violation as regards the offence of deprivation of liberty, the AYM ordered that the decision be sent to the 21st High Criminal Court of Istanbul. The AYM's retrial decision covers only the judgment on this offence, File No. E.2019/346, Decision No. K.2019/382. The relevant court is obliged to conduct proceedings that remedy the deficiencies identified by the AYM, assess the evidence and give a new decision. [1, §§ 114-115 and operative part Ç]
The finding of a violation does not carry a predetermined outcome as to the applicant's acquittal or renewed conviction. The assessment of the evidence and the determination of the outcome of the case belong to the relevant criminal court. The AYM also reminds us that the right to examine witnesses does not require that the witness's statement at the hearing be preferred over earlier statements in every case. [1, §§ 116-117]
The TRY 40,446.90 awarded in respect of application No. 2020/9807 consists of the litigation costs: TRY 446.90 in court fees and TRY 40,000 in attorney's fees. The litigation costs of the joined application No. 2023/10094 were left to be borne by the applicant. It would be incorrect to present the amount in the decision as compensation. [1, operative part D/1-2]
Frequently asked questions about the İ.L. individual application decision
Which individual application does the AYM's İ.L. decision concern
The decision concerns the İ.L. individual application No. 2020/9807. Application No. 2023/10094 was also joined to that file. The Plenary Assembly decision was given on 24 February 2026 and published in the Official Gazette dated 22 October 2026, No. 33408. [1, case details and § 2]
Can the statement of a witness not heard at the hearing be used for a conviction
The AYM assesses this question through the valid reason, the evidentiary weight of the statement and the counterbalancing safeguards. In the İ.L. decision, the safeguards afforded for the sexual abuse offence were found sufficient, whereas a violation was found for the deprivation of liberty offence. The outcome depends on the circumstances of the specific proceedings. [1, §§ 87, 108, 113]
Is a child being heard at the Child Monitoring Centre sufficient on its own
Hearing the child in the presence of an expert and recording the interview are important protective facilities. Whether sufficient safeguards were afforded to the defence is examined separately. The AYM states that the balance cannot be regarded as automatically struck in every case in which the video recording is viewed at the hearing. [1, §§ 91-94]
Does a finding of a violation result in acquittal
The AYM's decision requires the consequences of the violation regarding the offence of deprivation of liberty to be remedied through a retrial. No predetermined outcome has been set as to acquittal or conviction. The power to assess the evidence at the end of the proceedings that remedy the violation lies with the relevant criminal court. [1, §§ 115-117]
Sources
2 — Constitutional Court Case-Law Information Bank, İ.L. individual application record.
3 — Constitutional Court, individual application press release on the İ.L. application.