How to Testify in Court Under Turkish Law: A Detailed Guide

Who is a Witness?

Witness is a person who has knowledge or information about events and situations that are disputed between the parties. A witness provides information about what they have seen and heard. A witness only conveys what they have seen and heard, and their opinion is not asked. Therefore, a witness cannot interpret the events.

What is Discretionary Evidence?

Discretionary evidence is evidence over which the judge has discretionary power and can freely evaluate if presented. A witness is discretionary evidence. The judge evaluates the testimony of a witness. If the court bases its decision on the witness’s statement, it must provide reasons. Similarly, if the court does not base its decision on the witness’s statement, the judge must also provide reasons.

The parties can also refute the witness’s statements with other evidence. If there are reasons to doubt the accuracy of the witness’s testimony, such as the witness having an interest in the case, either party can claim and prove this (Code of Civil Procedure Art. 255).

People Who Can Be Witnesses

As a rule, everyone can be a witness. Children, spouses, relatives of the parties, and employees can be witnesses. Age, proximity to the party, and interests related to the case are not significant for being a witness.

However, these factors are considered when evaluating the witness’s statements. The Code of Civil Procedure No. 6100 states that those who do not have the capacity to distinguish can be witnesses, but they are heard without an oath (CPC Art. 257/1-b).

In the same case, a person can be heard either as a witness or as a party for interrogation; one excludes the other. For example, in a case where a legal entity is a party, its legal representatives who have been interrogated cannot be heard as witnesses; however, members who do not have an official role can be witnesses.

The statement “A person must not be a party to be a witness” is not always true. Because a person who is heard as a party in a case cannot be heard as a witness; however, persons who are not heard as parties can be witnesses. For example, a legal representative is not a party, but if interrogated, they cannot be heard as a party anymore. Conversely, a minor who does not have party capacity cannot be interrogated; however, they can be heard as a witness.

The person giving testimony does not necessarily have to be the person who directly saw or heard the event. Therefore, a witness can convey what they have heard from someone else. However, the statement of the person who directly saw the event is stronger than that of the person conveying the information.

Witness Presentation

Persons who are not parties to the case can be presented as witnesses (CPC Art. 240/1).

The party presenting the witness submits to the court a list containing the names and surnames and the addresses suitable for notification of the witnesses they want to be heard. This is called the witness list. Those not listed cannot be heard as witnesses, and a second list cannot be submitted (CPC Art. 240/2). This is called the ban on submitting a second witness list. According to this ban, multiple witness lists cannot be submitted for a case, nor can witnesses be heard from outside the list.

The ban on submitting a second witness list is related to public order and is taken into account by the judge ex officio. This ban is intended to prevent the prolongation of the trial and to reduce the court’s workload.

If the court hears witnesses presented in a second list and bases its judgment on their statements without considering this mandatory rule, it is a ground for reversal.

If an address is not provided in the witness list or if the witness cannot be found at the given address, a definite period appropriate to the nature of the case is given to the party to provide an address. If no address is provided within this period or if the new address is also incorrect, this witness is considered unheard (CPC Art. 240/3).

The parties must deposit the advance determined by the court for the witness they want to be heard within the given definite period. If the parties jointly request the same witness to be heard, they pay the required expenses half and half as an advance.

If one of the parties does not fulfill the advance obligation, the other party can deposit this advance. Otherwise, the request to hear the witness is considered waived (CPC Art. 324/1, 2).

Moreover, if a definite period is given for the witness list and the hearing date is set, even if no list is provided, if the party presents the witnesses at that hearing, the court is obliged to hear them. (CPC Art. 243/1). If the witnesses are presented at subsequent hearings, they cannot be heard.

As a rule, the party relying on witness evidence can withdraw from the hearing of the witnesses they have presented at any time without the consent and approval of the other party. Because the regulation stating, “The party presenting evidence cannot withdraw from relying on that evidence without the explicit permission of the other party” (CPC Art. 196), does not apply to discretionary evidence.

However, although one party can withdraw from hearing a witness without the consent of the other party, the other party can request the hearing of the witnesses withdrawn by the other party.

For example, if the other party had previously provided a witness list, and the name of the witness withdrawn by the other party is not written in their list, the other party can still request the hearing of the witnesses withdrawn from being heard by the other party. In this case, the ban on submitting a second witness list does not apply.

Because the other party may not have written those witnesses in their witness list because they were included in the other party’s evidence list. If the other party does not request the hearing of the witnesses withdrawn by one party, the court cannot summon and hear the withdrawn witness or witnesses on its own.

Objection to a witness is possible: Accordingly, if there are reasons to doubt the accuracy of the witness’s testimony, such as the witness having an interest in the case, either party can claim and prove this (CPC Art. 255).

Summoning Witnesses

A witness is summoned by subpoena (CPC Art. 243/1). Therefore, a witness cannot be directly forced to appear. The subpoena sent to witnesses includes the following information (CPC Art. 244):

– The name, surname, and full address of the witness

– The names and surnames of the parties

– The subject matter on which the witness will testify

– The place, day, and time they must be present

– The legal and penal consequences of not coming or refusing to testify or take an oath despite coming

– Payment of fees according to the tariff prepared by the Ministry of Justice

The subpoena must be served at least one week before the hearing date. In urgent situations, the witness may be ordered to come earlier (CPC Art. 243/2).

The rule is to summon the witness by subpoena (CPC Art. 243/1). Summoning the witness can also be done by telephone, fax, email, or other means. However, the consequences of not appearing despite the summons (forced appearance, payment of expenses, disciplinary fine) do not apply in this case (CPC Art. 243/3).

Obligation to Testify

As a rule, testifying is an obligation (necessity). Unless otherwise provided by law, everyone who is called to testify must come (CPC Art. 245).

The obligation to testify includes three elements: A person called to testify must first come to the court they are called to, second, take an oath, and third, state what they know in response to questions.

However, the judge may decide to send a question sheet to the witness to provide written responses within a specified period instead of oral testimony if deemed necessary.

This procedure does not prevent the judge from evaluating whether the written response provided by the witness is sufficient for the judgment. If the written responses are insufficient, the judge may summon the witness for oral testimony (CPC Art. 246).

There are also situations where testimony requires permission. For example, public officials

, even if they have left their duties, cannot testify about matters they are obliged to keep confidential without written permission from the official authority to which the secret belongs.

Persons who are not subject to Turkish jurisdiction are not obliged to testify. For example, diplomatic representatives of foreign countries are not obliged to testify and cannot be summoned to court as witnesses.

Sanctions for Refusing to Testify

Non-compliance with Summons

Witnesses who are duly summoned but do not attend without notifying their excuse face three sanctions:

– Forced appearance

– Payment of expenses caused by their non-attendance

– Disciplinary fine of up to five hundred Turkish Liras

If a witness who was forcibly brought later justifies their non-attendance, the expenses and disciplinary fine imposed against them will be lifted (CPC Art. 245).

Refusal to Testify

A witness who refuses to testify without a legal reason; refuses to take an oath or testifies despite the reason being rejected by the court, faces two sanctions (CPC Art. 253/1):

– Disciplinary fine of between five hundred and five thousand Turkish Liras

– Payment of expenses caused by refusing to testify

In this case, the hearing is adjourned to another day to re-hear the witness (CPC Art. 253/1). If the witness continues to refuse to answer questions or take an oath, they will be sentenced to disciplinary imprisonment not exceeding two weeks by that court (CPC Art. 253/2).

Hearing of Witnesses

Testifying in Court

As a rule, witnesses are heard in the court handling the case and by the judge (CPC Art. 259/1). Testimony taken at the Turkish Consulate from witnesses abroad cannot be used for judgment.

Witnesses presented must be heard by the competent civil judge handling these cases in the foreign country. In this case, the court will request the witness’s hearing by the judge of the country where they are located through letters rogatory.

As a rule, witnesses are heard in court. However, there are two exceptions: Firstly, the court may decide to hear the witness at the place where the event occurred or where the item is located if necessary to reveal the truth (CPC Art. 259/2). The court also hears the witness at their location if they cannot come due to illness or disability (CPC Art. 259/3).

The court may decide to hear a witness located outside its jurisdiction by the court where they are located. If it is decided to hear a witness by letters rogatory, the place, day, and time of the hearing will be notified to the parties if requested. In this case, the judge determines the reasons for hearing the witness (CPC Art. 259/4).

During the hearing, the witness is first asked about their name, surname, date of birth, occupation, address, whether they are related to or close to the parties, and whether they have any situation that may affect the trust in their testimony (CPC Art. 254).

Before the witness is heard,

– The importance of telling the truth
– That they will be punished for perjury if they do not tell the truth
– That they will take an oath to tell the truth
– That they cannot leave the courtroom without the judge’s explicit permission and may be confronted with other witnesses if necessary

is explained (CPC Art. 256).

As a rule, witnesses are heard under oath. However, there are two exceptions: In these two exceptional cases, the witness is not sworn in. Accordingly, the following persons are heard without an oath (CPC Art. 257):

– Those who have not reached the age of fifteen at the time of the hearing are heard without an oath. It should be noted that the requirement is that the person has not reached the age of fifteen at the time of being heard as a witness, not at the time of the case being filed.

– Those who do not have the capacity to understand the nature and importance of the oath are heard without an oath.

The oath is taken before the witness is heard (CPC Art. 258/1).

During the oath-taking, everyone present, including the judge, stands up (CPC Art. 258/2).

The judge asks the witness, “Do you swear on your honor, dignity, and all the beliefs and values you hold sacred that the answers you will give to the questions asked to you as a witness will not be false and that you will not withhold anything you know?”

The witness responds, “I swear on my honor, dignity, and all the beliefs and values I hold sacred that I will give truthful answers to the questions asked without withholding anything.” This completes the oath (CPC Art. 258/3).

Before the witness is heard, the judge provides information about the event related to the testimony and asks the witness to state what they know about the subjects they will testify about (CPC Art. 260).

Witnesses are heard separately by the judge, and those who have not yet been heard cannot be present in the courtroom while another witness is being heard. Witnesses are confronted when necessary (CPC Art. 261/1).

The witness explains what they know verbally and is heard without interruption. During the hearing, the witness cannot use written notes.

However, if the witness tells the judge that they need to look at their writings to determine dates and numbers or to explain or recall some matters, the judge may immediately allow the witness to look at their writings or decide to hear the witness again at a designated hearing (CPC Art. 261/2).

If the witness does not speak Turkish, they are heard with an interpreter (CPC Art. 263/1).

If the witness is deaf and mute and knows how to read and write, the questions are given to them in writing and their answers are written down; if they do not know how to read and write, the judge hears them with the help of an expert who understands sign language (CPC Art. 263/2).

The witness’s words are written in the minutes and read to them, and they are made to sign under the minutes (CPC Art. 261/5). It is prohibited for the parties to interrupt the witness, praise, or insult them with words or actions. If they do so, the party or their representative may be sanctioned for inappropriate behavior (CPC Art. 262).

If the judge finds sufficient evidence or indication that the witness lied or testified to gain benefits during their testimony, they prepare a report and immediately send it to the Public Prosecutor’s Office (CPC Art. 264/1).

The judge may also order the arrest of the witness and any accomplices and refer them to the Public Prosecutor’s Office for prosecution (CPC Art. 264/2).

A witness summoned by the court is paid a fee proportional to the time lost according to the tariff prepared annually by the Ministry of Justice. As of 2024, the fee to be paid to a witness will be 60 – 100 TL per day . If the witness has to travel to be present, their travel expenses and accommodation and meal expenses at the place where they are called to testify are also covered (CPC Art. 265/1). This fee and expenses are not subject to any tax, duty, or fee (CPC Art. 265/2).

If the court finds sufficient information about the matter to be proven with the testimony of some of the witnesses presented, it may decide not to hear the remaining ones (CPC Art. 241). This regulation is an important opportunity given to the court to prevent the efforts of a party intending to prolong the case.

Right to Refuse to Testify

If there is one of the reasons explicitly stated in the law, a person called as a witness may refuse to testify (CPC Art. 247/1).

If there are personal reasons for refusing to testify, the judge reminds the person called as a witness of their right to refuse beforehand (CPC Art. 247/2). For other reasons for refusing to testify, there is no such obligation.

A person who refuses to testify must state the reason and provide evidence justifying this reason in writing</ strong> before the day of the testimony or verbally at the hearing they are summoned to (CPC Art. 252/1).

A witness who has previously stated the reasons and the basis for refusal is not obliged to come to court on the specified day (CPC Art. 252/2).

After hearing the parties present at the hearing, the court decides whether the refusal to testify is justified (CPC Art. 252/3). If the reason given by the witness is not accepted by the court, the witness must testify (CPC Art. 253/1).

Reasons for Refusal

The reasons for refusing to testify are divided into three categories:

1- Personal Reasons for Refusal

The following persons can refuse to testify for personal reasons (CPC Art. 248/1):

• Fiancé of one of the parties
• Spouse of one of the parties, even if the marriage has ended
• Descendants or ancestors of the person or their spouse
• Those who have an adoption relationship with one of the parties
• In-laws up to the third degree, including the third degree, even if the marriage that created the relationship has ended
• Foster families and their children, and protected children

2 – Refusal Due to Confidentiality

Persons whose testimony is required regarding information that must be kept confidential by law can refuse to testify on these matters. For example, lawyers cannot disclose secrets they have learned due to their duties (Lawyer’s Law Art. 36/1, CPC Art. 249).

They can only testify on this matter with their client’s permission. However, despite the client’s permission, a lawyer can refuse to testify (Lawyer’s Law Art. 36/92).

Additionally, doctors, notaries, and similar persons can also refuse to disclose secrets they have learned. However, if permission to disclose the secret is given by the owner of the secret, unlike lawyers, these persons cannot refuse to testify (CPC Art. 249).

3 – Refusal Due to Risk of Harm

The following situations may lead to refusal to testify due to the risk of harm (CPC Art. 250):

• If the witness’s statement will directly cause material harm to themselves or one of the persons listed in the law (Art. 248)
• If the witness’s statement will violate the honor or dignity of themselves or one of the persons listed in the law (Art. 248) or cause a criminal investigation or prosecution
• If the witness’s statement will lead to the disclosure of secrets related to their profession or trade

Exceptions to the Right to Refuse to Testify

Even if the conditions for refusing to testify are met, there are some situations where testimony is mandatory. Therefore, the right to refuse to testify is not absolute.

Even if the conditions for refusing to testify for personal reasons, confidentiality, or the risk of harm to themselves or one of the persons listed in the law (Art. 250/1-a) are met, testimony cannot be refused in the following situations (CPC Art. 251):

• A person who was present as a witness during the execution and content of a legal transaction
• About events arising from the birth, death, or marriage of family members
• About facts related to financial disputes arising from family relations among family members
• About matters they carried out as the legal successor or representative of one of the parties

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