Anonymous witness statements in criminal procedure and the problem of verifiability

The fundamental purpose of criminal procedure is to reach the material truth. However, the goal of reaching the material truth requires that the methods used be compatible with the principle of the rule of law and the guarantees of the right to a fair trial. Indeed, legitimacy in criminal procedure stems not only from the result achieved but also from the methods used to reach that result. Therefore, the balance to be struck between the need for effective combat against crime and the protection of the right to defense constitutes one of the most sensitive issues in modern criminal procedure.

The institution of the anonymous witness emerges precisely in this area.

Article 58 of the Criminal Procedure Code and the Witness Protection Law No. 5726 allow for the identity of a witness to be kept confidential under certain conditions. There is no doubt that the state has a duty of protection, especially in cases of organized crime, when there is a possibility that the life, physical integrity, or the safety of the witness's relatives may be endangered. Therefore, anonymous testimony is not an institution entirely rejected by the legal order, but rather a protection mechanism that can be resorted to under exceptional circumstances.

Essentially, the debate is not focused on the existence of the anonymous witness institution, but rather on the extent to which evidentiary value should be attributed to this institution within criminal procedure.

The European Court of Human Rights (ECHR) does not categorically accept the anonymous witness institution as unlawful. On the contrary, the Court acknowledges that the need to combat organized crime and protect witnesses is based on a legitimate aim. However, it is also constantly emphasized that a fair balance must be struck between the right to defense and the protection of the witness.

Indeed, in the Doorson v. Netherlands and Van Mechelen v. Netherlands judgments, the ECHR stated that while it is possible in principle to conceal a witness's identity for security reasons, the existence of safeguards that allow the defendant to challenge the reliability of the testimony against them is a requirement of the right to a fair trial. Later, in the Al-Khawaja and Tahery v. United Kingdom and Schatschaschwili v. Germany judgments, it was stated that a conviction based solely or to a decisive extent on witness statements that the defendant has not had the opportunity to examine could raise serious concerns regarding the fairness of the proceedings.

Similarly, the Constitutional Court of Turkey, in various decisions, does not accept the anonymous witness institution as absolutely unlawful; however, it points out that it is mandatory to provide the necessary safeguards regarding the right to defense, the principle of equality of arms, and the principle of adversarial proceedings.

At the root of this approach lies a very simple fact. The statement of a witness whose identity is concealed is, by its nature, not entirely independent of the possibility of error, lack of information, hearsay, or misinterpretation of material facts. Therefore, the necessity for such statements to be supported by other evidence that can be verified in the outside world is not only a technical evidentiary issue but also a requirement of the right to a fair trial.

Indeed, in criminal law doctrine, opinions have been expressed for many years that the exceptional nature of the anonymous witness institution should be preserved rather than completely abolished. This is because the essence of criminal procedure is that material facts should be demonstrated as much as possible with evidence that can be verified in the outside world.

Some investigations conducted in Turkey's recent past have also kept the debates regarding the limits of the anonymous witness institution alive. In particular, the intense debate over the years regarding some anonymous witness accounts during the Ergenekon and similar trial processes has led to increased reservations about the use of this institution. Therefore, the discussions taking place today are a reflection not only of current developments but of a legal debate that has been ongoing for many years.

Some recent discussions reflected in the public domain within the scope of the Istanbul Metropolitan Municipality case have also brought the issue of the reliability of anonymous witness statements back to the agenda. One of the allegations raised by the defense within the scope of the file is that the anonymous witness "Çınar" made incorrect characterizations regarding some concrete and easily verifiable matters. In this context, for example, it is stated that information put forward regarding a job title is not in accordance with the truth, despite the fact that it could be confirmed in a short time with official records; this situation is further opening the narratives of anonymous witnesses to debate in terms of the standard of verifiability.

Criminal procedure is a system built not on generating suspicion, but on eliminating it. For this reason, the extent to which the evidentiary value of narratives not supported by verifiable concrete facts can be accepted is important not only in terms of the right to defense but also in terms of the trust placed in the proceedings as a whole. For in a state governed by the rule of law, the goal is not to reach a result by any means necessary, but for the result reached to be grounded in methods permitted by law.

Therefore, the main debate still remains current:

Can the statement of an anonymous narrator be accepted as a decisive piece of evidence, sufficient on its own to determine a person's freedom?

And more importantly; if a protection mechanism intended as an exception turns into an ordinary tool of evidence in practice, how will the balance of criminal procedure be maintained?

Attorney Deniz Ali İlkem Demir