Evidence, Closing Speeches and the Last Word in a Turkish Criminal Trial: What the Court May Rely On, and When You Speak

The sequence of the first hearing, from the reading of the decision accepting the indictment to the defendant's questioning, is described in the note on the first hearing in a Turkish criminal court. CMK 206/1 takes over from there: once the defendant has been questioned, the presentation of evidence, the delillerin ortaya konulması, begins. The same paragraph closes a gap that matters to defendants living abroad. If the defendant was duly served and failed to appear without an excuse, so that the questioning could not take place, that does not stop the court from presenting the evidence; the evidence presented in his absence is notified to him when he later appears. The trial does not wait, and what happened while you were away is put to you afterwards rather than repeated.

Either side may ask the court to bring further evidence: a witness, a document, an expert examination, an inspection. CMK 206/2 names the grounds on which such a request is rejected, and there are three:

1. the evidence was obtained unlawfully (206/2-a);
2. the fact the evidence is meant to prove has no bearing on the decision (206/2-b);
3. the request was made solely to prolong the case (206/2-c).

CMK 207 adds what is not a ground: a request to present evidence may not be rejected because the evidence, or the fact to be proved, was put forward late. A defence that discovers a witness or a document after the first hearing may therefore still ask for it. When the court refuses a request, the refusal should be tied to one of the three statutory grounds, and the defence should make sure the request, the ground relied on and its own objection are all in the hearing record, because the record is what a higher court will read.

The opposite move is also possible. Under CMK 206/3, if the prosecutor and the defendant or defence counsel jointly consent, the hearing of a witness or the presentation of any other evidence may be dispensed with. Consent is a decision of the defence, not a formality; it should be given only after the lawyer has assessed what the witness or document would add, and in a language the defendant has understood.

A Turkish criminal trial is built on the principle that evidence is given orally, in front of the judge who will decide. The rules on witnesses and records apply that principle.

A witness who has been heard may leave the courtroom only with the permission of the presiding judge or the judge (CMK 208), so that the parties can still put questions or confront him with later evidence. What happens to witnesses before and during their testimony, the oath and the questions that must be answered, is covered in the note on being summoned as a witness.

Certain documents must be explained at the hearing (duruşmada anlatılır) under CMK 209/1: records of a defendant's questioning and of witness statements taken by a delegated judge or by letters rogatory, records of inspections and on-site examinations, other documents to be used as evidence, criminal record summaries, and documents on the defendant's personal and economic circumstances. A foreign defendant's criminal record summary, and any information on his income and family, is therefore part of what is put at the hearing. CMK 209/2 offers a measure of protection: where such documents contain the personal data of the defendant or the victim, the court may decide, if they expressly ask, that they be explained in a closed session. The request has to be made; the court is not required to act on its own.

The core protection is CMK 210. Where the evidence of a fact consists only of what a witness says, that witness must be heard at the hearing; reading the record of an earlier statement, or a written statement, cannot replace hearing him (210/1). And where a person entitled to refuse to testify, such as a close relative of the defendant, exercises that right at the hearing, the record of his earlier statement may not be read (210/2).

CMK 211 lists the exceptions in which earlier records, and documents the person wrote, may be read instead of hearing him: the witness or co-accused has died, has become mentally ill or cannot be located (211/1-a); his attendance is impossible for an indefinite period because of illness, disability or another cause that cannot be removed (211/1-b); or, given the weight of his statement, his attendance is not considered necessary (211/1-c). Beyond those cases, the prosecutor, the intervening party (katılan) or its lawyer, and the defendant or defence counsel may jointly consent to other records being read (211/2), which again is a defence decision.

A witness's earlier statement can also be used without replacing his testimony. If he says he cannot remember a point, the relevant part of the earlier record is read to help him recall it (CMK 212/1); if what he says at the hearing contradicts what he said before, the earlier statement is read in an attempt to resolve the contradiction (212/2).

A defendant's earlier statements are handled more strictly than a witness's. Under CMK 213, where there is a contradiction between them, only three kinds of earlier statement may be read at the hearing: statements the defendant made before a judge or a court; records of statements taken by the prosecutor; and records of a police statement made in the presence of defence counsel. A statement given to the police without a lawyer is not on that list. It is also subject to a separate rule: CMK 148/4 provides that a police statement taken without defence counsel present cannot form the basis of the judgment unless the suspect or defendant confirms it before a judge or court, and 148/3 provides that statements obtained by prohibited methods cannot be used as evidence even if the person consented. For a foreigner who spoke to the police at the airport or at a station, without a lawyer and perhaps without a proper interpreter, these rules decide what that first account can and cannot do at trial.

Official documents and written material containing a statement or an opinion, and technical examination and medical reports, are read at the hearing; afterwards, if considered necessary, the people who signed them may be called to explain them (CMK 214/1). Where the report comes from a board, the court may suggest that the board designate one member to explain its view (214/2), and explanations of scientific opinions follow CMK 68 (214/3).

The rules on court-appointed experts (bilirkişi) give the defence two tools. First, when the expert examination is complete, the prosecutor, the intervening party, the defendant and their lawyers are given time to request a new expert examination or to state their objections; if such a request is rejected, a reasoned decision must be given within three days (CMK 67/5). Second, each of them may obtain a scientific opinion (bilimsel mütalaa) from a person of their choosing with the relevant expertise, about the facts of the case, for use in preparing the expert report, or about the expert report itself; no additional time may be requested for that reason alone (67/6). The court may always decide to hear the court-appointed experts at the hearing and may call them at the request of a party (CMK 68/1), and the same rules apply, on request, to the author of a scientific opinion (68/3). The note on obtaining your own opinion against a forensic report explains how this works when the disputed report is a laboratory or forensic finding.

The presentation of evidence is not a monologue by the court. After a co-accused, a witness or one of the experts has been heard, and after any document has been read, the intervening party or its lawyer, the prosecutor, the defendant and defence counsel are each asked whether they have anything to say about it (CMK 215). This is the defendant's opportunity to point out a contradiction, to say that a translated document does not match the original, or to ask for a further step. A comment that is not made here is a point the record will not show was taken at the time.

When the evidence has been presented, the discussion of the evidence, the stage often called the closing speeches, follows in the order set by CMK 216/1: first the intervening party or its lawyer, then the prosecutor, then the defendant and defence counsel or the legal representative. The prosecutor's closing submission is the opinion on the merits, the esas hakkındaki mütalaa, in which the prosecution states what it now asks the court to decide. Each side may then reply to the other: the prosecutor and the intervening party or its lawyer to the statements of the defendant and defence counsel, and the defendant and defence counsel to the statements of the prosecutor and the intervening party (216/2).

The table sets out the stage in order.

CMK 216/3 gives the last word before judgment (son söz) to the defendant who is present. It comes after the closing speeches and the replies, and it belongs to the defendant personally, not to counsel speaking on his behalf. The same paragraph adds a rule introduced in 2017 and enacted in 2018: where the defendant has a mandatory defence counsel, the absence of that counsel at this stage does not prevent the judgment from being announced. The practical consequence is that the defendant should not rely on counsel's presence at the final session to protect the last word; what he wants to say should be prepared with the lawyer in advance.

The last word comes after the discussion of the evidence has closed, and it is not a second defence speech. It is the defendant's final opportunity to address the court directly, and it can be brief: what he wants the court to keep in mind, or simply the decision the defence has argued for. What is said is recorded.

Everything in this stage leads to CMK 217. Under 217/1 the judge may base the decision only on evidence that was brought to the hearing and discussed in his presence, and that evidence is assessed freely according to the judge's conscientious conviction (vicdani kanaat). Under 217/2 the charge may be proved by any kind of evidence, provided it was obtained lawfully. The two paragraphs work together with the rules above: a document that was never explained at the hearing, or a witness account that was only read when the witness had to be heard, is not evidence the judgment may rest on, and unlawfully obtained evidence is excluded however persuasive it looks. The written judgment then has to show its work: in a conviction, the reasoning must set out the discussion and evaluation of the evidence, which evidence was relied on and which rejected, and must separately and expressly identify any evidence in the file obtained by unlawful methods (CMK 230/1-b). If a point was raised during the discussion and the reasoned judgment is silent about it, that silence is itself material for the appeal described on the appeals page.

For a defendant who does not know enough Turkish to express himself, an interpreter appointed by the court translates the essential points of the prosecution and the defence at the hearing (CMK 202/1). In the evidence phase the interpreter is what allows the defendant to follow the witnesses and the documents explained at the hearing, and a defendant cannot comment under CMK 215 on something he did not understand. If the interpretation is inadequate, the objection should be made at once and minuted; the note on bringing your own interpreter covers the practical side.

CMK 202/4 adds a right that matters most at the closing stage. After the indictment has been explained, and after the prosecutor's opinion on the merits has been given, the defendant may make his oral defence in another language in which he states he can express himself better. In that case the translation is provided by an interpreter from the official list whom the defendant chooses; that interpreter's costs are not paid by the State treasury; and the facility may not be abused to drag out the proceedings. The official lists are drawn up each year by the provincial judicial justice commissions, and judges and prosecutors may choose from the list of another province as well as their own (202/5).

The right applies even to a defendant who speaks some Turkish. A defendant who managed the first hearing in Turkish may still, when answering the prosecutor's opinion on the merits, choose to speak in the language in which he can argue with precision. Because the interpreter is of his choosing and at his own cost, the arrangement has to be made before the session at which the opinion on the merits is expected, and the lawyer should tell the court in advance so that the request cannot be characterised as a device for delay.

1. Ask the lawyer, after each session, which evidence has been presented and which requests are pending.
2. Decide with the lawyer, before the evidence is presented, whether to consent to any witness being dispensed with or any record being read (CMK 206/3, 211/2).
3. If an expert report is against you, use the time given under CMK 67/5 and consider a scientific opinion under 67/6.
4. Arrange an interpreter of your choice from the official list if you intend to answer the opinion on the merits in your own language (CMK 202/4).
5. Prepare the last word with your lawyer; it is yours to give if you are present (CMK 216/3).