Problems with the extent of secret testimony

The revelation in a hearing last week in the Ergenekon case that secret witness number 16, “Deniz,” happens to be one of former executives of the outlawed Kurdistan Workers’ Party (PKK), Şemdin Sakık, has caused a lively debate to erupt in the Turkish public about the practice of using secret witnesses.

And one of the immediate questions that came to mind was this: Can the testimony of a top leader in a terror organization against the members of the Turkish Armed Forces (TSK) be considered valid? This question actually includes the simple reasoning that is related to the most fundamental principles of law: When a witness takes the witness stand in front of the judge, the first question the judge directs at him or her by formality is this: “Is there any hostility between you and the accused?”

The clarification of the hostility question is a vital criterion to understanding the honesty of the witness and the objectivity of his testimony.

After the Ergenekon interrogation started in 2007, we began seeing the increasing use of secret witnesses in line with the Witness Protection Law No. 5726, which was enacted at the end of 2007.

In the Ergenekon case alone, there are a total of 44 secret witnesses. Secret witnesses are taken to a separate room from the court hall and their testimonies are transmitted to the courtroom via a teleconference method with their voices and images altered. Thus the identity of the witness is protected.
 
However, the fact that the witness is kept secret creates several drawbacks. First, the issue of credibility emerges. The secrecy creates a situation open to abuse that opens the door to – never mind the accused – the slandering of third persons.

A striking example about the credibility of secret witnesses occurred last May in the Ergenekon case between retired Navy Adm. Dursun Çiçek and the secret witness “Efe” who testified against him.

When “Efe” said he had seen Çiçek together with Chief Prosecutor İlhan Cihaner at the Erzincan Officer’s Club, Çiçek asked, “What was I wearing that day?” After the witness answered “Green,” Çiçek said, “Marines do not wear green.” Then “Efe” corrected himself, “Sorry, it was white.” Çiçek answered, “Was I wearing white in mid-January?” The naval uniform in winter is black.

Despite all the drawbacks, using secret witnesses is not a practice that European law has banned. In court practices and investigations at the European Court of Human Rights (ECHR), using secret witnesses is permitted, but this flexibility is subject to a series of conditions.

The doctrine of the ECHR is to set up a balance between the need to hide the identity of the witness and not obstruct the right to a defense. For this purpose, all the means for the defense to direct any question to the secret witness should be provided.

In the practice in Turkey, though, there is a long list about how the right to a defense is restricted during the use of secret witnesses. For example, from the point of checking whether or not there exists any hostility regarding the secret witness – such as to see whether he is a defendant in a case – it is not even permitted to ask which case that is.

Criminal law Professor Köksal Bayraktar, who is one of the lawyers in the Ergenekon case, pointed out that “a practice that can used in the event of necessity has exceeded the limits of obligation with its increasingly widespread [usage].”

He also has this evaluation: “The practice is way too excessive. When so many secret witnesses are heard and demands to hear other witnesses are not particularly facilitated, then this situation results in abuse. Also, all of the testimonies of the secret witnesses are regarded as true without any filtering. All of this weakens the defense.”

The current problems show the need for a serious debate on the practice of using secret witnesses.

Sedat Ergin is a columnist for daily Hürriyet in which this piece was published Nov 14. It was translated into English by the Daily News staff.