ECHR finds that Turkish courts failed to provide sufficient reasoning for a rape conviction
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The European Court of Human Rights found that the Turkish courts had not sufficiently reasoned Güray Gür’s conviction for rape because they had not explained the essential changes in the injured party’s statements. In the same case, the judges considered the reasoning for the separate conviction for unlawful deprivation of liberty sufficient. The unanimous judgment, communicated on 20 October, is not final and does not constitute an acquittal. The ECtHR considers a retrial the most appropriate remedy if the applicant requests one, without automatically ordering the reopening of the proceedings.
In brief
The ECtHR unanimously found that the reasoning for Güray Gür’s conviction for rape was insufficient: the courts did not explain why they preferred the injured party’s initial statements to her later ones.
Regarding the separate conviction for unlawful deprivation of liberty, the Court found no violation of the right to a reasoned judgment. The statements were consistent and supported by messages and medical findings.
In 2012, the applicant received eight years and nine months’ imprisonment for rape and three years and nine months for deprivation of liberty. The higher courts did not remedy the deficiency concerning the reasoning for the first conviction.
The Court considers a retrial, with respect for the guarantees of a fair trial, the most appropriate remedy if the applicant requests one. It did not automatically order the reopening of the proceedings and did not establish that he had been wrongly convicted.
The Chamber judgment communicated on 20 October is not final; the parties may request referral to the Grand Chamber within three months. No compensation was awarded because the applicant had not submitted the necessary procedural claim.
The case concerns events that took place in August 2006 in the Istanbul area. A young woman, identified in the judgment by the initials C.Ö., sent her father messages saying that she had been kidnapped. She later complained that several men, including Güray Gür, had deprived her of her liberty and subjected her to sexual assaults. The investigation included statements, forensic examinations and communications data, and the case was referred for trial in May 2008.
In her initial statements to the gendarmerie and the prosecutor, the injured party identified the applicant as one of the perpetrators of the rape. At a hearing in November 2009, before the Bakırköy Criminal Court, she named another defendant as the perpetrator of the rape and described the involvement of the others differently. When asked about her earlier version, she said that Güray Gür had wanted to have sexual relations with her, but that she had refused.
At another hearing, in February 2011, in the trial of a co-defendant before a juvenile court, she stated that Güray Gür had abandoned his intention to have sexual relations with her. She specified that this account was more accurate than her previous statements, which she no longer maintained. The co-defendant’s case was subsequently joined to the case in which the conviction was delivered, meaning that these statements formed part of the proceedings examined by the trial court.
On 1 November 2012, Güray Gür was sentenced to eight years and nine months’ imprisonment for rape and three years and nine months for unlawful deprivation of liberty. The judges referred to the statements, forensic reports, communications data and the case file as a whole, but did not explain why they preferred the injured party’s initial version regarding his participation in the rape.
For the ECtHR, this omission concerned a decisive question, not a secondary detail. The injured party’s statements constituted the only evidence directly implicating the applicant in the rape. The biological report had not identified his DNA in the samples examined, although the case file contained medical findings concerning injuries and trauma. The absence of DNA did not prove innocence, but the changes in the direct evidence had to be discussed and explained in the conviction judgment.
The Court stresses that a conviction may be based on the statement of a single witness, including the victim of a sexual assault. However, the accused must have an effective opportunity to challenge the evidence, and the court must examine relevant objections concerning its reliability and evidential value. Judges may prefer an earlier statement to a later one if they justify their choice. The judgment does not introduce a rule of distrust toward victims and does not require DNA evidence in every case.
Güray Gür challenged his conviction, relying on the contradictions between the statements and the absence of forensic findings directly implicating him in the rape. The Court of Cassation upheld the convictions in March 2016, and the Constitutional Court declared his application inadmissible in December 2018. Neither remedied the lack of reasoning identified by the ECtHR, which found a violation of the right to a fair trial concerning the rape conviction.
The analysis concerning unlawful deprivation of liberty produced a different result. The injured party had consistently stated that she had been held against her will, and the messages sent to her father and the medical findings supported her account. The defence had argued that she had remained with the defendants because she did not want to arrive home late, but it did not explain the messages about the kidnapping and the injuries subsequently recorded. In these circumstances, the ECtHR did not consider the domestic courts’ preference for her account arbitrary or manifestly unreasonable and found no violation concerning the reasoning for this conviction.
The finding concerning rape does not mean that the European Court established that the applicant had been wrongly convicted. The Court specifies that it cannot anticipate the outcome of proceedings conducted without a violation of the Convention. Noting that Turkish law allows proceedings to be reopened after the ECtHR has found a violation, it considers a retrial complying with the guarantees of a fair trial the most appropriate remedy if the applicant requests one. This is subject to the applicable domestic procedures; the Strasbourg judgment does not automatically quash the conviction and does not guarantee a particular outcome on retrial.
No compensation was awarded because the applicant had not submitted a claim for just satisfaction in accordance with the required procedural conditions, and the Court found no exceptional circumstances warranting the award of a sum of its own motion. The absence of payment does not alter the finding of a violation. The judgment was delivered by a Chamber of the Second Section and may be subject to a request for referral to the Grand Chamber within three months. It becomes final under the conditions set out in the Convention, without the mere communication on 20 October automatically triggering a national retrial.
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