Aggravated Sexual Assault and Threat – Judgment of Acquittal

The court decisions published in this section were obtained in cases in which Attorney Mert Sönmez personally acted as counsel and defense counsel.

REPUBLIC OF TÜRKİYE

*** COURT

CASE NO: ***

DECISION NO: ***

REASONING

The complainant stated: ‘I had sexual relations with him three or four more times at different times and places; he even visited our home during that period. I did so believing that we would marry, and after the final intercourse we took a pregnancy test together. About one month ago he left me. When I mentioned these events, he began threatening me with words such as, “Do not call me again or I will kill you; these events will remain between us; I will harm someone in your family.” Unable to withstand this pressure, I finally told my mother. About twenty-five days ago my mother and I went to the suspects’ home in Esatpaşa, but persons whom I understood to be the suspect’s father, mother and elder brother advanced toward us, threatened us by saying, “Do not come here again or it will end badly for you,” and chased us away. On 20/12/2019, using my mother’s line no. ***, we called the line no. *** used by the suspect’s father; both the suspect’s mother and father threatened my mother and me over the telephone with words such as, “Do not call us again or we will kill you.” I have no disability. I complain against suspect ***, who deceived me with a promise of marriage and had sexual relations with me more than once, and against ***, his elder brother, mother and father, who threatened us as described. I consent to the examination of my communications if necessary. My mother and my sibling Mustafa witnessed some of these events.’

Witness *** *** stated before the Court: ‘On the day of the incident there was a send-off celebration for my son’s military service. I later saw complainant *** arrive. I did not know her. She said, “I love your son.” Her mother then said that my son and her daughter had been together. I said that if such a thing had occurred, we should go to the hospital for a report, and we all went. We could not obtain a report because prosecutorial authorization was required.’ When the police statement was read, the witness added: ‘At some time after the incident that I cannot now recall, complainant *** called my spouse, but I do not remember what she said.’

Witness *** *** stated before the Court: ‘There was a send-off celebration for my son’s military service that day. Complainant *** and her mother came; the mother said, “Your son and my daughter have been together.” I replied that, if so, their daughter was also our honor. I said we could all go to the hospital for a report. We went, but were told that no report could be issued without a prosecutor’s decision. When I asked my son whether anything had happened with complainant ***, he said nothing had happened and the girl was obsessed with him. When I went to my son’s oath ceremony, the complainant’s mother called and asked what I had done about the matter. I said that if her allegation was true, justice existed and she should seek her right through the justice system.’

Witness *** stated: ‘I had previously seen the defendant a few times in front of the door and told him not to let me see him there again. My spouse told me about my daughter and defendant ***. That is the extent of my knowledge and observation.’

Witness *** stated: ‘Complainant ***. One day I saw my daughter crying. When I asked why, she told me about defendant ***, said that they later became friends, and that *** raped her. She said the sexual assault occurred at some ruins, at the home of the defendant’s friend, at the defendant’s home and at our home. I do not know exactly how many times, only that it occurred more than once. I became angry, took my daughter and went to the defendant’s family home. The defendant had a military send-off celebration that day. We discussed the matter with his family. His father said, “Her honor is our honor; we will put on the ring.” We then went to the hospital together for a report, but could not obtain one without a prosecutor’s decision. Later I called the defendant’s father and asked about the matter. I do not now remember what he said, but when he handed the telephone to the defendant’s mother, *** *** told me, “If you call again, it will be bad for you.” Because defendant *** and the defendant’s friends have also come and spoken to my daughter, she continually attempts suicide. My daughter has no mental or physical disability; she attended special education only for attention deficit.’

Other evidence consisted of the incident record, defendant ***, witness statements and complainant ***.

Upon assessment of the entire file, it was alleged that defendant *** committed aggravated sexual assault against former girlfriend complainant *** more than once, the first time on 08/10/2019; later left the complainant; and, when she raised the events, threatened her by saying, ‘Do not call me again or I will kill you; these events will remain between us; I will harm someone in your family,’ thereby committing aggravated sexual assault and threat.

In the defense taken before the Court, the defendant stated that the complainant had not been his girlfriend; that complainant *** knew him from the neighborhood and was obsessed with him; that she repeatedly sent threatening and sexual messages through social-media accounts; that, on the day of the military send-off celebration, complainant *** came to his home and said, ‘Your son has been with my daughter’; that his parents said that, if so, they could go to the hospital for a report and they did so, but were told a report could not be issued without a prosecutor’s decision; that he and complainant *** had not been lovers; that he told her not to message him; and that she had falsely accused him.

A prior tear of the hymen was found during the complainant’s genital examination.

The complainant was born on 18/03/2020 and was understood to have completed eighteen years of age on the alleged dates of the sexual assault.

The forensic medical opinion dated 06/01/2021 found no mental illness or intellectual disability of a nature or degree preventing the complainant from understanding the legal meaning and consequences of the act or psychologically resisting it.

It was stated that in the 2019 event of which *** was the complainant, she could understand the legal meaning and consequences of the act and was capable of psychological resistance.

The WhatsApp correspondence in the file and the forensic report dated 06/01/2021 indicated that defendant *** and the complainant had a relationship, but that it occurred with the complainant’s consent rather than against her will.

One of the most important and universal principles of criminal procedure—which aims to establish the material truth, secure justice, punish a perpetrator proven to have committed an offense, prevent disruption of public order and restore disrupted public order—is the principle in dubio pro reo, an extension of the rule known in doctrine and practice as the presumption of innocence. Its essence is that every doubt concerning a matter relevant to conviction in a criminal case must be resolved in favor of the defendant. This broadly applicable rule governs doubts as to whether the charged offense occurred, whether the defendant committed it and how it was committed. Punishment requires proof with certainty leaving no room for doubt. Events and allegations whose manner of occurrence is doubtful or not fully clarified cannot be interpreted against the defendant to support conviction. A criminal conviction must rest not on probability but on definite and clear proof excluding any doubt or alternative course of events, and not on a conclusion drawn from some of the evidence while disregarding the rest. Punishing a defendant on the basis of even a high probability would mean deciding without attaining the truth, the central aim of criminal procedure.

For these reasons, defendant *** was acquitted and judgment was rendered as follows.

JUDGMENT

JUDGMENT: For the reasons set forth above:

1–In the criminal action seeking punishment of defendant *** for aggravated sexual assault, since the elements of the charged offense were not established, the defendant is ACQUITTED pursuant to CMK Article 223/2-a.

2–In the criminal action seeking punishment of defendant *** for threat, since it was not established that the defendant committed the charged offense, the defendant is ACQUITTED pursuant to CMK Article 223/2-e.

3–As defendant *** was represented by defense counsel, the fixed attorney’s fee of TRY 8,200 determined under the Minimum Attorney Fee Tariff in force on the date of judgment shall be paid to the defendant from the Treasury.

4–The trial costs shall remain with the Treasury.

The unanimously rendered decision, consistent with the request, was read aloud and duly explained in the presence of the prosecution and defendant ***, and in the complainant’s absence. An appeal lies before the Istanbul Regional Court of Appeal within seven days from pronouncement for those present or service for those absent, by a petition submitted to this Court or, when within another jurisdiction, to a court of equal level, or by a statement to the relevant court clerk to be entered in the record. 09/02/2021