I/A Court H.R., Case of V.R.P., V.P.C. et al. v. Nicaragua. Preliminary Objections, Merits, Reparations and Costs. Judgment of March 8, 2018. Series C No. 350.

Non official brief

 

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.]

 

The applicants, a mother (VPC) and her daughter (VRP), complained about the lack of an effective and non-revictimising investigation into the accusation of rape when the daughter was eight years old. In 2001, VRP was taken to hospital by her mother, where it was found that she had been subjected to sexual abuse and rape allegedly committed by her father in 2000. During the course of the investigation, the girl was required to participate, against her will, in the crime scene reconstruction and was submitted to repeated gynaecological examinations. The case was tried by a jury, according to the criminal procedural law in force at that time in Nicaragua. The jury declared the accused innocent with the verdict being later confirmed by a judge. Several legal actions were taken by the mother denouncing irregularities allegedly committed during the investigation and the criminal procedure. Those claims generated counterclaims against her and her family for libel and slander. The mother and her two daughters fled to the United States of America where they were granted asylum.

 

Merits - Articles 5 (1) (right to personal integrity), 5 (2) (prohibition of torture or cruel, inhuman, or degrading treatment), 8 (1) (right to a fair trial), 11 (2) (right to privacy) and 25 (1) (right to judicial protection) of the American Convention on Human Rights(ACHR), in conjunction with Articles 1 (1) (obligation to respect and ensure rights without discrimination) and 19 (rights of the child ), and 7 (b) of the Inter-American Convention on the PreventionPunishment and Eradication of Violence against Women : The Inter-American Court (hereafter "the Court") indicated that, in cases of violence against children and adolescents, States had a reinforced duty of due diligence that required the adoption of special protection measures and the development of a procedure adapted to their needs, with a view to avoid revictimisation. The Court established that States had to provide a multidisciplinary care and treatment to ensure the coordination of the different State agencies in order to protect children and adolescents.

 

In the Judgment, the Court developed the due diligence parameters to which all the authorities should adhere, such as: to provide information in relation to the investigations and criminal procedure to children and adolescents; to inform about legal assistance and health services, as well as other safeguards available to protect the child; to guarantee the right to be heard and participate in the criminal proceedings, taking into account the age and maturity of the child; to offer the possibility to choose the sex of the medical personnel conducting gynaecological examinations; to avoid duplication of medical exams and questioning of the victim during the proceedings; to guarantee that the justice system is involved in the investigations and procedure are trained about child sexual violence; To provide a free public defender to represent the child's interests in the proceedings, among others. Moreover, States had to regard the child as an individual entitled to rights when participating in the investigations and criminal proceedings, and not as an object of proof, as had occurred in this particular case.

 

Additionally, the Court considered it particularly serious that the State had conducted a revictimising investigation. The girl had been asked to narrate the facts repeatedly. During the crime scene reconstruction, she had been ordered to lie down in the same position as she had been placed by her aggressor when raped, which was photographed. Also, the girl had been subjected to gynecological examinations on several occasions without justification, even by force and against her expressed will, substantially increasing her existing trauma. In addition, she had testified in front of a non-specialized judge. Instead of protecting and providing the child with mechanisms to contain the trauma, in order to make it feel safe, understood and heard, the State, in violation of its importance, had subjected the girl to revictimization during the proceedings. In this regard, the Court concluded that the State had acted as a second aggressor, exercising institutional violence against the victim. Due to the intensity of the suffering it was found that the revictimising acts constituted cruel, inhuman and degrading treatment. The Court also determined that Nicaragua had not complied with its reinforced due diligence, as the investigation and criminal proceedings lacked a gender and child-sensitive approach and was conducted in a discriminatory manner. It concluded that the State had not adopted positive measures to guarantee effective and equal access to justice. Due to the intensity of the suffering it was found that the revictimising acts constituted cruel, inhuman and degrading treatment. The Court also determined that Nicaragua had not complied with its reinforced due diligence, as the investigation and criminal proceedings lacked a gender and child-sensitive approach and was conducted in a discriminatory manner. It concluded that the State had not adopted positive measures to guarantee effective and equal access to justice. Due to the intensity of the suffering it was found that the revictimising acts constituted cruel, inhuman and degrading treatment. The Court also determined that Nicaragua had not complied with its reinforced due diligence, as the investigation and criminal proceedings lacked a gender and child-sensitive approach and was conducted in a discriminatory manner. It concluded that the State had not adopted positive measures to guarantee effective and equal access to justice.

 

Furthermore, the Court recalled that the ACHR did not endorse any specific criminal procedural system. However, the model adopted by a State should conform to the judicial actions established by the ACHR. It indicated that the lack of stated reasons, upon which the verdict was taken by the jury rested, did not in itself breach the duty of motivation. Nonetheless, the verdict had to enable the reconstruction of the logical course of the decision by the jury, in the light of the evidence and debate at the hearing. Thus, a verdict would be deemed arbitrary in the event that this reconstruction was not viable according to rational rules. Hence, the State had an obligation to provide procedural safeguards against arbitrary verdicts, as well as to allow both, the accused and the victim of the crime, to understand the reasons behind the verdict.Saric v. Denmark (dec.), Taxquet v. Belgium [GC] and Lhermitte v. Belgium [GC].

 

The Court noted that the prohibition of arbitrariness could be achieved through different means, such as judicial instructions to the jury; counter-intuitive proof; a list of questions to be answered by the jury as to the basis of their verdict; and the possibility to annul the verdict when it was manifestly contrary to the evidence produced in the proceedings. The Court concluded that such safeguard mechanisms were not reflected in the law in force at the time of the events. Furthermore, it found that the verdict of innocence could not be foreseen by the victims, as it did not show the correlation between the facts, the elements of the evidence described in the accusation and the evidence received during the proceedings.

 

Conclusion: violation (unanimously).

 

Reparations - The Court established that the court constituted per sea form of reparation and ordered, among others, that the State: (i) determine, through the competent public institutions, the possible responsibilities of the officials who contributed with their actions to the commission of acts of revictimisation and institutional violence; (ii) pay the amounts established as expenses for medical, psychological and / or psychiatric treatment; (iii) adopt, implement, monitor and oversee three standardized protocols in matters involving children and adolescents victims of sexual violence: a) protocol on investigation and guidelines for conducting criminal proceedings; b) protocol on comprehensive care and medical assessment, and c) protocol on comprehensive care for support services; (iv) create and implement the figure of a specialized free public defender for children and adolescents, especially for cases involving sexual violence; (v) adopt and implement permanent training courses for public officials who work in matters of sexual violence; and (vi) pay pecuniary and non-pecuniary damages, as well as costs and expenses.

 


Resumen Español (URL)

(As regards the ECHR case-law, see Saric v. Denmark (dec.), 31913/96 , 2 February 1999; Taxquet v. Belgium [GC], 926/05, 16 November 2010,Information Note 135 ; and Lhermitte v. . Belgium [GC], 34238/09, 29 November 2016 Information Note 201 )