64
other requirements, in the course of a criminal investigation for rape: i) the victim’s
statement should be taken in a safe and comfortable environment, providing
privacy and inspiring confidence; ii) the victim’s statement should be recorded to
avoid the need to repeat it, or to limit this to the strictly necessary; iii) the victim
should be provided with medical, psychological and hygienic treatment, both on an
emergency basis, and continuously if required, under a protocol for such attention
aimed at reducing the consequences of the rape; iv) a complete and detailed
medical and psychological examination should be made immediately by appropriate
trained personnel, of the sex preferred by the victim insofar as this is possible, and
the victim should be informed that she can be accompanied by a person of
confidence if she so wishes; v) the investigative measures should be coordinated
and documented and the evidence handled with care, including taking sufficient
samples and performing all possible tests to determine the possible perpetrator of
the act, and obtaining other evidence such as the victim’s clothes, immediate
examination of the scene of the incident, and the proper chain of custody of the
evidence, and vi) access to advisory services or, if applicable, free legal assistance
at all stages of the proceedings should be provided.
195. In the present case, in addition to the facts that the State has
acknowledged (supra paras. 16 and 18), the Court finds that, inter alia, the
following omissions and errors in the investigations have been proven:
i)
An official of the Civil Public Prosecutor’s Office did not want to
receive Mrs. Fernández Ortega’s complaint; this situation required the
intervention of another government employee to ensure that the former
complied with his legal obligations;219
ii)
Mrs. Fernández Ortega, who did not speak Spanish at the time of the
incident, was not provided with an interpreter, but had to be assisted by an
acquaintance. In the Court’s opinion this was inappropriate to respect her
cultural diversity; to ensure the quality of the contents of the statement,
and to duly protect the confidentiality of the complaint;220
iii)
It was not guaranteed that the complaint for rape could be made
respecting the minimum requisites of consideration and privacy due to a
victim of this type of offense; to the contrary, it was made in a place where
members of the general public were present, and there was even the
possibility that the victim could have been overheard by people she
knew;221
iv)
The scene of the crime was not examined immediately, but took
place 12 days after the complaint was filed.222 In addition, there is no record
that the authorities in charge of the investigation collected or adopted
arrangements to collect direct evidence with regard to other elements, such
as the clothes that Mrs. Fernández Ortega was wearing on the day of the
incident;
219
Cf. Sworn statement of Mr. Lugo Cortes before a public notary, supra note 67, folio 1534.
Likewise, see also, sworn statement of Mrs. Fernández Ortega before a public notary, supra note 62,
folios 948 to 957; sworn statement of Mrs. Eugenio Manuel before a public notary, supra note 72, folio
1152, and Statement of Mr. Prisciliano Sierra before a public notary, supra note 66, folio 1501).
220
Cf. Expert opinion by expert Hernández Castillo rendered at the public hearing, supra note 114.
221
Cf. Sworn statement of Mr. Lugo Cortes before a public notary, supra note 67, folio 1534.
Likewise, see also, sworn statement of Mrs. Eugenio Manuel before a public notary, supra note 72, folio
1152; statement of Mrs. Fernández Ortega before a public notary, supra note 62, folios 948 to 957, and
sworn statement of Mr. Prisciliano Sierra before a public notary, supra note 66, folio 1501.
222
Cf. Certificate of site visit issued by the Common Public Prosecutor’s Office, supra note 147,
folios 6846 to 6848.
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