to 353). Likewise, in cases in which sexual abuse is alleged, the lack of medical evidence does not
take away from the truth of the presumed victim’s allegations. 475
334. Consequently, the Court finds that the information revealed by the medical examination
does not contradict the versions given by Ms. J.; rather, to the contrary, it is consequent with her
allegations. Furthermore, the fact that no other examinations were performed to verify the
occurrence of the ill-treatment described can be attributed to the State and cannot be used to
disprove what the presumed victim has indicated.
C.2.4) The testimony of the prosecutor of the Public Prosecution Service
335. The State based part of its defense with regard to the ill-treatment described by Ms. J. on
the fact that, at the time of the arrest, the prosecutor of the Public Prosecution Service, Magda
Victoria Atto Mendives, was present to ensure the rights of Ms. J. (supra para. 311). During the
public hearing Ms. Atto testified that:
[She] entered first [in order] to ensure the legality of the action. Then the police personnel entered and there is
always subjugation, efforts to evade this, efforts to flee, efforts to escape. Then, in [that] context, the police
personnel have to […] subjugate, but without the intention, let’s say, to be violent; it’s an instinctive reaction. 476
336. In relation to the arrest of Ms. J., she indicated that the presumed victim “was never
abused” during her transfer to the DINCOTE, and that she “always ensure[d] the integrity of the
individuals, [and that Ms. J.] was never blindfolded.” She also assured that, “in all the actions that
[she] took part in as deputy terrorism prosecutor, the integrity of the individual was always
respected.” Regarding whether there was any type of sexual abuse or rape, she stated that:
At no time, because, in the records, [the parties] have, let’s say, the privilege, […] to be able to report, through
me, any anomalous situation that occurs and, as you will see, and I can ratify this, there was no situation of this
type either. I was not informed; I was not advised [that she was being] subjugated, [or that she was being]
abused, nothing at that time. 477
337. First, the Court notes that the witness is unclear as to whether or not any type of violence
was used when conducting the search of the building and subsequent arrest of the presumed
victim. On the one hand, Ms. Atto Mendives indicated that “there was no violence in this specific
case”; then, when questioned in this regard, she clarified that “there is also repression, reaction;
people try to fend off or attack.” The witness did not specify whether that reaction had occurred in
this case, or what actions the police took to achieve the arrest; nor did she indicate that Ms. J. had
tried to escape when she was arrested (supra para. 331). Second, the Court notes that the witness
based her answer that Ms. J. had not undergone any sexual assault on the fact that the presumed
victim had not told her so that it would appear in the record. The Court points out that the search
record is not signed by Ms. J. and, according to the statement of the presumed victim, she “was
Reports of Judgments and Decisions 1998-IV; Türkan v. Turkey, no. 33086/04, § 43, 18 September 2008, and Korobov v.
Ukraine, no. 39598/03, § 68, 21 July 2011.
475
Cf. Testimony of Patricia Viseur Sellers during the public hearing held in this case. See also, International Criminal
Tribunal for Rwanda, The Prosecutor v. Jean-Paul Akayesu, Judgment of 2 September 1998, Case No. ICTR-96-4-T, paras. 134
and 135; International Criminal Tribunal for the former Yugoslavia, The Prosecutor v. Anto Furundzija, Judgment of 10
December 1998, Case No. IT-95-17/1-T, para. 271; International Criminal Tribunal for the former Yugoslavia, The Prosecutor v.
Tadić, Judgment of the Appeals Chamber, 15 July 1999, Case No. IT-94-1-A, para. 65; International Criminal Tribunal for the
former Yugoslavia, The Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo (“Celebici camp”), Judgment of
the Appeals Chamber, 20 February 2001, Case No. IT-96-21, paras. 504 and 505. Similarly, Article 96 of the Rules of Procedure
and Evidence of the International Criminal Tribunal for the former Yugoslavia and of the International Criminal Tribunal for
Rwanda establish that, in cases of sexual assault “no corroboration of the victim’s testimony shall be required.”
476
Statement made by Magda Victoria Atto Mendives during the public hearing held in this case.
477
Statement made by Magda Victoria Atto Mendives during the public hearing held in this case.
99
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