Report No. 3 (2009) IACHR. Petition No. 4408-02 (Nicaragua)

• Report Number: 3
• Year: 2009
• Petition Number: 4408-02
• Respondent State: Nicaragua
• Court: Inter-American Comission of Human Rights
• Case Type: Admissibility
• Alleged Victim: V.R.P. y V.P.C.

REPORT Nº 3/09 PETITION 4408-02 ADMISSIBILITY V.R.P. and V.P.C. NICARAGUA February 11, 2009 I.SUMMARY 1.On October 28, 2002, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “IACHR” or “the Inter-American Commission”) received a petition lodged by Mrs. V.P.C. (hereinafter “the petitioner” or “V.P.C.”), the mother of V.R.P. (hereinafter “the alleged victim” or “V.R.P.”), in which they allege the international responsibility of the S. of Nicaragua (hereinafter “the S.,” the “S. of Nicaragua,” or “the Nicaraguan S.”) for irregularities and the failure to render a final judgment in the criminal proceedings instituted on November 20, 2001 for the crime of rape allegedly perpetrated against the child V.R.P, aged nine. 2.The petitioner alleges that the facts denounced constitute violation of Articles I, II, III, IV, V, VI, VII, VIII, XVIII, XXIV, and XXX of the American Declaration of the Rights and Duties of Man (hereinafter “the American Declaration”); Articles 1, 2, 5(1) and (2), 7(1), 8(1), 11, 12(1) and (2), 13(1), 17(1), 19, 24, and 25 of the American Convention on Human Rights (hereinafter the “American Convention” or “the Convention”); Articles 2.c, 3, 4.b, c, d, e, f, and g, 5, 6.a, 7.a, b, e, f, and h, 8.b and f, 9, and 10 of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (hereinafter the “Convention of Belém do Pará”), and Articles 1, 2.1 and 2, 3.1 and 2, 5, 6, 12.2, 14.3, 15, 16.1 and 2, 17, 19.1 and 2, 20.1, 24.1 and 2, and 27.1 and 2 of the United Nations Convention on the Rights of the Child (hereinafter “Convention on the Rights of the Child”), to the detriment of V.R.P and her mother V.P.C. The petitioner alleges irregularities in the criminal proceedings instituted on November 20, 2001 for the rape of the child V.R.P., which have resulted in impunity for the facts denounced since, to date, the Nicaraguan judiciary has not rendered a final judgment. 3.The S. denies the allegations of irregularities in the proceedings, arguing that the A. General’s Office has participated fully and actively therein as a representative of the victim and of society. It states that all authorities approached by the petitioner responded to her, although not always in her favor, where the law was not of assistance to her, and that the length of the proceedings stems from multiple incidentes de nulidad [motions to vacate based on procedural violations], appeals, objections, and reposiciones de autos [applications for reconsideration] filed by both parties with the courts. 4.W. prejudice to the merits, and having analyzed the available information and determined fulfillment of the admissibility requirements contained in Articles 46 and 47 of the American Convention, and Articles 30 and 37 of its Rules of Procedure, the IACHR concludes herein that the petition is admissible, with regard to V.R.P., in connection with the alleged violation of the right enshrined in Articles 5(1), 8(1), 11, 19, 24, and 25 of the American Convention, in conjunction with Articles 1(1) and (2) of said instrument, and with the alleged violation of Article 7 of the Convention of Belém do Pará; and, with regard to V.P.C, of Articles 5(1), 8, and 25 of the American Convention, in conjunction with Article 1(1) of said instrument. The Commission decides to inform the parties of this decision, to publish it, and to include it in its Annual Report to the General Assembly of the Organization of American S.s. II.PROCESSING BEFORE THE COMMISSION 5.The petition was received on October 28, 2002 and assigned number P-4408-02. On December 7 2004, the Commission forwarded to the S. the relevant parts of the petition setting a period of two months for reply, in accordance with the provisions of Article 30(2) of the Rules of Procedure of the Inter-American Commission on Human Rights (hereinafter “Rules of Procedure”). A reply was received from the S. on February 9, 2005 and, on February 14, 2005, it submitted an addendum to its initial reply. 6.The IACHR also received information from the petitioner on the following dates: September 27, 2005, M.7., 2006, October 17, 2006, A. 25, 2007, and September 11, 2007. These communications were duly forwarded to the S.. 7.A., the IACHR received observations from the S. on the following dates: A. 22, 2005, November 4, 2005, and J. 2, 2007. Said communications were duly forwarded to the petitioners. III.POSITIONS OF THE PARTIES A.Position of the petitioners 8.The petitioner states that her daughter V.R.P., aged 9, was sexually abused on two occasions by her father, H.R.A.. S. states that on October 16, 2001 she and her daughter went to a hospital because the child could not control her bowels and the pediatrician stated that the child had polyps near the rectum, subsequently finding through a biopsy that V.R.P. had contracted the Human Papilloma Virus. 9.The petitioner reports that, on that occasion, the child said that on September 14, 2000, her father had taken her to the “Las F.” farm, had given her coffee, taken her to the woods, and that afterwards she did not know what her father had done with her because she fell asleep, and that on October 1, 2000, her father had again taken her to “Las F.,” this time to a house under construction, and had given her coffee to drink, and she felt dizzy and fell asleep. On awakening, she saw that her father was fastening his belt, straightening the front of his pants, zipping his zipper, and cleaning her rectal area. S. also alleges that she felt a great deal of pain. The petitioner states that the child had not told her of these facts because she was afraid they would scold her. 10.U learning of the facts related by her daughter, the petitioner states that on November 20, 2001, she filed a criminal complaint for rape against H.R.A with the Jinotega District Criminal Court. Regarding domestic remedies, she reports that on November 30, 2001, an arrest warrant was issued for H.R.A and that on December 3, 2001, the representatives of H.R.A. filed an appeal against this decision. On A. 13, 2002, the Tribunal de Jurado [Jury Court] issued Verdict No. 33, acquitting H.R.A and on A. 14, 2002 the petitioner filed an incidente de nulidad sustancial [motion to vacate based on substantive procedural violations] against this judgment. On May 13, 2002, the acquittal was declared void and, the next day, H.R.A.’s defense filed an appeal against the latter decision. 11.The petitioner states that on J. 13, 2003, in Judgment No. 001, the Appellate Court upheld the judgment in the appeal lodged by H.R.A declared the absolute substantive nullity of the interlocutory order of May 13, 2002, and ordered the S.J. a quo to release the accused and to open for evidence the incidente de nulidad. S. states that, in that same judgment, the Appellate Court “sharply called to order” the J. “for her highly irregular conduct” and ordered that the case be heard by the S.J.. S. states that after Judgment No. 001 was issued, five judges were disqualified from hearing the incidente de nulidad, and, after numerous steps taken by the petitioner, on J. 13, 2005, a judge assumed jurisdiction. 12.S. reports that on August 9, 2005, the Jinotega District Criminal Court issued Judgment Nº 176, disallowed the incidente de nulidad sustancialthat had been filed against the acquittal of H.R.A. by the Jinotega Jury Court (Verdict No. 33). The petitioner alleges that, on August 26, 2005, both she and the Jinotega Assistant Prosecutor filed an appeal against this decision, without thus far a judgment having been rendered in that connection. 13.The petitioner states that a series of irregularities, omissions, and delays occurred during the criminal proceedings against H.R.A. that constitute violations of the rights enshrined in the American Convention; that the higher interest of the child was not taken into account, in contravention of the provisions of the Code on Children and Adolescents,[10] and that justice in the instant case has been delayed because no final judgment has been rendered in the proceedings that began with the criminal complaint she filed on November 20, 2001. 14.In that connection, she states that the Special Prosecutor for Children and Adolescents of Nicaragua investigated the case and found that “there is virtual impunity in connection with the crime perpetrated against the child V.R.P. ( ), despite the fact that she has unquestionably and incontrovertibly stated who her victimizer was.” S. adds that the Office of the Prosecutor for the Defense of Human Rights investigated the case, determined that irregularities had occurred in the proceedings, and concluded that Verdict No. 33 acquitting Mr. H.R.A., issued by the Jinotega Jury Court “from any perspective is unjust and violates the human rights of the child with regard to her physical, psychological, and sexual integrity, her protection under the law, and her special protection ( ) as well as all rights contained in the Code on Children and Adolescents ( ) [and] the HIGHER INTEREST of the child was not taken into account.” 15.With regard to the steps ordered during the trial, the petitioner reports that the Prosecutor General’s Office was not present at the reconstruction of the facts at “Las F.” farm. S. adds that V.R.P. was taken to the place of the facts in the presence of H.R.A. and the [female] judge ordered her to indicate the place where she was raped, as well as the position in which the accused placed her on that occasion, while she was photographed, which made the child burst into tears.; 16.The petitioner alleges that although Forensic Report N° 16273/01 regarding V.R.P. concluded that...