delay, of the detainee’s arrest, and by not informing him of his consular
rights as provided for under Article 36, paragraph 1(b), of the Convention.29
88. Accordingly, the Court holds that by failing to inform the Applicant of his right
to consular services, the Respondent State denied him the opportunity to
seek for consular assistance to facilitate his defence, thereby violating
Article 7(1)(c) of the Charter as read together with Article 36(1) of the VCCR.
iii. Allegation relating to the failure to consider evidence
89. The Applicant alleges that the Respondent State did not consider issues of
evidence concerning: the inconsistent testimonies of the prosecution
witnesses and evidence adduced by the prosecution but simply relied on
circumstantial evidence adduced by the victim’s family members.
90. The Applicant further alleges that the evidence adduced by PW1, is devoid
of merit because, the medical examination report (PF3) as reflected in
exhibit P1 is dated 3 November 2010 and yet the alleged rape took place
on 4 November 2010. He avers that the evidence adduced and corroborated
by the family members at the domestic courts, was circumstantial. The
Applicant avers that the medical examination report was expunged from the
record at the request of the prosecution, however the courts should have
considered the evidence of PW5 (Doctor) that seemed to indicate that there
was no rape.
91. The Applicant also avers that the age of the victim was not supported by
any documentary evidence such as a birth certificate and yet this was a
crucial matter that was overlooked by the courts since they did not consider
the demeanour of the victim, before and after the rape. He asserts that the
sexual intercourse was consensual and there was no rape as alleged by the
victim’s family. He further asserts that the victim succumbed to family
pressure to categorise the sexual intercourse as rape.
29
Jadhav (India v. Pakistan), Judgement, I.C.J Reports 2019, p. 418.
24
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