Follow-up of case NPL 230709_No appropriate sanctions imposed on the alleged perpetrators of the acts of torture and other ill-treatment inflicted upon Mr. Sushan Limbu and Mr. Bhakta Rai

Allegations of torture and other forms of ill-treatment/ No appropriate sanctions imposed on the alleged perpetrators/ Impunity

The International Secretariat of the World Organisation Against Torture (OMCT) has received new information and requests your URGENT intervention in the following situation in Nepal.

New information

The International Secretariat of OMCT has been informed by a reliable source, that Mr. Sushan Limbu, a 23-year-old resident of Urlabari VDC-2, in Morang district, who was subjected to torture and other forms of ill-treatment during his detention in July 2009 at Area Police Office, Urlabari, Morang District, is currently detained in District Branch Prison, in Morang District. He is reportedly no longer at risk of torture and other ill-treatment (see background information). As for Mr. Bhakta Rai, Mr. Sushan Limbu’s friend who was also detained in July 2009 on charges of Public Offence, he was released, on 28 July 2009, on ordinary bail after paying RS. 20.000 (twenty thousand Nepalese rupees). However, OMCT has also been informed that no appropriate disciplinary and penal sanctions have been imposed on the alleged authors of the acts of torture and other ill-treatment inflicted upon Mr. Sushan Limbu and Mr. Bhakta Rai.

According to the information received, on 2 August 2009, Mr. Sushan Limbu was admitted to Koshi Zonal Hospital in order to undergo surgery on his broken fingers caused by the torture and ill-treatment. Mr. Sushan Limbu remained at the hospital for six days.

According to the same information, on 17 September 2009, Advocacy Forum, a human rights organisation, tried to register, on behalf of Mr. Sushan Limbu’s family, a complaint under the Torture Compensation Act (TCA)[1] with the Morang District Court. However, the Court’s registrar refused the registration arguing that the 35 days time limit to submit a complaint had expired, although, according to the TCA, the 35 days time limit does not apply when an alleged victim is deprived of his liberty. The registrar also reportedly threatened that the police would take action against Mr. Sushan Limbu, if the family persisted in filing a complaint.

On 26 October 2009, the Police Human Rights Cell informed Advocacy Forum that it had investigated the facts of the complaint and summoned the Officer-in-charge and other police officers allegedly involved in the ill-treatment carried out at the Urlabari Area Police Post. The police officers were reportedly identified on the basis of video recordings and pictures taken during the events and testimonies of eyewitnesses. The Human Rights Cell subsequently recommended that disciplinary sanctions be taken against the relevant police officers. However, according to the information received, the Legal Section of the Police Headquarters only issued sanctions in the form of a warning based on Police Regulation 1993, Unit-9.

According to the same information, on 9 November 2009, an Advocacy Forum representative from Kathmandu went to Morang prison to meet Mr. Sushan Limbu. On this occasion Mr. Limbu reportedly said that he still wanted to register a case under the TCA as well as to take action against the police officers involved in the ill-treatment, but that he would rather wait as he was still afraid of the police and the Chief District Officer.

With regard to Mr. Bhakta Rai, on 3 August 2009, he reportedly requested Advocacy Forum to register a case under the TCA, which Advocacy Forum also did on 4 August 2009, before the District Court, Morang. His case is reportedly currently pending before the court. He also reported to Advocacy Forum, that he was using medicines due to the injuries sustained, but no further details about his health condition were provided.

While OMCT welcomes the fact that Mr. Sushan Limbu and Mr. Bhakta Rai are no longer at risk of torture and other forms of ill-treatment, it is gravely concerned that, although an investigation seems to have been conducted into the facts, no adequate disciplinary and penal sanctions were imposed on the alleged authors of the torture and other ill-treatment inflicted upon Mr. Sushan Limbu and Mr. Bhakta Rai. OMCT fears that this is yet another example of the lack of will by the authorities to send a clear message to the law enforcement officials that torture and other forms of ill-treatment are absolutely prohibited under pain of an investigation as well of disciplinary and penal sanctions.

OMCT recalls that Nepal is a State party to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights, which both prohibit torture and other cruel, inhuman or degrading treatment or punishment. In line with their obligations under the Convention against Torture, it is incumbent on the competent authorities to ensure that acts of torture, cruel, inhuman and degrading treatment and punishment are all clearly defined in law as offences in accordance with the provisions set out in Articles 1, 4 and 16 of the Convention and shall be made punishable with appropriate penalties which take into account the grave nature of the crimes.[2]

Furthermore, it is incumbent on the competent authorities to consider seriously any allegations of torture and other forms of ill-treatment, to undertake a prompt, effective, thorough, independent and impartial investigation in this regard in order to identify all those responsible, bring them to trial and apply adequate sanctions.

Finally, OMCT recalls that the victims of torture and other forms of ill-treatment must be ensured the right to an effective remedy for the human rights violations suffered as well as the right to full redress, including compensation and rehabilitation.

Background information

OMCT had earlier been informed about the torture and ill-treatment inflicted upon Mr. Sushan Limbu and Mr. Bhakta Rai in police custody at Urlabari Police Station, Morang District. OMCT feared for their safety.

On 12 July 2009, Mr. Sushan Limbu was reportedly arrested by police allegedly for non payment of a hotel bill and taken to the Urlabari Area Police Office in Morang district. On 13 July 2009, at around 7am, Mr. Sushan Limbu was beaten, along with his friend, Mr. Bhakta Rai, who had gone to the police station to inquire about Mr. Sushan Limbu. They were ill-treated for about one hour inside the detention cell. They were then taken to a public place outside the police post where they were allegedly stripped to their underwear and beaten with iron rods, kicked with boots and punched by two policemen. They were then forced to crawl on their knees and elbows on a pebble and concrete surface. Many witnesses reportedly saw the scene and recorded the events on their mobile phones. Mr. Sushan Limbu reportedly sustained wounds in his right eye, face, elbow, knees, the buttocks and neck.

According to the same information, Mr. Sushan Limbu and Mr. Bhakta Rai were prevented to see their families. The police took both of them to the Urlabari primary healthcare treatment centre but they were examined in presence of the police and were not prescribed any medicines. Only after the family and relatives of Mr. Sushan Limbu pressured the police, was Mr. Sushan Limbu reportedly brought to Birat Nursing Home, in Biratnagar, on 15 July 2009. However, according to the same information, while the doctors recommended his hospitalisation, he was taken back to the police station.

On 19 July 2009, Mr. Sushan Limbu’s sister filed an application for a writ of habeas corpus with the Appellate Court at Biratnagar on behalf of both victims, following which the Appellate Court ordered the Urlabari area police to present the victim within 24 hours with written responses. On 20 July 2009, the police reportedly brought both victims to Koshi Zonal Hospital for further treatment and then presented them before the Appellate Court.

However, on 21 July 2009, police reportedly submitted a detention order issued by the Chief District Officer to the court, indicting both Mr. Sushan Limbu and Mr. Bhakta Rai under the Arms and Ammunition Act and under the Public Offences Act. The Chief District Officer reportedly informed the Appellate Court that he extended the remand of both individuals to 24 hours after the police had brought them before him, following which the Appellate Court rejected the habeas corpus petition but ordered the police to have both detainees examined by a medical professional as well as to provide adequate medical treatment.

It was reported that the police collected signatures from local people, including politicians, to support the action of the police, stating that it was in view of stopping crime in the area.

OMCT had also been informed that human rights organisations, which visited both individuals in police custody on 15 July 2009, were threatened. Police also reportedly visited Mr. Sushan Limbu’s family and forcibly deleted the video footage of the public beating from their mobile phones.

According to the information received, on 28 July 2009, Mr. Sushan Limbu was brought before the District Administration Office (Chief District Officer) on charges under the Arms and Ammunition Act. The District Administration Office reportedly ordered his detention pending further investigation. On 30 July 2009, he filed an application with the Appellate Court to review this decision, but the Appellate Court dismissed his application, on 11 September 2009.

Action requested

Please write to the authorities in Nepal urging them to:

1. Guarantee, in all circumstances, the physical and psychological integrity of Mr. Sushan Limbu and Mr. Bhakta Rai, as well as of their families;
2. Re-order a prompt, effective, thorough, independent and impartial investigation into the reports of torture and other forms of ill-treatment, the result of which must be made public, in order to bring those responsible before a competent, independent and impartial tribunal and apply appropriate penalties as provided by law;
3. Guarantee that no evidence obtained under torture and other forms of ill-treatment, or threats thereof, be used in court proceedings against Mr. Sushan Limbu and Mr. Bhakta Rai as stipulated in Article 15 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
4. Ensure that an effective remedy, including the right to full redress with compensation and rehabilitation be granted to the victims concerned;
5. Ensure the respect of human rights and fundamental freedoms throughout the country in accordance with national laws and international human rights standards, in particular ensure that all acts of torture, and cruel, inhuman and degrading treatment and punishment are clearly defined in law as offences in accordance with the provisions set out in Articles 1, 4 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and that they be made punishable with appropriate penalties which take into account the grave nature of the crimes as required.

Addresses

• Home Minister, Mr. Bhim Rawal, Ministry of Home Affairs, Singha Darbar, Kathmandu, Nepal. Tel: +977 1 4211211 / 4211264, Fax: +977 1 42 11 232
• Inspector General of Police, Ramesh Chand (Thakuri), Police Head Quarters, Naxal, Kathmandu, Nepal, PO. Box No.: 407, Tel: +977 1 4 412 432, Fax: +977 1 4 415 593. Email: info@nepalpolice.gov.np
• Attorney General, Mr. Bharat Bahadur Karki, Office of Attorney General, Ramshahpath, Kathmandu, Nepal, Fax: +977 1 4262582, Email: attorney@mos.com.np, info@attorneygeneral@gov.np
• Chief of Human Rights Cell of police, Mr. Sarbendra Khanal, Human Rights Cell, Nepal Police, Kathmandu, Nepal PO. Box. No.: 407, Fax: +977 1 4415593 E-mail: hrcell@nepalpolice.gov.np
• Chairman of the National Human Rights Commission, Mr. Kedar Nath Uppadhya, Pulchowck, Lalitpur, Nepal; Email: nhrc@nhrcnepal.org and also complaints@nhrcnepal.org, Fax: +977 1 5547973
• Permanent Mission of Nepal, 81 rue de la Servette, 1201 Geneva, Switzerland, Fax: +4122 7332722, E-mail: mission.nepal@ties.itu.int

Please also write to the embassies of Nepal in your respective country.

Geneva, 11 December 2009

Kindly inform us of any action undertaken quoting the code of this appeal in your reply.

[1] TCA is a civil remedy, whereby the alleged victim can seize a court to get compensation. Consequently, the TCA neither defines torture as a crime, nor provides for criminal investigations against the alleged perpetrators of ill-treatment. It merely authorises the court to order that disciplinary sanctions be taken against the perpetrators, sanctions that remain an internal matter for the police (or army or Armed Police Force).

[2] According to UN Committee against Torture, “articles 3 to 15 [of the Convention against Torture] are likewise obligatory as applied to both torture and ill-treatment”, see UN doc, CAT/C/GC/2, § 6, to be found at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/402/62/PDF/G0840262.pdf?OpenElement