Nepal: Serious challenge to the justice system

OMCT and AF are gravely concerned about the systematic use of torture and ill-treatment by law enforcement officials in Nepal, particularly as a way to extract a confession or to obtain information from alleged suspects, including children, in clear violation of Nepal’s obligations under international human rights law. Over the last months, OMCT and AF have documented, several cases of torture and ill-treatment, including deaths in custody, such as the recent case of Mr. Sanu Sunar. Mr. Sunar, a permanent resident of Godawari, Bhaktapur, and temporarily living in Patan, Lalitpur district, was arrested on suspicion of swindling a local person. He died in hospital, on 24 May 2010, due to alleged torture and ill-treatment by police officers of Metropolitan Police Circle, Kalimati. At the same time, the aforementioned police tried to cover up their crime by accusing another person, who now faces murder charges. Unfortunately, this case is only one of many examples, which illustrate an unlawful practice of the police.

OMCT and AF are also alarmed about the situation of children arrested and detained in Nepal. Whilst laws exist to protect children from the use of violence by police and security forces, namely the Children Act 1992 and the Juvenile Justice (Procedures) Regulations - 2006, in practice they are rarely implemented. According to information collected by AF, an average of 22.3% children detainees are tortured or ill-treated by police and approximately 99% children detained are currently held in adult facilities in direct contravention of both international standards, including the UN Convention on the Rights of the Child, and the Nepalese Supreme Court directives.

Although there is a positive trend overall in that the numbers of children tortured is gradually coming down, the reverse is happening in the Terai region, and especially where the Government has implemented the Special Security Plan (SSP). AF has witnessed a steady increase in torture of children, especially in Dhanusha, Morang, Udayapur and Kapilvastu districts. Children have reported being brutally beaten on all parts of their body with canes, pipes and rifle butts; having their fingernails squeezed with pliers, being beaten on the soles of their feet with sticks or plastic pipes before being forced to run and jump and receiving threats not only to sever their limbs but also to kill them if they do not confess or sign the doctored statements.

Even though the 2007 Interim Constitution of Nepal established torture as a criminal offence, this constitutional provision has not been implemented in practice since no bill providing for criminal penalties has been ever passed by the Nepali legislature. Therefore, human rights abuses of this nature continue to be carried out with impunity, especially by the state security apparatuses.

Furthermore, most documented cases are not properly investigated by the authorities, and even when an investigation is conducted, perpetrators do not receive adequate disciplinary or penal sanctions as national laws fall short of international standards.

OMCT and AF recall that, in line with their obligations under the UNCAT, it is incumbent on the competent Nepalese authorities to ensure that acts of torture, cruel, inhuman and degrading treatment and punishment are all clearly defined in domestic law as criminal offences in accordance with the provisions set out in Articles 1, 4 and 16 of the Convention and as explained by the Committee on Torture in particular in its General Comment No. 2. [1] It is also provided that these acts shall be made punishable with appropriate penalties which take into account the grave nature of the crimes. Therefore, and in light with the recommendations formulated by the UN Committee against Torture when it examined Nepal in 2005, OMCT and AF call on the Government of Nepal as a matter of urgency to take all necessary measures to bring its relevant national legislation into compliance with the UNCAT.

Also, given the current situation and to ensure that investigations are indeed conducted effectively, Nepal should establish an independent body to investigate acts of torture and ill-treatment committed by law enforcement personnel. By doing so, the authorities of Nepal would send a clear message to the law enforcement officials that torture and other forms of ill-treatment are absolutely prohibited at the risk of investigation, as well of disciplinary and penal sanctions.

On this day dedicated to the victims of torture and other forms of ill-treatment, both organisations remind the Government of Nepal that the victims concerned, including children, 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. In the present situation, however, which is characterized by a climate of persisting impunity, victims of such practices fail to obtain justice. Yet justice is instrumental in the restoration of victims' dignity.

For purposes of remedying this situation of injustice, OMCT and AF call on the Government of Nepal to take the necessary steps to effectively implement the UNCAT, as well as to immediately sign and ratify the Optional Protocol thereto.

Contact:
Advocacy Forum – Nepal: Mandira Sharma, Executive Director, Tel. 44 15 789/ 44 15 646/ 44 26 698, Cell: +9851048475
OMCT: Eric Sottas, Secretary General, Tel. +41 22 809 49 39

Please join Advocacy Forum’s Campaign “Stop Child Torture” by signing its petition (www.ipetitions.com/petition/stopchildtorture)

[1] 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, General Comment No 2 on “Implementation of article 2 by States parties”, § 6, to be found at:

http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/402/62/PDF/G0840262.pdf?OpenElement