The Asian Legal Resource Centre (ALRC) and the Transcultural Psychosocial Organization (TPO Nepal) have prepared this report in relation to the upcoming second cycle of Universal Periodic Review (UPR) to be held on 4 November 2015. It presents the institutional and legal realities of torture and ill-treatment in Nepal.
Since the 2011 UPR on the human rights situation in Nepal, there have been significant positive developments in law and policy. But very limited positive impact has been seen in terms of reduction of torture and ill-treatment in the country.
After a decade-long conflict in Nepal (1996-2006), the number of torture incidents have declined, but the methods of torture that continue are no different from those perpetuated at the time of conflict. Torture is still widely practiced in the country. Some of this arises from conflict due to political instability. However, on the whole, torture and ill-treatment in Nepal takes place today in a general context of multiple and inter-connected human rights violations that are primarily committed by the police and other security personnel in custody.
Generally, there are two types of torture: a) Physical and b) mental torture. The reasons for torture by public officers, particularly those involved in law enforcement and security, are: 1) to garner confession or admission to crime; 2) to intimidate victims / suspects; 3) to extort bribes from victims / suspects and 4) to get information from suspects.
More than a hundred thousand people suffered human rights violations and torture during the conflict era, but many could not raise their voice due to intimidation or fear of intimidation by belligerents on both sides. After the peace agreement in 2006, and the election of the Constituent Assembly, there was increased level of hope for the victims of torture, who started to speak out regarding their physical and mental trauma and suffering. This, however, has come to no avail.
On one hand, victims of torture during the conflict era, who are living with persistent physical and mental problems, are still being denied justice; on the other hand, the perpetrators continue to live in the country, or even within the same community, with total impunity. Furthermore, the impact of torture on victims and their families includes loss of family income as a result of death; physical and mental disability from the psychological trauma faced by the survivors and families of victims of torture; poor economic situation due to high medical expenses borne by survivors of torture for long periods of time. Social stigma and re-intimidation has also been a major problem that is being faced by victims and their families.
Nepal has not taken any initiative in either preventing torture or rehabilitating victims. Instead the authorities have always denied torture incidents and have been seeking to escape responsibility. Due to the lack of a proper system for the prevention of torture, torture and injustice will continue in Nepal for the foreseeable future.
In recent years, the Asian Human Rights Commission (AHRC), sister organization to the ALRC, along with TPO Nepal, has documented cases of torture during the conflict era (1996-2006) and beyond. In 2015 alone, ten incidents of torture have been documented by the AHRC, ALRC’s sister organization.
The following brief note outlines three fundamental obstacles to fight against torture and ill-treatment in Nepal and submits three related recommendations.
1) Legal Framework for the Criminalization of Torture
Previous UPR Recommendations
During the first reporting cycle of the UPR (2011), Nepal received recommendations to enact specific legislation in domestic law to criminalize the offence of torture, which is fully compliant with the requirements of the CAT. Nepal has accepted these recommendations.
The interim constitution of Nepal 2007, Article 26, had a provision regarding torture. Recently, on 20 September 2015, Nepal promulgated a new Constitution through the Constituent Assembly for the first time. The new Constitution, Article 22, also has provisions regarding the right against torture.
According to Article 22 (1) “no person who is arrested or detained shall be subjected to physical or mental torture or to cruel, inhuman or degrading treatment”. Any act referred to in clause (1) shall be punishable by law, and any person so treated shall be provided with such compensation as determined by the law.
However, Nepal is yet to enact a comprehensive law on the criminalization and prohibition of torture. Recently, the government of Nepal tabled legislation in Parliament related to torture, but it failed to discuss the same with civil society, victims of torture, and other stakeholders. It is not sure if the legislation will be enacted by the Parliament on time. Even if Parliament enacts the anti-torture legislation, there is ambiguity regarding whether the victims of torture can get justice under this legislation.
The existing compensation related to the Torture Act, 1996, has failed to provide justice for victims of torture. Thousands of victims of torture during the conflict are denied justice. The lack of a comprehensive law of torture hinders holding other public officers accountable for acts of torture, cruel, inhuman, and degrading treatment.
These concerns of rampant impunity in Nepal can be addressed through the adoption of comprehensive legislation compatible with CAT convention, and with the criminalization of torture. The Home Ministry of Nepal developed the Anti-Torture Bill, 2015. The Bill has been tabled in Parliament. However, concerns remain that, so far, the government has not prioritized the legislation.
What steps are being taken by Nepal government to enact new anti-torture law, ensuring the criminalization of torture in the draft Bill?
- State should enact a comprehensive anti-torture law that includes provisions for criminalization, investigation, prosecution, and punishment, as well as full reparation for victims.
2) Legal Framework for the prevention of Torture
Previous UPR Recommendation:
During the first reporting cycle of the UPR (2011), Nepal received recommendations to take all steps available for the prevention of torture and ill-treatment and the ratification of optional protocol of the CAT convention. The Nepal government has rejected this recommendation.
The interim constitution of Nepal 2007 did not have any provisions regarding the prevention of torture. Although the Constitution of Nepal, 2015, ensures the right against torture, but there is no such provision regarding the prevention of torture. The Nepal government drafted the anti-torture Bill and tabled it in Parliament; this draft Bill also did not mention any kind of provision regarding the prevention of torture.
The government of Nepal does not have any kind of program on prevention of torture. On the one hand, the government of Nepal denied that it has ratified the Optional Protocol of CAT Convention (OPCAT) and on the other hand, there is no national mechanism on the prevention of torture.
What steps is Nepal taking to prevent the torture and to develop torture prevention mechanism?
1. The Nepal government should ratify the OPCAT as well as enact preventive mechanism.
2. Nepal government should develop impartial and effective preventive mechanisms within the country.
3) Accountability and Reparation for Torture and Ill-treatment
Previous UPR Recommendations
During the first reporting cycle of the UPR, Nepal did not receive recommendations needed for the accountability of perpetrators and reparation for the victims of torture and ill-treatment.
Accountability for state and public officers is one of the key pillars to ensure justice for victims. During the decade long conflict and beyond, thousands of allegations of torture and ill-treatment emerged, but to date none of the perpetrators has been prosecuted in relation to these allegations of torture.
The Constitution of Nepal 2015 has the provision of the right to compensation for the victims of torture, but there is no provision for restitution and reparation for such victims. None of the victims of torture and their families has been awarded any sum. In some cases of torture, the court has awarded up to NRs 100,000 in damages for cases of torture; however the recipients will have to wait longer, as there has been no budget to pay such compensation.
This only affirms the reluctance of the State to deal with the menace of torture and ill-treatment in Nepal and puts the victims at a further disadvantage.
What steps is Nepal taking to ensure the accountability and reparation for acts of torture and ill-treatment perpetrated by State / public officers?
1. The State should ensure that all complaints of torture are promptly, effectively, and impartially investigated in accordance with the Istanbul Protocol, and that perpetrators found guilty are prosecuted and punished.
2. The State should provide reparations to the victims and to the families of victims and survivors of torture and ill-treatment, and ensure that appropriate rehabilitation services are available and easily accessible to all victims.