Rajendra Ghimire, Advocate, Supreme Court, Kathmandu, Nepal
Nepal is passing through a difficult time in its history. The present conflict has affected our society, communities, the national economy, the quality of governance, and the basic human rights of the people.
Reports of groups working in the field help us to know the situation of human rights in the country. A recently published report of Amnesty International reads
During the last 6 years of armed conflict in Nepal has been characterized by wide spread arbitrary arrests, unacknowledged detentions and disappearances at the hand of security forces. Since 1998, 622 cases of disappearance have been reported… while local human rights groups have recorded 1264 disappearance since the conflict began in 1996. Hundreds of people have been abducted by the CPN (Maoist).
[Amnesty International, “Nepal: Escalating disappearances amid a culture of impunity”, ASA 31/155/2004, p. 3]
In Nepal some of the most widely used forms of torture are: beating on soles of feet (falanga); random beating on the body; electric shocks; being hooded or blindfolded; rolling a weighed stick along the victim’s thighs causing muscle damage (belana); burning with cigarettes; and, forcing the detainee to stay awake and in a painful posture (for example, the ‘chicken posture’). Animals, insects and needles are also commonly used during torture. Other forms of torture applied to destroy the victim psychologically include threats, deprivation of food and drink, forcing the person to consume excreta, forcing upper-caste detainees to remove their sacred thread, long-term isolation, confinement in a dark room, and inflicting loud noise.
Nepal’s international commitments against torture
As a member of the United Nations and other international as well as regional organizations, Nepal is party to a large number of international instruments concerning human rights, which draw heavily on the principles of the 1948 Universal Declaration of Human Rights.
Nepal has been a state party of the International Covenant on Civil and Political Rights, and its optional protocol, since 14 May 1991. Article 7 of the Covenant reads that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. It also became a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1991. It submitted its initial report to the UN Committee against Torture in 1993, and a combined periodic report in 2004.
Legal measures at the national level
The Constitution of the Kingdom of Nepal arose out of a popular movement in the country in 1990. It reinstated multi-party democracy, guaranteeing a parliament, independent judiciary, fundamental rights, sovereignty, and a constitutional monarchy. It has fully accepted the principles of the rule of law, basic human rights, and constitutional supremacy in the country.
According to article 1 of the constitution, it is the fundamental law of the land and all laws inconsistent with it are void. Article 14 guarantees criminal justice rights. Article 14(4) prohibits any form of torture. It reads
No person who is detained during investigation or for trial or for any other reason shall be subjected to physical or mental torture, nor shall be given any cruel, inhuman or degrading treatment. Any person so treated shall be compensated in a manner as determined by law.
The fundamental right to be free from torture cannot be abridged or restricted under any circumstances under either international or domestic law.
The Torture Compensation Act 1996
The Torture Compensation Act of 1996 was promulgated to make appropriate legal provision for the effective implementation of article 14(4) of the constitution and the UN Convention against Torture. Its main objective is to compensate torture victims, not prosecute the perpetrators.
Following the constitution, the act prohibits torture and any other cruel, inhuman and degrading treatment outright. It has a provision for the mandatory check-up by medical personnel of the physical condition of an arrestee before putting the person under custody, as well as at the time of release. In the case such medical personnel are unavailable, the arresting authority itself can do the same. The commendable objective is to establish whether or not torture may have been inflicted while the person was in custody, which would be fruitful if carried out as intended.
Section 5(1) provides a statutory limit of 35 days for filing torture compensation from the date of release from detention or from the date of infliction of torture. The act also permits a family member and legal representative of a victim to file a petition in the victim’s name, thereby in principle allowing greater intervention by the courts, with the intention that the practice of torture be further mitigated.
Cases are heard in the district courts. If a court is satisfied with the claim, it may award up to one hundred thousand rupees in compensation, and order the concerned authority to take departmental action according to existing law against the government employee who committed the act.
Section 8 of the act has laid down some points that shall be taken into consideration while determining the amount of torture compensation. These are: physical or mental pain or suffering caused to the victim and its gravity; depreciation in income earning capability of the victim as result of torture; in case the physical or mental damage caused which cannot be treated, the victim’s age and responsibility to the family; and, estimated expenses required for treatment if the damage can be treated. In the case of death due to torture, the number of family members dependent upon the victim’s income and the minimum expenses needed for their livelihood should be considered, among other matters.
Section 9(1) of the act deals with the execution of decisions made by district courts. As per this section, after the decision to provide torture compensation to the victim is made, the victim or in case of his death, his nearest heir, shall submit an application to the Chief District Officer of the concerned district in which the victim was detained, accompanied by a copy of the court’s decision within one year of receiving information of the decision. Likewise, section 9(2) of the Act says that the Chief District Officer shall provide the amount of the compensation to the applicant within 35 days of the receipt of the application.
Section 10 of the act allows that the chief of the concerned office may request a government attorney to appear in court on behalf of the accused employee.
Section 13 provides power to His Majesty’s Government of Nepal to make the necessary rules for the purpose of implementing the act.
Weaknesses in the Torture Compensation Act
The definition of torture under section 2(a) of the Torture Compensation Act is not as wide as that contained in the UN Convention against Torture. Whereas torture is considered a crime against humanity and the Convention has obliged all parties to define the act of torture as a crime, under the law as it stands in Nepal, torture is not defined as a criminal offence. This is one of the major flaws of the act. It means that the state commits itself in principle to paying compensation and providing medical treatment, but is not serious about eradicating torture because without it made a crime, the perpetrator does not have to think twice before acting. So until now torture is a prohibited act in Nepal, but not a crime.
As complaints under the act are treated as civil cases, whether or not a case is filed is up to the victim. This contravenes the principle enumerated in the Convention that torture is a criminal act, sufficiently serious to attract the sanctions and prosecution of the state. There is also no provision under the act for protection of the victim and other witnesses, essential for effective redress in torture cases.
The provision that a government attorney should provide legal services to the accused and not the victim also goes against the principle of criminal law established under the Convention.
Another problem is the statutory limit for filing claims established under section 5(1) of the act. It is scientifically proved that the effects of torture come even a long time after the actual abuse. For example, to diagnose Post Traumatic Stress Disorder properly means assessing the victim over a period of four to six weeks. The statutory limit is too short, and should be extended on the basis of scientific facts.
Regarding the amount that may be awarded as compensation, article 14 of the Convention against Torture obliges state parties to provide fair and adequate compensation to allow for full rehabilitation in cases of torture. Article 14(4) of Nepal’s constitution has also provided that it is a fundamental right of a victim of torture while in detention to be compensated as prescribed by law. However, the upper limit on compensation that may be provided under the act is extremely low and inadequate. The act also does not mention a lower limit for compensation.
In light of all these problems, it is not surprising that the Centre for Victims of Torture in Nepal recently wrote that, “Conditions in Nepal are worsening, despite the introduction of special, but flawed, legislation to allow torture survivors to claim compensation.” At the time of writing, in total only 16 cases have been decided by the courts awarding compensation to a torture victim under the act. Until now, none of those victims has received the money from the government. There is also nothing in place to assess whether or not departmental action was taken against the perpetrators in those cases or whether they were left to carry on with business as usual.
Conclusion and recommendations
It is laudable that Nepal has prohibited any form of torture through its constitution and promulgated the Torture Compensation Act, but there are many things that need to be done to comply with the UN Convention against Torture and eradicate the practice from the country. Some of the necessary steps are to
1. Widen the definition of torture to meet with the requirements of the Convention against Torture.
2. Make all forms of torture, attempts to commit torture and acts through which any person constitutes complicity or participation in torture criminal offences by domestic law and lay down appropriate penalties for the perpetrators.
3. Extend the statutory limit on filing cases.
4. Increase the upper limit for monetary compensation, and establish a lower limit.
5. Remove the provision allowing a perpetrator to be defended by a government attorney and instead introduce a provision for the giving of legal services to victims.
6. Introduce a provision for the protection of victims and witnesses in torture cases.
7. Establish a provision for the prompt and impartial investigation of torture complaints by an independent authority as required by article 12 of the Convention against Torture.
Appendix: Torture Compensation Act 2053 B S (1996)
An Act to provide for compensation to a person who has been tortured while in detention.
Preamble: Whereas it is essential to provide for compensation to a person for having been subjected to physical or mental torture or cruel, inhuman or degrading treatment while in detention for investigation or awaiting trial or for any other reason.
Be it enacted by parliament in the twenty-fifth year of reign of His Majesty the King Birendra Bir Bikram Shah Dev.
1. Short title and commencement
(1) This act may be called the “Torture Compensation Act 2053 ”
(2) This act shall enter into force immediately.
In this act, unless the subject or context otherwise requires;
(a) The term ‘torture’ shall be understood as physical or mental torture inflicted on a person who is in detention for investigation or awaiting trial or for any other reason, and this term includes cruel, inhuman or degrading treatment that person is subjected to.
(b) The term ‘victim’ shall be understood as the person who has been subjected to torture.
3. Torture not to be inflicted
(1) Torture shall not be inflicted on any person who is in detention for investigation or awaiting trial or for any other reason.
Explanation: For the purpose of this sub-section, the term “in detention” shall include being taken into custody in accordance with the existing law.
(2) The concerned officer at the time of detention and release of any person shall have that person’s physical condition examined as far as possible by a doctor in government service, and when a doctor is not available by himself shall keep and maintain records thereof.
Explanation: For the purpose of this sub-section, the term “doctor” shall be understood as doctor, Kaviraj, (auyerbedic doctor) health assistant, auxiliary health worker or Baidhya in government service.
(3) One copy of the report concerning the examination of the physical or mental condition referred to in sub-section (2) shall be submitted to the concerned District Court.
4. Compensation to be provided
If it is held that any employee of His Majesty’s Government has inflicted torture on any person the victim shall be provided compensation in accordance with this Act.
5. Complaints may be filed
(1) The victim may file a complaint claiming compensation in the District Court of the District in which he was detained within 35 days of having been subjected to torture or of release from detention.
(2) Notwithstanding the provisos contained in sub-section (1) in case the victim has died or for any other reason cannot file a complaint himself, any other adult member from his family or his legal practitioner may, setting out the reason thereof, file the complaint pursuant to sub-section (1).
(3) If it is suspected that a detainee has been subjected to torture, any adult member from his family or his legal practitioner may file a petition in the concerned District Court. Upon receiving such petition the Court may order to have the detainee’s physical or mental examination within three days. Upon examination, if treatment is deemed necessary it shall be undertaken by His Majetry’s Government.
(4) The complaint to be filed pursuant to sub-sections (1) and (2) shall, to the extent possible, indicate the following:
(a) The reason for detention and the time spent in detention,
(b) The details of torture inflicted while in detention,
(c) The details of damage caused by torture,
(d) The amount of compensation claimed,
(e) Any other matters that are contributory in substantiating the claim.
6. Proceeding in complaint and compensation
(1) Concerning the complaint filed pursuant to section 5, the District Court shall proceed with the complaint in accordance with the procedures set forth in the Summary Procedure Act, 2028  and if the matter of the complaint is found to be true, may make adjudication to have compensation in maxim of one hundred thousand rupees paid by His Majesty’s Government to the victim.
(2) While trying a complaint pursuant to sub-section (1) if it is found that the complaint was filed with malafide intention the District Court may impose a fine up to five thousand rupees on such complainant.
7. Action against the person involved in the act of committing torture
If it is held that torture has been committed in accordance with this Act, the District Court shall order the concerned authority to take a departmental action according to existing law against the government employee who committed the act of torture.
8. Determination of the amount of compensation
The following things shall be taken into consideration when determining the amount of compensation for the purpose of sub-section (1) of section 6:
(a) The physical or mental pain or suffering caused to the victim and its gravity.
(b) Depreciation in income-earning capability of the victim as a result of physical or mental damage.
(c) In case the physical or mental damage caused cannot be treated, the victim’s age and his responsibility to the family.
(d) The estimated expenses required for treatment if the damage can be treated.
(e) In case of death due to torture, the number of family members dependent upon the victim’s income and the minimum expenses needed for their livelihood.
(f) Among the matters claimed by the victim, those deemed reasonable and appropriate.
9. Execution of adjudication
(1) After the final adjudication made on providing compensation to the victim, the victim, or in case of his death, his nearest heir, shall submit an application to the Chief District Officer of the District in which he was detained, accompanied by a copy of the District Court’s adjudication on the provision of compensation, within one year of receiving information of the adjudication.
(2) The Chief District Officer shall provide the amount of compensation to the applicant within thirty-five days of the receipt of the application referred to in sub-section (1).
(3) If the application is not submitted within the time limit referred to in sub-section (1), the compensation shall not be provided.
10. Defense may be made by Government Attorney
Concerning the complaint in accordance with section 5, if the chief of the concerned office requests, the Government Attorney shall appear in the court on behalf of the employee and defend him.
11. Not considered an act of torture
Notwithstanding any provisions elsewhere in this Act, for the purpose of this Act, any suffering inherently caused by detention pursuant to the existing law shall not be regarded as an act of torture.
12. No bar to institution of action pursuant to the existing law
It shall not be deemed to bar the institution of a separate action on a matter deemed to be a crime pursuant to the existing law merely by virtue of the institution of action for compensation against the commission of torture under this Act or receipt of compensation therefore.
13. Power to make rules
His Majesty’s Government may make necessary rules for the purpose of implementation of the objectives of this Act.