Asian Legal Resource Centre, Hong Kong
This document has been prepared in order to supplement the information provided to the UN Committee against Torture (herein referred to as the Committee) by other human rights NGOs, in light of the Committee’s consideration of the State Party’s [Nepal’s] second periodic report during its 35th session.
The situation in Nepal has undergone significant degradation since the notorious 1 February 2005 royal takeover. The Asian Legal Resource Centre (ALRC) has produced this update document in order to inform the Committee about new barriers to the implementation of the [UN] Convention against Torture (CAT) and violations that have occurred in Nepal during this most recent period.
On 1 February 2005, King Gyanendra dismissed the government of Prime Minister Sher Bahadur Deuba, declared a nationwide state of emergency and suspended the rights of the people of Nepal to the freedom of expression and assembly and the freedom of the press. The king assumed power by putting armed soldiers and police on the streets and appointed a new 10-member cabinet the next day, composed of royalist supporters, placing himself at the head of the cabinet. The king stated that he would restore democracy and peace in the country in three years. The ALRC was among the many international actors, including states and NGOs, which immediately condemned the king’s actions and expressed deep concern for the lives of the Nepali people. Mass arrests, torture, disappearances and the repression of demonstrations and the freedom of expression followed the royal takeover.
Since then, the ALRC and its sister organisation the Asian Human Rights Commission (AHRC) have continued to receive a large number of cases of torture and other human rights violations. This has been possible despite the fact that the ability of local human rights activists to conduct fact-finding concerning such cases has been greatly curtailed during this period, due to the risks to their lives that conducting such work entails. It is worth noting that a significant number of human rights defenders have been threatened into limiting or abandoning their activities, or even forced to leave the country during this period, and that the full extent of the use of torture and other grave human rights abuses remains hard to ascertain.
During the 34th Session of the Committee against Torture, the Government of Nepal was requested to provide answers to a list of issues [CAT/C/35/L/NPL, 30 June 2005]. These included requests for clarifications concerning steps taken, among other things, to bring the definition of torture into line with the Convention against Torture, and make torture a criminal offence under the Criminal Code; to ensure that the right to be free from torture is upheld; to investigate and prosecute perpetrators of torture, extrajudicial executions and disappearances; to provide witness protection; and, to provide adequate compensation and rehabilitation to victims.
The ALRC notes with concern that the collapse of the rule of law in Nepal and the worsening of the human rights situation since February 1 mean that there has been at best stasis, and most commonly regression concerning these issues, rather than any progress.
Failings of the Torture Compensation Act
The Constitution of Nepal prohibits the practice of torture. In furtherance to the ratification of the CAT, Nepal’s domestic law, entitled the Torture Compensation Act 2053 B. S. (1996) (hereinafter the Act), is ineffective as a tool for preventing torture and enabling the prosecution of cases of torture. The Act falls short of the standards set in the Convention.
The Act does not define torture as a crime. The liability cast upon the perpetrator by virtue of the Act and by article 14(4) of the Constitution is limited to providing damages. In the absence of any other law to punish the perpetrators of torture, the perpetrators enjoy absolute impunity.
Given the absence of strict adherence to any legal and procedural framework to ensure the recording of arrests and details regarding detention, the operation of section 5, which reads that, “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 released from detention”, is limited in its scope. The time span of 35 days and the jurisdictional clause prescribed in the Act often works as an impediment to the lodging of complaints under the Act.
Furthermore, the amount of compensation as provided for in the Act and the manner of realization of compensation also dilutes the concept of jus cogens as it applies to torture. The recently promulgated ordinance on communication [Ordinance Amending some Nepal Acts Related to Communication, promulgated on 9 October 2005], which is widely criticized as curtailing the freedom of the press, provides for a higher value fine to be levied from editors and publishers responsible for ‘violating’ the ordinance through alleged acts of defamation as compared with compensation for acts of torture under the Act. Any compensation that is to be paid in a case of custodial torture is paid by the state. The rider attached in section 6(2) of the Act, which provides for compensatory damages for frivolous litigations [“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 complaint”], effectively prevents anyone who is aware of the existing legal framework in Nepal from approaching the court.
The true intention of the legislative process is also made clear from section 10 of the Act, which provides for defence at the expense of the state for the perpetrators [“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”]. Neither the Act, nor any other law in Nepal, provides for the concept of burden of proof favouring the victim in cases of torture.
Torture by the army and police forces
The ALRC and AHRC have received documentation of a large number of cases of arbitrary arrests, illegal and incommunicado detentions, torture, extrajudicial killings and forced disappearances in Nepal over recent years. Such practices have continued and increased since February 1. Torture is routinely and systematically used by the authorities, and the failings in legislation and the judiciary afford total impunity for the perpetrators of these acts, with no viable avenues for redress for the victims.
Typically, persons are arrested arbitrarily and detained incommunicado. Access to lawyers, medical services and family members are denied for those detained illegally. Of around 5000 detainees interviewed by ALRC sources, some 80 per cent stated that they were not brought before a court within the 24-hour period prescribed in the Constitution of Nepal. A similar proportion of detainees reports having been subjected to torture and ill-treatment while in custody. Cases of ill-treatment and torture recorded by the ALRC include: lengthy periods of blindfolding and handcuffing; beatings, including of the genitals; whipping using sticks and pipes on the soles of the feet, the legs and back; strangulation; death threats, including placing guns to the head; electrocution, in particular via the ears; and hanging upside down and repeatedly being dunked under water. The torture is severe to the point that many victims repeatedly lose consciousness.
It must be added that although a few organisations visit detention centres on a regular basis, access to the rooms in which detainees are being held is not granted. Furthermore, such organizations are not granted permission to interview detainees who have not already been taken to court, and so the aforementioned figure only applies to those persons who have been produced before the courts. The most serious cases, where persons are detained incommunicado for lengthy periods and are subjected to the most brutal forms of torture, and potentially to forced disappearance or extrajudicial killing, remain hidden from external scrutiny. Even the ICRC [International Committee of the Red Cross] has terminated its visits programme to army barracks due to a lack of unhindered access.
In every recorded case of arrest and detention by the army, the interviewed victims claim to have been tortured severely. The army at present wields significant power in Nepal without any effective, functioning form of civilian oversight.
The army has no specifically expressed constitutional right to arrest and detain civilians. It has been detaining civilians despite the fact that the constitution clearly limits its jurisdiction to military personnel. It has previously systematically denied that it was detaining civilians, despite the fact that it is widely known and reported on by NGOs that hundreds of persons have been held in army barracks. It has also reportedly openly lied before the courts about having persons in detention, including before the Supreme Court, in cases where habeas corpus writs have been lodged. The army now publicly acknowledges that it is detaining people, despite the fact that such detentions are illegal, but has in no way halted the use of illegal detention, which serves as an indicator as to the levels of impunity and the collapse of the rule of law in the country.
In the current context the army and police operate in collusion, with persons arrested by the police being handed over to the army to be detained and tortured in its barracks. Although military courts do not have jurisdiction over crimes committed against civilians by the army, the army is persistently detaining civilians in its barracks and the courts claim to be investigating allegations of torture of civilians by the military. The lack of transparency and inconclusive results of such investigations continue to foster impunity in Nepal. These factors combine to enable systematic torture to be carried out in total impunity, without any workable prospects for effective investigation or for the victim to receive adequate reparation.
Detainees who are released from army barracks are routinely placed under surveillance. In most of the cases they are threatened with further arrest, torture or even death if they report that they were subjected to torture, or if they lodge a complaint before a court. Detainees are also released on the condition that they respect regular summons to present themselves at army barracks, in order to make sure that they have not reported their case anywhere. The ALRC has received information concerning victims being further detained and tortured as a result of accusations that they had shared information with outsiders. In many cases, released persons are also threatened with similar punishment if they refuse to work as spies against the Maoists.
The use of torture is also endemic within police detention facilities. Police officials reportedly take bribes from actual criminals, who are then released. Following this, they find substitutes for the criminals that they have released. They make use of torture to force confessions from other detainees, who are often held arbitrarily. Corruption plays a significant role in perpetuating the use of torture in Nepal, with the poor being the major victims of this phenomenon.
Victims of torture are detained illegally and incommunicado, until the physical traces of torture have receded or disappeared. They are then charged with the offences of the released criminals, based on confessions extracted under torture, and the police prepare documents to show that they were only arrested within 24 hours before they are brought to the courts. The courts reportedly turn a blind eye to this practice, enabling the semblance of adherence to the constitutionally prescribed 24-hour period. So the use of torture has been allowed to become endemic and go unpunished, causing significant barriers to attempts by victims to gain reparation at a later stage.
Custodial deaths of torture victims and so-called “suicides”
Since October 2004, according to the authorities just five detainees have died in army barracks as a result of “suicides”. The ALRC has been informed that there are credible reasons to suspect that these persons, all of whom were accused of being Maoist cadres or sympathisers, in fact died as the result of torture by members of the army. No proper investigations have been conducted into their deaths. The five were, as follows:
1. Dipendra Rayamajhi: A permanent resident of the Panauti area of Kabre district who reportedly committed suicide on 26 June 2005 at the Sinhanath Army Barracks in Bhaktapur district by hanging himself using an electric wire in his cell.
2. Dorje Sherpa: Reportedly committed suicide in Shreejang Army Barracks in Singhdurbar, Kathmandu on 27 May 2005 by hanging himself from a window using his shoelaces.
3. Sadhu Ram Devkota: Reportedly committed suicide at around 3:40pm on 19 December 2004 at the army barracks in Balaju, Kathmandu by hanging himself from a window with his shoelaces.
4. Chakra Bahadur Sherestha: A schoolteacher who reportedly committed suicide at about 7pm on 15 November 2004 at the Dhadingbeshi Army Barracks by initially trying to use a belt to hang himself and later using a sleeping bag rope.
5. Top Bahadur Ale Magar: Arrested on 16 October 2004 allegedly while collecting money for the Maoists, he reportedly killed himself on October 20 at the Bhairabagan Army Barracks in Maharajgunj, Kathmandu.
Following their release from army barracks, many detainees have reported witnessing the torture of co-detainees, and that those who were tortured until they were in critical physical conditions were taken to the army hospitals but never brought back, giving rise to fears that they died as a result of torture. As is widely known, a great number of people have disappeared following arrest by the army in Nepal.
Anti-terrorist measures and torture
Since November 2001, the government has imposed anti-terrorist legislation that allows the security forces to arrest and detain people for a period of one year without judicial scrutiny. The Terrorist and Disruptive Activities (Control and Punishment) Ordinance (TADO) which was introduced in November 2001 was replaced by the Terrorist and Disruptive Activities (Control and Punishment) Act (TADA), which ran for two years. Since then the TADO has been successively reintroduced every six months, most recently in the absence of parliament, since it was dissolved in February.
Section 9 of the TADO provides that if there are grounds to believe that a person might commit terrorist activities if not prevented from doing so, he or she can be detained preventively for a maximum period of one year, as follows:
Section 9. Power to keep under Preventive Detention
In case there exist appropriate grounds for believing that a person has to be stopped from doing anything that may cause a terrorist and destructive act, the Security Officer may issue an order to keep him under preventive detention for up to six months in a humane place. If there are reasonable grounds to believe that the person has to be prevented from committing any terrorist activities for longer than that, on the approval of His Majesty the Government’s Home Ministry, the Security Officer can issue an additional six months’ order of preventive detention.[Unofficial translation]
The wording in this provision can be loosely interpreted to permit abuse by the security forces. The burden of proof of innocence is on the accused.
This power to detain persons for a year without judicial scrutiny has enabled torture to flourish in Nepal. Persons being held under preventive detention have no access to their lawyers. The ALRC has received information that many detainees are held for more than a year under these provisions.
The provisions included in the TADA and the TADO are limited to the arrest of persons suspected of terrorist activities. The army does not have any powers to detain accused persons; it is supposed to hand them over to the police for detention.
Terrorist activities are considered as crimes against the state, and should be dealt with under the State Cases Act. Under this act, the police investigate cases and have the power to arrest persons. These arrestees are then to be brought before the Appellate Court of Nepal within 24 hours. After completing the preliminary investigation and having collected primary evidence, the case should be handed to the public prosecutor, who brings the charges against the person in court. The Appellate Court then decides on whether to give permission for the detention of persons for a maximum period of 60 days. Only the court has the power of decision on whether the person should remain in detention for further investigation or can be released on bail.
In practice, however, all those arrested on allegations of being involved in terrorist activities are detained by the army for prolonged periods of time, without having any formal allegations or charges made against them. Under such circumstances, the detainees are systematically subjected to torture.
The preventive detention of persons under the TADO for one year is a significant violation of the provisions under the constitution and Nepal’s international obligations, notably under the International Covenant on Civil and Political Rights. It is open to abuse and its duration is unjustifiable, both in terms of preventing and investigating alleged terrorist activities.
Lack of effective and independent investigations into torture
There is no mechanism in Nepal to provide for impartial investigations into cases of torture. Inquiries are conducted by the state police, if at all. However, Supreme Court jurisdiction cannot be invoked in cases where the army is accused of torture, by virtue of the rider attached to articles 86(1) and 88(2)(a) of the Constitution of Nepal. It is precisely for this reason that a writ of habeas corpus cannot effectively be invoked in cases of illegal detention and torture whenever the army is alleged to have committed torture in custody.
The army also employs various means by which to deny the reasons for arrests and details regarding detention to detainees’ relatives. In the absence of the express power to arrest civilians, the army is reported to be employing measures including directing the local police to perform arrests. The army then takes custody of the detainees. In cases where the relatives of detainees have moved the court for the production of the said detainees, the court has turned down the requests on the ground of a lack of jurisdiction.
The Military Court, to which concerns about detainees must be addressed, suffers from a lack of impartiality and transparency. There is no known case where the Military Court has taken any impartial and independent action on a complaint of torture. This has resulted in absolute impunity being enjoyed by the army in cases of torture.
There are no practical means by which to ensure civilian oversight of the armed forces in Nepal. Since the declaration of the state of emergency, a series of ordinances has been promulgated by the king to expand the powers of the armed forces on the pretext of countering the insurgency. Functioning public offices, including the National Defence Council, have been further corrupted due to nepotism and a lack of transparency. Even the National Human Rights Commission has not been immune from this degradation.
Rearrests used to circumvent court decisions
In cases where the courts entertain applications and the release of persons is ordered, such persons are often immediately rearrested on further charges, ensuring that they remain in custody indefinitely. For instance, Kumar Rai, a 41-year-old employee in a carpet industry, was first arrested at his room around 3pm on 27 February 2004, by a group of 4-5 security personnel dressed in civilian clothes. After nine days of illegal detention and torture, he was released on the condition that he report to the army barracks on a daily basis. He was rearrested on 15 March 2004 and later released from Mahabir Gan, Chauni the next evening. On March 17, Kumar was once again arrested and subjected to torture while in detention. A habeas corpus writ filed on 5 August 2004 by his wife, with assistance from local NGO Advocacy Forum, was dismissed. On 4 January 2005, Advocacy Forum again filed a habeas corpus writ on Kumar’s behalf and on January 31, the Supreme Court issued orders for him to be released. However, Kumar was given another detention order under TADA and Advocacy Forum had to file a third habeas corpus petition on 2 May 2005. He was finally released on May 26, on Supreme Court orders. The reason for his repeated arrests is unknown.
In one case known to the ALRC where officers of the National Human Rights Commission and lawyers appearing on behalf of a detainee insisted upon his release, once the bail application had been allowed, the security forces surrounded the court premises and threatened to use force to take the released detainee into custody on new charges. This is reportedly a common occurrence. There are reported to be numerous cases where when an application is filed for bail and the release ordered, officials from the National Human Rights Commission are forced into taking the released detainee to a different place under the cover of darkness, to enable the person to be released out of the view of the armed forces.
Limited access to courts
The inaccessibility to the courts in Nepal is also pertinent to the persistence of torture there. Very few lawyers are willing to take cases of torture to court. Those who dare to accept briefs are threatened by the perpetrators directly and indirectly so that they are forced to withdraw from providing professional help to their client. Since torture is not defined as a crime in law, the courts treat a case of compensation for torture as a civil affair, and the victims are directed to pay huge amounts in court fees prior to adjudication.
Apart from the procedural traps facing torture victims in the courts, there is a demonstrated lack of understanding about the purpose of the Convention against Torture and the basic concept of torture among the members of the judiciary in Nepal. Often the judiciary justifies the use of force given the current circumstances in the country. This attitude also explains why the amount of compensation for acts of torture is often far below that which has been prescribed. The judiciary is also confused about application of the law on compensation for torture. For instance, the District Court of Morang dismissed applications filed by the wife of a torture victim who was also a convict on the grounds that the Torture Compensation Act only applies to under-trial prisoners and not to convicts.
Conclusion and recommendations
The breakdown in systems and institutions compounded by the total collapse in the rule of law that has been accentuated by the royal takeover together mean that torture is endemic, systematic and conducted with total impunity in Nepal. Claims to the contrary by the State Party before the Committee should be viewed as nothing more than fabrications. The cases known to the ALRC represent but a fraction of the actual violations that have taken place in the country, especially in 2005. As previously stated, the threats proffered and restrictions imposed on the human rights community in Nepal, especially since 1 February 2005, have led to an inability to document a significant number of cases of arbitrary detention, torture, extrajudicial killing and forced disappearance. In view of the above, the ALRC urges the Committee to recommend that the Government of Nepal immediately
1. Make torture a crime. The domestic law must be amended in accordance with the Convention against Torture so that any proceedings initiated under the Torture Compensation Act are considered and dealt with as grave criminal offences, prescribing imprisonment as punishment where guilt is proven.
2. Ensure that all arrests and detentions are systematically documented. The Committee should intervene to ensure the release of all those who are illegally detained by the police or the security forces. The lack of documentation on arrests and detention is one of the greatest hindrances for any judicial intervention in cases of illegal arrests, detention and torture in Nepal.
3. Provide witness protection. In the absence of a witness protection programme, all steps taken to reduce torture and custodial violence will fail to deliver results, thereby causing a continued lack of confidence in the system among the people of Nepal. Steps must also be taken to ensure that anyone found to be threatening or engaged in intimidating a witness is dealt with through strictly-enforced laws.
4. Review the conduct of the army and instruct it not to detain civilians illegally and unconstitutionally. The army must be instructed to release all detainees without delay, notably those who are minors and to whom the State Party also owes obligations under the [UN] Convention on the Rights of the Child, to which it is a party. The engagement of an international body to ensure compliance with such orders would be advisable.
5. Withdraw all legislation-including the TADO, ordinances and provisions in domestic law-legitimising pre-trial detention beyond a period of 24 hours.
6. Increase compensation paid to victims of torture through legislative amendments. Compensation must be paid by the perpetrator, though an additional liability should be provided for by the state.
7. Reverse the presumption regarding the burden of proof in all cases of torture.
8. Provide all necessary assistance to the National Human Rights Commission and other human rights organisations in Nepal that are inquiring into cases of custodial violence and torture. All instances of intimidation against human rights defenders must be stopped, and seriously addressed.
9. Guarantee adequate resources to ensure the proper functioning of the legal and medical professions in Nepal, and where necessary ensure that they receive adequate and appropriate training, with the assistance of the United Nations, to fulfill their obligations.
This is the edited text of a supplementary document prepared by the Asian Legal Resource Centre to the 35th Session of the UN Committee against Torture, November 2005, in consideration of Nepal. Please also see article 2, vol. 3, no. 6 (December 2004) and vol. 4, no. 1, (February 2005) for further documentation on the situation of human rights in Nepal.