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COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF NEPAL
09 November 2005
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Committee against Torture
MORNING
9 November 2005
The Committee against Torture this morning began its consideration of the second periodic report of Nepal on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Gyan Chandra Acharya, Ambassador and Permanent Representative of Nepal to the United Nations Office at Geneva, introduced the report, saying that Nepal did not condone torture, nor was it a State policy to let it go with impunity; it took all allegations seriously, investigating them thoroughly and bringing the guilty to justice. Nepal was committed to universally recognised human rights norms and standards, and its commitment to human rights within the country remained undiminished even during the difficult time caused by the deadly conflict. The report made an honest attempt to present the efforts made so far by the Government to fulfil its obligations arising from the Convention. Continuous efforts would be deployed to further strengthen the legislative, administrative and institutional mechanisms to prevent torture and inhuman or degrading treatment or punishment. Nepal was conscious that it had much more to do to be able to effectively implement all the provisions of the Convention, but it was committed to promote and protect human rights.
Serving as Rapporteur for the report of Nepal was Committee Expert Ole Vedel Rasmussen, who said that according to the Special Rapporteur on Torture, torture and ill-treatment were systematically practised by the Police, the Armed Police and the Army in order to extract information, and this was very disturbing. The number of allegations of torture was alarming: 17,000 cases of torture had been reported over the last eight years. There were also reports from the Office of the High Commissioner for Human Rights on human rights assistance to Nepal, which contained a repetition of what had been expressed by the Special Rapporteur on Torture and non-governmental organizations, noting that since the security forces had come under unified command, reports of serious and systematic human rights violations had increased over 2004, particularly with regard to disappearances, torture, arbitrary detention and summary execution, and this despite an increase in investigations and court-martials for alleged abuses.
Sayed Kassem Al-Masry, the Committee Expert serving as Co-Rapporteur for the report, said Nepal was, as all knew, passing through a very difficult period in its history, with a brutal insurgency taking place, which was being faced by equally brutal force. Grave human rights violations were committed by both sides, and the victims of torture and other ill-treatments were not confined to the two sides. The civil war was marked by a wide-spread and systematic violation of human rights in an overt and uncurtailed manner. Hundreds of cases of torture, disappearance and arbitrary detention had been reported, and safeguards were largely illusory. The security forces had shown consistent disregard for the rule of law and defied the authority of the judiciary. In the midst of this grave and grim picture, it was astonishing that Nepal still had a vibrant society, with an energetic civil society that was active on the ground and was tolerated by the authorities.
Other Committee Experts raised questions on issues pertaining to, among other things, concern for the situation of human rights defenders and what measures were being considered to protect them from disappearance; whether the legislation against torture contained specific mention of gender issues and gender-based violence; issues linked to the suspension of State officials during investigation of reports of torture involving them; whether the National Human Rights Commission had the power to investigate allegations of torture and their treatment by the courts; and the recourse available for deportees to a country where they might be tortured, in particular with regards to a large group of Tibetan asylum-seekers.
Also representing the delegation of Nepal were representatives of the Ministry of Law and the Ministry of Home Affairs
The delegation will return to the Committee at 3 p.m. on Thursday, 10 November to provide its response to the questions raised this morning.
Nepal is among the 140 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
When the Committee reconvenes at 3 p.m. this afternoon, it will hear the response of the delegation of Bosnia and Herzegovina to questions by the Committee which were raised yesterday.
Report of Nepal
The report of Nepal (CAT/C/33/Add.6) says that the Constitution of Nepal makes the infliction of torture an infringement of the fundamental rights. Article 14 (4) states that “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 protection from torture is non-derogable and may not be abridged or restricted under any circumstances. In line with the spirit of the Constitution, many acts and subsequent rules have been enacted and prevailing acts reformed to honour human rights and prohibit torture in particular. As a member of the United Nations and other international as well as regional organizations, Nepal is party to a large number of international legal instruments concerning human rights. Nepal is party to 16 international human rights instruments. The Compensation Right for Torture Act has made provision for financial compensation for persons who have been subjected to torture or other cruel, inhuman or degrading treatment or punishment. The Act has also made provision for free medical treatment of the person who is injured or physically tortured while appropriate action is taken against the offender.
Despite the constitutional guarantee, legal provisions, administrative measures and judicial remedies, cases of torture are still reported in Nepal. A survey conducted in 2001/02 has revealed a high prevalence of torture in areas most affected by the Maoist insurgency under which Nepal has been suffering for the last eight years, and as a result of which, incidents of torture committed by non-State actors are increasing (torture committed by non-State actors is considered a crime). During this period, Maoists have deliberately killed thousands of civilians including teachers, students, political leaders, journalists, employees, off-duty security personnel, children, the elderly and others. Reports of torture and cruel and inhuman treatment of the general public by Maoists have become a regular phenomenon. The armed insurgency is costing unbearable losses in terms of human casualties and in damage to the development infrastructure.
The Government of Nepal is aware of allegations concerning acts of torture reportedly committed by members of the security forces in the context of counter-terrorist activities. Also, the police, in combating crime, are alleged to have used excessive force in handling suspected criminals. These transgressions are not the outcome of a deliberate policy but isolated acts carried out by some individuals. Although the Kingdom is in exceptional circumstances of intense armed conflict, every effort is being made from the government side to eliminate the occurrence of such excesses. All the relevant domestic laws have prohibited issuing illegal orders, especially those relating to the armed forces. All superior officers and public authorities are obliged to issue legal orders only. Those who receive an illegal order from a superior officer are not compelled to follow it. However, acts of torture are not offences under the criminal law of the Kingdom of Nepal. Therefore, a draft Criminal Code, which explicitly makes torture punishable, has been prepared. The Code is waiting for Parliament to resume.
Presentation of Report
Gyan Chandra Acharya, Ambassador and Permanent Representative of Nepal to the United Nations Office at Geneva, said the report had been prepared in consultation with all relevant stake holders so as to make it honest and representative of all stakeholders, and to provide an honest view of the efforts of the Government with regard to the Convention. The Government had taken on board the comments made by the Committee on its initial report. The State did not condone torture, nor was it a State policy to let it go with impunity; it took all allegations seriously, investigating them thoroughly and bringing the guilty to justice. Nepal was committed to universally recognised human rights norms and standards, and its commitment to human rights within the country remained undiminished even during the difficult time caused by the deadly conflict. The report demonstrated Nepal’s deep desire to live up to its commitments. The context of the ongoing conflict and its bearing on the overall efforts of the Government to live up to its commitments should therefore be taken into account.
Nepal considered that the definition of torture as provided by the Compensation Relating to Torture Act was not contrary to the spirit of the definition contained in the Convention, Mr. Acharya said. The establishment and working modalities of the National Human Rights Commission was also presented in the report. Among other things, it routinely conducted supervision and observation in various parts of the country and prepared and distributed reports of its findings. It also regularly presented recommendations and guidelines to the Government and conducted public hearings. Independent monitors such as the National Commission, the Office of the High Commissioner for Human Rights and the International Committee of the Red Cross were given unhindered access to visit all places of detention including army barracks, and were entitled to full support and cooperation from the authorities. The mission of the Office of the Attorney General was to safeguard constitutional values and protect the basic human rights of the people. It respected the right to criminal justice of the people concerned, protected the rights of victims, and worked to ensure a just, fair and efficient criminal justice system. Separate human rights cells had been established even at operational levels in various security-related agencies, in the Royal Nepal Army, the Armed Police Force, and the Nepal Police. These cells had been providing information on a continuous basis about their activities through various means.
Realising the importance of bringing about the needed changes in the domestic criminal justice system by expressly making torture a criminal offence, the Government had drafted a Penal Code, which stated that a person who committed such an act would be punished by up to three years of imprisonment, or a fine, or both, depending upon the gravity of the offence, Mr. Acharya said. The Government was serious about the need to make torture a criminal offence in the domestic legal system as early as possible, as part of its commitment to the Convention. As a follow-up to a visit by the Special Rapporteur on Torture, in September 2005, the Ministry of Home Affairs had issued seven-point directives to the Nepal Police and the Armed Police Force. Educating and training security personnel, administrative and law-enforcement officials on human rights and humanitarian law on a sustained and informed basis was important so as to instil the value of upholding the norms and principles of these laws, and for this reason education and training programmes had continued to occupy the Government’s focus. The report made an honest attempt to present the efforts made so far by the Government to fulfil its obligations arising from the Convention.
Continuous efforts would be deployed to further strengthen the legislative, administrative and institutional mechanisms to prevent torture and inhuman or degrading treatment or punishment. Nepal was conscious that it had much more to do to be able to effectively implement all the provisions of the Convention, but, Mr. Acharya said, it was committed to promote and protect human rights even when it was fighting a deadly insurgency in the country.
Questions by Experts
OLE VEDEL RASMUSSEN, the Committee Expert serving as Rapporteur for the report of Nepal, said the report was received after a considerable delay, but it had been produced, and the delay was justified by the dearth of adequate expertise and resources, and in this connection, he asked how these were overcome, and whether any help had been received in preparing the report, as this could be helpful for other countries. In the report, it was openly admitted that the law-enforcement personnel, in combating crime, were alleged to have used excessive force in apprehending criminals, but these were not due to a deliberate policy, but isolated acts carried out by individuals in the context of the conflict, and that every effort was being made by the Government to eliminate such excesses. This was very welcome, but it would be appropriate to remind the delegation that by ratifying the Convention, it was legally binding on Nepal. The key element here was to remind Nepal of article 2 of the Convention, which noted that no exceptional circumstance could justify incidents of torture. The Special Rapporteur on Torture had visited the country recently, and had found incidents of torture. On the basis of interviews with current and former detainees and with many others including police and military officials, the Special Rapporteur had concluded that torture and ill-treatment were systematically practised by the Police, the Armed Police and the Army in order to extract information, and this was very disturbing. This had been confirmed by senior police and military officials, who were reported to have said that this was acceptable.
It was plain to the Special Rapporteur that safeguards against torture were largely illusory in practice. The Special Rapporteur also praised the Government for its cooperation during his visit. There was a very thorough NGO report, made up by thirty-four human rights organizations, all of which used the term “systematic torture”, when referring to Nepal. The number of allegations of torture was alarming, Mr. Rasmussen said. Some 17,000 cases of torture had been brought before the organizations over the last eight years, and this was truly alarming. There were also reports from the Office of the High Commissioner for Human Rights on human rights assistance to Nepal, which contained a repetition of what had been expressed by the Special Rapporteur on Torture and the non-governmental organizations, noting that since the security forces had joined under unified command, reports of serious and systematic human rights violations had increased over 2004, particularly with regard to disappearances, torture, arbitrary detention and summary execution, and this despite an increase in investigations and court-martials for alleged abuses.
The use of disappearances by the security forces was so wide-spread that many human rights organizations had alleged that it had become a major tool for the State to deal with the insurgency. There was a climate of almost total impunity, Mr. Rasmussen said, with regard to torture, arbitrary detention, disappearances and summary execution, and he hoped the Committee would have a fruitful dialogue with the delegation in order to help remedy this situation.
In questions, Mr. Rasmussen took up various issues, including what could be done to implement the provisions of article 10 of the Convention and to make it effective; inspections in all places of detention, which the report said could be visited without notice by international organizations and NGOs, as this was in contrast with other reports received; whether the National Human Rights Commission should be given a strong mandate in order to fulfil the obligations of the Convention and to make it able to further investigate reports made to it; incidents of rapid, almost immediate re-arrest of those freed by the courts, as this was evidence that the Army and Police were self-controlling, and what could be done to remedy this situation; and options for compensation and redress for victims of torture in such a climate of total impunity. He also mentioned Nepal’s hospitality to the large number of refugees that had crossed its borders in the past.
SAYED KASSEM AL-MASRY, the Committee Expert serving as Co-Rapporteur for the report of Nepal, said that all the Experts had welcomed the long-awaited report, and were looking forward to a constructive dialogue with the delegation. Nepal was, as all knew, passing through a very difficult period in its history, with a brutal insurgency taking place, which was being faced by equally brutal force. Grave human rights violations were committed by both sides, and the victims of torture and other ill-treatment were not confined to the two sides, but came from a wide variety of groups and communities, including farmers caught in land disputes, normal criminals, but most of all, the marginalized part of society, including the Dalits. The largest group of victims were the members of the Communist Party of Nepal. The civil war was marked by a wide-spread and systematic violation of human rights in an overt and uncurtailed manner. The unchanging plight of the Dalits was in large part responsible for the deterioration of the situation, but what was really disturbing was the prevailing culture of impartiality, and the widening gap between law and practice. Hundreds of cases of torture, disappearance and arbitrary detention had been reported, and the Special Rapporteur on Torture had concluded unequivocally that torture and ill-treatment was systematically practised by the Police, the Armed Police, and the Army. Frank admissions had been received by Police and Army Officials that torture was acceptable in certain situations. Safeguards were largely illusory. The Special Rapporteur had appealed for the Government to make a clear and strong statement against impunity, but, as follow-up to his visit, the Ministry of Home Affairs had issued a 7-point directive to the Police and Armed Police discouraging them from using torture, and this directive could hardly be described as a clear and strong statement.
The Security Forces had shown consistent disregard for the rule of law and defied the authority of the judiciary. A great number of detainees who were freed by the Courts were immediately re-arrested, Mr. Al-Masry said. Hundreds of people were held in incommunicado detention, and they could be listed as disappeared. Nepal was the source of the largest number of urgent action cases submitted to the Commission on Human Rights. In the midst of this grave and grim picture, it was astonishing that Nepal still had a vibrant society, with an energetic civil society that was active on the ground and was tolerated by the authorities. An elaborate report had been received by 34 local NGOs, who had been allowed to come to the United Nations and speak freely. Most of the reports received from both national and international NGOs had as a main source of information the local press, which revealed an astonishing degree of freedom in such a situation, and this should be noted.
Torture was not a criminal offence, and the law only provided for compensation. The complainant could be penalised if he failed to prove the allegation, and some reports had been received of those who had failed in their case and had been arrested and tortured until they denied their original complaint. Crimes of torture were also not punished by appropriate measures. Mr. Al-Masry asked whether the Convention had been invoked before the courts of law, and asked for further information on the new Penal Code. With regards to the pledge issued by the Government in March 2004 which promised that any detention should be in an officially-recognised place of detention, there was also a need for an update on what was the actual situation, and whether statistical data on those still in preventative detention could be provided.
Other Committee Experts also raised a series of questions. An Expert raised the issue of incidents of torture that could take place outside of places of detention. The possibility of the expansion of the definition of torture by the courts was also an issue of interest. Other issues included human rights and prison conditions; issues linked to refugees; concern for the situation of human rights defenders and what measures were being considered to protect them from disappearance; whether the legislation against torture contained specific mention of gender issues and gender-based violence; issues linked to the suspension of State officials during investigation of reports of torture involving them; whether the National Human Rights Commission had the power to investigate allegations of torture and their treatment by the courts; issues related to trafficking and the Government’s clear commitment to dealing with this serious and extensive problem and the gap between theory, law, practice and implementation; and the recourse available for deportees to a country where they might be tortured, in particular with regards to a large group of Tibetan asylum-seekers.
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For use of the information media; not an official record
MORNING
9 November 2005
The Committee against Torture this morning began its consideration of the second periodic report of Nepal on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Gyan Chandra Acharya, Ambassador and Permanent Representative of Nepal to the United Nations Office at Geneva, introduced the report, saying that Nepal did not condone torture, nor was it a State policy to let it go with impunity; it took all allegations seriously, investigating them thoroughly and bringing the guilty to justice. Nepal was committed to universally recognised human rights norms and standards, and its commitment to human rights within the country remained undiminished even during the difficult time caused by the deadly conflict. The report made an honest attempt to present the efforts made so far by the Government to fulfil its obligations arising from the Convention. Continuous efforts would be deployed to further strengthen the legislative, administrative and institutional mechanisms to prevent torture and inhuman or degrading treatment or punishment. Nepal was conscious that it had much more to do to be able to effectively implement all the provisions of the Convention, but it was committed to promote and protect human rights.
Serving as Rapporteur for the report of Nepal was Committee Expert Ole Vedel Rasmussen, who said that according to the Special Rapporteur on Torture, torture and ill-treatment were systematically practised by the Police, the Armed Police and the Army in order to extract information, and this was very disturbing. The number of allegations of torture was alarming: 17,000 cases of torture had been reported over the last eight years. There were also reports from the Office of the High Commissioner for Human Rights on human rights assistance to Nepal, which contained a repetition of what had been expressed by the Special Rapporteur on Torture and non-governmental organizations, noting that since the security forces had come under unified command, reports of serious and systematic human rights violations had increased over 2004, particularly with regard to disappearances, torture, arbitrary detention and summary execution, and this despite an increase in investigations and court-martials for alleged abuses.
Sayed Kassem Al-Masry, the Committee Expert serving as Co-Rapporteur for the report, said Nepal was, as all knew, passing through a very difficult period in its history, with a brutal insurgency taking place, which was being faced by equally brutal force. Grave human rights violations were committed by both sides, and the victims of torture and other ill-treatments were not confined to the two sides. The civil war was marked by a wide-spread and systematic violation of human rights in an overt and uncurtailed manner. Hundreds of cases of torture, disappearance and arbitrary detention had been reported, and safeguards were largely illusory. The security forces had shown consistent disregard for the rule of law and defied the authority of the judiciary. In the midst of this grave and grim picture, it was astonishing that Nepal still had a vibrant society, with an energetic civil society that was active on the ground and was tolerated by the authorities.
Other Committee Experts raised questions on issues pertaining to, among other things, concern for the situation of human rights defenders and what measures were being considered to protect them from disappearance; whether the legislation against torture contained specific mention of gender issues and gender-based violence; issues linked to the suspension of State officials during investigation of reports of torture involving them; whether the National Human Rights Commission had the power to investigate allegations of torture and their treatment by the courts; and the recourse available for deportees to a country where they might be tortured, in particular with regards to a large group of Tibetan asylum-seekers.
Also representing the delegation of Nepal were representatives of the Ministry of Law and the Ministry of Home Affairs
The delegation will return to the Committee at 3 p.m. on Thursday, 10 November to provide its response to the questions raised this morning.
Nepal is among the 140 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
When the Committee reconvenes at 3 p.m. this afternoon, it will hear the response of the delegation of Bosnia and Herzegovina to questions by the Committee which were raised yesterday.
Report of Nepal
The report of Nepal (CAT/C/33/Add.6) says that the Constitution of Nepal makes the infliction of torture an infringement of the fundamental rights. Article 14 (4) states that “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 protection from torture is non-derogable and may not be abridged or restricted under any circumstances. In line with the spirit of the Constitution, many acts and subsequent rules have been enacted and prevailing acts reformed to honour human rights and prohibit torture in particular. As a member of the United Nations and other international as well as regional organizations, Nepal is party to a large number of international legal instruments concerning human rights. Nepal is party to 16 international human rights instruments. The Compensation Right for Torture Act has made provision for financial compensation for persons who have been subjected to torture or other cruel, inhuman or degrading treatment or punishment. The Act has also made provision for free medical treatment of the person who is injured or physically tortured while appropriate action is taken against the offender.
Despite the constitutional guarantee, legal provisions, administrative measures and judicial remedies, cases of torture are still reported in Nepal. A survey conducted in 2001/02 has revealed a high prevalence of torture in areas most affected by the Maoist insurgency under which Nepal has been suffering for the last eight years, and as a result of which, incidents of torture committed by non-State actors are increasing (torture committed by non-State actors is considered a crime). During this period, Maoists have deliberately killed thousands of civilians including teachers, students, political leaders, journalists, employees, off-duty security personnel, children, the elderly and others. Reports of torture and cruel and inhuman treatment of the general public by Maoists have become a regular phenomenon. The armed insurgency is costing unbearable losses in terms of human casualties and in damage to the development infrastructure.
The Government of Nepal is aware of allegations concerning acts of torture reportedly committed by members of the security forces in the context of counter-terrorist activities. Also, the police, in combating crime, are alleged to have used excessive force in handling suspected criminals. These transgressions are not the outcome of a deliberate policy but isolated acts carried out by some individuals. Although the Kingdom is in exceptional circumstances of intense armed conflict, every effort is being made from the government side to eliminate the occurrence of such excesses. All the relevant domestic laws have prohibited issuing illegal orders, especially those relating to the armed forces. All superior officers and public authorities are obliged to issue legal orders only. Those who receive an illegal order from a superior officer are not compelled to follow it. However, acts of torture are not offences under the criminal law of the Kingdom of Nepal. Therefore, a draft Criminal Code, which explicitly makes torture punishable, has been prepared. The Code is waiting for Parliament to resume.
Presentation of Report
Gyan Chandra Acharya, Ambassador and Permanent Representative of Nepal to the United Nations Office at Geneva, said the report had been prepared in consultation with all relevant stake holders so as to make it honest and representative of all stakeholders, and to provide an honest view of the efforts of the Government with regard to the Convention. The Government had taken on board the comments made by the Committee on its initial report. The State did not condone torture, nor was it a State policy to let it go with impunity; it took all allegations seriously, investigating them thoroughly and bringing the guilty to justice. Nepal was committed to universally recognised human rights norms and standards, and its commitment to human rights within the country remained undiminished even during the difficult time caused by the deadly conflict. The report demonstrated Nepal’s deep desire to live up to its commitments. The context of the ongoing conflict and its bearing on the overall efforts of the Government to live up to its commitments should therefore be taken into account.
Nepal considered that the definition of torture as provided by the Compensation Relating to Torture Act was not contrary to the spirit of the definition contained in the Convention, Mr. Acharya said. The establishment and working modalities of the National Human Rights Commission was also presented in the report. Among other things, it routinely conducted supervision and observation in various parts of the country and prepared and distributed reports of its findings. It also regularly presented recommendations and guidelines to the Government and conducted public hearings. Independent monitors such as the National Commission, the Office of the High Commissioner for Human Rights and the International Committee of the Red Cross were given unhindered access to visit all places of detention including army barracks, and were entitled to full support and cooperation from the authorities. The mission of the Office of the Attorney General was to safeguard constitutional values and protect the basic human rights of the people. It respected the right to criminal justice of the people concerned, protected the rights of victims, and worked to ensure a just, fair and efficient criminal justice system. Separate human rights cells had been established even at operational levels in various security-related agencies, in the Royal Nepal Army, the Armed Police Force, and the Nepal Police. These cells had been providing information on a continuous basis about their activities through various means.
Realising the importance of bringing about the needed changes in the domestic criminal justice system by expressly making torture a criminal offence, the Government had drafted a Penal Code, which stated that a person who committed such an act would be punished by up to three years of imprisonment, or a fine, or both, depending upon the gravity of the offence, Mr. Acharya said. The Government was serious about the need to make torture a criminal offence in the domestic legal system as early as possible, as part of its commitment to the Convention. As a follow-up to a visit by the Special Rapporteur on Torture, in September 2005, the Ministry of Home Affairs had issued seven-point directives to the Nepal Police and the Armed Police Force. Educating and training security personnel, administrative and law-enforcement officials on human rights and humanitarian law on a sustained and informed basis was important so as to instil the value of upholding the norms and principles of these laws, and for this reason education and training programmes had continued to occupy the Government’s focus. The report made an honest attempt to present the efforts made so far by the Government to fulfil its obligations arising from the Convention.
Continuous efforts would be deployed to further strengthen the legislative, administrative and institutional mechanisms to prevent torture and inhuman or degrading treatment or punishment. Nepal was conscious that it had much more to do to be able to effectively implement all the provisions of the Convention, but, Mr. Acharya said, it was committed to promote and protect human rights even when it was fighting a deadly insurgency in the country.
Questions by Experts
OLE VEDEL RASMUSSEN, the Committee Expert serving as Rapporteur for the report of Nepal, said the report was received after a considerable delay, but it had been produced, and the delay was justified by the dearth of adequate expertise and resources, and in this connection, he asked how these were overcome, and whether any help had been received in preparing the report, as this could be helpful for other countries. In the report, it was openly admitted that the law-enforcement personnel, in combating crime, were alleged to have used excessive force in apprehending criminals, but these were not due to a deliberate policy, but isolated acts carried out by individuals in the context of the conflict, and that every effort was being made by the Government to eliminate such excesses. This was very welcome, but it would be appropriate to remind the delegation that by ratifying the Convention, it was legally binding on Nepal. The key element here was to remind Nepal of article 2 of the Convention, which noted that no exceptional circumstance could justify incidents of torture. The Special Rapporteur on Torture had visited the country recently, and had found incidents of torture. On the basis of interviews with current and former detainees and with many others including police and military officials, the Special Rapporteur had concluded that torture and ill-treatment were systematically practised by the Police, the Armed Police and the Army in order to extract information, and this was very disturbing. This had been confirmed by senior police and military officials, who were reported to have said that this was acceptable.
It was plain to the Special Rapporteur that safeguards against torture were largely illusory in practice. The Special Rapporteur also praised the Government for its cooperation during his visit. There was a very thorough NGO report, made up by thirty-four human rights organizations, all of which used the term “systematic torture”, when referring to Nepal. The number of allegations of torture was alarming, Mr. Rasmussen said. Some 17,000 cases of torture had been brought before the organizations over the last eight years, and this was truly alarming. There were also reports from the Office of the High Commissioner for Human Rights on human rights assistance to Nepal, which contained a repetition of what had been expressed by the Special Rapporteur on Torture and the non-governmental organizations, noting that since the security forces had joined under unified command, reports of serious and systematic human rights violations had increased over 2004, particularly with regard to disappearances, torture, arbitrary detention and summary execution, and this despite an increase in investigations and court-martials for alleged abuses.
The use of disappearances by the security forces was so wide-spread that many human rights organizations had alleged that it had become a major tool for the State to deal with the insurgency. There was a climate of almost total impunity, Mr. Rasmussen said, with regard to torture, arbitrary detention, disappearances and summary execution, and he hoped the Committee would have a fruitful dialogue with the delegation in order to help remedy this situation.
In questions, Mr. Rasmussen took up various issues, including what could be done to implement the provisions of article 10 of the Convention and to make it effective; inspections in all places of detention, which the report said could be visited without notice by international organizations and NGOs, as this was in contrast with other reports received; whether the National Human Rights Commission should be given a strong mandate in order to fulfil the obligations of the Convention and to make it able to further investigate reports made to it; incidents of rapid, almost immediate re-arrest of those freed by the courts, as this was evidence that the Army and Police were self-controlling, and what could be done to remedy this situation; and options for compensation and redress for victims of torture in such a climate of total impunity. He also mentioned Nepal’s hospitality to the large number of refugees that had crossed its borders in the past.
SAYED KASSEM AL-MASRY, the Committee Expert serving as Co-Rapporteur for the report of Nepal, said that all the Experts had welcomed the long-awaited report, and were looking forward to a constructive dialogue with the delegation. Nepal was, as all knew, passing through a very difficult period in its history, with a brutal insurgency taking place, which was being faced by equally brutal force. Grave human rights violations were committed by both sides, and the victims of torture and other ill-treatment were not confined to the two sides, but came from a wide variety of groups and communities, including farmers caught in land disputes, normal criminals, but most of all, the marginalized part of society, including the Dalits. The largest group of victims were the members of the Communist Party of Nepal. The civil war was marked by a wide-spread and systematic violation of human rights in an overt and uncurtailed manner. The unchanging plight of the Dalits was in large part responsible for the deterioration of the situation, but what was really disturbing was the prevailing culture of impartiality, and the widening gap between law and practice. Hundreds of cases of torture, disappearance and arbitrary detention had been reported, and the Special Rapporteur on Torture had concluded unequivocally that torture and ill-treatment was systematically practised by the Police, the Armed Police, and the Army. Frank admissions had been received by Police and Army Officials that torture was acceptable in certain situations. Safeguards were largely illusory. The Special Rapporteur had appealed for the Government to make a clear and strong statement against impunity, but, as follow-up to his visit, the Ministry of Home Affairs had issued a 7-point directive to the Police and Armed Police discouraging them from using torture, and this directive could hardly be described as a clear and strong statement.
The Security Forces had shown consistent disregard for the rule of law and defied the authority of the judiciary. A great number of detainees who were freed by the Courts were immediately re-arrested, Mr. Al-Masry said. Hundreds of people were held in incommunicado detention, and they could be listed as disappeared. Nepal was the source of the largest number of urgent action cases submitted to the Commission on Human Rights. In the midst of this grave and grim picture, it was astonishing that Nepal still had a vibrant society, with an energetic civil society that was active on the ground and was tolerated by the authorities. An elaborate report had been received by 34 local NGOs, who had been allowed to come to the United Nations and speak freely. Most of the reports received from both national and international NGOs had as a main source of information the local press, which revealed an astonishing degree of freedom in such a situation, and this should be noted.
Torture was not a criminal offence, and the law only provided for compensation. The complainant could be penalised if he failed to prove the allegation, and some reports had been received of those who had failed in their case and had been arrested and tortured until they denied their original complaint. Crimes of torture were also not punished by appropriate measures. Mr. Al-Masry asked whether the Convention had been invoked before the courts of law, and asked for further information on the new Penal Code. With regards to the pledge issued by the Government in March 2004 which promised that any detention should be in an officially-recognised place of detention, there was also a need for an update on what was the actual situation, and whether statistical data on those still in preventative detention could be provided.
Other Committee Experts also raised a series of questions. An Expert raised the issue of incidents of torture that could take place outside of places of detention. The possibility of the expansion of the definition of torture by the courts was also an issue of interest. Other issues included human rights and prison conditions; issues linked to refugees; concern for the situation of human rights defenders and what measures were being considered to protect them from disappearance; whether the legislation against torture contained specific mention of gender issues and gender-based violence; issues linked to the suspension of State officials during investigation of reports of torture involving them; whether the National Human Rights Commission had the power to investigate allegations of torture and their treatment by the courts; issues related to trafficking and the Government’s clear commitment to dealing with this serious and extensive problem and the gap between theory, law, practice and implementation; and the recourse available for deportees to a country where they might be tortured, in particular with regards to a large group of Tibetan asylum-seekers.
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