Remedies


UN Human Rights Committee (c) IRIN

UN Human Rights Committee (c) IRIN

REMEDIES PROVIDED

When issuing a decision on a specific case, the Human Rights Committee not only specifies which human rights violations have occurred, but also recommends actions that the State should take in order to ensure that the victims receive appropriate redress. In legal jargon, this set of measures is also referred to as “remedies” or “reparation”. The obligation on the State to provide such measures follows from the victims’ right to an effective remedy.

According to international standards, reparation must be “adequate, effective and prompt” and is intended to promote justice by providing redress to the victims of human rights violations. Such reparation should also be “proportional to the gravity of the violations and the harm suffered”.

Furthermore, the Human Rights Committee’s approach is that reparation ought to be understood in an “integral fashion”, which means that “reparation” or “remedies” must include five elements: (1) compensation, (2) restitution, (3) rehabilitation, (4) satisfaction, and (5) guarantees of non-repetition. Moreover, the Committee often recommends the States to translate its decisions into the official languages of the State and to disseminate them as widely as possible throughout country.

Real Rights Now is calling for the Government of Nepal to fully implement the Views of the Human Rights Committee – by providing the recommended remedies and reparation – without any further delay.

DECISIONS OF THE HUMAN RIGHTS COMMITTEE TO BE TRANSLATED AND DISSEMINATED IN THE LOCAL LANGUAGE
The proceedings of the Human Rights Committee always take place in one of the six official languages of the United Nations (UN). In the case of Nepal, the proceedings take place in English.

While the case is pending (i.e. when it has not been decided upon by the Human Rights Committee members), all the information surrounding the case is kept confidential, unless the victim decides otherwise. The UN only provides public information once the case is decided, and this information is limited to an update on the UN website.

As a consequence, the decisions of the Human Rights Committee are not always accessible to the broader population of the country concerned, in this case Nepal, either because they are written in a language that some of the population cannot read, or because of a general unawareness about the existence of the process as a whole.

For these reasons, the Human Rights Committee often recommends that the States, first, translate its decisions into the official local language(s) of the State and second, publish these decisions and widely disseminate them, so that the general public can be aware of their existence.

Out of 14 cases in which the HRC recommended translation of the decisions, 6 cases have been translated.

Out of 16 cases in which the HRC recommended dissemination of the decisions, 0 cases have been published or disseminated.

INVESTIGATION INTO THE FACTS AND APPLICANT TO BE INFORMED ABOUT THE OUTCOME OF SUCH INVESTIGATION
The Human Rights Committee often has to remind States about their obligation to investigate alleged human rights violations.

This obligation to investigate into the facts is particularly relevant in cases of enforced disappearance, where the State’s failure to properly investigate the disappearance(s) is the predominant reason why the fates and whereabouts of the disappeared remain unknown.

In terms of conducting such investigations, the Human Rights Committee‘s standard is that they must be “prompt, thorough and impartial” and must be carried out by competent authorities.

The obligation to investigate is often followed by the obligation to prosecute, try and punish those responsible. This means that the investigation must be exhaustive enough to be capable of leading to the identification and, if appropriate, the punishment of the perpetrators of the acts in question. For this reason, the fact-finding function of transitional justice mechanisms may not always be a suitable form of fulfilling a State’s obligation to investigate.

In all cases relating to Nepal decided by the Human Rights Committee, it has found the State to be under an obligation to undertake an investigation into the facts, specifying that this must be “thorough” (Sharma v. Nepal, Giri v. Nepal, Sedhai v. Nepal, Maharjan v. Nepal, Tripathi v. Nepal, Basnet v. Nepal, Bhandari v. Nepal, Katwal v. Nepal, Tharu v. Nepal, A.S v.Nepal, Sabita Basnet v. Nepal, Nakarmi v. Nepal, Dhakal v. Nepal, Neupane v. Nepal), “diligent” (Giri v. Nepal, Maharjan v. Nepal), “effective” (Sedhai v. Nepal, Chaulagain v. Nepal, Tripathi v. Nepal, Basnet v. Nepal, Bhandari v. Nepal, Katwal v. Nepal, Tharu v. Nepal,A.S v.Nepal, Sabita Basnet v. Nepal, Nakarmi v. Nepal, Dhakal v. Nepal, Neupane v. Nepal) and/or “complete” (Chaulagain v. Nepal).

In addition, the Human Rights Committee has insisted that the obligation to investigate includes the obligation to inform the victims about the outcomes of such endeavours. The results of the investigation shall be made publicly available, so that victims and their relatives, as well as society at large, receive their right to know the truth on the alleged violation of the right to life, the circumstances in which it took place, the identity of the perpetrators and the progress of the investigation. The investigation must collect and document all evidence, disclose the facts of the violation, as well as the causes, and disclose the methods, evidence, and results of the investigation to victims and/or their relatives. In cases where such disclosure does not pose a risk to the victims, the victims’ relatives or witnesses involved in the case, the findings must also be shared with the general public. In relation to Nepal, the Human Rights Committee has said that it is under an obligation to “provide the author with detailed information about the results of its investigation” (Chaulagain v. Nepal, Tripathi v. Nepal, Basnet v. Nepal, Bhandari v. Nepal, Tharu v. Nepal, Dhakal v. Nepal, Neupane v. Nepal, Nakarmi v. Nepal, Sabita Basnet v. Nepal).

In Katwal v. Nepal, the Human Rights Committee linked the obligation to provide information to the victim, not to the investigation itself, but instead it stated the obligation of Nepal to “prosecuting, trying and punishing those responsible for the deprivation of liberty, torture and enforced disappearance of Mr Katwal and making the results of such measures public”.

The Human Rights Committee has previously found – albeit not in relation to Nepal directly – that while the duty to investigate human rights violations and to bring their perpetrators to justice is an obligation of means, in the case of enforced disappearance the State has a duty towards the victim’s family members to fully establish his or her whereabouts (or those of his or her mortal remains if the person has died). As such, and to put it more plainly, in such cases, there is an obligation of result.

In all 16 cases decided by the HRC, investigation into the facts has been ordered. Despite very preliminary investigative steps being taken in the Giri case, 0 cases have been properly investigated.

THOSE RESPONSIBLE TO BE TRIED, PROSECUTED AND PUNISHED
Where the above-mentioned investigation reveals violations of human rights, it follows that States must ensure that those responsible for such violations are brought to justice.

This measure of reparation is two-fold, in the sense that, on the one hand, this is a measure of “satisfaction” for the victim or victim’s relatives and, on the other hand, it is a “guarantee of non-repetition”, as it is aimed at combating impunity and therefore to deter similar behaviour from the society as a whole.

In all cases decided on Nepal, the Human Rights Committee has mentioned the obligation to “prosecute, try and punish” or simply of “prosecuting and punishing” those responsible for the violations committed.

In the case of Nepal, it must be noted that the obligation to prosecute and punish those responsible, is independent of the limits and obstacles that may exist under domestic legislation, such as the non-criminalisation of torture and enforced disappearance. In these cases, the Human Rights Committee considers that the violations are so grave that those responsible must always be brought to justice. Since Nepal is a party to the International Covenant on Civil and Political Rights (ICCPR), it has accepted to combat and counter violations of this kind. As such, where applicable, the Human Rights Committee always recommends that Nepal must modify its domestic legislation so that such crimes can be prosecuted.

The Human Rights Committee has said that in cases of gross human rights violations, a judicial remedy is required. It follows that measures of a disciplinary, administrative or other nature therefore do not suffice in and of themselves. In the case of Nepal, and referring to the transitional justice mechanisms, the Human Rights Committee has stressed that these are not judicial organs and hence cannot provide an appropriate judicial remedy.

The Human Rights Committee has also found that gross human rights violations cannot be understood as constituting offences of a military nature and therefore, should not, in principle, be tried by military courts.

In all 16 cases decided by the HRC, prosecution and punishment of the perpetrators have been ordered. 0 perpetrators have been brought to justice.

THE REMAINS TO BE LOCATED AND RETURNED TO THE FAMILY, OR FOR THE PERSON TO BE RELEASED, IF STILL ALIVE
In cases of enforced disappearances, the Human Rights Committee has consistently stressed that Nepal has the obligation of releasing the person in question, if still alive and detained incommunicado. In cases where there has been no news about the possible death of the person or, in the event that the person is deceased, Nepal must locate and hand over the remains to the family.

In legal jargon, these measures are known as “restitution” and are aimed at restoring the victim to the original situation before the violation of his or her rights took place, in so far as this is possible.

In 11 enforced disappearances cases decided by the HRC, Nepal was mandated to locate and return the remains of the disappeared to their families, or release the person, if still alive. 0 disappeared have been found, neither dead nor alive.

ADEQUATE COMPENSATION TO BE PROVIDED
In all its Views on Nepal, the Human Rights Committee has stated that the State must pay “adequate compensation” to the victims in question and, if appropriate, their family members. Compensation refers to the pecuniary reparation that the victim in entitled to as a result of the harms – material or immaterial – that he or she has suffered.

The formula normally used by the Human Rights Committee in the cases on Nepal is “providing adequate compensation for the violation suffered, to the author” and, when relevant, their children. However, on some occasions, the Human Rights Committee has identified a broader obligation to provide “full reparation”, which it has interpreted to include adequate compensation along with other forms of reparation such as rehabilitation and measures of satisfaction (Chaulagain v. Nepal).

As a matter of policy, and unlike other international human rights bodies, the Human Rights Committee never specifies the exact amount that needs to be paid to the victims.

Despite the fact that the Human Rights Committee has never clarified the exact content of the compensation it recommends, international standards stipulate that compensation “should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case” and that it should include, among others, “(a) physical or mental harm; (b) lost opportunities, including employment, education and social benefits; (c) material damages and loss of earnings, including loss of earning potential; (d) moral damage; and (e) costs required for legal or expert assistance, medicine and medical services, and psychological and social services”.

The Human Rights Committee has expressed that the amounts that some victims had received through the ‘Interim Relief Program’ were by no means sufficient to cover the material and moral harm suffered as a result of the violations found (Bhandari v. Nepal) and “can in no way compensate the pain and anguish suffered by the family and relatives” (Sedhai v. Nepal).

In all 16 cases decided, the HRC recommended payment of adequate compensation to the victims and their relatives. Despite small interim payments being made in five cases beyond that payable under the general policy towards conflict victims, 0 have received adequate compensation.

ADEQUATE PSYCHOLOGICAL REHABILITATION AND MEDICAL SUPPORT
Measures of “rehabilitation” may refer to medical, psychological, social and legal support and services that the victim and/or family members may need as a consequence of the human rights violation suffered. According to the Committee Against Torture, rehabilitation for victims should aim to restore, as far as possible, their independence, physical, mental, social and vocational ability, and full inclusion and participation in society.

To date, the Human Rights Committee has specifically referred to Nepal’s obligation to provide rehabilitation in three cases.  In Tripathi v. NepalBasnet v. Nepal, Bhandari v. Nepal, A.S v. Nepal, Sabita Basnet v. Nepal, Nakarmi v. Nepal, Dhakal v. Nepal, Neupane v. Nepal it stated that Nepal should “ensur[e] that the necessary and adequate psychological rehabilitation and medical treatment is provided to the authors” and in Tharu v. Nepal it stated that Nepal should “ensur[e] that any necessary and adequate rehabilitation and treatment are provided to the authors”.

In 10 cases decided by the HRC, rehabilitation, including psychological and medical support, has been specifically recommended. 0 victims have received this support.

PREVENTION OF SIMILAR FUTURE SITUATIONS
In all the cases decided on Nepal, the Human Rights Committee has referred to the obligation of preventing similar violations to occur in the future. In legal jargon, such measures are known as “guarantees on non-repetition”.

While the Human Rights Committee has used the language that Nepal has the obligation of “preventing similar situations in the future” in all its cases, in some of them (Tripathi v. Nepal, Bhandari v. Nepal, Katwal v. Nepal, Basnet v. Nepal, Tharu v. Nepal, Sabita Basnet v. Nepal, Nakarmi v. Nepal, Neupane v. Nepal, Dhakal v. Nepal) it has further specified that in this context, Nepal “should ensure that its legislation allows the criminal prosecution of the facts that constituted a violation of the Covenant”.

In Maharjan v. Nepal, the Human Rights Committee specified that Nepal is under an obligation of “amending its legislation so as to bring it into conformity with the Covenant, including the amendment and extension of the 35-day statutory limitation from the event of torture or the date of release for bringing claims under the Compensation relating to Torture Act; the enactment of legislation defining and criminalizing torture; and the repealing of all laws granting impunity to alleged perpetrators of acts of torture and enforced disappearance”.

In other words, in order to comply with its international obligations, Nepal must criminalise torture and enforced disappearances, as a measure to guarantee the non-repetition of such violations.

In addition, in order to guarantee the non-repetition of similar or connected violations in relation to the same victim, the Human Rights Committee has said that Nepal is under an obligation to “ensure that the author and his family are protected from acts of reprisals or intimidation” (Giri v. Nepal, Maharjan v. Nepal).

Other measures that Nepal could take to prevent similar violations in the future could be, for example, ensuring that the military and the security forces are under the control of civilian courts; providing human rights and international humanitarian law education to all sectors of society and training for law enforcement officials, military and security forces; or adopting and codes of conduct by public servants, including law enforcement personnel, and ensuring their compliance therewith.

In all 16 cases decided by the HRC, prevention of similar violations in the future has been recommended. 0 laws have been amended.  Although a draft bill to criminalise torture was presented before Parliament in 2014, it is not consistent with international standards and has not been passed by the legislature yet.

SATISFACTION
In the cases of Chaulagain v. Nepal, Tripathi v. Nepal, Basnet v. Nepal, Katwal v. Nepal and Tharu v. Nepal, A.S v. Nepal, Sabita Basnet v. Nepal, Nakarmi v. Nepal, Dhakal v. Nepal, Neupane v. Neupane, the Human Rights Committee has also referred to Nepal’s obligation to provide victims with “appropriate measures of satisfaction”.

With the term “satisfaction”, the Human Rights Committee means measures that publicly acknowledge the responsibility of the State and formally recognise the victims. Some examples would be commemorations and tributes to the victims, public apologies including acknowledgement of the facts and acceptance of responsibility, or the issuing of judicial rulings that establish the dignity and reputation of the victim.

In 11 cases decided by the HRC, measures of satisfaction have been recommended. 0 measures to restore the victims’ dignity have been taken to date.