A 14 year old indigenous child tortured.
FACTS
Bholi Pharaka, an indigenous child of Nepal, worked as a domestic helper for a family in Kathmandu. He was not allowed to attend school, not paid and subjected to physical and psychological abuses by the family of the house he worked for. In 2012, when he returned to his village, he was accused of theft of gold and valuables by the daughter of the house where he provided the service.
On 14 August 2012, Mr. Bholi and his uncle visited the Metropolitan Police Range, Kathmandu. Here he was arrested and placed in severely crowded detention cell with adults and poor hygiene facilities without being notified of the reasons or charges against him. He was punched all over the body, hit with plastic pipes and his hair was pulled and repeatedly forced to confess the theft at the detention. On 6 September 2012, he was forced to sign, which contained a confession to his involvement in the theft, but not allowed to read.
Read more: here
PROCEDURE
In September and October 2012, the family of Mr. Bholi Pharaka repeatedly made attempts to seek medical examination, investigation of Mr. Bholi being subjected to torture before the Kathmandu District Court (KDC), National Human Rights Commission and Police Headquarters in Naxal, Kathmandu. No effective investigation into the reasons for his conditions was conducted.
On 1 December 2013, Mr. Bholi’s father submitted a petition before the KDC pursuant to the Compensation Relating to Torture Act, 2053 (1996). However, the petition was not registered citing 35-day statute of limitations to report a case under the Act. On 27 August 2015, Mr. Pharaka’s legal representative attempted to register a First Information Report (FIR) before the Metropolitan Police Range, Kathmandu. However, the police refused to register the FIR.
On 13 September 2015, his representative attempted to file a complaint before the Labour Office in Kathmandu seeking the prosecution of those responsible for subjecting the author to child and forced labour and compensation for the damage suffered. The complaint was not registered as it fell out of the provided statute of limitation under the law. On 24 March 2016, his representative filed two writ petitions before the Supreme Court (SC) of Nepal concerning the submission of Mr. Bholi Pharaka to child and forced labour and torture, respectively. However, the Section Officer at the SC refused the registration, alleging they had no prospect of success as they are time-barred.
On 11 May 2016, TRIAL International submitted an individual communication on behalf of Mr. Bholi Pharaka to the Human Rights Committee. The HRC issued its decision on the case on 15 July 2019.
It found that Mr Bholi Pharaka was the victim of the right against torture, forced labour, liberty and security, among others and indicated various measures of reparation.
Read the decision: English
The Office of the High Commissioner for Human Rights called out the government of Nepal to implement the Views in a separate press release.
RECOMMENDATIONS
The Committee recommended that Nepal investigate the facts of the case and ensure that those found responsible are sanctioned with penalties commensurate to the gravity of the crimes, provide free of charge medical and psychological care and effective reparation and appropriate measures of satisfaction for the violations suffered, including the provision of educational support as appropriate, provide prompt, fair and adequate compensation, proportional to the gravity of the violations suffered and indicate the specific domestic authorities that are in charge of implementing each measure of reparation. It also recommended to amend legislation and statutes of limitations in accordance with international standards. In addition, it is required to translate the decision is translated into Nepali and distributed widely.
| Investigate the facts of the case and ensure that those found responsible are sanctioned with penalties commensurate to the gravity of the crimes and, if necessary, suspend or remove suspected police officers while the investigation is on-going | |
| Nepal has failed to adopt measures with regard to the investigation, prosecution and sanction of those responsible. | |
| Information to the authors about the investigation of the case | |
| No information on the progress of the investigation has been provided to the authors. | |
| Adequate psychological rehabilitation and medical treatment | |
| No measures have been adopted to implement the Committee’s recommendation regarding the provision of adequate psychological rehabilitation and medical treatment. | |
| Provision of adequate Compensation | |
| Mr. Bholi Pharaka has not received any form of compensation for the harm suffered. | |
| Appropriate measures of satisfaction | |
| The author has not received any measure of satisfaction, including educational support. | |
| Indicate the authorities for reparation implementation | |
| No measure to identify and indicate the domestic authorities in charge has been undertaken. Instead, the government refers victims to various government authorities to inquire about the recommendations made. | |
| Amend the legislation on torture and slavery | |
| Albeit the new Criminal Code (entered into force in 2018) codifies the autonomous offences of torture, the definition of the crime enshrined therein and the corresponding regulation – concerning, for instance, statutes of limitation and compensation – remains at odds with international law. Further, there are no changes in the laws on slavery. | |
| Indicate the specific domestic authorities that are in charge of implementing each measure of reparation. | |
| No measure to identify and indicate the domestic authorities in charge has been undertaken. Instead, the government refers victims to various government authorities to inquire about the recommendations made. | |
| Translation and Dissemination of Views | |
| Nepalese authorities did not translate in Nepali the Committee’s Views nor disseminate them. |
Note these are unofficial gradings as the Human Rights Committee has not yet commented on implementation.
Efforts for Implementation
- Collective Follow-up report to the Human Rights Committee, February 2021