A pastor enforcedly disappeared and extrajudicially killed.
FACTS
On 1 May 2001, Hari Prasad Bolakhe, a permanent resident of Phulbari VDC-8, Kavre district, a pastor by profession, was arrested by a joint unit of the security forces on the allegations of involvement with Maoist activities and allowing Maoists to use the phone. On 14 July 2002, Mr. Bolakhe’s family was able to establish his whereabouts once he was transferred to Dhulikhel prison. Mr. Bolakhe was held in different army barracks before being released on 20 April 2003.
Initially, Mr. Bolakhe was released after his father signed a paper on the condition of reporting regularly to the Kavre District Police Office (DPO). However, On 27 December 2003, Mr. Bolakhe was taken away for the second time. On 11 October 2004, the Malego Committee’s report stated that Mr. Bolakhe had been released on 20 April 2003, without any reference to his second arrest on 27 December 2003.
Eventually, on 5 July 2006, the National Human Rights Commission (NHRC) exhumed human remains from a forest at Mulkhola, Kavre which were later confirmed by the forensic autopsy reports to be those of Mr. Bolakhe.
Read more: here
PROCEDURE
On 18 October 2006, Mr Bolakhe’s family, accompanied by Advocacy Forum lawyers filed a First Information Report (FIR) at the District Police Office, (DPO) Kavre. However, DPO blatantly refused to register the FIR unless an order came from a higher authority. Despite the order of the Chief District Officer (CDO) Kavre, the DPO did not register the case and arrest the perpetrators, citing their “higher positions” as a reason.
On 8 November 2006, the family filed a writ petition before the Supreme Court demanding a mandamus order for DPO to register the FIR. On 5 December 2006, in a written response DPO informed the Court that it had registered the FIR on 7 November 2006 under the case of homicide, and as such, the investigation had already opened. On 17 June 2008, the District Attorney’s Office wrote to DPO instructing it to immediately arrest the perpetrators identified in the FIR, and proceed with the necessary actions yet DPO failed to act upon these instructions.
After repeated postponements of the hearings, on 9 November 2009, the Supreme Court quashed the petition on the basis that the FIR had been registered despite DPO not submitting to the Court a case file describing the developments of the case as per the Court’s request. On 24 September 2014, the police informed Ms. Bolakhe and her lawyer that they had not worked on the case since 20 October 2013 as it would need to be dealt with by the Truth and Reconciliation Commission, hence the Police would not do anything further on it.
The case was submitted before Human Rights Committee with the support of Advocacy Forum. The Views on the case were adopted in July 2018. It found violations of various rights such as right to life; prohibition of torture or cruel and inhuman treatment; right to liberty and security of person; respect for the inherent dignity of the human person; recognition as a person before the law among others.
Read the decision: English
RECOMMENDATIONS
The Committee recommended that Nepal conduct a thorough and effective investigation into the facts surrounding the detention and the treatment suffered during detention and killing and provide the family with detailed information about the results of its investigation. It also recommended Nepal to prosecute, try and punish those responsible for the violations committed and make the results of such measures public, ensure that any necessary and adequate psychological rehabilitation and medical treatment are made available to the family, provide effective reparation, including compensation and appropriate measures of satisfaction and criminalize torture and enforced disappearance in its legislation along with appropriate sanctions. In addition it is required to translate the decision is translated into Nepali and distributed widely.
| Investigation into the facts of the case, prosecution and sanctions of the perpetrators | |
| Nepal has failed to adopt measures with regard to the investigation, prosecution and sanction of those responsible. Nepal continues arguing that investigation into conflict-related crimes must be carried out by transitional justice bodies in spite of the well-established case law of the Committee that holds that transitional justice mechanisms cannot replace judicial remedies in cases of gross human rights violations. | |
| Information on the investigation and, in case of death, locate the victim’s mortal remains and hand them over to the family | |
| No information on the progress of the investigation and on the existence of any concrete plan to locate, exhume, identify and return the victim’s mortal remains has been provided to the family of Mr. Bolakhe. | |
| 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 | |
| Although the government considers support of the interim relief as compensation, such support cannot replace the compensation victims should receive. The family of Mr. Bolakhe has not received any form of compensation for the harm suffered. | |
| Appropriate measures of satisfaction | |
| The author has not received any measure of satisfaction. | |
| Amend legislation on torture and enforced disappearances | |
| Albeit the new Criminal Code (entered into force in 2018) codifies the autonomous offences of torture and enforced disappearance, the definitions of the crimes enshrined therein and the corresponding regulation – concerning, for instance, statutes of limitation and compensation – remains at odds with international law. | |
| Translation and Dissemination of Views | |
| The Views of the Human Rights Committee on this communication have neither been translated nor disseminated widely. |
Note these are unofficial gradings as the Human Rights Committee has not yet commented on implementation.
Efforts for Implementation
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