A student affiliated to a Maoist- affiliated Union enforcedly disappeared and tortured.
FACTS
On 21 October 2003, Mr. Himal Sharma was arbitrarily deprived of his liberty in Kathmandu by Nepali security forces wearing civilian clothes. He was taken to the Bhairabnath Battalion barracks and forcibly disappeared for almost one and a half years, during which the Nepali authorities repeatedly denied his detention and failed to reveal his fate and whereabouts to his representatives and his family despite several attempts carried out by his wife, Mrs. Devi Sharma, to locate him.
In February 2005, he was transferred to the Mahendradal Battalion barracks in Gorkha district. Mr. Himal Sharma’s fate and whereabouts remained unknown and he was placed outside the protection of the law until 8 March 2005.
During the entire period of his enforced disappearance, Mr. Himal Sharma was subjected to severe mental and physical torture. He suffered from countless episodes of beating, simulated drowning, flogging, electrocution and other forms of ill-treatment. In spite of his evidently poor state of health as a consequence of torture, he was not granted any adequate treatment resulting in serious permanent ailments.
Mr. Himal Sharma’s whereabouts were eventually revealed by the Nepali government on 8 March 2005, but he was arbitrarily kept in detention and ill-treated until 19 December 2005 when the Supreme Court declared his detention unlawful and ordered his liberation. On the same day Mr. Himal Sharma was re-arrested and brought back to jail where he was held until 14 July 2006, when he was finally released.
Read more: here
PROCEDURE
On 29 October 2003 Mrs. Devi Sharma, wife of Mr. Himal Sharma, filed a habeas corpus writ before the Supreme Court of Nepal on behalf of Mr. Himal Sharma. In the following days she went to the local police, administrative and military authorities in order to report the deprivation of liberty and disappearance of her husband but all authorities refused to register the complaint. On 19 December 2005, the Supreme Court found that the preventive detention of Mr. Himal Sharma was unlawful. He was finally released on 14 July 2006. On 27 July 2006, Mr. Himal Sharma filed a writ to the Supreme Court formally accusing some of the main responsible for the enforced disappearances and torture at the Bhairabnath Battalion barracks and calling for the constitution of a high-level commission of inquiry to investigate the human rights violations committed at the Bhairabnath Battalion barracks and the prosecution and punishment of the perpetrators.
On 1 June 2007 the Supreme Court ruled on the petitions submitted on behalf of 83 disappeared people, including the writ filed by Mr. Himal Sharma. The Court issued a mandamus order directing the government to promulgate a statute of law criminalising enforced disappearance in accordance with international standards; form an independent commission to investigate on the status of disappeared persons and the causes of their disappearance and submit the findings to competent authorities for prosecution; and provide victims of enforced disappearance with effective remedies and reparations.
In April 2013, TRIAL International supported Mr. Himal Sharma to submit his case before the Human Rights Committee. The Committee rendered its Views in April 2018 and found the violations of the right against torture and 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; right not to be subjected to arbitrary or unlawful interferences with one’s family life 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 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 as well as guarantee prompt, impartial and effective investigation; allow for the criminal prosecution of those responsible for such crimes; and amend the 35 days statutory limit for claiming compensation for torture in accordance with international standards.. 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 to the authors about the investigation of the case | |
| No information whatsoever has been provided to the authors on the progress of the investigation. | |
| 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. Sharma has not received any form of compensation for the harm suffered. | |
| Appropriate measures of satisfaction | |
| The authors have not received any measure on satisfaction. | |
| 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. | |
| Amendment of domestic legislation on torture. | |
| Albeit the new Criminal Code (entered into force in 2018) codifies the offences of torture, the definitions of the crimes enshrined therein and the corresponding regulation – concerning, for instance, statute of limitation and compensation – remains at odds with international law. | |
| Translation and dissemination of the decision | |
| There is no information on any steps undertaken by Nepalese authorities to translate in Nepali the Committee’s Views and disseminate them. |
Note these are unofficial gradings as the Human Rights Committee has not yet commented on implementation.
Efforts for Implementation
- Joint follow-up report submitted to the Human Rights Committee, October 2018
- Collective Follow-up report to the Human Rights Committee, June 2020