CCPR/C/119/D/2184/2012
Court also maintained that the author’s concerns about the disappearance of her husband
had to be investigated by a truth and reconciliation commission to be created by the
Government to address the problem of disappearances in Nepal. In that connection, it noted
that the Government had enacted legislation for investigation of enforced disappearances
and to provide relief to the families of the victims.
2.13 The author affirms that she has taken all possible steps to exhaust all domestic
remedies. Nevertheless, those remedies are mostly inexistent and the few available are both
ineffective and unreasonably prolonged. A criminal investigation can only start after
registration of a first information report, but this can be lodged only when it is related to a
crime enlisted in schedule 1 of the State Cases Act of 1992. Since enforced disappearance
is not yet codified in the State party’s national legislation, it is impossible for relatives of
victims of enforced disappearance to file a first information report for these acts. The
Supreme Court has recognized this serious gap in the legislation of the State party. In the
case of the author’s husband, it is only after the release of the 2006 OHCHR-Nepal report
that the authorities accepted a first information report. However, this was ineffective as,
only few months after the registration of the report, the District Police Office in Kathmandu
requested the author not to return to the Police Office, as they were unable to call the
respondent army officers to the District Police Office or, therefore, to conduct an
investigation. The author’s writ of mandamus was quashed by the Supreme Court on the
premise that she should wait until the Government established a truth and reconciliation
commission to address the problem of disappearance that occurred in Nepal during the noninternational armed conflict. Nonetheless, the author contends that a potential fact-finding
process in the context of a transitional justice mechanism does not replace access to justice
and redress for victims of gross human rights violations and their relatives and therefore
cannot be deemed a remedy within the meaning of article 5 (2) (b) of the Optional Protocol.
The complaint
3.1
The author submits that her husband is a victim of enforced disappearance and that
the State party violated his rights under articles 6, 7, 9, 10 and 16, separately and in
conjunction with article 2 (3); her rights under article 7, read alone and in conjunction with
article 2 (3); and her minor daughter’s rights under article 7, read in conjunction with
articles 2 (3) and 24 (1), of the Covenant.
3.2
The author’s husband was arbitrary deprived of his liberty by members of the Royal
Nepalese Army in the presence of eyewitnesses on 23 September 2003 and taken to the
Bhairab Nath Barracks. He was last seen alive in a life-threatening condition. Moreover, in
view of the testimonies of former detainees and other concurrent evidence from various
reliable sources, such as the reports of OHCHR-Nepal and the National Human Rights
Commission and the judgment of the Supreme Court of Nepal of 1 June 2007, it is
reasonable to presume that he died while in custody as a result of ill-treatment and torture
inflicted on him. The arbitrary arrest, ill-treatment and subsequent enforced disappearance
of her husband was perpetrated in a context of a widespread and systematic practice.
Despite the fact that his deprivation of liberty was promptly reported by the author, the
authorities denied that it had occurred and no thorough and effective investigation has been
carried out to clarify the fate and whereabouts of her husband. Moreover, his mortal
remains have not been located, exhumed, identified or returned to his family. In that
context, the burden of proof rests on the State party to provide a satisfactory and convincing
explanation, establishing and disclosing with certainty her husband’s fate and whereabouts.
Therefore, in the light of the State party’s failure to demonstrate the contrary, the author
submits that her husband’s enforced disappearance as such, and most likely subsequent
killing, constitute a violation by the State party of his rights under article 6 of the Covenant.
3.3
The author claims that the enforced disappearance of her husband and the degree of
suffering involved in being held without contact with the outside world amount to a
violation of article 7 of the Covenant. Furthermore, there is concurrent evidence that
indicates that he was tortured by the State party’s authorities, such as the testimonies from
former detainees mentioned in the reports of OHCHR-Nepal and the National Human
Rights Commission (see paras. 2.6 and 2.9 above). The judgment of the Supreme Court of
Nepal of June 2007 also noted that, according to one writ, her husband’s name was listed
among those who “succumbed to death as result of the torture [he] was subjected to whilst
in custody”.
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