STATEMENT: NEPAL: Criminalizing Torture and Bringing it to an End: a Test for Nepal's Democracy

Every year, 26 June marks the day to remember and renew our support to those who have been victims of torture worldwide. A day in support of victims of torture mandates to review which steps were accomplished in the past year to bring torture to an end. Yet, this year as well torture continued to be reported at worrying rates in the country and since the last International Day in Support of Torture Victims, hundreds of Nepalese have faced physical and mental torture in the hands of the security forces, enjoying near-total impunity while violating the fundamental rights they should be protecting.

Although the end of the conflict led to a noticeable decline in the use of torture, its use as a tool for confession or for bribe-extortion remains widespread. According to a recent report by Advocacy Forum, 22.5% of the 2183 detainees they have interviewed between July and December 2010 reported torture or ill-treatment, among them 13.3% of the women detainees and 26.7% of the juvenile detainees. This figure reveals a worrying increase of 6 points in the percentage of detainees claiming torture in comparison to the previous study which covered the period from January to June 2010 where the percentage was of 15.8%. In some districts of the Terai region, this percentage is superior to 30%, with an extremely worrying figure of 46.5% of the detainees of Dhanusha district interrogated claiming to have faced torture or ill-treatment.

This trend of rising torture should trigger a sense of alarm in the minds of the Nepalese government and compel it to take immediate measures to bring to an end this number one challenge to the establishment of the rule of law in the country. In light of the cases documented within the past year, the Asian Human Rights Commission is of the opinion that persisting impunity protects perpetrators of torture from any consequences arising from their abuses and is the major cause of torture in Nepal. The fight against impunity should be made the cornerstone of a serious approach to the eradication of torture.

Stories of women, men, children and adults, having fallen prey to abuse at the hands of the police illustrates how impunity for this gross human rights violation has exposed innocents to the arbitrary brutality of criminals in uniforms. The lack of sanctions taken against the police officers who are violating fundamental rights registered in the Nepalese Constitution allow criminals to retain a position of authority from which they can abuse for their own advantage.

The most pressing challenge that Nepal will have to take up this year will be the effective criminalization of torture in the framework of its revised Criminal Code and Criminal Procedure Code. Human rights organizations welcome the efforts to introduce specific sanctions attached to the act of torture as a first step to put an end to the current absurd situation where no sanctions can be taken against those who violate one of the most fundamental rights of Nepalese, though this right is being entrenched in the Constitution. The AHRC also notes with satisfaction the criminalization of secret detention and of enforced disappearance, all of which leave the door open for torture. The AHRC is therefore of the opinion that this prohibition may strengthen much-needed safeguards against ill-treatment to detainees.

Nevertheless, as of now, some elements remain a matter of concern for the human rights community as they may prevent the effective implementation of the provisions criminalizing torture and thereby undermine the protection offered by those provisions to the detainees. The lack of a definition of torture in line with the international standards set up in the Convention against Torture is one of those elements which may contribute to the dismissal of cases of torture. The penal code does not set a mandatory prison sentence for perpetrators of torture, a punishment inadequate with regard to the standards set by the CAT which states that those offences should be "punishable by appropriate penalties which take into account their grave nature". The possibilities for those convicted of torture to get through with a fine only is clearly not proportionate to the gravity of the damages inflicted and such a light sanction is unlikely to act as a deterrent for the perpetrators.

Of particular concern are the provisions of the draft criminal code which mandates that written sanctions of the government of Nepal are required to prosecute a government employee. If this provision was to be adopted, the result would be a de facto veto right to the government regarding the prosecutions of torture. In the international law, the prohibition of torture is absolute and non-derogable, which means that exceptional circumstances cannot be invoked to justify the lack of prosecutions against perpetrators. In that light, the decision to undertake prosecutions against government employees allegedly involved in torture cannot be made a political decision, dependent on the goodwill of the executive. This disposition should be stripped from the draft criminal code to ban the possibility of amnesty for perpetrators of torture.

As long as no independent body is created to probe cases which, if investigated by the police, would result in an open conflict of interest as the police themselves are the perpetrators, effective prosecution of cases of torture is impossible. During the Universal Periodic Review of Nepal in January, Australia for instance recommended for the adoption of such an independent complaint mechanism on the conduct of security forces. Nevertheless, the government did not accept that recommendation and merely indicated that the existing complaint mechanism is already independent. It also responded to recommendations to ensure prompt and impartial investigations and prosecutions of allegations of torture that it considered that they were already implemented or on the way of being implemented. This is a complete denial of the reality of the obstacle course that torture victims have to go through to seek legal redress, as is abundantly illustrated by the struggle of a couple of shop owners tortured in Kathmandu in February.

Because they had refused to pay a bribe to policemen under the command of an Inspector from Metropolitan Police Circle, Maharjgunj, this couple was severely beaten, arbitrarily arrested and the police also looted an important sum of money from their house. The Inspector then openly admitted to the Deputy Superintendent of Police, his superior to having tortured the couple. Instead of condemning this abuse from a lower-rank officer, the DSP mocked the victims and told them that they could not do anything against them. When the victims tried to file a First Information Report against the perpetrators in two different police stations both refused the complaint presented by the victims. DSP Thapa from Metropolitan Police Circle, Maharjgunj, Kathmandu told that he could not do so as it would make the perpetrators lose their jobs. The AHRC condemns this open admission from a higher-ranking police officer that he is protecting lower-ranking policemen who have committed a grave abuse of power, therefore indirectly condoning the use of torture in his police station. When the victims brought their complaint to the Metropolitan Police Range, Hanuman Dhoka, Kathmandu, the highest-ranking police office in Kathmandu District, Superintendent of police Karki also refused the FIR and blamed the victims of having fabricated the incident to shame the names of the police officers. Because the victims sought assistance from human rights organizations to get legal redress, they have been facing continuous harassment and were evicted from their home and shops, supposedly following pressure from the police in retaliation.

The case of Hom Bahadur Bagale, an inspector of police tortured and detained incommunicado for two weeks in 2002 for having refused to follow an order from a superior, also illustrates at length the aberration of the current justice process, which being unable to ensure the right of remedy to the victim creates situations in which the victims themselves may risk further punishment if they seek justice. Since 2002, no investigation has been launched in the allegations of torture. The victim filed a case for Torture Compensation which was rejected both by the District Court and the Appellate Court. The case was then filed in the Supreme Court on 21 August 2008, but this hearing is still to take place. This nine-year long impunity has exposed the victim to continuous threats of death or dismissal, retaliations and re-victimisation from the perpetrators to force him to drop the legal proceedings. The higher ranks of the police administration colluded with the perpetrators in their attempt to force the victim to resign if he did not stop the proceedings. In 2006 because he had refused to cede to the pressure, the victim was arrested, held in custody of Hanumandhoka District Police Office and re-tortured. Although the court acknowledged that torture was inflicted to the victim in that second case and granted him compensation on 18 September 2008, that amount was never actually received by the victim and no sanction was decided against the perpetrators. Since then, some of the perpetrators have been rewarded with promotion while the victim was fired from his job and stripped of his pension.

Those cases abundantly expose that police officers must not be entrusted with the task of registering and investigating cases of alleged misconduct by their peers, as torture has in repeated instances been condoned by the police hierarchy or administration. Making sure that victims of torture have access to independent authorities to register their complaints of ill-treatment is therefore essential for the criminalization of torture to foster an effective remedy for torture victims.

In addition to the criminalization of torture, it is therefore essential that Nepal develops mechanisms to guarantee the fairness and effectiveness of inquiries. Those mechanisms should include in particular an effective witness and victim protection system, an independent investigative body, a separate mechanism to register the complaints of torture and mandatory sanctions of public officers found of having obstructed the victim's access to justice.

Acting decisively to eradicate torture from Nepal and bring the policing system under the effective framework of the rule of law will be a test for the democracy of Nepal. It is by its ability to develop law as a shield against abuses of power that the citizens of Nepal will judge the capacity of their state to respond to their aspirations.