Nepal

Nepal: The experience with the anti-torture law , August 2018

India despite signing the UN Convention Against Torture in 1997 has failed to ratify the UNCAT as on date while neighbouring Nepal had ratified in 1991.

Between 1996 and 2006, an internal conflict between the Government of Nepal and the Communist Party of Nepal (Maoist) left over 13,000 people dead and 1,300 missing.[1] The Government of Nepal and the CPN (Maoists) signed the Comprehensive Peace Accord (CPA) on 21 November 2006 and democracy was established. Two commissions namely the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons were established to provide transitional justice as part of the CPA.

Nepal ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in May 1991. In 1996, Nepal enacted the Compensation Relating to Torture Act (CRT), which provides victims of torture a mechanism to claim minimal compensation. However, the Nepal is yet to enact an anti-torture law. The Bill to Control Torture, Inhuman, Brutal and Disrespectful Acts 2016, currently pending in the Parliament, does not meet the international standards.[2]

The 1990 Constitution of Nepal had prohibited torture in article 14(4) which stated that “No person who is detained during investigation or for trial or for any other reason shall be subjected to physical or mental torture, nor shall be given any cruel, inhuman or degrading treatment. Any person so treated shall be compensated in a manner as determined by law.” [3] This has been improved in the latest Constitution published in Nepal Gazette on 20 September 2015. Article 22 of the 2015 Constitution states as follows[4]:

22. Right against torture: (1) No person who is arrested or detained shall be subjected to physical or mental torture or to cruel, inhuman or degrading treatment.

(2) Any act mentioned in clause (1) shall be punishable by law, and any person who is the victim of such treatment shall have the right to obtain compensation in accordance with law.

Further, section 2 of the 1996 Compensation Relating to Torture Act (CRT) defines torture as “physical or mental torture inflicted upon a person in detention in the course of investigation, inquiry or trial or for any other reason and includes any cruel, inhuman or degrading treatment given to him/her”.[5]

Section 3 of the CRT Act prohibits torture in the following way:

3. Prohibition on Torture: (1) No person in detention in the course of investigation, inquiry or trial or for any other reason shall be subjected to torture.

Explanation: For the purposes of this Sub-section, the words “in detention” shall include the situation of being taken into custody in accordance with the prevailing law.

(2) In detaining and releasing any person, the concerned official shall get such person examined physically by a medical practitioner engaged in the governmental service as far as possible and him/herself examine such person in cases where no such medical practitioner is available, and maintain records thereof.

Explanation: For the purposes of this sub-section, “medical practitioner” shall include a Doctor, Kabiraj (Senior Ayurvedic Practitioner), health assistant, assistant health worker or Vaidhaya (Junior Ayurvedic Practitioner).

(3) One copy of the report on examination of physical or mental situation referred to in Sub-section (2) has to be sent to the concerned District Court.

In November 2005, the Committee against Torture had expressed concern that the definition of torture in article 2(a) of the Compensation Relating to Torture Act of 1996 did not comply with the UNCAT and there is no legal provision in current domestic law to make torture a criminal offence.[6] The Committee had found “widespread use of torture and ill-treatment by law enforcement personnel, and in particular the Royal Nepalese Army, the Armed Police Force and the Police, and the absence of measures to ensure the effective protection of all members of society.”[7] The Committee recommended that “The State party should adopt domestic legislation which ensures that acts of torture, including the acts of attempt, complicity and participation, are criminal offences punishable in a manner proportionate to the gravity of the crimes committed, and consider steps to amend the Compensation Relating to Torture Act of 1996 to bring it into compliance with all the elements of the definition of torture provided in the Convention. The State party should provide information to the Committee on domestic jurisprudence referring to the definition of torture as per article 1 of the Convention.[8]

The UN Special Rapporteur on torture in his report dated 9 January 2006, following a visit to Nepal at the invitation of the Government, rightly stated “However, neither definition satisfies the requirements of article 1 of the Convention, nor does domestic law make torture a criminal offence in accordance with article 4. According to CRT, the victim may file a claim for compensation in the district court within 35 days of having been subjected to torture or from release from detention, and during the proceedings the alleged perpetrator of torture is defended by the Attorney-General (sects. 5 and 10, respectively). Thus, in terms of justice for acts of torture, victims have only the possibility of compensation, and only “departmental actions” (e.g. demotions, suspensions, fines, delayed promotions, etc.) are foreseen for perpetrators (e.g. in the 1955 Police Act; and sect. 7 of CRT).[9] The Special Rapporteur recommended, among others, that “The crime of torture is defined as a matter of priority in accordance with article 1 of the Convention against Torture, with penalties commensurate with the gravity of torture” and that “The highest authorities, particularly those responsible for law enforcement activities, declare unambiguously that the culture of impunity must end and that torture and ill-treatment by public officials will not be tolerated and will be prosecuted”.[10]

The UN Human Rights Committee in its concluding observations on the second periodic report of Nepal adopted on 26 March 2014 expressed concerns at reports of unlawful killings in the Terai region, deaths in custody, and the official confirmation of the widespread use of torture and ill-treatment in places of police custody. The Committee was also expressed deep concerns at the failure of the State party to adopt legislation defining and criminalizing torture, and at the lack of concrete and comprehensive information on investigations, prosecutions, convictions, sanctions imposed on those responsible, and the impunity of law enforcement officials involved in such human rights violations. The UN Human Rights Committee recommended that the State party “should take appropriate measures to eradicate torture and ill-treatment, including by adopting legislation defining and prohibiting torture with sanctions and remedies commensurate with the gravity of the crime, in accordance with international standards” and “The State party should ensure that allegations of unlawful killings, torture and ill-treatment are effectively investigated, and that alleged perpetrators are persecuted and, if convicted, punished with appropriate sanctions, and that the victims and their families are provided with effective remedies”.[11]


ENDNOTES:

[1]. OHCHR, Nepal Conflict Report-Executive Summary (2012), https://www.ohchr.org/Documents/Countries/NP/OHCHR_ExecSumm_Nepal_Conflict_report2012.pdf

[2]https://myrepublica.nagariknetwork.com/news/15616/?categoryId=130

[3]. E/CN.4/2006/6/Add.5, para 13

[4]http://www.lawcommission.gov.np/en/documents/2016/01/constitution-of-nepal-2.pdf

[5]http://www.lawcommission.gov.np/en/documents/2015/08/compensation-relating-to-torture-act-2053-1996.pdf

[6]. CAT/C/NPL/CO/2, para 12

[7]. CAT/C/NPL/CO/2, para 13

[8]. CAT/C/NPL/CO/2, para 12

[9]. E/CN.4/2006/6/Add.5, para 14

[10]. E/CN.4/2006/6/Add.5, para 33

[11]. CCPR/C/NPL/CO/2, para 10

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