Message: Yuboy Kumari Katwal vs. Nepal. Message N 2000/2010. The Views were adopted by the Human Rights Committee (hereinafter referred to as the Committee) April 1, 2015
In 2010, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Nepal.
Subject of the message: enforced disappearance; the right to life.
Substantive issue: the right to life; prohibition of torture and cruel and inhuman treatment; the right to freedom and personal integrity; respect for the inherent dignity of the human person; the right to recognition of legal personality; the right to an effective remedy.
The Committee's legal position: The Committee considers that, although the term "enforced disappearance" does not specifically appear in any of the articles of the Covenant, enforced disappearance constitutes a unique series of related acts that constitute a continuing violation of various rights enshrined in this treaty (paragraph 11.3 of the Views).
The Committee recognizes the extent of the agonizing suffering of a person who has been incommunicado for an indefinite period of time. The Committee recalls its general comment No. 20 (1992) on article 7, in which it recommends that States parties take measures to prohibit incommunicado detention. In the present case, taking into account the findings of the Supreme Court, the Committee concludes that the torture inflicted on the author's spouse and his incommunicado detention constitute a violation of article 7 of the Covenant. Having reached this conclusion, the Committee does not consider it necessary to examine the author's allegations under paragraph 10 of the Covenant separately (paragraph 11.6 of the Views).
In connection with the author's allegations concerning article 16, the Committee once again draws attention to its established legal practice, in which the deliberate failure to provide any person with the protection of the law for a long time may mean a refusal to recognize the legal personality of this person if the victim was in the hands of State representatives when she was last seen, and If systematic obstacles are created for the victim's relatives in gaining access to potentially effective remedies, including judicial ones (paragraph 11.9 of the Considerations) (See Communication No. 2051/2011, Basnet v. Nepal, Views adopted on October 29, 2014, paragraph 8.7; communication No. 2031/2011, Bhandari v. Nepal, Views adopted on October 29, 2014, paragraph 8.8; communication No. 1495/2006, Madoui v. Algeria, Views adopted on October 28, 2008, paragraph 7.7, and communication N 1905/2009, Hirani v. Algeria, Views adopted on 26 March 2012, paragraph 7.9.).
The Committee reiterates the importance it attaches to the establishment by States parties of appropriate judicial and administrative mechanisms to deal with allegations of violations of rights under domestic law. He refers to his general comment No. 31, which indicates that the State party's refusal to investigate the alleged violations may in itself lead to a separate violation of the Covenant (paragraph 11.10 of the Views).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's allegations, which have not been refuted, that Mr. Katwal disappeared on December 13, 2001, when he was sent to the military barracks of the Ohaldunga district; that, according to witnesses who saw him being dragged bloodied by law enforcement officers on the morning of December 14, 2001, apparently unconscious, he was severely tortured there; that nothing was known about his fate until 2007; that during this period the authorities did not inform the author of the truth about the whereabouts of her husband. In the absence of any other substantial information on the case, the Committee considers that Mr. Katwal's deprivation of liberty and the subsequent unwillingness of the authorities to acknowledge this fact and to tell the truth about his fate constitute enforced disappearance (paragraph 11.2 of the Views).
The Committee notes the author's allegations that her husband was arrested by representatives of the State party's armed forces and held incommunicado from the time of his arrest until his alleged death; that although he was last seen in December 2001, no official investigation was conducted until 2007. The Committee also notes that the investigative group on prisoners established in 2006 by the Supreme Court confirmed that Mr. Katwal was tortured by members of the security forces and that he died of torture on 16 December 2001. The Committee further notes that Mr. Katwal's body has never been returned to his family (paragraph 11.4 of the Views).
The State party indicated that the criminal investigation into Mr. Katwal's case is ongoing. However, the Committee notes that the State party has not provided sufficient information to confirm that such a criminal investigation is indeed underway and that it is effective. 13 years after the events in question in this case, the circumstances of Mr. Katwal's death have not been fully disclosed and the perpetrators have not been brought to justice, although their names are allegedly indicated in the report of the investigative group on prisoners. Moreover, the Supreme Court concluded that Mr. Katwal died from torture inflicted on him by the military. Thus, the Committee considers that the murder of Mr. Katwal while he was in the hands of military personnel and the lack of effective investigation by the State party constitute a violation of Mr. Katwal's right to life under article 6 of the Covenant (paragraph 11.5 of the Views).
The Committee takes note of the author's suffering as a result of her husband's disappearance, her failure to receive adequate compensation from the State party, her allegations of threats against and mistreatment of her, the misrepresentation by her authorities as to the whereabouts of her husband, as well as the fact that she continues to be unable to get access to his remains. The Committee considers that the case file reveals a violation of article 7 of the Covenant in respect of the author (paragraph 11.7 of the Views).
In the present case, until 2007, the authorities repeatedly provided Mr. Katwal's relatives with misleading information about his fate, making it impossible to find him. Having received no comment from the State party in this regard, the Committee considers that Mr. Katwal's enforced disappearance deprived him of the protection of the law from the moment of his arrest, in violation of article 16 of the Covenant (paragraph 11.9 of the Views).
The Committee takes note of the complaint filed under paragraphs 1-4 of article 9 by the author, which indicates that there is no evidence that her husband, who was arrested and detained by law enforcement officers, was notified of the reasons and grounds for his arrest and was brought before a judge in order to be able to to challenge the legality of the detention. In the absence of specific information from the State party in this regard, the author's allegations must be treated with due confidence. Accordingly, the arrest and detention of the author's spouse constitute a violation of article 9 of the Covenant (para. 11.10 Considerations).
The facts of the case at hand indicate that Mr. Katwal did not have access to effective remedies during his detention. After the disappearance of her husband, the author, in the process of searching for him, repeatedly appealed to the authorities of different cities, receiving misleading information from them about his location and his fate. 13 years after Mr. Katwal's arrest, despite the author's efforts and the Supreme Court's decision to initiate a criminal investigation, the State party has not conducted a thorough and effective investigation to clarify the exact circumstances of his disappearance and possible death, as well as to bring those responsible to justice. In addition, the 300,000 Nepali rupees paid to the author as compensation cannot be considered adequate compensation commensurate with the severity of the violations committed. Accordingly, the Committee considers that the facts before it indicate a violation of paragraph 3 of article 2 in combination with articles 6, 7, paragraphs 1-4 of Article 9 and Article 16 in relation to Mr. Katwal and paragraph 3 of article 2 in combination with article 7 in relation to the author himself (paragraph 11.11 of the Views).
Conclusions of the Committee: The Committee considers that the information provided to it indicates a violation by the State party of articles 6, 7, paragraphs 1-4 of articles 9, 16, as well as paragraphs 3 of articles 2 in combination with articles 6, 7, paragraphs 1-4 of articles 9 and 16 of the Covenant in relation to-on Katwala, as well as articles 7 and 3 of article 2 in combination with article 7 of the Covenant in relation to the author himself (paragraph 12 of the Views).
In accordance with article 2, paragraph 3, of the Covenant, the State party is obliged to provide the author with an effective remedy, including: (a) to conduct a thorough and effective investigation in order to find Mr. Katwal's remains and return them to his family; (b) to bring to justice, bring to justice and punish those responsible for deprivation of liberty, torture and enforced disappearance of Mr. Katwal, as well as to make this information public; and (c) provide the author with effective compensation for the violations committed against her, including adequate compensation and appropriate measures of satisfaction. The State party is also obliged to take measures to prevent the recurrence of such violations in the future. In this regard, the State party should ensure that its legislation allows for criminal prosecution for acts that constitute a violation of the Covenant (paragraph 13 of the Views).