Message: Kedar Chaulagain v. Nepal. Message N 2018/2010. The Views were adopted by the Committee on October 28, 2014.
In 2010, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Nepal.
Subject of the report: Arbitrary arrest and detention, torture, inhuman and degrading treatment and subsequent extrajudicial execution of a girl suspected of being a member of the Communist Party (Maoist).
Substantive issues: the right to life; prohibition of torture and inhuman or degrading treatment or punishment; the right to freedom and security of the individual; respect for the inherent dignity of the human person; the right to an effective remedy; equal protection by the law.
The legal positions of the Committee. The Committee recalls that States parties should take measures not only to prevent and punish criminal acts leading to deprivation of life, but also to prevent arbitrary killings committed by their own security forces. The Committee also refers to paragraph 3 of art. 2 of the Covenant, according to which States parties are obliged to provide all persons with accessible, effective and enforceable remedies to assert their Covenant rights, the Committee recalls its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States - parties to the Covenant, and in particular to the fact that in cases where investigations reveal violations of certain rights recognized in the Covenant, States parties should take measures to ensure that those responsible are brought to justice. As in the case of failure to investigate, failure to bring to justice those responsible for such violations may in itself constitute a separate violation of the Covenant. These obligations arise, in particular, in the case of violations recognized as criminal, whether under domestic or international law, such as torture and similar cruel, inhuman or degrading treatment, as well as summary and arbitrary executions (paragraph 11.3 of the Considerations).
The deprivation of human life by State authorities is a matter of extreme seriousness (See communication No. 1275/2004, Umetaliev v. Kyrgyzstan, Views adopted on 30 October 2008, paragraph 9.5); this requires prompt and appropriate investigation, applying all the guarantees provided for in the Covenant, and appropriate punishment of those responsible (paragraph 11.4 of the Views).
The Committee's assessment of the factual circumstances of the case. The Committee notes the author's allegations that on 12 February 2004, his daughter was arbitrarily executed by members of the Royal Nepalese Army after she was unlawfully arrested at night without an arrest warrant, tortured, ill-treated and humiliated by a group of military personnel; that in the following days, he filed a complaint with the head of the the district Administration; that on February 29, 2004, he also submitted an application to the National Human Rights Commission, and on June 8, 2006. He submitted an initial information message about the murder to the district police department. Since the police did not conduct any investigation, he filed a petition with the Supreme Court. He claims that, despite the recommendations made by the NHRC (National Human Rights Commission) on June 14, 2005, and the Supreme Court's order on the plaintiff's demands dated December 14, 2009, no investigation has been conducted into the murder of his daughter to date. In addition, the Committee notes the author's allegations that he was unaware of the proceedings conducted by the military tribunal in connection with the events that took place in Pokhari Chauri on 12 and 13 February 2004; that the military tribunal's decision of 28 August 2005 was not made public; that the documents and evidence listed above the decision was not submitted to the ROP (District Police Department.). Kavra or the author; and also that the court did not punish those responsible for the crimes committed against his daughter. In addition, the Committee notes the State party's statement that further investigation into the circumstances of the death of the author's daughter is still ongoing and that the case will fall under the jurisdiction of the Commission for the Investigation of Cases of Disappearance and Truth and Reconciliation established by law (paragraph 11.2 of the Views).
In the present case, there is no disagreement that the author's daughter was arrested by members of the Royal Nepalese Army without an arrest warrant and that she died as a result of the use of firearms by these members of the armed forces, although the parties disagree on the circumstances of her death. In any case, the Committee considers that the murder of the author's daughter by military personnel required an immediate and independent investigation. The Committee notes that shortly after his daughter's death, the author filed a complaint with the head of the district administration, and on 8 June 2006 I submitted an initial information message about the murder to the district police department, but it was all to no avail. In June 2005, the NHRC found that the author's daughter had been unlawfully murdered and recommended that the Government identify the perpetrators and take legal action against them. In addition, on December 14, 2009, the Supreme Court ordered an immediate investigation, but this did not lead to any results. Despite the author's efforts, more than a decade after his daughter's murder, the State party has not completed any investigation clarifying the circumstances of her arrest and death, and no perpetrators have been brought to justice or punished. The State party refers to ongoing investigations, but the progress of such investigations and the reasons for the delays remain unclear (paragraph 11.4 of the Views).
The Committee notes the author's claim that the treatment he was subjected to by members of the Royal Nepalese Army, including being forced to witness the execution of his daughter, as well as the lack of subsequent proper investigation and impunity for those responsible, constitute treatment contrary to article 7 of the Covenant, read in conjunction with article 2, paragraph 3, of the Covenant., as far as the author himself is concerned. The Committee notes that all efforts made by the author to ensure justice from the authorities were unsuccessful and that he and his family received only 100,000 rupees and 200,000 rupees in interim compensation in 2008 and 2010, respectively. The Committee considers that temporary compensation is not an appropriate remedy commensurate with such serious violations. The Committee considers that the events in which the author was forced to participate, including those related to the State party's failure to ensure a prompt, thorough and effective investigation, constitute treatment contrary to article 7 of the Covenant, read in conjunction with article 2, paragraph 3, of the Covenant (paragraph 11.6 of the Views).
Conclusions of the Committee. The Human Rights Committee concludes that the State party has violated the rights of the author's daughter under articles 6, paragraph 1, as well as articles 7, 9 and 10 of the Covenant, read in conjunction with article 2, paragraph 3, of the Covenant; as well as the author's rights under article 7, read in conjunction with paragraph 3 of article 2 of the Covenant. In accordance with subsection "a" of paragraph 3 of art. 2 Of the Covenant, the State party is under an obligation to provide the author with an effective remedy that would provide for an effective and full investigation into the relevant facts, criminal prosecution and punishment of those responsible, and full compensation for damages and appropriate measures of satisfaction. The State party is also under an obligation to take steps to prevent similar violations in the future (paragraphs 12, 13 of the Views).