Dear friends,
On 11 October 2004, the Asian Human Rights Commission (AHRC) issued an urgent appeal regarding the illegal arrest of 16 human rights defenders in Tamil Nadu, India (UA-134-2004). On that day the Campaign against Torture Tamil Nadu organised a training programme at the Cuddalore town hall. The hall had been booked for this purpose on 7 October 2004 but when the participants arrived at the hall they were threatened with dire consequences if they did not leave the hall immediately. They were told that the hall was needed for a police training session despite there being no entry in the ledger regarding the police booking. When the participants started demanding their rights, 16 of them were arrested, dragged to a police van, manhandled by police personnel in front of the Superintendent of Police of Cuddalore District, Mr Premkumar and taken to the police station. No custody memo was given to the participants and neither were they informed about the reasons for their arrest. They were released seven hours later without information as to why they had been detained despite repeated demands for such information. It is understood, however, that Mr Premkumar misused his power as a Superintendent of Police to stop the participants holding a planned press meeting in which very negative information about his implications in extremely serious human rights violations, including custodial torture and custodial death would have been released. The participants were denied their fundamental rights to assemble peacefully and to freedom of expression.
The case was filed before the National Human Rights Commission (NHRC) on 11 October 2004 by Peoples Watch Tamil Nadu (PW-TN). Whilst the Commission reacted very quickly to the complaint and ordered on the very same day that the police submit a report on the incident within two weeks, no further action was taken for a lengthy amount of time after that. Three reminders were sent to the Commission as the report and additional information asked for had not yet been submitted to the Commission. In all reminders the NHRC was urged to issue immediate strict directions to the concerned authority. But such action was not taken. Eventually a response was received dated 29 June 2005, according to which the case was charged on 22 March 2005 and is pending in court. On 21 September 2005 the Commission closed the case on the grounds that the case was sub-judice. Again no copy of the response sent by the police was made available for comment despite the PW-TNs repeated requests in all reminders to do so. No recommendations were made for actions to be taken against Sub-Inspector Premkumar and others involved in the illegal arrest.
Another example of the NHRCs unwillingness to protect human rights defenders is a case filed by PW-TN in November 2003. On 5 November 2003, at about 7.30am, the police carried out a search in the office premises of the PW-TN, whose director is a member of the NHRC Core Group on NGOs. Under a search warrant issued by the Judicial Magistrate, Sivakasi, the police were apparently looking for two accused who they believed to be hiding in the premises. However, during their over 1 ½ hour long search the police did not adhere to the statutory procedures for search and committed several excesses with ulterior motive. The police conducting the search were not wearing their name-tags and refused to disclose their identity. They did not want to produce the copy of the order purportedly issued by the Judicial Magistrate to search the premises and refused to hand over an attested copy of the search memo. Moreover the police videographers were more interested in capturing everything in the office than finding the accused. The authenticity of the search warrant is also very much to be doubted as it did not carry a dispatch number and would have had to be obtained in a clandestine manner in out of office hours as it was dated 5 November 2003 but the search took place at 7.30 in the morning when it is not practically possible for a Court to issue a search warrant.
Shortly before the search of its offices, PW-TN had been instrumental in processing several cases of serious human rights violations presented at two public hearings under the banner of the National Commission for Women and the Tamil Nadu State Commission for Women, where instances of police violence and negligence were highlighted. Following these hearings members of the PW-TN were personally warned by some very senior police officers who were present at the hearings because of the NGOs efforts to present gruesome cases of police excesses.
Moreover, on 4 November 2003, one day before the search, PW-TNs monitoring team had been informed by one Mr K. Muthukumar that some persons were allegedly illegally detained in Sivasaki police station. A PW-TN regional monitoring associate was sent to investigate the allegations and met with the Inspector of Police, Thiruthangal police station, Mr Vellaiyan, who was the only inspector with a name tag during the search the following morning. From those facts it becomes evident that the search was likely to be an attempt to thwart any involvement of PW-TN in this case.
Following the search of its offices, PW-TN immediately filed a complaint before the National Human Rights Commission. Being a member of the Core Group on NGOs, PW-TN has for a long time been very eager to work closely with the NHRC and has had great hope and faith in the Commission. However, the proceedings and directions given by the NHRC in this case have been both deeply upsetting and extremely concerning. The Commission by its proceedings dated 17 November 2003 requested a report and comments from the Director General of Police, Tamil Nadu on the petition made. On 24 November such report was submitted to the NHRC denying the allegations and stating that all the formalities of search were strictly followed. Shockingly, in their report the police made serious allegations against the Executive Director of PW-TN, Mr. Henri Tiphagne, calling him an anti-national element, a blackmailer and allegedly indulging in forceful religious conversions. For nearly one year after the receipt of this report the Commission took no further action. In light of the severe, totally unfounded and ill-minded allegations made against Mr Tiphagne it should have been the Commissions utmost duty to investigate this case further and to critically question the information provided in the report. However on 20 October 2004 the Commission merely requested information about the case registered at M. Pudupathi police station (in which the two people allegedly hiding in PW-TNs offices were implicated) and asked for a copy of the charge sheet in this case. Following receipt of the latter and perusal of the report the case was closed on 21 March 2005, one and a half years after receipt of the complaint, without further investigation and without giving PW-TN any opportunity to comment on the police report.
Considering the very obviously biased and inadequate report, how can the Commission make any decisions without receiving comments from the PW-TN on the police response?
It is common knowledge that often superiors merely repeat their subordinates defense against the complainants allegations without any further enquiry. Particularly in situations where the police themselves compile reports on alleged police brutality, the potential for biased and inadequate reports is extremely great. It should therefore be standard procedure for the NHRC to immediately send a copy of the opposite partys response to the complainants and invite their comments. This issue has been raised with the NHRC National Core Group on NGOs. Following recommendations of the Core Group the NHRC eventually took the decision that in the case of complaints received from reputed NGOs a copy of the opposite party response should be sent to the respective NGO for comments before closure of a case. Unfortunately the NHRC has not followed its own procedure as the above case clearly indicates. It also leads to the question of what happens to a complaint not brought by a reputed NGO? If there is little chance for such an organisation to receive a copy, how much chance is there for an individual complainant? Should a victim not always know the authoritys response, whether he or she has made a complaint via a reputed NGO or not? Then there is, of course, the question what constitutes a reputed NGO in the first place and who lays down the criteria for such classification. And if such classification has to be made, should one not assume that PW-TN, whose director is a member of the NHRCs own Core Group, does constitute a reputed NGO and hence should be given the opportunity to comment upon reports received before a case is closed?
Moreover, it needs to be highlighted that the above two cases are are not an exception. A study the PW-TN is conducting at present shows that in more than four fifths of cases filed by the organisation before the NHRC no copy of the opposite partys response has been made available to the complainant. With such careless attitude, the protection awarded by the Commission to victims of human rights violations and human rights defenders is currently totally inadequate.
Regarding the two above mentioned cases, it is appalling that this is the treatment given by the NHRC to human rights defenders in India. It is the duty of the Commission to ensure that the genuine efforts of human rights defenders and human rights organisations are not thwarted whenever such organisations or defenders take steps to uphold the law. The Commission must ensure that human rights defenders are provided the due protection of the law and no interference from law enforcement officials under whatever guise or excuse is made. Human rights defenders and organisations must be able to do their work unhindered and unhesitant within the mandate that the Constitution has provided them with.
According to Article 9 of the UN Declaration on Human Rights Defenders in the exercise of human rights and fundamental freedoms, including the promotion and protection of human rights [
] everyone has the right [
] to benefit from an effective remedy and to be protected in the event of the violation of those rights. Everyone whose rights or freedoms are allegedly violated has the right [
] to have their complaint promptly reviewed [
] and to obtain a decision, in accordance with law, providing redress, including any compensation due, where there has been a violation of that person’s rights or freedoms, as well as enforcement of the eventual decision and award, all without undue delay. To the same end, everyone has the right to complain about the actions of individual officials and governmental bodies with regard to violations of human rights, by petition or other appropriate means, to competent domestic judicial, administrative or legislative authorities or any other competent authority provided for by the legal system of the State, which should render their decision on the complaint without undue delay. The State shall conduct a prompt and impartial investigation or ensure that an inquiry takes place whenever there is reasonable ground to believe that a violation of human rights and fundamental freedoms has occurred in any territory under its jurisdiction.
It is very clear that the NHRC is not following the provisions of the Declaration on Human Rights Defenders. This is deeply regrettable and utterly condemnable considering the prime role of the NHRC is to protect and promote human rights in India.
Owing to this failure of duty by the Commission, we request that the NHRC re-opens the two cases outlined above and considers in both cases the comments of the complainants. We also request that the NHRC reviews all cases brought before it quickly and issues directions and decisions without undue delay. It must order compensation for victims of human rights violations whenever such violation is found to have taken place and demand action against any public official who has been in violation of human rights standards, whether domestic or international. We reiterate once more that it is of absolute necessity that the NHRC makes reports received from the opposite party as well as all other relevant documents relating to a case relevant to the complainant for comments. The current, abhorrent practice of simply taking the authorities reports on file and closing cases randomly without any transparency and proper investigation must stop if victims of human rights violations and human rights defenders are to be afforded the due protection of the law guaranteed to them.
Urgent Appeals Programme
Asian Human Rights Commission
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SAMPLE LETTER
Shri Justice A. S. Anand
Chairperson
National Human Rights Commission of India
Faridkot House, Copernicus Marg
New Delhi-110001
INDIA
Tel: + 91 11 23074448
Fax: +91 11 2334 0016
E-mail: chairnhrc@nic.in
Dear Justice Anand
INDIA: Closure of cases filed before the National Human Rights Commission of India denies justice to the victims concerned
I write to voice my dismay at the handling of two cases filed before the National Human Rights Commission of India by Peoples Watch Tamil Nadu.
In the first case, Peoples Watch Tamil Nadu (PW-TN) filed a complaint with the National Human Rights Commission (NHRC) on 11 October 2004. The complaint was in regards to the arrest of 16 human rights defenders by police under the command of Superintendent of Police of Cuddalore District, Mr Premkumar. The 16 victims, who had planned to conduct a training programme at Cuddalore town hall, were dragged to a police van, manhandled by the police and taken into custody without any arrest warrant or reason given for their detention. It is understood that Mr Premkumar misused his power as a Superintendent of Police to stop the participants holding a planned press meeting in which very negative information about his implications in extremely serious human rights violations, including custodial torture and custodial death would have been released. The participants were denied their fundamental rights to assemble peacefully and to freedom of expression.
When the PW-TN filed their complaint, the Commission reacted quickly and ordered on the very same day that the police submit a report on the incident within two weeks. However, no further action was taken for a lengthy amount of time after that. Three reminders were sent to the Commission as the report and additional information asked for had not yet been submitted to the Commission. In all reminders the NHRC was urged to issue immediate strict directions to the concerned authority. But such action was not taken. Eventually a response was received dated 29 June 2005, according to which the case was charged on 22 March 2005 and is pending in court. On 21 September 2005 the Commission closed the case on the grounds that the case was sub-judice. No copy of the response sent by the police was made available for comment despite the PW-TNs repeated requests in all reminders to do so. No recommendations were made for actions to be taken against Sub-Inspector Premkumar and others involved in the illegal arrest.
In the second case, the PW-TN filed another complaint with the NHRC after their premises were raided on the morning of 5 November 2003. Under a search warrant issued by the Judicial Magistrate, Sivakasi, the police were apparently looking for two accused who they believed to be hiding in the premises. However, during their over 1 ½ hour long search the police did not adhere to the statutory procedures for search and committed several excesses with ulterior motive. The police conducting the search were not wearing their name-tags and refused to disclose their identity. They did not want to produce the copy of the order purportedly issued by the Judicial Magistrate to search the premises and refused to hand over an attested copy of the search memo. Moreover the police videographers were more interested in capturing everything in the office than finding the accused. The authenticity of the search warrant is also very much to be doubted as it did not carry a dispatch number and would have had to be obtained in a clandestine manner in out of office hours as it was dated 5 November 2003 but the search took place at 7.30 in the morning when it is not practically possible for a Court to issue a search warrant.
Shortly before the search of its offices, PW-TN had been instrumental in processing several cases of serious human rights violations presented at two public hearings under the banner of the National Commission for Women and the Tamil Nadu State Commission for Women, where instances of police violence and negligence were highlighted. Following these hearings members of the PW-TN were personally warned by some very senior police officers who were present at the hearings because of the NGOs efforts to present gruesome cases of police excesses.
Moreover, on 4 November 2003, one day before the search, PW-TNs monitoring team had been informed by one Mr K. Muthukumar that some persons were allegedly illegally detained in Sivasaki police station. A PW-TN regional monitoring associate was sent to investigate the allegations and met with the Inspector of Police, Thiruthangal police station, Mr Vellaiyan, who was the only inspector with a name tag during the search the following morning. From those facts it becomes evident that the search was likely to be an attempt to thwart any involvement of PW-TN in this case.
Sadly, when the PW-TN filed a complaint with the NHRC regarding this matter, they were again met with the same unsatisfactory response as experienced in the other case. The Commission by its proceedings dated 17 November 2003 requested a report and comments from the Director General of Police, Tamil Nadu on the petition made. On 24 November such report was submitted to the NHRC denying the allegations and stating that all the formalities of search were strictly followed. Shockingly, in their report the police made serious allegations against the Executive Director of PW-TN, Mr. Henri Tiphagne, calling him an anti-national element, a blackmailer and allegedly indulging in forceful religious conversions. For nearly one year after the receipt of this report the Commission took no further action. In light of the severe, totally unfounded and ill-minded allegations made against Mr Tiphagne it should have been the Commissions utmost duty to investigate this case further and to critically question the information provided in the report. However on 20 October 2004 the Commission merely requested information about the case registered at M. Pudupathi police station (in which the two people allegedly hiding in PW-TNs offices were implicated) and asked for a copy of the charge sheet in this case. Following receipt of the latter and perusal of the report the case was closed on 21 March 2005, one and a half years after receipt of the complaint, without further investigation and without giving PW-TN any opportunity to comment on the police report.
The response from the NHRC in both of these cases has fallen well short of what should be expected from a countrys human rights commission. That the NHRC has so easily dismissed both of these cases raises serious concerns, not only for the final outcome of these complaints, but for the search for justice in all other cases brought before the NHRC. If two cases brought before the NHRC by a highly reputable, well-known human rights organisation are so easily dismissed, what hope is there for those cases filed by individuals or small, little known groups?
As regards these two cases specifically, it is the duty of the Commission to ensure that the genuine efforts of human rights defenders and human rights organisations are not thwarted whenever such organisations or defenders take steps to uphold the law. The Commission must ensure that human rights defenders are provided the due protection of the law and no interference from law enforcement officials under whatever guise or excuse is made. Human rights defenders and organisations must be able to do their work unhindered and unhesitant within the mandate that the Constitution has provided them with.
According to Article 9 of the UN Declaration on Human Rights Defenders in the exercise of human rights and fundamental freedoms, including the promotion and protection of human rights [
] everyone has the right [
] to benefit from an effective remedy and to be protected in the event of the violation of those rights. Everyone whose rights or freedoms are allegedly violated has the right [
] to have their complaint promptly reviewed [
] and to obtain a decision, in accordance with law, providing redress, including any compensation due, where there has been a violation of that person's rights or freedoms, as well as enforcement of the eventual decision and award, all without undue delay. To the same end, everyone has the right to complain about the actions of individual officials and governmental bodies with regard to violations of human rights, by petition or other appropriate means, to competent domestic judicial, administrative or legislative authorities or any other competent authority provided for by the legal system of the State, which should render their decision on the complaint without undue delay. The State shall conduct a prompt and impartial investigation or ensure that an inquiry takes place whenever there is reasonable ground to believe that a violation of human rights and fundamental freedoms has occurred in any territory under its jurisdiction.
It is very clear that the NHRC is not following the provisions of the Declaration on Human Rights Defenders. This is deeply regrettable and utterly condemnable considering the prime role of the NHRC is to protect and promote human rights in India.
Owing to this failure of duty by the Commission, I urge you to re-open the two cases outlined above and consider in both cases the comments of the complainants. I also request that the NHRC review all cases brought before it quickly and issue directions and decisions without undue delay. The NHRC must order compensation for victims of human rights violations whenever such violation is found to have taken place and demand action against any public official who has been in violation of human rights standards, whether domestic or international. I strongly believe that it is an absolute necessity that the NHRC makes reports received from the opposite party as well as all other relevant documents relating to a case relevant to the complainant for comments. The current, abhorrent practice of simply taking the authorities reports on file and closing cases randomly without any transparency and proper investigation must stop if victims of human rights violations and human rights defenders are to be afforded the due protection of the law guaranteed to them.
As the Chairperson of the National Human Rights Commission, I trust that you will take action on this matter without delay.
Yours sincerely,
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PLEASE SEND COPIES OF THIS LETTER TO:
1. Honourable Dr. Justice Shivraj V. Patil
Member
National Human Rights Commission of India
Faridkot House, Copernicus Marg
New Delhi-110001
INDIA
Tel: + 91-11-23387328(O)
E-mail: patilsv@nic.in
2. Honourable Sri Justice Y. Bhaskar Rao
Member
National Human Rights Commission of India
Faridkot House, Copernicus Marg
New Delhi-110001
INDIA
Tel: + 91-11-23385069 (O)
E-mail: ybrao@nic.in
3. Shri R.S. Kalha
Member
National Human Rights Commission of India
Faridkot House, Copernicus Marg
New Delhi-110001
INDIA
Tel: + 91-11-23387244(O)
E-mail: kalha@nic.in
4. Shri P.C.Sharma
Member
National Human Rights Commission of India
Faridkot House, Copernicus Marg
New Delhi-110001
INDIA
Tel: + 91-11-23382432(O)
E-mail: pcsharma@nic.in
5. Shri Tarlochan Singh
Chairperson
National Commission for Minorities
National Human Rights Commission of India
Faridkot House, Copernicus Marg
New Delhi-110001
INDIA
Tel: + 91-11-24690592 (O), 91-11-24698410 (O)
6. Dr.Girija Vyas
Chairperson
National Commission for Women
National Human Rights Commission of India
Faridkot House, Copernicus Marg
New Delhi-110001
INDIA
Tel: + 91-11-23236204 (O) , 91-11-24651615 (R)
7. Shri. A.P.J. Abdul Kalam
President of India
Rashtrapathi Bhavan
New Delhi 110001
INDIA
Tel: +91 11 23015321
Fax: +91 11 23017290 / 23017824
E-mail: presidentofindia@rb.nic.inn
8. Mr. P.R. Ray
Home Secretary
Government of West Bengal
Writers' Buildings
Kolkata 700001
West Bengal
INDIA
Tel: +91 33 2214 5656
Fax: +91 33 2214 3001
Email: sechome@wb.gov.inn
9. Ms. Hina Jilani
Special Representative of the Secretary General for human rights defenders
Att: Ben Majekodunmi
Room 1-040, c/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 93 88
Fax: +41 22 917 9006
E-mail: bmajekodunmi@ohchr.orgail: sechome@wb.gov.in
PLEASE ALSO SEND COPIES OF THE LETTER TO MEMBERS OF THE ASIA PACIFIC FORUM OF NATIONAL HUMAN RIGHTS INSTITUTIONS:
1. Afghan Independent Human Rights Commission
Pul-e-Surkh
Karte-e-3
Kabul
Afghanistan
Tel: +93 20 250 0676 / 250 0677
E-mail: help@aihrc.org.aff
2. Australian Human Rights and Equal Opportunity Commission
GPO Box 5218
Sydney NSW 1042
AUSTRALIA
Tel: +61 2 9284 9600
Fax: +61 2 9284 9611
Email: complaintsinfo@humanrights.gov.auu
3. Fiji Human Rights Commission
GPO Box 982
Suva
Fiji Islands
Tel: +679 330 8577
Fax: +679 330 8661
E-mail: info@humanrights.org.fjj
4. Indonesian National Commission on Human Rights
JL No 4B, Jakarta Pusat
Jakarta 13310
INDONESIA
Tel: +62 21 392 5230
Fax: +62 21 392 5227
E-mail: info@komnasham.go.id
5. Jordan National Centre for Human Rights
PO Box 5503
Amman 11183
Jordan
Tel: + 962 6 593 1256 / + 962 6 593 2257 / + 962 6 593 1071
Fax: + 962 6 593 0072
Email: mail@nchr.org.jo
6. Human Rights Commission of Malaysia (SUHAKAM)
29th Floor, Menara Tun Razak
Jalan Raja Laut
50350 Kuala Lumpur
Malaysia
Tel: +603 2612 5600
Fax: +603 2612 5620
E-mail: humanrights@suhakam.org.my
7. National Human Rights Commission of Mongolia
Floor 5, Government building 11,
Liberty Square,
Ulaanbaatar 38,
Mongolia
Tel: +976 11 310 987, 327 136
Fax: +976 11 327 136, 320 284
Email: nhrcm@nhrc-mn.org
8. National Human Rights Commission Nepal
Harihar Bhavan
Pulchwock
PO Box No 9182
Kathmandu
NEPAL
Tel: +977-1-554 7974, 554 7978, 552 5659, 552 5842, 552 5920, 552 2709
Fax: +977-1-547 973
Email: nhrc@ntc.net.comm
9. Human Rights Commission of New Zealand
PO Box 6751
Wellesley Street
Auckland
NEW ZEALAND
Tel: +64 9 309 0874
Fax: +64 9 377 3593
E-mail: infoline@hrc.co.nz
10. Palestinian Independent Commission for Citizens Rights
Mukmas Trading Center, Sixth Floor
Al-Irsal Street
PO Box 2264
Ramallah
Palestine
Tel: +972 (2) 298-6958 / +972 (2) 298-7536 / +972 (2) 296-0241 / +972 (2) 296-0242
Fax: +972 (2) 298-7211
E-mail: piccr@palnet.com / piccr@piccr.org
11. Philippines Commission on Human Rights
State Accounting Building
Commonwealth Ave
UP Complex, Diliman, 1104
Quezon City
PHILIPPINES
Tel: +63 2 928 5792 / 928 5655
Fax: +63 2 929 0102
E-mail: drpvq@chr.gov.ph / comsec@chr.gov.ph
12. National Human Rights Commission of Qatar
Salwa Road, Souor Al-Rawda
Doha
QATAR
Postal Address:
PO Box 24104
Doha
QATAR
Tel: +974 444 4012 / 431 6542
Fax: +974 444 4013 / 431 6687
E-mail: nhrc@qatar.org.qa
13. National Human Rights Commission of Korea
16 Euljiro 1-ga, Jung-gu
Seoul
Korea, 100-842
Tel: +82 2 2125 9700
Fax: +82 2 2125 9811/9666
E-mail: nhrc@humanrights.go.kr
14. Human Rights Commission of Sri Lanka
No. 36, Kynsey Road
Colombo 8
SRI LANKA
Tel: +94 1 694 925 / 673 806 / 685 981 / 685 339 / 696 470 / 685 337
Fax: +94 1 694 924
E-mail: sechrc@sltnet.lkk
15. National Human Rights Commission of Thailand
PO Box 400
Rongmuang Post Office
Bangkok 10330
THAILAND
Tel: +66 2 219 2940
Fax: +66 2 219 2940
E-mail: commission@nhrc.or.th
16. Timor Leste Office of the Provedor for Human Rights and Justice
Provedor de Direitos Humanos e Justica - The Provedor for Human Rights and Justice
Rua Kaikoli, Kaikoli
Dili
Timor-Leste
Tel: + 670 333 1030
Mobile Tel: + 670 723 0177
E-mail: sdiasximenes@yahoo.com.br
Thank you.
Urgent Appeals Programme
Asian Human Rights Commission
