NEPAL: Prolonged unabated harassment of a policeman torture victim for nine years require legal redress

Dear friends, 

The Asian Human Rights Commission (AHRC) wishes to share with you the latest developments in Hom Bahadur Bagale’s case. This former police officer was initially tortured and illegally detained in 2002. His only reward for attempting to find legal redress has been dismissal from his job, further torture, arbitrary arrest, continuous threats and intimidations while the perpetrators have been allowed to remain free, one of them even being rewarded with a promotion (For further details, please see our previous appeals: UA-076-2006; UP-057-2006). Nine years after the initial torture took place the victim still continues to receive constant threats from the police, including threats to file fabricated charges against him. On 16 May 2011, the hearing of the initial case of torture will be held in the Supreme Court: it is of utmost importance to guarantee the physical safety of the victim before hand to guarantee a fair and impartial trial. 

CASE NARRATIVE: 

The Asian Human Rights Commission (AHRC) first expressed its concern in Hom Bahadur Bagale’s case in 2006. In our urgent appeal UA-076-2006, we reported the constant threats and harassments faced by this victim following two complaints he had made in the case of torture of which he had been the victim. Since then, the victim has been fired from his job and tortured again because he refused to withdraw his complaints, while the perpetrators have not faced any prosecution and some of them have been promoted. 

The initial torture dates back to November 2002. At that time Hom Bahadur Bagale was a Sub-Inspector working as a technical officer at the Central Police Band Gulma, Maharejganj, Kathmandu. After he had refused to collect some gold on behalf of his superior which was not within the scope of his duty, he was accused of having stolen the gold. From November 28 to December 5 he was detained and held incommunicado in the Kathmandu District Police Office, Hanumandhoka. During this period he was continuously tortured. The victim was released after the Appellate Court ordered the police officers to produce him within 24 hours following a habeas corpus petition filed by his wife. 

After his release, the victim filed a case under the Torture Compensation Act in Kathmandu District Court on 31 December 2002 which was rejected and he appealed this decision in the Patan Appellate Court on December 2004. The Appellate Court upheld the Kathmandu District Court’s decision on 3 April 2007. The case was then filed in the Supreme Court on 21 August 2008, and the hearing will take place on 16 May 2011. 

The victim also lodged an injunction before the Patan Appellate Court on 24 February 2003 demanding directive, prohibitory orders against the perpetrators. The court’s decision went in favor of the defendants without ordering an investigation into the incident. The victim appealed to the Supreme Court to challenge the appellate court’s decision, the trial was set for 5 March 2006. 

As the victim had initiated legal proceedings to find remedies to the violations he suffered, he has faced continuous harassment and threats from the perpetrators for several years, such as preventing him from signing the attendance sheet and performing his duties, threatening him with death or with dismissal if he did not withdraw his complaint. As the date of the hearing on the injunction in the Supreme Court approaches, the AHRC reported that on February 2006 a group of six men in civilian clothing came to his house, searching for him. The collusion between the police administration and the perpetrators was highlighted when the legal department of the police station issued a letter ordering the victim to withdraw his cases or to resign from his job. Please see UP-057-2006 for more information. 

After years of constant threats, the victim eventually decided to submit his resignation on 13 March 2006 but the police administration refused to accept it. He was arrested on 20 March 2006 by the police headquarters and threatened to withdraw all the cases he had filed in court. As he refused to do so, he was held in custody at the Hanumandhoka District Police Office and tortured for the whole night. The police shaved half of his head to humiliate him, a psychological form of torture which had a deep impact on the victim and dragged him through puddles of dirty water in his uniform. The next day, on 21 March, he managed to escape and reached the office of Kantipur publications where he told the media about his story. The police arrested him there and brought him to the police headquarters. He was kept for seven days in illegal detention with no access to his lawyers and tortured again. The methods of torture used by the perpetrators reportedly included: rolling a bamboo stick all over the victim’s body under the weight of perpetrators, random beating, and beating on the victim’s soles by pipes and sticks. He was released on 28 March following a Supreme Court ruling that his detention was illegal and that he should be set free immediately. 

On 26 April 2006, the victim, being assisted by the Central for Victims of Torture, Nepal (CVICT) filed a case in Kathmandu District Court, seeking compensation under the Torture Compensation Act, 1996. On 18 September 2008 the Court ruled that torture was inflicted on the victim and granted him a Rs. 21 000 compensation (290 USD). Nevertheless, we are informed that 3 years later he still has not received that amount. 

The Torture Compensation Act, 1996, under which this ruling was passed states in its article 7 that “The District Court may pass the order to the concerned authority for taking the institutional action to be initiated in pursuance of the prevalent Nepalese law if any government official is proved to be involved in inflicting the torture against the provisions of this Act”. Nevertheless, although the 18 September 2008 Kathmandu District Court ruling acknowledges that torture took place it does not order any sanction against the perpetrators. The victim and CVICT then appealed of that decision to the Appellate Court. 

Further, we have been informed that one of the main perpetrators in the second instance of torture, Mr. Rajendra Gurung, was promoted from the rank of Deputy Superintendent of Police to the rank of Superintendent of Police. 

Moreover, the victim’s resignation that he submitted on 13 March 2006 was rejected by the police headquarters who instead chose to fire him from his job by a letter dated of 19 March 2006 thereby stripping him from his pension. On 26 April 2006, CVICT and the victim appealed to the Home Ministry arguing that his firing was illegal and urging the Home Ministry to reinstate him in his job. According to police act & regulation 2059, the Home Ministry should pronounce itself on the matter within two years. However, it took four years for the Home Ministry to give its verdict, and it eventually approved the victim’s firing in September 2010, following a Supreme Court’s “show cause” to do so. CVICT and the victim filed a writ petition in the Supreme Court in September 2010 to be reinstated in his job. 

Since then, the victim has been continuously threatened by the police who posted vigilantes around his house. The police in particular threatened him to fabricate charges against him and put him in jail. In February 2009, the perpetrators of torture have been involved in creating fake accusations of fraud against him but the Kathmandu District Court eventually gave him a clean chit in January 2010. 

ADDITIONAL COMMENTS: 

As early as 1999, the UN Special Rapporteur on Torture, and other cruel, inhuman or degrading treatment or punishment expressed its view that “impunity continues to be the principal cause of the perpetuation and encouragement of human rights violations and, in particular, torture.” Although Nepal is pledging in the international arena that it “does not tolerate any form of torture” and that it does not condone impunity, the case of Hom Bahadur Bagale proves otherwise. It shows that in Nepal, the criminal justice system fails to hold the perpetrators of torture accountable for their grave violation of human rights standards. It shows that those abuses are rewarded with promotion. It shows that the absence of prosecution and sanction against human rights violators allows them to threaten, further abuse and torture the victim. It shows that impunity for the perpetrators creates a space for them to further victimize innocent citizens, with the consent of the police hierarchy and administration and the government. This case shows that impunity creates such an absurd situation that it is the victim of torture which is sanctioned-by being re-tortured, humiliated, fired and deprived of his pension for claiming his rights rather than the perpetrators. Undue delays in giving justice to the victims constitute in itself a further violations of their rights and result in additional sufferings, increasing the mental trauma the victims suffer from continuous harassments and threats. 

What should also be kept in mind is that the victim of this blatant denial of justice in this case was not in the first place a person without resources and who was unfamiliar with the functioning of the state institutions: it gives an insight of the dismal situation in which an ordinary person without such knowledge and resources will find her or himself into to find justice after being tortured. 

SUGGESTED ACTION: 

Please join us in writing to the authorities listed below to contest the Home Ministry decision to confirm the firing of the victim which deprives him of his pension, to ask for protection for the victim against the threats he has been receiving, to denounce the impunity and awards that the perpetrators have received and to ask for a free and fair trial of his first case of torture in the Supreme Court on 16 May 2011. 

The AHRC is writing a separate letter to the UN Special Rapporteur on the Question of Torture and to the Office of the High Commissioner for Human Rights field office in Kathmandu. 

To support this case, please click here: SEND APPEAL LETTER