Dear friends,
The Asian Human Rights Commission (AHRC) has been informed that the 2002 torture case of Hom Bahadur Bagale will be heard by the Supreme Court on Monday, 31 October. This former police officer was tortured and illegally detained in 2002 for having refused to obey an illegal order from his superiors. Nevertheless, the police deny that he was even kept in detention and arrested. In relation to that case, he made two complaints but nine years on, he is still waiting for justice. For having filed a case against the police, he has been subjected to constant harassment, threats and intimidation. He was fired from his job, arbitrarily arrested and further tortured in 2006. (For further details, please see our previous appeals: UA-076-2006; UP-057-2006). As the date of the hearing in the Supreme Court approaches, the victim continues to be under constant threats from the police: It is therefore of the utmost importance to guarantee the physical safety of the victim before the trial to guarantee the fairness and impartiality of the justice process.
UPDATED INFORMATION:
In our previous urgent appeals dating back to 2006 we have reported how Hom Bahadur Bagale was employed as a Sub-Inspector working as a technical officer at the Central Police Band Gulma, Maharajganj, 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.
Our previous Urgent Appeal reads “On November 28, Deputy Superintendent of Police Rajendra Gurung ordered Bagale to go to the Kathmandu District Police Office, Hanumandhoka (KDPO) to meet Inspector Yagnya Binod Pokharel. When he entered Inspector Pokharel’s office, Inspector Pokharel closed the door and assaulted him with a bamboo stick for an hour without saying a word. After the attack, Inspector Pokharel demanded the victim to confess where he had hidden DSP Gurung’s gold. The victim was then illegally put under the custody of the KDPO. No arrest warrant was produced on Bagale. On November 29, Bagale was handcuffed and taken into the office of Kuber Singh Rana, Superintendent of Police (SP) of the KDPO. SP Rana and Inspector Pokharel then severely beat the victim with cane sticks. They then ordered the victim to roll a heavy cement log onto both his thighs. At around 1:00am, they took the victim to the investigation room where he was blindfolded and tortured again by another police officer, Inspector Ganga Panta for about 15 minutes. At 1:30am, the police, led by Inspector Panta, forced Bagale to show them where he lived, they then searched his house and surrounding land but they could not find anything. Meanwhile, some police officers approached and threatened Bagale’s family saying that if any family members told anybody about the torture then they would face the same fate as the victim. After that, they brought the victim back to the police station. The victim was not given any food and water following his arrest on November 28. After starving for almost two days, he was given some food on November 30 from the other detainees who shared the cell with him. On December 2, the police took the victim to the Investigation Branch of the KDPO and ordered him to sign a document which he was not given a chance to read. When he refused to sign, the police laid him down on the floor and started beating him on both of his soles. They continued to torture him in this way. When Bagale still refused to sign the document, he was taken to Inspector Pokharel who brutally assaulted him. The torture was continued by Inspector Pokharel on December 3 and 4.
Bagale’s wife Binda Kumari Bagale filed a habeas corpus petition in the Appellate Court on behalf of her husband on December 3. On December 4, the court ordered the police officers to present the victim within 24 hours to the court. However the next day, DSP Gurung stated to the court that the victim was not detained because he had not committed any crime and was currently working in the office. Similarly, SP Rana of the KDPO also told the court on December 5 that no complaint had been filed, by his superiors, on Bagale and therefore he was not detained by them.
Bagale filed a case under the Torture Compensation Act against his perpetrators in the Kathmandu District Court on 31 December 2002 (Registered case number: 455). The District Court ruled on 13 July 2004 in the perpetrator’s favour. Bagale filed an appeal in the Patan Appellate Court on 6 December 2004 which also found in favour of the defendants. The victim subsequently filed this case in Supreme Court on 21 August 2008, it is in this case that the hearing will take place on 31 October.
As the victim was kept in illegal detention for seven days, he was only examined by a doctor nineteen days after he was first tortured. The medical report indicates that the bruises and marks on the victim’s body could be due to torture but both the district and appellate courts rejected the findings of the medical report saying that being conducted too long after the facts, the report was not reliable. Further both courts found that there was no proof that the victim was kept in detention during the said period. Indeed, the victim was kept incommunicado and was not issued an arrest warrant or a detention letter to register his presence in police custody. When a habeas corpus was filed in the Supreme Court, the police main line of argument indeed was that Hom Bahadur Bagale had not committed any crime and therefore was not kept in custody and was at his post.
Nevertheless, the victim has not signed his name on the presence register for the whole seven days, indicating that he was not at his post at that time, but the police did not undertake any investigation to find out his whereabouts.
Further, several times, the police contradicted their claim that the victim did nothing wrong and therefore could not have been in detention and tortured: one such time was on 5 February 2003 when he received a letter (Ref. Pra/11//(059-60) Cha. No. 383) from the Inspector General of Police stating that he would be terminated from his job as he had committed an act contrary to the Police Act.
Another contradiction can be found in the government’s reply to the numerous communications addressed by the UN Special Rapporteur on Torture to express his concern in those allegations of torture (E/CN.4/2004/56/Add.1, para. 1139, E/CN.4/2006/6/Add.1, E/CN.4/2006/6/Add.5, para. 3, and E/CN.4/2005/62/Add.1, para. 1023). The Special Rapporteur’s report indicates that “by letter dated 14/09/05, the Government informed that he was involved in the theft of gold. He was not subjected to torture and is presently working at the Central Police Band.” This response also contradicts the police’s initial claim that Bagale could not have been arrested and tortured as he had done nothing wrong.
On 28 June 2006, the Special Rapporteur on Torture expressed his concern at the lack of appropriate response by the government in that case “The Special Rapporteur deeply regrets that no steps have apparently been taken by the Government to this end, despite his appeal in the report of his mission to Nepal that security officials who practise, order or condone torture (e.g. the chief and deputy superintendents of Hanuman Dhoka District Police Office) are held accountable”.
ADDITIONAL COMMENTS:
Since 2002, the victim has faced continuous threats, retaliations and re-victimisation to force him to drop the legal proceedings. The victim was continuously threatened with death or dismissal if he did not withdraw his complaint. The higher ranks of the police administration colluded with the perpetrators in their attempt to intimidate the victim with the legal department of the police station issuing a letter ordering the victim to withdraw his cases or to resign from his job. Eventually, the victim was fired from his job and deprived of his right to a pension.
On 21 March 2006 because he had refused to cede to the pressure, he was arrested, held in custody of Hanumandhoka District Police Office and tortured. His head was shaved and he was dragged through dirty water in his uniform. He was kept for eight days in incommunicado and illegal detention and tortured continuously. 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.
Although the Kathmandu District Court acknowledged that torture was inflicted and granted compensation to the victim on 18 September 2008, that amount was never actually received by the victim and no disciplinary action was decided against the perpetrators. Please see our urgent appeal AHRC-UAU-014-2011 and statement AHRC-STM-060-2011 for more information.
The AHRC is seriously concerned by continuous reports of threats and intimidation of the victim, which show that even more than nine years after the facts, the victim remains the target of attacks and intimidations aiming at “convincing” him to drop the legal proceedings. The AHRC therefore considers that it is of utmost importance that the victim should be provided with adequate protection to guarantee that the Supreme Court hearing of 31 October will take place in all the conditions of a fair and free trial, with no party having an undue power over the other. Those conditions are required to bring to an end a nine-year long denial of justice.
SUGGESTED ACTION:
Please join us in writing to the authorities listed below 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 31 October 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
SAMPLE LETTER
Dear ___________,
NEPAL: Torture victim denied justice for nine years must be granted protection
Name of victim: Mr. Hom Bahadur Bagale, former Sub-Inspector attached to the Central Police Band Gulma (Battalion), Maharajganj, Kathmandu, Nepal
Names of alleged perpetrators of the original incident of torture on November 2002:
1. Mr. Khadka Singh Gurung, then Deputy Superintendent of Police (DSP) of the Central Police Band Office (CPBO), Maharajganj, Kathmandu
2. Mr. Kuber Singh Rana, then Superintendent of Police (SI) attached to Kathmandu District Police Office, Hanumandhoka (KDPO), now Additional Inspector General of Police
3. Mr. Yagnya Binod Pokharel, then Inspector of the KDPO
4. Mr. Ganga Panta, then Inspector of the KDPO
Names of alleged perpetrators in the second incident of torture in March 2006:
Those who allegedly gave the order to torture the victim:
1. Mr. Shyam Bhakta Thapa, the then Inspector General of Police, Police Head quarter
2. Mr. Keshab Baral, Additional Inspector General, Police Head quarter
3. Mr. Om Bikram Rana, Deputy Inspector General, Police Head quarter
4. Mr. Kedar Prasad Saud, Superintendent of Police, Police Head quarter
Alleged perpetrators of torture:
1. Mr. Rajendra Gurung, Deputy Superintendent of Police , central police band Gulma (Now Nepal police music School), recently promoted to the rank of Superintendent of Police
2. Mr. Ganesh Regmi, Inspector of Police, Police Head quarter
3. Mr. Sarad Kumar Oli, Superintendent of Police, Police Head quarter
4. Mr. Jeet Bahadur Tamang, Sub Inspector, Nepal Police music school
5. Mr. Ram Prasad Poudel, Sub Inspector, Nepal police music school
6. Mr. Bhim Bahadur Thapa, Assistant Sub Inspector, Nepal police music school
7. Mr. Khil Bahadur Poudel, Assistant Sub Inspector, Nepal police music school
Date of original incidents: 28 November 2002, 20-28 March 2006
Place of incident: Hanuman Dhoka District Police Office and Police Headquarters.
I am writing to draw your attention to the necessity of granting protection to a torture victim to guarantee his right to a fair and free trial.
According to the information I have received from the Asian Human Rights Commission (ARHC), in November 2002, Hom Bahadur Bagale, who was employed as a technical officer at the Central Police Band Gulma, Maharajganj, Kathmandu, was tortured by his superiors for having refused to fulfill an order which was not part of his duty. 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.
I know that your office was previously informed of the details of the torture suffered by Hom Bahadur Bagale during that week. On November 28, the DSP Gurung ordered Bagale to go to the Kathmandu District Police Office, Hanumandhoka (KDPO) to meet Inspector Yagnya Binod Pokharel. When he entered Inspector Pokharel’s office, Inspector Pokharel closed the door and assaulted him with a bamboo stick for an hour. After the attack, Inspector Pokharel demanded the victim to confess where he had hidden DSP Gurung’s gold. The victim was then illegally put under the custody of the KDPO. No arrest warrant was produced on Bagale. On November 29, Bagale was handcuffed and taken into the office of Kuber Singh Rana, who was at that time Superintendent of Police (SP) of the KDPO. SP Rana and Inspector Pokharel then severely beat the victim with cane sticks. They then ordered the victim to roll a heavy cement log onto both his thighs. At around 1:00am, they took the victim to the investigation room where he was blindfolded and tortured again by another police officer, Inspector Ganga Panta for about 15 minutes. At 1:30am, the police, led by Inspector Panta, forced Bagale to show them where he lived, they then searched his house and surrounding land but they could not find anything. Meanwhile, some police officers approached and threatened Bagale’s family saying that if any family members told anybody about the torture then they would face the same fate as the victim. After that, they brought the victim back to the police station. The victim was not given any food and water following his arrest on November 28. After starving for almost two days, he was given some food on November 30 from the other detainees who shared the cell with him. On December 2, the police took the victim to the Investigation Branch of the KDPO and ordered him to sign a document which he was not given a chance to read. When he refused to sign, the police laid him down on the floor and started beating him on both of his soles. They continued to torture him in this way. When Bagale still refused to sign the document, he was taken to Inspector Pokharel who brutally assaulted him. The torture was continued by Inspector Pokharel on December 3 and 4.
I am informed that Bagale’s wife Binda Kumari Bagale filed a habeas corpus petition in the Appellate Court on behalf of her husband on December 3. On December 4, the court ordered the police officers to present the victim within 24 hours to the court. However the next day, DSP Gurung stated to the court that the victim was not detained because he had not committed any crime and was currently working in the office. Similarly, SP Rana of the KDPO also told the court on December 5 that no complaint had been filed, by his superiors, on Bagale and therefore he was not detained by them.
Bagale filed a case under the Torture Compensation Act against his perpetrators in the Kathmandu District Court on 31 December 2002 (Registered case number: 455). The District Court ruled on 13 July 2004 in the perpetrators’ favour. Bagale filed an appeal in the Patan Appellate Court on 6 December 2004 which also found in favour of the defendants. The victim subsequently filed this case in Supreme Court on 21 August 2008, it is in this case that the hearing will take place on 31 October.
I know that as the victim was kept in illegal detention for seven days, he was only examined by a doctor nineteen days after he was first tortured. The medical report indicates that the bruises and marks on the victim’s body could be due to torture but both the district and appellate courts rejected the findings of the medical report saying that being conducted too long after the facts, the report was not reliable. Further both courts found that there was no proof that the victim was kept in detention during the said period. I know that the victim was not issued an arrest warrant or a detention letter to register his presence in police custody. I understand that this amounts to incommunicado detention and is prohibited under both Nepal internal laws and international law. The burden of proof should fall upon the police to prove that the victim was not in their custody at that time.
When a habeas corpus was filed in the Supreme Court, the police main line of argument indeed was that Hom Bahadur Bagale had not committed any crime and therefore was not kept in custody and was at his post. Nevertheless, I am informed that the victim has not signed his name on the police presence register for the whole seven days, indicating that he was not at his post at that time. But the police did not undertake any investigation to find out his whereabouts, which would have been the regular process if a police officer did not show up to his post for seven days and that his superiors did not have any idea about his whereabouts.
Further, I noticed that several times, the police contradicted their claim that the victim did nothing wrong and therefore could not have been in detention and tortured, for instance, in the government’s reply to the numerous communications addressed by the UN Special Rapporteur on Torture to express his concern in those allegations of torture (E/CN.4/2004/56/Add.1, para. 1139, E/CN.4/2006/6/Add.1, E/CN.4/2006/6/Add.5, para. 3, and E/CN.4/2005/62/Add.1, para. 1023). The Special Rapporteur’s report indicates that “by letter dated 14/09/05, the Government informed that he was involved in the theft of gold. He was not subjected to torture and is presently working at the Central Police Band.” This response also contradicts the police’s initial claim that Bagale could not have been arrested and tortured as he had done nothing wrong.
I am appalled to hear that due to his recourse to justice, the victim has faced continuous threats, retaliations and re-victimisation to force him to drop the legal proceedings for the last nine years. The victim was continuously threatened with death or dismissal if he did not withdraw his complaint. Eventually, the victim was fired from his job and deprived of his right to a pension.
I have learnt that on 21 March 2006 because he had refused to cede to the pressure, he was arrested, held in custody of Hanumandhoka District Police Office and tortured. His head was shaved and he was dragged through dirty water in his uniform. He was kept for eight days in incommunicado and illegal detention and tortured continuously. 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.
I am concerned to hear that although the Kathmandu District Court acknowledged that torture was inflicted and granted compensation to the victim on 18 September 2008, that amount was never actually received by the victim and no disciplinary action was decided against the perpetrators.
I am appalled to hear that some of the perpetrators involved in the 2002 torture of Hom Bahadur Bagale have been promoted within the police hierarchy, in spite of documented allegations of human rights violations against them.
I am concerned to hear about continuous reports of threats and intimidation of the victim, which show that even more than nine years after the facts, the victim remains the target of attacks and intimidations aiming at “convincing” him to drop the legal proceedings. I am therefore of the opinion that it is of the utmost importance that the victim should be provided with adequate protection to guarantee that the Supreme Court hearing of 31 October will take place in all the conditions of a fair and free trial, with no party having an undue power over the other. Those conditions are required to bring to an end a nine-year long denial of justice.
I know that numerous national and international human rights organizations have expressed their concern in Hom Bahadur Bagale’s case and urged the government to give justice to the victim and eradicate torture in Nepal. It is the fourth time the Asian Human Rights Commission draws the attention of your office to this case and urges you to take appropriate action to investigate these claims and prosecute the perpetrators. Nevertheless, I regret to see that no steps were taken to bring the perpetrators to book and give justice to the victim. Further, I am informed that on 28 June 2006, the Special Rapporteur on Torture expressed his concern at the lack of appropriate response by the government in that case “The Special Rapporteur deeply regrets that no steps have apparently been taken by the Government to this end, despite his appeal in the report of his mission to Nepal that security officials who practise, order or condone torture (e.g. the chief and deputy superintendents of Hanuman Dhoka District Police Office) are held accountable”
I therefore urge you to ensure the protection of the victim against threats and intimidations. A thorough independent and impartial investigation into those allegations of police torture and continuous victimization, which has not been done so far, should be launched without delay.
Yours sincerely,
—————-
PLEASE SEND YOUR LETTERS TO:
1. Mr. Rabindra Pratap Shah
Inspector General of Police
Police Head Quarters, Naxal
Kathmandu
NEPAL
Fax: +977 1 4415593
Tel: +977 1 4412432
E-mail: phqigs@nepalpolice.gov.np
2. Mr. Mukti Narayan Pradhan
Attorney General
Office of Attorney General
Ramshahpath, Kathmandu
NEPAL
Fax: +977 1 4262582
Email: attorney@mos.com.np
3. Justice Kedar Nath Upadhyay
Chairperson
National Human Rights Commission
Harihar Bhawan
Lalitpur (Kathmandu)
NEPAL
Fax: +977 1 55 47973
E-mail: complaints@nhrcnepal.org or nhrc@nhrcnepal.org
4. Mr. Yadhav Raj Khanal
Chief
Police Human Rights Cell
Nepal Police, Naxal, Kathmandu
NEPAL
Fax: +977 1 4415593
Tel: +977 1 4411618
E-mail: hrcell@nepalpolice.gov.np
5. Mr. Bijaya Kumar Gachchhadar
Home Minister
Ministry of Home Affairs
Singha Darbar
Kathmandu
NEPAL
Fax: +977 1 42 11 232
Tel: +977 1 4211211
6. Baburam Bhattarai
Prime Minister
Office of the Prime Minister
Singh Darbar
Kathmandu
NEPAL
FAX: + 977 1 4211 086
E-mail: info@opmcm.gov.np
Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)
