A Joint Statement by the Asian Human Rights Commission and the Center for Victims of Torture-Nepal
As the case regarding the torture of Hom Bahadur Bagale will be heard in the Supreme Court of Nepal on 16 May, 2011, the Center for Victims of Torture-Nepal (CVICT) and the Asian Human Rights Commission (AHRC) expect that the hearing will take place in the conditions of a free and fair trial and will put an end to a nine-year long denial of justice. We are calling in particular for measures to ensure the physical protection of the victim in the days preceding the judgement to create the conditions of a fair trial with no party having undue influence on other.
Since the beginning of the case in 2002, the criminal justice system has proven unable to protect the right to fair trial and to legal redress of the victim. Specific details of the case can be found in the latest AHRC’s Urgent Appeal: UAU-014-2011.
In November 2002, Hom Bahadur Bagale, a technical officer at the Central Police Band Gulma, Maharejganj, Kathmandu, was accused of having stolen gold from his superiors. 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.
Since 2002, the victim has been continuously denied justice and has sought legal redress in vain. No investigation has been launched in the allegations of torture; no sanctions were taken against the perpetrators nor were any form of compensation actually given to the victim. The victim filed a case for Torture Compensation which was rejected both by the District Court and the Appellate Court. The case was then filed in the Supreme Court on 21 August 2008, and it is this hearing that will take place on 16 May 2011.
This nine-year long inaction and impunity for the perpetrators, enabling them to remain in a position of power, have exposed the victim to 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.
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.
The inadequacy of the Nepal justice and legal system in dealing with cases of torture was once more illustrated in that second case of torture: 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. No disciplinary action was decided against the perpetrators, making a mockery of the dispositions of the Torture Compensation Act which stipulates that institutional sanctions can be taken against perpetrators of torture.
Adding insult to injury, some of the perpetrators have been rewarded with advancement and promotion. That police officers with past records of torture have been granted promotions has been regularly denounced by civil organisations in Nepal and internationally as a way to encourage the practice of torture, giving guarantees to the perpetrators that indulging in gross human rights violations will have no impact on their career. Further, it allows criminals to access to higher positions of power, further enabling them to disregard the fundamental rights of the people.
Moreover, the victim’s resignation was rejected by the police headquarters that instead fired him from his job in 2006, therefore stripping him from the pension he was entitled to after eighteen years of service. That decision was endorsed by the Home Ministry on September 2010. This single fact illustrates at length the absurdity of a system in which perpetrators are rewarded with promotions and victim further sanctioned by being fired. Deep efforts must be undertaken to transform the criminal justice system into a fully impartial, independent and strong one which leaves no place to torture and impunity.
Nepal’s government has repeatedly expressed its commitment to accountability for acts of torture before the international community. A first step to translate this commitment into concrete actions would be to create conditions to see that victims of torture have an effective right to see their cases fairly and freely tried, by protecting them against retaliations from more powerful perpetrators.
