NEPAL: Another two persons were re-arrested despite the Appellate Court’s release orders in Banke District

Dear friends,

The Asian Human Rights Commission (AHRC) has received another two cases of released detainees having been re-arrested in spite of court orders, which took place in Banke District. The whereabouts of both victims remain unknown. 

In the first case, the victim is a 16-year-old boy named Jhurri Teli.  The Appellate Court in Nepalgunj issued his release order on 28 November 2004, but the boy was re-arrested by the Banke District Police in the yard of the prison on the following day, in the presence of lawyers and human rights activists. 

The second case is even more serious. Chail Bihari Loniya (40) was arrested for public offense on August 1. He was released after paying the bail amount on August 27 but was re-arrested immediately in front of the office of the Chief District Officer (CDO), Banke. The same CDO, who had released him on bail a few minutes previously, gave him three-month preventive detention. Mr. Loniya was then again re-arrested by the Banke District Police in the prison yard on November 24, after the court had issued his release order on November 23. 

It is alleged that when a UN consultant team working on an access to justice project inquired about Mr. Loniya’s case, the Superintendent of Police (SP) Gyanodraj Baidya of the Banke District Police said, “This man is a bloody criminal (so) I will not let him out even if the court orders it.” The SP allegedly added that they did not follow the criminal procedure because it took too long. His comment reflects the level contempt for the judiciary that is prevalent in Nepal and which often leads to lengthy arbitrary and incommunicado detentions. 

For the last couple of months, the AHRC has issued several cases of security force’s action to undermine court orders by arresting persons immediately following their release. (UA-159-2004, UA-127-2004, UA-95-2004, UA-86-2004, UP-38-2004, UA-74-2004, UA-51-2004) However, the Government of Nepal has failed to take genuine action to stop such abuses. 

The AHRC calls for your immediate intervention into this matter. Please send a letter to Major General Sharma Thappa and other governmental authorities urging them to intervene into these two cases in order to have the victims released immediately. Please also demand that the responsible police officers including the CDO of the Banke District Police Office, who abused their power in violation of law, should be prosecuted and punished.   

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
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DETAILED INFORMATION:

CASE 1: 

Name of the victim: Jhurri Teli, 16 years old, resident of Belhiya Village Development Committee (VDC)-7, Banke District, Nepal
Date/place of illegal arrest: 9 September 2004 in Nepagunj Municipality-16
Date/place of re-arrest: 29 November 2004 in the yard of the Banke Prison
Case status: disappeared after being re-arrested

A 16-year-old boy, Jhurri Teli, was arrested by the plain-clothes security forces from Nepagunj Municipality-16 at about 7:00am on 9 September 2004. He was going for a medical check-up and to buy some medicines for his headache at the time of his arrest. One of the security personnel approached Jhurri and asked his name, while another man also approached the boy and tied both his hands behind his back and blindfolded him. They then interrogated him for half an hour about his involvement in Maoist activities. During the interrogation, Jhurri was severely beaten. After that, they put him into an army vehicle and took him to the Westrn Pritana Headquarter [western region army barrack], Imamnagar, Ranjha, Banke, where he was illegally detained for seven days. Jhurri said that he was blindfolded and his hands were tied back most of time that he was detained in the barracks, nobody including his family was allowed to visit him. 

After one week (on September 15), the security forces brought Jhurri to the District Police Office, Banke where he was kept for a further night. There, the police officers forced him to sign a statement which he was not allowed to read. On September 16 at 10:00am, Jhurri was taken to the Banke Prison and on the same day, in the prison, he received the detention order signed by the Deputy of the District Administrative Office on behalf of the Chief District Officer (CDO), Banke, who ordered him to be held in preventive detention under the Public Security Act (PSA).   

With the help of a local human rights NGO, Jhurri’s family filed a writ of habeas corpus at the Appellate Court, Nepalgunj on September 23. On November 28, the Appellate Court found that Jhurri’s detention was illegal and issued a release order. The boy’s family went to the Banke Prison along with lawyers and activists from a human rights organization on November 29 but a team of policemen led by police inspector Mr. Rajendra Prasad Bhatta from the District Police Office, Banke came in a van (No. Ma-1, Cha-116) and took Jhurri away. It was 2 o’clock in the afternoon. His whereabouts remain unknown.  

Article 37 (b) of the Convention of the Rights of the Child (CRC), to which Nepal is a state party, firmly states that, “No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.” Article 37(a) further adds that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

The AHRC calls on the Government of Nepal to locate the whereabouts of Jhurri Teli and release him immediately. Those responsible for this illegal act must be identified and brought to justice promptly. 

CASE 2:

Name of the victim: Chail Bihari Loniya, 40 year-old, a farmer, resident of Hirminiya VDC-1, Banke District, Nepal
Date/place of arrest: 1 August 2004 at his residence in Hirminiya VDC-1
Date/place of first re-arrest: 27 August 2004 in front of the CDO’s office, Banke
Date/place of second re-arrest: 24 November 2004 in the yard of the Banke Prison
Case status: Disappeared after being re-arrested

Chail Bihari Loniya (40) was arrested by a group of police personnel from Banke District Police Office at his house at about 6:00am on 1 August 2004, reportedly for a public offense. On August 27, the District Administrative Office set bail for his release and Mr. Loniya deposited the bail amount and was released accordingly. However, as soon as he stepped out from the CDO’s office where he had paid his bail amount, Mr. Loniya was re-arrested by officers from the same District Police Office and taken to their office. On September 1, the CDO, who had released him on bail, gave him a three-month preventive detention order under the PSA. On the next day (September 2), he was sent to Banke Prison. 

Mr. Loniya’s family filed a writ of habeas corpus on October 5 before the Appellate Court in Nepalgunj, challenging his re-arrest, with the help of lawyers from a human rights organization. On November 23, the court issued Mr. Loniya’s release order. Ms. Nirmala Loniya, the victim’s wife, rushed to Banke Prison and waited for her husband’s release outside of the prison yard. However Mr. Loniya was not released. On the next day (November 24), his wife went to the prison again and waited outside for the whole day. At around 3:30pm, about 10 police personnel in a van (No. Ba 1 Jha 5152) came to the prison. Some of them were in uniform, while others were in plain clothes. They then took Mr. Loniya out of the prison and took him away, in full view of his wife. His whereabouts remain unknown since then. His wife, who witnessed his re-arrest, is worried about disappearance and the possible torture on her husband.  

When a team of consultants from the United Nations Development Programme (UNDP) based in Kathmandu, working on an access to justice project, including Anjana Shakya, Govinda Bandi and Sushma Joshi went to the Banke District Police Office to make an inquiry about the victim’s whereabouts, the Superintendent of Police (SP) Gyanodraj Baidya admitted that Mr. Loniya had been re-arrested. However, the SP, who got angry about the team’s visit, allegedly said, “This man is a bloody criminal…… I will not let him out even if the court orders it.” The SP further accused human rights activists of always defending criminals. Even though a member of the team told the SP that the police must respect due process of the law, and if the victim has committed a crime, the police should charge him with a criminal offence and prosecute him, the SP simply replied, “the process is too long so we do not follow it.”

The AHRC urges the Government of Nepal to intervene in this case and to ensure Mr. Loniya is released in accordance with court orders. In particular, the responsible police officers, including the CDO of the Banke District Police Office, who abused their power in violation of law, should be prosecuted and punished.   

ADDITIONAL INFORMATION:

Since 1996 Nepal has been gripped by a brutal civil war between the state’s poorly trained military and police and a retrograde Maoist movement. The situation of “law and order” and internal security has deteriorated to near unmanageable proportions.  Such a state of affairs reflects the inability of Government of Nepal to ensure the security of its people. 

Meanwhile, the recently enforced Terrorist and Disruptive Activities (Control and Punishment) Ordinance (TADA) allows for a person to be detained for a maximum period of one year without trial if a security official feels the need to prevent a person from carrying out any terrorist and disruptive activity. Under these circumstances, the security forces abuse their powers, which result in a large number of disappearances, torture, extra-judicial killings, illegal arrest/detention and re-arrest of detainees.   

The immediate re-arrest of detainees is merely serving to weaken, threaten and to humiliate the courts, lawyers, and the victims, so that they refrain from challenging illegal detentions in the future. The systematic re-arrest of individuals indicates the failure of the judicial system in Nepal, as the judiciary is unable to safeguard the authority of its decisions or to stop the security forces from abusing the legal process by re-arresting individuals that have been freed by the courts.   

The AHRC challenges the idea that brute force and intimidation will bring all parties in the conflict to dialogue. Rather, by introducing strict laws and giving the security forces unlimited powers, the government is stimulating the ongoing systematic and widespread human rights violations and crimes against humanity being committed by the security forces with absolute impunity.  

SUGGESTED ACTION: 
Please send a letter, fax or an email to Major General Sharma Thappa and ask him to take immediate action into this case.

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