NEPAL: Alleged brutal torture of a man by Kathmandu police

Dear friends,

The Asian Human Rights Commission (AHRC) is deeply concerned by another report from Nepal of the alleged brutal torture by the police. According to the information we have received, a man was illegally arrested by the metropolitan police in Kathmandu district on 1 April 2008 and brutally tortured for 5 hours until he fell unconscious. The police did not provide him any medical treatment despite his serious injuries for several days. He was finally admitted at the hospital on April 9 only after his family made several requests to the police. The victim is now receiving medical treatment under police custody. It is alleged that the police attempted to tamper with the date of arrest to cover up their crime. After this case received media coverage, a committee was formed to investigate this incident. However, impartiality of the committee’s investigation is quite questionable as its members are officers of the same police station where the victim was tortured.

CASE DETAILS:

Umesh Lama, a 28-year-old is a permanent resident of ward no. 1, Parvanipur Village Development Committee (VDC), Sarlahi District, Nepal and is now temporarily residing at new Baneshwor in Kathmandu district along with his family.

According to the information received, Umesh Lama was arrested at Kamalpokhari in Kathmandu district by five officers in civilian clothes from the Metropolitan Police Range, Hanumandhoka on 1 April 2008. According to the victim, the police neither presented the arrest warrant nor informed him of the reason of arrest. The officers took him to the Hanumandhoka Police Range, Kathmandu where the police allegedly tortured him in a brutal manner for about 5 hours until he fell unconscious. Despite his serious injuries, the police did not provide any medical treatment to him. After a few hours later, the police transferred him to Budhanilkantha Police Sector in Kathmandu.

On April 2, Umesh Lama’s wife went to the Hanumandhoka Police Range to inquire about her husband’s arrest. However, the police denied having arresting him.

On April 8, a police officer of the Hanumandhoka Metropolitan Police Range informed Umesh Lama’s family that he was being detained at the Budhanilkantha Police Sector in Kathmandu. When the family members went to see him on the same day, they noticed that he was vomiting, that his skin had turned yellow and he looked very sick. His two sisters Lalumaya Jimba Bal and Samjhana Lama also saw bruises on his body. They then made several requests to the police to take Umesh Lama to hospital for medical treatment. But the police ignored their requests giving an excuse that they were too busy with the upcoming constituent assembly election scheduled for April 10. The victim was taken to Om Hospital and Research Centre in Chabahil in Kathmandu on April 9, only after his family made constant requests to the police. But soon he was referred to Bir Hospital on the same day due to his serious condition.

According to the medical report written by the doctor at Bir Hospital, who examined Umesh Lama on April 9, the victim complained of having had a fever for the last seven days and that he had been vomiting continuously for the same period. The medical report also noted down the yellowish discoloration of the victim’s skin and sclera of his eyes. The doctor’s examination also states that his legs and fingers were swollen. The doctor also noted that Umesh Lama was unable to speak properly to date due to severe pain and injuries.

During the interview with the local human rights activists on April 16, Umesh recalled, “Some civil dressed policemen arrested me from Kamalpokhari in Kathmandu district of Kathmandu and then they took me to the Hanumandhoka Metropolitan Police Range, in Kathmandu. There, the police took me to the top floor of the building. Some five civil dressed policemen, including the police inspector Sudhir Raj Shahi, the police Sub Inspector (SI) Sanjaya Timilsina and the Assistant Sub Inspector (ASI) Raju, indiscriminately beat me with sticks and boots for about five hours. Those police sometimes trod on my chest and abdomen for long time with their heavy boots. They even sometimes cut my skin of my fingers and other part of my body with a razor blade.” While torturing him, the police interrogated him relating to two criminal cases of kidnapping and robbery and pressured him to confess. Umesh Lama could not speak for long to give details of the torture due to pain in his chest.

On April 9, the police inspector Mr. Sudhir Raj Shahi of the Hanumandhoka Metropolitan Police Range attempted to give a letter of arrest for Umesh but the family refused to receive it.

According to the Interim Constitution of Nepal as well as the State Cases Act, any person arrested should be produced before court within 24 hours since his or her arrest. But in this case, the police failed to do so and illegally detained him.

On April 15, the victim’s family filed a habeas corpus writ petition to the Appellate Court in Patan. On the same day, the police made an application for the victim’s remand at Bir Hospital, mentioning that they would not be able to produce him to court due to his poor health condition. The district court in Kathmandu then granted the victim’s remand in his absence. As of April 18, Umesh Lama has not been produced before any court since his arrest.

Meanwhile, during the meeting with an AHRC staff on April 16, the Deputy Superintendent of Police (DSP) Narendra Uperti the Hanumandhoka Police Range said that he was not aware of the alleged torture incident as he was on leave on that day. While saying that an investigating committee headed by another DSP Kanchan Thapa was formed to investigate this incident, he denied that the police tortured Umesh Lama, although the committee’s investigation into the incident has only begun. The AHRC is concerned that the committee’s investigation into this alleged torture incident will not be conducted in a fair and impartial manner because it consists of officers from the same police office where the victim was allegedly tortured.

DSP Narendra Uperti further said that when the police arrested the victim, he was sick and they assisted him to admit at the hospital for treatment. However, the victim’s pictures shows bruises on his body and identical deep scars in his both hands which indicates that the victim was handcuffed or chained while being tortured (See the victim’s photos: Photo 1, Photo 2, Photo 3, Photo 4 and Photo 5). Interestingly, the DSP Narendra Uperti said that the police arrested Umesh Lama only on April 6. When the AHRC staff met the police inspector Sudhir Raj Shahi on April 17, he also maintained the same version. The AHRC suspects that the police are now trying to fabricate the date of arrest to cover up their crime of torture on April 1. The AHRC is also concerned that the police might already begin to tamper with the relevant records of the victim’s arrest and detention in favour of their version.

The police inspector Sudhir Raj Shahi told the AHRC staff that he was the investigating officer in charge of two cases of kidnapping and robbery and Umesh Lama was suspected to be involved in these two crimes. He further said that there were several complaints against the victim in various police stations in Kathmandu district. This is in contradiction with the victim’s family’s claim that they have not been informed by the police about those cases against Umesh Lama before the torture incident. The international human rights law and standards clearly mentions that even if a person is a criminal, torture cannot be justified in any circumstances. Instead of torturing Umesh Lama to extract his forced confession, the police should have followed lawful investigating procedures and collected sufficient evidence. It is regretful that torture is still being used as a popular tool of interrogation by police to solve the criminal cases.

On April 16, Umesh Lama was taken to the National Kidney Center in Kathmandu for an examination. The family suspects that the victim’s kidney was damaged due to torture but the medical examination report was unknown to them. The police took the victim back to Bir Hospital, where he is undergoing treatment in police custody.

Now the victim’s family is preparing to file a case against the police officers concerned in court under the Torture Compensation Act (TCA).

ADDITIONAL COMMENTS:

Although Nepal is a state party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), its legal system does not provide effective redress to torture victims. Although the 2007 Interim Constitution made torture a crime, the TCA neither criminalizes torture nor obligates the government to take action against a perpetrator of torture. In the TCA, compensation may be awarded to torture victims, but the perpetrators itself are not punishable because, as stated, in law, they have not committed a crime. According to the TCA, torture perpetrators may be subject to only “departmental action”. The Act is also only recognizes claims filed by torture victims within 35 days of the alleged act of torture, or within 35 days of the victim’s release from detention. Besides, according to the legal system in Nepal, the burden of proof is heavily put on the complainant (the victim), who is often incapable of doing so.

Moreover, Nepal has no other specific law that defines torture as a crime. The only recourse is to the “assault” section of the Civil Code of Nepal where physical assault is defined as a crime (Nepal has no separated criminal law & criminal procedure code). However, the Civil Code gives fines/punishment according to the nature of the wound.

To explain in detail, the maximum punishment for an offence of “general assault” under the Chapter on Assault of the Civil Code is up to 6 months imprisonment and fine of 2,000 Nepali rupees (about USD 30). The offence of “general assault” means causing pains and wounds on a person’s body. For the offence of the “maiming assault”, the maximum punishment is up to 8 years imprisonment and fine of 10,000 Nepali rupees (about USD 160). However, this offence is very narrowly applicable to gross physical assault, for example, loosing a one eyesight or dysfunction of any particular organ of a person’s body. Furthermore, the Civil Code does not make any provision for the psychological effects of torture.

Even more important is the fact that even this ‘assault’ section of the Civil Code does not provide any specific provision for assault which has taken place whilst the victim is in custody, that is, with State involvement.

It is mandatory to maintain a medical report on a detainee at the beginning and again on their release, and a copy has to be sent to the District Court. However, this provision is hardly applied, and the police rarely maintain such records, nor does a judge scrutinize the records (if any). Besides, burden of proof solely lies to the public prosecutor (on the torture victim’s side). Consequently, very few lawyers use this clause in court and torture victims is deprived of their rights to seek effective legal remedies.

Besides, torture is defined very narrowly in Nepal, and torture by state officers outside custody seems to be totally exempt.

In its Conclusions and recommendations (CAT/C/NPL/CO/2, 13 April 2007), the United Nation Committee against Torture also expressed its concerned that “the definition of torture in article 2 (a) of the Compensation Relating to Torture Act of 1996, the lack of a legal provision in current domestic law to make torture a criminal offence and the draft Criminal Code are not in line with the definition of article 1 of the Convention against Torture (articles 1 and 4 of the Convention)”. The Committee strongly recommended to the Government of Nepal that “it should adopt domestic legislation which ensures that acts of torture, including the acts of attempt, complicity and participation, are criminal offences punishable in a manner proportionate to the gravity of the crimes committed, and consider steps to amend the Compensation Relating to Torture Act of 1996 to bring it into compliance with all the elements of the definition of torture provided in the Convention.”

So far, the Government of Nepal has failed to fulfill the recommendations given by the Committee. As a result, torture perpetrators enjoy continuous impunity and victims are routinely denied justice. Not a single case of extrajudicial execution, enforced disappearance, or torture has been properly investigated and prosecuted in Nepal to date.

SUGGESTED ACTION:
Please urgently write to the concerned authorities listed below and express your deep concern about this serious case.

The AHRC has also separately reported this case to the UN Special Rapporteur on the Question of Torture.

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