UPDATE (Nepal): A proper investigation is required on Arjun Bohadur Lama’s disappearance

Dear friends,

The Asian Human Rights Commission (AHRC) would like to inform you that in August 2008, the Kavrepalanchowk district police finally registered a complaint made by a widow of Arjun Bohadur Lama, whose disappearance in April 2005 allegedly involved Maoists. It took over one year for the widow to register her complaint after the same district police had refused to do so in 2007. The implementation of the Supreme Court’s order in March 2008, which instructed the police to register the widow’s complaint, was also delayed for five months. Considering the fate of other similar cases, we are of the view that there will be no proper police investigation into the case. We request for your intervention into this case. Please write to the government of Nepal demanding that it set up a special unit of senior level investigators, under the oversight of the Attorney General’s office, to investigate the serious human rights abuses committed during the conflict.    

UPDATED INFORMATION:

As reported in our previous appeal (UA-222-2007), in July 2007, the Kavrepalanchowk District Police Office (DPO) had refused to register a First Information Report (FIR) filed by Purnamaya Lama concerning an alleged disappearance of her husband Arjun Bohadur Lama by the Maoists in April 2005. At that time, the police the excuse that they had no jurisdiction over this case as it fell under the jurisdiction of Truth and Reconciliation Commission (TRC), which was to be instituted under Interim Constitution of Nepal 2007. On 23 December 2007, the Government of Nepal also signed a 23 point agreement with the Communist Party of Nepal (Maoist) that required the Government to form a Truth and Reconciliation Commission and Disappearances Commission within one month of the agreement. However, the draft bill of the TRC currently remains in limbo and the responsibilities of policing bodies must be clarified in order to ensure proper investigation into the past human rights abuses.

According to the latest information received from the Advocacy Forum, Purnamaya Lama then filed a writ of mandamus with the Supreme Court with the help of its lawyers. The Supreme Court directed the Karepalanchowk DPO to register an FIR in relation to the case of Arjun Bohadur Lama on 3 March 2008 and issued the writ on March 10. In the writ, the Supreme Court said, “Unless upon the enactment of law in this regard that makes clear what sorts of crimes fall under the jurisdiction of TRC, it cannot be disputed that it is the duty of the concerned police office to receive the information, file a FIR and conduct an investigation according to law on all criminal cases.”

However, the district police failed to implement the Supreme Court’s instruction for 5 months and only registered the FIR filed by Purnamaya Lama on August 11. It is unknown whether the police are conducting any proper investigation into this case at this time.

Refusal to register complaints relating to past crimes and no proper investigation:

Purnamaya Lama’s experience with the police is not an isolated one. In its recent report to the United Nations Human Rights Council, the Office of High Commissioner for Human Rights (OHCHR) stated that the police rejected many FIRs filed by victims and their relatives, concerning past and ongoing human rights violations by security forces and abuses by CPN(M). It is not surprising that the government of Nepal has failed to hold accountable a single perpetrator of the enforced disappearances.

The case of Mina Sunwar, a high profile case, is a good example. Mina was 15 years old when she was tortured and killed in February 2004 while in the custody of the Nepalese Army. In 2005, the Kavre DPO refused to accept the FIR filed by her mother that violates the police’s official duty to investigate crimes (For details, see our previous appeal UP-136-2005). Because of a huge campaign by several prominent local human rights organizations and the UN OHCHR office in Nepal, the Supreme Court directed the police to conduct an investigation into Mina’s case in September 2007. On 31 January 2008, the District Government Attorney’s Office submitted a charge sheet to the Kavre district court naming four accused. The Court subsequently issued summons for the accused to appear before it. It took about 4 years until the charge sheet was filed against the guilty military personnel after Mina was killed. It is uncertain how long it will take further until the court will give a final conviction against those guilty personnel.

Thousands of other families of those extra-judicially killed and disappeared, who were not lucky enough to get public attention like Maina’s family, have been constantly denied justice for their loss and sufferings. Considering the history of the police in Arjun Bohadur Lama’s case and in similar cases, and their failure to carry out their official responsibilities to investigate crime, it is essential that the proper investigative body in these cases be determined.

To know more about the fate of some of these families who have filed a FIR, please see a joint report titled ‘Waiting for Justice: Unpunished Crimes from Nepal’s Armed Conflict‘. This jointly published report by Human Rights Watch and Advocacy Forum analyzes 49 FIRs that were filed in 16 districts of Nepal by the families of those who were killed extra-judicially demanding criminal investigation. This also highlights how the judicial system has failed to address these FIRs. The report also shows that it is impossible for the court to provide effective legal remedies to the families of past human rights abuses, since there are no transparent and effective police investigations and witness protection mechanisms in Nepal.

Failure on implementing Supreme Court’s directive order about enforced disappearance:

On 1 June 2007, the Supreme Court of Nepal issued a directive order to the government of Nepal to enact a legislation criminalizing enforced disappearances and to consider ratifying the new International Convention for the Protection of all Persons from Enforced Disappearance (ICPPED). The Court also ordered the government to establish a Commission of Inquiry into past disappearances in compliance with international human rights standards. The Court further ordered the government to provide interim relief to the families of the victims of the “disappeared,” which is to be provided without any effect on the final outcome of these cases. The government of Nepal has failed to implement any of these directives issued by the Supreme Court.

No domestic law criminalizing enforced disappearance:

There is no domestic law criminalizing enforced disappearance in Nepal.

On 27 November 2007, the Parliamentary Committee on Law and Justice instructed the government to withdraw the amendment proposal to the Civil Code of Nepal regarding disappearances and to draft a new law on enforced disappearances that is in line with the ICPPED and the 1 June judgment of the Supreme Court. However, the chapters of “abduction” and “hostage taking” of the Civil Code of Nepal went into force from 30 November 2007.

The Code does not provide any specific provision for enforced disappearances which have taken place whilst the victim is in custody, that is, with State involvement. Although the government assured to form a high-level task force to draft legislation against enforced disappearances, there is no progress on this matter.

Moreover, there are currently no specific avenues through which victims or their families can exercise their right to seek legal remedy and redress with regard to enforced disappearances, torture or killings (among other things). In addition, measures for witness protection are virtually non-existent, and the complainants are vulnerable to threats and intimidation.

Details of the “abduction” and “hostage taking” chapters as follows:

Civil Code, Chapter on Abduction and Hostage Taking [effective from. 8/14/2064 (11/30/2007)]:

No. 1: [Abduction] 
No one must compel anyone to go to any place by making use of force or threat to do so, by intimidating, coercing, showing arms, tricking, or by making him use intoxicating substances [refers to alcohol], or by taking any means of transportation under control, or no one must take anyone to any place without his consent, and without the consent of father, mother, or patron in the case of the juvenile and mentally ill person to any other place.  If it is done, it shall be regarded as abduction.

No. 2:  [Hostage Taking] 
Except the mentally-ill person detained for his welfare with the consent of his father, mother, or patron in good faith, no one must detain any one by using force or threat to use force, intimidating, coercing, showing weapons, tricking, or making him use intoxicating substances, or by taking any means of transportation or any place under his control in any manner, or having control over them [place or vehicles] in an unauthorized manner.  If it is done, it shall be considered as hostage taking.

No. 3:  [Punishment] 
If one abducts or takes hostage pursuant to No. 1 or 2 of this Chapter for the purpose of killing, for the purpose of beating or harming, or rape, or unnatural sex, sale, enslaving, employing in a work against his will, torturing, employing in prostitution, compelling to do or cause to do any work, receiving ransom, or receiving the property of the person taken hostage or of his heirs, making him surrender his business, or making him do any other work which is punishable under existing law, he shall be liable to seven to fifteen years’ in prison and 50,000 – 200,000 rupees fine (USD 700 – 2800), and if one abducts or takes hostage with a purpose other than those mentioned here, he shall be liable to four to eight years in prison and 25000 – 100,000 rupees fine (USD 350 – 1400).

No. 12: [Restitution] 
If it is proved that an offense pursuant to no. 1, 2, or 3 of this Chapter is committed or caused to be committed, the office hearing the case must, by taking into consideration the physical or mental loss the victim has suffered, make the offender pay compensation at a minimum rate of five hundred rupees per day from the date of offense. If the victim has died, his heirs shall receive such compensation. If the person who has abducted or taken hostage has also received the ransom or any other benefits, such person must be made to return the ransom to the concerned person and must be fined equivalent to the claimant value in addition to the penalty to which he is subject according to this Chapter.

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