NEPAL: In Commemoration of Anti-Torture Day in Nepal

In the recent case of three Rupandehi boys being tortured by two police personnel deployed in the Area Police Offices of Suryapura and Rupandehi, the Court delivered a verdict on 22 June 2014 ordering departmental action against the guilty police personnel and NRs. 3000 compensation to be paid to each of the three victims pursuant to the terms of the Torture Compensation Act. The victims had been beaten with a black plastic pipe and bamboo stick. They had also been punched and kicked repeatedly. This case bodes well for a young nation emerging out of conflict. It signals that there is hope in reforming the culture of widespread impunity and obtaining redress against heinous crimes. Yet, there is still much work to be done in ensuring that the use of torture in itself is eliminated in Nepal.

Documentation of Torture in Nepal

Torture in Nepal is well documented. The United Nations Committee against Torture concluded in 2011 that “torture is being systematically practised in the territory of Nepal, mainly in police custody”. Toward the end of the conflict, the Special Rapporteur on Torture found that torture was systematic and used to extract confessions and obtain intelligence. In the years following the conflict, human rights organisations in Nepal have extensively documented a persisting trend of the use of torture by the state forces.

Trend of State Forces regularly employing Torture in the post-Conflict years

There is a worrying trend of state forces continuing to regularly employ torture even in the post conflict years. By way of example, in 2011, 25% of the 4,247 detainees interviewed said that they had been tortured. The situation in the Terai region on average is demonstrated to be worse than elsewhere in Nepal.

In the most recent months, from mid-2013 to mid-2014, THRD Alliance has continued to document several cases of torture. A few case studies are now set out, to demonstrate the severity of torture that persists in Nepal. The cases demonstrate a range of motivations for torture being employed by police personnel, including bribery (as seen in the successful case of compensation), coerced confessions, obstructing the administration of justice, sexual pleasure and pure frivolity.

1. 1. 1. On 21 August 2013, a resident of Rupandehi district was arrested by police officers from the Aama Sukrauli Police Office. Crammed in a very small and filthy room, he was beaten mercilessly on his body, legs and feet by the police with the same stick that the victim used to control his buffalo. It appears that there was no reason to arrest the victim, and he may have been singled out merely because he was a buffalo herder.
      2. On 1 January 2014, a resident of the Rupandehi district was tortured and subject to ill-treatment based on allegations of a theft. The police personnel ordered the victim to strip to his underwear in public, at the scene of the alleged crime, where they beat him mercilessly for about half an hour. They then proceeded to cuff his hands and paraded him around his village. At the Odbaliya Police Office, the police proceeded to beat the victim for 20 minutes with a bamboo stick, resulting in swelling and body aches all over the victim’s body. The police personnel asked the victim repeatedly for a bribe, first for the sum of NRs. 25,000, and then NRs. 5000. The Rupandehi District Court has since ordered on June 15 2014 that NRs. 30,000 was to be paid to the victim and that departmental action was to be taken against the perpetrators.
      3. On 30 April 2014, two residents of the Kanchanpur district were verbally abused and repeatedly beaten with sticks by police personnel from the Ward Police Office of that district. They were forced to do sit-ups repeatedly while being punched in the head, and with a plastic pipe on the feet. One of the victims fell unconscious due to the severity of the beatings. The torture was used to coerce victims into signing a confessional form.
      4. On 5 and 6 May 2014, an elderly resident of Dhanusha distrct was tortured by a policeman from the Laliya Police Office for lodging a First Information Report (FIR) against someone whom the victim obtained evidence of trafficking his young 14-year-old daughter, and had sold her illegally into marriage. He was severely beaten up by a police officer who was under the influence of alcohol, by way of sticks and shoes on his feet, back, palms and other parts of his body.
      5. On 15 May 2014, a 60 year old mother and her 14 year old daughter, residents of the Banke district, were tortured and sexually assaulted by 7 to 8 police personnel from the Ward Police Post of Nepalgunj. Having been arrested based on charges of theft; it is unclear whether they were tortured in order to obtain a confession. Both victims were beaten with a plastic pipe and a stick. They were placed in separate rooms, where they were forced to strip naked. A policeman touched the private parts of the younger victim, attempted to rape her and then tried to insert an electric rod into her vagina. She was also taken to a restroom where a drunken policeman attempted to rape her. The older victim was beaten mercilessly on her feet and hands, and was shoved by the butt of a gun.

Challenges Faced

Legal Regime

While Nepal has adopted the Compensation Relating to Torture Act, 1996 (CRT) to enhance the country’s implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the CRT compensates torture victims in a very limited way. Time limits prescribed of 35 days for filing a complaint defeats the purpose of the law. In addition, there is a compensation limit of NRs. 100,000, and no minimum compensation amount set. Ironically, the defense counsel for the perpetrator is the state prosecutor and the victim has to pursue the claim using his own resources. There are also no witness protection laws, which results in many of the victims being reluctant to come forward or filing compensation claims because of a real fear of antagonizing or revenge from the police.

Perhaps even more worryingly, torture has yet to be criminalised in Nepal. While the Supreme Court of Nepal ordered the government on 23 May 2009 to formulate legislation criminalising torture, five years on, there has only been a draft bill released criminalising torture. It has yet to be signed into legislation.

Practical Challenges

Civil and political liberties, including the right not to be tortured, are not given priority in the national conversation, with developmental issues taking the forefront instead.

Furthermore, there is strong political and community pressure to tackle the problem of widespread criminality in the Terai region, where there has historically been little police presence which subjects the inhabitants to a persistent sense of vulnerability. There has therefore been tacit support for strong-armed tactics by the police. Consequently, in several cases, HRDs have been unable to carry out effective investigations due to a fear of reprisals and resistance from the local community. In addition, such societal attitudes encourage impunity and the continued use of torture by State forces.

Impact of Continued Use of Torture in Nepal

There are several reasons why intensive efforts should be taken to discontinue the widespread use of torture in Nepal by State forces. It is hoped that the reasons listed below will focus governmental attention on introducing urgently needed legal and institutional reforms, and in transforming societal attitudes.

Gross Violations of Individual Liberty and Rights

Torture is a gross violation of individual liberty and rights. The special moral wrongness of torture is situated in its attempt to show contempt for or to entirely annihilate agency, dignity, and the autonomy of individuals.

Coerced Confessions greatly undermining Procedural Justice and the Policing System in Nepal

It is a basic principle of procedural justice that confessions obtained have to be voluntary, in order to be valid and admissible in a Court of Law. As such, a confession obtained under torture is inadmissible in any event.

By condoning coerced confessions, focus is shifted away from improving investigational techniques of criminal conduct (such as DNA samples, fingerprint evidence and eyewitness accounts whose veracity are subsequently tested under cross-examination). As a cautionary note, by rewarding policemen (even indirectly) for obtaining coerced confessions, the motivation of policemen to improve their investigational techniques in the long-term is greatly reduced. Such a development does not bode well for a nation newly emerging from conflict, in subjecting its citizens to an arbitrary rule of law, where badly investigated crimes (and the consequential false convictions) become the norm rather than the exception.

The adverse impact of Torture on the Rule of Law in Nepal

The rule of law should also be respected by meting out punishment to criminals that a Court of Law ordains rather arbitrary torture by police personnel. The systematic use of torture decreases the legitimacy of the judicial and policing system, and results in state citizens losing faith in the criminal justice system.

Recommendations on the Way Forward

First and foremost, the draft bill criminalising torture should be approved on an urgent basis.

The following measures are essential legal, institutional and administrative steps in the right direction:

(1)   Ratifying the Optional Protocol to the Convention against Torture and putting in place a national monitoring mechanism of torture;

(2)   Criminalising witness and/or victim intimidation, and establishing witness protection programmes to decrease fear of retaliation;

(3)   Extending the statutory limit on filing cases involving torture;

(4)   Increasing the upper limit for monetary compensation and establishing a lower limit;

(5)   Removing the provision allowing a perpetrator to be defended by a government attorney and instead providing legal services to victims;

(6)   Reforming the police structure to include representation of Madhesi police officers in the Terai region in order to reduce discrimination against Madhesi citizens.

Intensive steps to fight impunity against torture should also be undertaken, by including the elimination of torture as a priority in the national conversation and by actively changing societal perceptions (including that of the police) of torture as a legitimate method of investigation. Specifically, law enforcement personnel should be trained in the methods of interrogation and confinement that preclude the use of torture. Resources should also be invested in improving the methods of criminal investigation, so as to instil a culture of proper investigations and legitimate, admissible confessions being obtained.

Furthermore, the State should be pro-active in investigating the acts of torture and ill-treatment, even if no formal complaint has been lodged. This is in line with the guidelines set out in the Istanbul Protocol.

In short, reform should be undertaken to implement the following in NEPAL: “The law is not brutal in its operation; law is not savage; law does not rule through abject fear and terror, or by breaking the will of those whom it confronts. If law is forceful or coercive, it gets its ways by methods which respect, rather than mutilate, the dignity and agency of those who are its subjects.”

The writers are Dipendra Jha who is an Advocate at the Supreme Court in Nepal and Viknes Muthiah who is the Legal Consultant at the Terai Human Rights Defenders Alliance (THRD Alliance), in Nepal.