Since the last International Day in Support of Torture Victims, it is unfortunate that little concrete measures have been taken to put an end to the practice of police torture in Nepal.
Even if there has been a noticeable amelioration in the behavior of the security forces and a decrease in the number of torture cases reported since the end of the conflict, stories remain explicit regarding the persistent use of torture by police forces in Nepal.
In July 2009, two men were beaten in front of a crowd in Morang District, the police officers then threatened the victims, the human rights defenders and the witnesses in order to escape the prosecution. In February 2010, police inflicted torture on 18-year old student in Kathmandu and kept him in detention for 28 days, refusing to provide him with appropriate medication despite court orders. Thirteen days later, in the same police station, two women and one man were seriously beaten up for two days in order to compel them to confess a crime. During the same month, in Panchthar district, the police beat up four men accused of having stolen pipes from a construction site until they confess the theft and then left them to be beate n up by a crowd. One of them was kept in illegal detention for nine days before being brought before a judge following pressures from NGOs. A father and a sonwho were arrested at the same time died following the torture inflicted upon them in police custody. In June, Sanu Sunar, a 46-year-old Dalit man was also tortured to death by police inspectors who wanted him to confess to a theft which in reality, he had never committed.
The wide range of cases and victims demonstrates that men and women alike, regardless of their age, are likely to be subjected to torture in almost all police stations across Nepal. Torture continues to be routinely used as a tool to extract confessions or to punish persons who are accused of having committed a crime. Worryingly, the fact that some of these torture episodes have taken place in front of a crowd or that in some cases the public has even participated in the beatings, says a lot about the extent to which torture is viewed as an acceptable practice in Nepalese society.
As at least three people have been tortured to death in custody since the beginning of 2010, it is high time these figures of atrocities act as a wake-up call. The persistence of this practice and the unaccountability of the perpetrators further diminishes the trust of the people in the State’s ability to protect their rights and cultivate a peaceful, stable and just society.
The widespread use of torture has been pointed out as a scourge for years. The UN Special Rapporteur on torture concluded its 2005 visit in Nepal deploring the systematic use of torture in the country. Following the visit, the Government of Nepal assured that measures to address torture and impunity would be pursued in a continuous and sustained manner, a commitment which was continuously reiterated in the following years. Nevertheless, almost five years after the visit, there is no denying that most of the recommendations formulated by the Special Rapporteur have remained unheeded. True, some of the most prominent figures of the state have reasserted their will to eradicate torture and to fight against the culture of impunity which protects the perpetrators of torture, but only limited concrete steps have been taken in that direction.
The existing legal framework is such that the victims of torture find themselves deprived of any recourse to adequate justice. The UN Convention against torture mandates Nepal to adopt legislative measures to prevent acts of torture (Article 2) and to ensure that victims of torture have access to legal remedies and redress. Despite the Article 26 of the 2007 Interim Constitution which outlaws the use of torture and makes provisions for the punishment of the perpetrators according to law, such legislation is yet to be adopted, consequently protecting the perpetrators of torture as they cannot presently be prosecuted for this crime.
The need for the criminalization of torture is eluded by the existence of the 1996 Torture Compensation Act. This is an unacceptable attempt to justify the absence of criminal sanctions against the perpetrators of torture and to maintain the impunity protecting them: the fact that law makes provision for the compensation of the victim should not, under any circumstances, be considered as an acceptable alternative to the prosecution of the culprits.
Moreover, the 1996 Torture Compensation Act itself contains several loopholes such as a restrictive 35-day limit that has prevented several victims of torture from getting the compensation they are entitled to. In 2005, the Special Rapporteur on Torture noted that since 1996, compensation had actually been paid to the victim of one single case only. In his 2009 follow-up report, he noted that this number had increased to seven cases only, after more than 200 complaints were filed by the victims.
The accumulation of torture cases has allowed the AHRC to acknowledge the persistence of a disturbing pattern, one that points at the Nepalese institutions’ inability to provide justice to their victims. Police obstructions and judicial negligence often act as insurmountable obstacles in the way of torture victims seeking redress.
The absence of a witness protection mechanism leaves the complainants vulnerable to intimidation and ill-treatment. Following the torture to death of Dal Bahadur and Bikram Gyanmi Magar, the father and the son who died in police custody in February, an agreement was forced upon the victims’ family by the public and the police vaguely promising prosecutions for the perpetrators and compensation for the family. The National Human Rights Commission saw its investigation obstructed by locals. The police also tried to manipulate human rights NGOs into not publicizing the case. Eventually an FIR was prepared but following pressure from the police and the public the names of the three alleged perpetrators were removed from the report.
The risk is further aggravated by the absence of any independent body in charge of investigating cases of torture. Cases of torture are investigated by policemen who belong to the same police station as the alleged perpetrators, creating a direct conflict of interest between the outcomes of the inquiry.
The case of Sushan Limbu and Bhakta Rai is another example of the ineptness of the criminal justice system in protecting the security of the ordinary citizens and providing them with remedies when their rights are violated. The two men were arrested, publicly humiliated and badly beaten in front of a crowd by the police in Morang District on 12 July 2009. The perpetrators utilized all their means to arrange a cover up and prevent the victims from receiving any remedies. They wrote the medical report themselves and then forced the doctor to sign it, forced the witnesses to delete video footage of the public beatings and threatened the human rights defenders who were handling the case. The Chief District Officer then made use of extensive judicial powers and specific laws granted to him to release one of the victims on bail and charged the other one, without taking into account the lawyers’ objections. This removes many of the checks and balances that prevent arbitrary ar rests and detention and the case shows how the law can be used at the advantage of the police to cover up their abuses and further deprive the victims of protection. The victims were further intimidated and threatened not to seek legal remedies for their torture. In August, Baktha Rai, who had been released on bail managed to overcome police refusals to register his complaint and to file a case under the Torture Compensation Act. However, he cut contact with human rights organizations shortly after and did not attend the court hearings regarding his case, casting doubts that he may have received similar threats.
This case further exhibits how the strong lip-service paid by political parties to the fight against torture fails to materialize in concrete actions. After the case was disclosed to the public, the Home Ministry agreed to form an investigation committee; however, the only outcome was the issuance of an administrative warning to four police officers. The inspector who is said to have given orders for the beating has not been removed from his duties and is still serving in the same police station today.
Such insignificant ‘sanctions’ fail to deter practices of torture as perpetrators remain under the misconception that even if their violations are brought to the attention of the higher instances of the state, they are unlikely to be sanctioned sternly and therefore continue to hold torture as an acceptable practice, one which seldom leads to severe consequences.
The widespread use of torture in Nepal adversely affects two of the most important challenges the Nepalese society is facing today: the consolidation of its democracy and the pacification of the country. There are numerous reasons why torture is an unacceptable practice in a democratic society. There is an intrinsic philosophical opposition in the rationale behind the use of torture by police forces and the principles on which the legal system of a democratic society is grounded on, the most prominent of which being that a suspect must be treated as innocent until proven guilty and that all the citizens are entitled to a fair trial. The practice of police torture in which a citizen – the police officer, elevates himself to a position where he is the inquisitor, the judge and the hangman of another citizen contradicts this requirement of democracy as well as poses a direct threat to the idea of equality of all citizens before the law.
In a country struggling to establish long-lasting democratic institutions to guarantee the stability of the society, the practice of torture cannot be upheld. The police administration is one of the state institutions which operates the closest to the citizens, it carries the main values of the society and it is the organization which has been entrusted to fulfill one of the prime duties of the state: guaranteeing the security and the protection of the citizens. If the policing system is seen as a threat to the security of the citizens, the trust in the whole state’s institutions is affected. If the state proves unable to prosecute police officers guilty of having inflicted torture and to provide justice to the victims, it is the whole accountability of the state system which is put at stake.
The credibility of the justice institutions is damaged when statements extracted under torture are admitted as evidence in a trial or when police refuse to abide by a court order to provide monetary compensation or medical care to a torture victim, which is regularly the case. This makes a mockery of the Article 116 of the Interim Constitution which states that court orders are to be binding to all.
This very phenomenon prevents the few legal provisions existing to protect the citizens, from actually protecting citizens from police abuses. The Article 24 of the Interim Constitution of Nepal mandates that an arrested person shall be presented before a judge within 24 hours after his arrest. Nevertheless, there are still instances in which detainees are kept in illegal detention for several days after their arrest, therefore increasing their risk to be inflicted with torture.
It is therefore mandatory to take immediate action to put an end to the police use of torture and to ensure the accountability of all the state institutions, a necessary first step toward their strengthening and democratization. The issue must be addressed at several levels. At the level of national legislation, a law criminalizing torture should be adopted without delay, in accordance with the dispositions of the interim constitution of Nepal and the internationally accepted definitions of torture. The law should also allow the prosecution of those who have allowed the act of torture to take place. The loopholes within the Torture Compensation Act should be bridged and the 35-day limit should be extended. It is mandatory to establish an independent and impartial body, with effective powers and sufficient budget, in charge of conducting the investigation into the allegations of torture.
At the judicial level, measures should be taken to ensure the protection of the victims of torture and of their witnesses, including the systematic transfer of detainees complaining of ill-treatment or torture to another place of detention within a limited period of time. Judges have a crucial role to play in the prevention of torture by systematically testing the voluntary nature of a confession. Those who do not abide by court orders to provide torture victims with financial compensation or medical assistance should be prosecuted. It is also the duty of judges and doctors to ask the detainees about the treatment they have received while in detention and sanction the perpetrators accordingly, depending on the degree to which they tortured the victim with more serious cases of torture resulting in more severe punishments.
More than anything, a change in the police practices is required, human and financial resources should be invested in the criminal justice system of the country to develop the investigation skills of the police officers. Higher ranking officers have a key role to play in the circulation of the idea that torture is not acceptable and should strongly condemn this practice.
Eventually, the Nepalese media have a key role to play as well by continuing to largely diffuse cases of police exactions and abuses to foster the public rejection of the practice of torture.
26 June 2010 will mark the International Day for victims of torture and should remind all the ordinary citizens of Nepal that they have a say in the way the policing system of their country functions and that the way forward should be the one which favors the realization of their rights.
