NEPAL: Court acknowledges torture but no sanction is taken against the perpetrators

Dear friends, 

The Asian Human Rights Commission (AHRC) has received updated information regarding the case of torture of Mahima Kusule, a 26-year old woman who was tortured by officers of the Dolakha Police on 14 July 2010 to force her to confess to a theft. On 22 May 2011, the District Court, Dolakha ordered compensation to be provided to the victim, therefore acknowledging that she was subjected to torture. Nevertheless, the court did not order any sanction against the perpetrators in spite of legislative provisions allowing it to order departmental action against those proved to have inflicted torture in contradiction to the law. Dissatisfied with the court verdict, the victim has filed a case at the Appellate Court, Dolakha seeking action against the perpetrators. 

UPDATED INFORMATION: 

In our previous Urgent Appeal A young woman is tortured under interrogation at the Dolakha District Police Office, we expressed our concern over the case of Mahima Kusule, a 26-year-old woman who had been brutally tortured in the custody of the Dolakha district police on 14 July 2010, because she had refused to falsely identify herself as the accused in a theft case. She was detained on suspicion of the case without being provided any detention letter, arrest warrant or a health checkup as is mandatory under the law. 

She was told that would have the truth tortured out of her. Two policemen in plain clothes and two policewomen tied her hands with a strip of denim, inserted a bamboo stick between her knees and hands and propped her legs up. Assistant Sub-Inspector Rajiv K. C. allegedly gave the order for the officers to beat Mahima, after which Head Constable Ms. Nirmala Pokhrel beat the soles of her feet with a plastic pipe in which an iron rod was inserted repeatedly for about 20 minutes while asking about the crime. The police officers then reportedly threatened to use electric shocks on the victim. Instead the women allegedly beat Mahima five or six more times each on her hands, her thighs and then her chin with the same pipe. She was slapped across the face four times. She was released without be charged the following day. 

In the aftermath of the torture the victim has been suffering from pain in her swollen cheeks, hands, her left shin which was deeply bruised, the soles of her feet which were clotted with blood, as was her lower abdomen and her chest. The victim also reported severe headaches, nausea and dizziness, along with sleeplessness, a loss of appetite and occasional anxiety attacks. A psychiatrist diagnosed the victim with a post traumatic stress disorder, depression and an adjustment disorder. She was provided medical treatment at the Tribhuvan University Teaching Hospital. 

With legal aid provided by Advocacy Forum, the victim filed a case under the Torture Compensation Act at the District Court, Dolakha. On 22 May 2011, the District Court acknowledged that the victim was subjected to torture and issued an order to provide the victim with Rs. 15,000/- as compensation. The court told the perpetrators not to torture detainees again but no departmental action was ordered against the perpetrators.

The Torture Compensation Act, 1996, in its section 7 entitled “Action Against Persons Involved in Torture” mandates that “In case it is proven that torture has been inflicted in the manner mentioned in this law, the district court shall order the appropriate agency to take departmental action according to the current law against the government employee who has inflicted torture.” In spite of those provisions, the courts very rarely order action against the perpetrators, therefore making them feel protected from any kind of sanctions if they break the law and encouraging them to the further use of torture. In that case, the court acknowledged that torture had been inflicted to the victim as defined in the Torture Compensation Act but disregarded the dispositions of the law which allow for sanctions against the perpetrators thereby protecting their impunity. 

The victim and her family said that her fight was not to get compensation but justice. They therefore filed the case at Appellate Court seeking an order to bring the perpetrators to justice. 

ADDITIONAL COMMENTS: 

In a communication transmitted to the Nepalese government on 8 September 2010, the UN Special Rapporteur on Torture expressed its concern in the case, the government’s mere response to it being to denounce the allegations as “completely baseless, fabricated and hypothetical” without advancing any evidence to support their claim. Now that a national court of justice has acknowledged that the victim was indeed subjected to torture, the government of Nepal must respect its international obligations, as party to the Convention against torture and International Covenant on Civil and Political Rights, to ensure that perpetrators of torture face prosecutions. 

In spite of a constitutional obligation to define torture as a punishable offence, no law stating specific sanctions and punishment for the perpetrators of torture has been adopted four years after that provision was first included into the Interim Constitution. As stated above, the Torture Compensation Act, 1996, merely provides for limited monetary compensation to be provided to the victim by the state and for departmental action to be taken against the perpetrators. In addition, the absence of a strong political will to make the perpetrators of torture accountable and of an independent body to conduct impartial and thorough investigations into all allegations of violence by security forces, the perpetrators of torture benefit from a state-sanctioned impunity. 

The lack of action against perpetrators of torture and continuing impunity have long been acknowledged by the UN Special Rapporteur on Torture as one of the main factors of the persistence of torture. In its report to the Universal Periodic Review, Nepal has pledged that it “views any alleged acts relating to torture in any part of the country with serious concern. It has carried out investigations of allegations of such acts. Necessary punitive measures have been taken subject to law against those found indulged in such act” and committed to the international community to bring to justice anyone suspected of torture. It is now time to translate those commitments into concrete action. 

SUGGESTED ACTION: 
Please join us in calling for actions against the perpetrators of torture by writing to the authorities listed below. 

The AHRC is writing a separate letter to the UN Special Rapporteur on the Question of Torture and to the field Office of the High Commissioner for Human Rights in Kathmandu to ask for their intervention on this matter. 

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