UPDATE (Nepal): Umesh Lama withdrew his case due to alleged serious threats by police

Dear friends,

The Asian Human Rights Commission (AHRC) calls for your immediate intervention into the case of Umesh Lama. On 30 April 2008, Umesh’s sister, who had filed a case under the Torture Compensation Act, was compelled to withdraw her case due to constant pressure from the police, including the Deputy Superintendent of Police (DSP) who was heading an investigation into Umesh’s torture incident. Please urge the Government of Nepal that it should immediately form an independent inquiry team into the victim’s alleged torture as well as the serious police threats to him and his family. The AHRC also strongly urges the Attorney General (AG) to inquire about Umesh’s case and take appropriate action against the responsible police officers, as the Interim Constitution gives an authority to the AG to do so in case of serious human rights violation. Please also urge the concerned local authorities to immediately suspend all the police officers allegedly involved in pressuring the victim to withdraw his case. The AHRC had earlier raised our concerns regarding the alleged constant and serious police threats to the victim and his family as well as the accountability of the police investigation into Umesh’s torture incident (AHRC-UAU-027-2008). For more details about the victim’s original torture incident, please see AHRC-UAC-078-2008.

UPDATED INFORMATION:

With help of lawyers, Umesh Lama’s elder sister Ms. Lalumaya Jimba Bal filed a case under the Torture Compensation Act (TCA) on 28 April 2008 at the Kathmandu District Court on behalf of her brother asking for compensation as well as an investigation into Umesh’s torture case. The case was then registered in the court on the same day.

According to the victim and his family members, soon after filing the case in the court, the police of the Hanumandhoka Metropolitan Police Range (MPR) in Kathmandu district again began pressurizing them to withdraw the case.

According to the family, in the evening of April 28, the Deputy Superintendent of Police (DSP) Kanchan Thapa, who was heading the police committee investigating Umesh’s alleged torture case, called the victim’s wife on her mobile phone. The DSP told her to give the phone to Umesh and told him, “Why did your sister lodge a case against the police? As your sister has filed the case, you are not going to be released!”

On April 29,  inspector Laxman Giri of the Hanumandhoka MPR also called to Umesh, who was hospitalized at the Bir Hospital and told him that the police would not ‘help’ him because his sister had lodged the case against the police to the court. He also told Umesh, “We (the police) could withdraw charges against you, as you compromised (with us). But your elder sister did not listen (to us). You have to go to prison now!”

Fearing that the police would send Umesh, who was still receiving medical treatment at the hospital due to his bad health condition, to prison soon, Umesh’s sister came to the office of human rights organisation on the same day afternoon and asked the lawyers to withdraw her case from the court. She said, “My brother Umesh says he will die if he has to go back to the police (cell) again. He is having a nightmare (for days). He suddenly wakes up at night and screams, ‘police! police!'”

When the victim’s sister was having a meeting with the lawyers, she again received a phone call from the DSP Kanchan Thapa, who again asked her to withdraw the case if she wanted her brother to be released. The sister said that the DSP was apologetic this time saying that his people did something wrong to Umesh so that he had to suffer.

On the morning of April 30, the police inspector Laxman Giri visited Umesh and his family members at Bir Hospital and again pressurized them to withdraw the case in the court. After the inspector left the hospital, Umesh called his elder sister to the hospital and begged her to withdraw the case.

On the same day afternoon, Umesh’s elder sister called inspector Laxman Giri and asked him to come to the hospital. The inspector Laxman soon arrived at the hospital along with two other policemen with the police files of the cases charged against Umesh. The inspector told the elder sister, “We will go to the court with Umesh (and make him released) but you should withdraw the case that you filed at the Kathmandu District Court.”

The victim’s elder sister then called to her lawyers and asked them to come to the court to withdraw her case. She also said that she was about to leave for the court along with two policemen in order to withdraw her case in the court. When the lawyers met her in the Kathmandu district court, she said, “My brother wants to withdraw the case because he had already faced many problems (caused) by the police. The police constantly threat him to withdraw the case. The police also threatened him that they would charge him with other many false cases. We are compelled to withdraw the case…”

In the court, the police released Umesh on bail by the order of Kathmandu District Court, relating to the charges against him.

In the meantime, the AHRC was informed that one Assistant Sub Inspector of Police (ASI) Ashwin Sinkhada of Hanumandhoka MPR, contacted the lawyers’ office on April 30 and inquired about the names of the lawyers who were presented there when he and his two colleagues including Inspector Laxman Giri were taking Umesh’s statement on April 27. Similarly, Inspector Laxman Giri also contacted the lawyers’ office and inquired about details of its lawyers who had visited the victim at Bir Hospital.

According to Umesh’s family, the police gave him 100,000 Nepali rupees (about USD 1,600) and his mobile phone which was seized by the police at the time of his arrest. Umesh is currently at his rented room in Kathmandu and is still undergoing medical treatment.

ATTORNEY GENERAL SHOULD IMMIEDIATELY TAKE UP THIS CASE:

Umesh Lama’s case illustrates how difficult the torture victims or their families pursue their cases against alleged torture perpetrators to get justice in Nepal. It is common practice in Nepal that the police implicate the torture victims into serious false cases to intimidate them, when they file the case under the TCA or file a First Information Report (FIR) against those responsible police officers. Under these circumstances, the torture victims have no choice but to withdraw their cases and compromise with the alleged perpetrators.

Another problem is that there is no independent avenue that torture victims can access to lodge a complaint against police officers in Nepal. An investigation into an alleged torture incident is mostly done by the police officers from the same police office where the victim was tortured or from the next level superior police authority who has good relationship with alleged torture perpetrators. Therefore there is little transparency to ensure accountability and impartiality of the investigation into such cases and the torture victims are often further victimized during the investigation process.

For example, Umesh Lama was tortured by police officers of the Hanumandhoka MPR, which is responsible for investigating all the criminal cases that took place in Kathmnandu district. This MPR was the former District Police Office (DPO) of Kathmandu district. When his case gained a huge attention from the media and local human rights groups, an inquiry committee was formed within the same MPR but what the investigating officers did was intimidating Umesh and his family to withdraw the case against the police rather than to conducting a proper investigation into this torture incident. As high ranking police officers are allegedly involved in Umesh’s torture and intimidation to him and his family, the AHRC is deeply concerned that there is no way to guarantee its impartiality if another inquiry committee is formed under the Department of the Inspector General of Police (IGP).

Sub-clause 3(C) of Section 135 of the Interim Constitution of Nepal gives an authority to Attorney General (AG) to inquire about the case and take proper action against the guilty persons with regards to serious human rights violation cases. The AHRC strongly urges the AG to immediately take up this case, order an independent inquiry into Umesh’s alleged torture incident as well as intimidation to him and his family from the investigating police officers and take proper action against those responsible officers without delay.    
 
We also urge the Government of Nepal that it should take genuine steps to set up an independent avenue where torture victims feely access to complain against the police without fearing further harassment or intimidation from the police.

URGENT REQUEST FOR INTERVENTION FROM OTHER CONCERNED AUTHORITIES:

The AHRC also urges the National Human Rights Commission (NHRC) of Nepal to immediately inquire into Umesh Lama’s case. To ensure its accountability, we suggest the NHRC to include representatives from the civil society into its inquiry team.

Furthermore, the AHRC requests the IGP and the Minster of Home Affairs to inquire the alleged intimidation to Umesh and his family members and to suspend all those who are found to be involved in it. This will be the only effective way to ensure Umesh’s security and prevent further harassment to him in future.

URGENT NEED FOR CRIMINALIZING TORTURE AND OTHER CUSTODIAL CRIMES:

Nepal has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1991. However, its legal system does not provide effective redress to torture victims.

Although the 2007 Interim Constitution made torture as 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 victims of Torture, but the perpetrators of the Torture 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. However, the Civil Code only gives very light fines/punishment according to the nature of the ‘physical’ wound. Furthermore, the Civil Code does not make any provision for the psychological effects of torture. Torture is defined very narrowly in Nepal, and torture by state officers outside custody seems to be totally exempt.

Even more important is the fact that the Civil Code does not provide any specific provision for assault, ill-treatment or other crimes which has taken place whilst the victim is in custody, that is, with State involvement. Consequently, very few lawyers use this clause in court and torture victims is deprived of their rights to seek effective legal remedies. As a result, torture perpetrators enjoy continuous impunity and victims are routinely denied justice.

Therefore, the AHRC again strongly urges the Government of Nepal to adopt domestic legislation without further delay, which ensures that acts of torture are criminal offences punishable in a manner proportionate to the gravity of the crimes committed. The Government also should seriously consider amending the TCA to bring it into compliance with all the elements of the definition of torture provided in the CAT. Without such reform, it is impossible for the Government to combat the widespread practice of torture in the country.

SUGGESTED ACTION:
Please immediately write to the concerned authorities list below and urge them to immediately conduct an independent inquiry into Umesh’s alleged torture incident as well as serious intimidation to him and his family by the police. Please particularly urge the AG and NHRC of Nepal to urgently inquire into this matter and take strong action against those responsible. Please also urge the IGP and the Home Minister to suspend the police officers who are involved in the case of Umesh’s torture and intimidation to him and his family as well as to take strong departmental action against them.

The AHRC will separately report this matter to the United Nations Special Rapporteur on Question of Torture.

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