Dear friends,
The Asian Human Rights Commission (AHRC) has received updated information regarding the custodial death of 16-year-old Dharmendra Barai on 4 July, which is suspected to have been caused by police torture. An investigation team set up by the District Administration Office has concluded that they could not establish that torture was the cause of death, but strong doubts have arisen regarding its impartiality. On 22 August, the District Police Office and the District Administration Office of Rupendehi both refused to file an FIR in relation to the case.
UPDATED INFORMATION:
In a previous Urgent Appeal, the Asian Human Rights Commission expressed its concern following the death in questionable circumstances of Dharmendra Barai while in custody of the Khajuriya Police Post, in Rupendehi District, on 4 July 2010. The boy was arrested on 3 July because the police suspected his involvement in a lethal bicycle accident and, although he was a minor, he was kept in detention in the same conditions as adults. In the afternoon following his arrest, around 20 persons came to the police station to ask for his release and the boy complained that the police had threatened to shoot him. At 4 am on 4 July, the victim’s body was brought to the Bhim Hospital. There were several injuries on his body. The victim’s family and relatives suspect that the boy was tortured which led to his death. The AHRC had called for a thorough and impartial investigation to determine the circumstances of the death of the teenage boy death in police custody.
According to the updated information we have received, witnesses have reported that the police may have applied electric shocks to the boy during the 45-minute period in which they interrogated him before he died.
An investigation team, which was set up by the District Administration Office to probe the circumstances of the death, published its report on 3 August 2010. The report concludes that “there is no sufficient proof to establish the torture is the cause of death”. This conclusion is based on the postmortem report, which mentions the cause of death as “unknown” but does not take into account the details of the injury records, which mentions “a small contusion over left front head and right shoulder, an abrasion in the central part of his left palm and some redness over the right sole”. Neither did the investigation team consider pictures of the deceased’s body showing that he had sustained different injuries that were provided by the victim’s side. (The photos can be seen here, here and here.)
Moreover, although the investigation team acknowledges that the death occurred while the victim was in police custody, it is reported that it did not properly interrogate the police officers on duty in the police station at the time of the death and limited itself to asking general questions.
Further, the investigation report points to several weaknesses in the behaviour of the police which include not informing the higher office about the detention or not taking the victim for a medical check-up before keeping him in detention and. The report goes on to “suggests the necessary departmental actions against the policemen”. Nevertheless, the report is not specific regarding the nature of the sanctions which should be taken against which police officer. It further does not mention other serious faults committed by the police officers like arresting the boy without an arrest warrant, not providing him with a detention letter and keeping a juvenile in the same detention conditions as adults.
Strong concerns have arisen regarding the impartiality of the investigation team as it is composed exclusively of three policemen (DSP Mr. Umal Prasad Chaturvedi from Rupendehi District Police Office (DPO), DSP (Deputy Superintendent of Police) Mr. Kushal Prasad Gadtoula from Lumbini Zonal Police Office and Investigation Officer Mr. Thakur Chandra K.C. from the District Office of National Investigation Department) under the leadership of a government official Mr. Pitamber Ghimire, Deputy Chief District Officer in Rupendehi District Administration Office (DAO), without including any representative of the deceased’s family or the civil society, casting doubts over the ability of the investigation team to impartially investigate a case involving police officers.
Moreover, the neutrality of the forensic testing of the victim’s viscera is also questioned as it was done by the Central Forensic Lab of Nepal Police rather than by the National Forensic Lab.
On 5 August 2010, local political parties and civil society jointly issued a press release in which they questioned the impartiality of the investigation team and asked for a fully independent and transparent investigation to be launched.
We are also informed that the Home Ministry set up a 3-member investigation team on 18 July but that its report has not been made public yet.
On 22 August, Hariram Barai-the victim’s father, and Lal Bahadur Barai, a relative, visited the Rupendehi District Police Office to file an FIR (First Information Report) against the policemen allegedly involved in Dharmendra’s death. Nevertheless, Superintendent of Police Sher Bahadur Basnet refused to file the case under the fallacious pretext that Hariram had already filed an FIR in that DPO regarding the same case. According to the information we have received, Hariram had only sent a written application in the name of the DPO to receive the dead body of his son after the postmortem. Moreover, the police officer reportedly threatened Lal Bahadur Barai.
Sub Inspector (SI) of Police Shambhu Upadhaya upon reading the complaint, which was prepared by Hariram Barai, noticed that it mentioned that the deceased alleged before his death that the police pointed their rifles and threatened to shoot him. SI Shambhu, therefore, reportedly said to Hariram that the police had already promised that they would recruit Hariram’s elder brother in the police force but on the condition that the case of Dharmendra’s custodial death should not be reported anywhere.
Hariram and his relatives then turned to the Rupendehi District Administration Office and met with Deputy CDO (Chief District Officer) Pitamber Ghimire, the chairman of the investigation team formed by the DAO. They asked him to issue an order in the name of DPO, Rupendehi to register the FIR but the Deputy CDO allegedly refused saying that “writing on God’s name and praying to another God? The FIR was addressed to the DPO, it could not be registered in the District Administration Office”.
The same day, Hariram Barai then sent the FIR by post in the name of both concerned authorities.
ADDITIONAL COMMENTS:
Following its visit to Nepal in 2005, the Special Rapporteur on Torture Manfred Nowak had specifically recommended
that “All allegations of torture and ill-treatments be promptly and thoroughly investigated by an independent authority with no connection to that investigating or prosecuting the case against the alleged victim”.
In cases of police torture ensuring the impartiality of the investigation is crucial to guarantee the right to redress of the victim. Indeed, when the alleged perpetrators of a violation are police officers they are in a position of strength to influence the outcomes of the investigation or to compel the victims or the witnesses to keep silent. Nevertheless, most often in cases where torture is alleged in Nepal, the investigation is entrusted to police officers sometimes even belonging to the same station as the alleged perpetrators and those against whom torture is alleged are rarely suspended from their duties during the investigation, opening the door for collusion between the perpetrators and the investigators. The absence of any mechanism protecting the victim or their family further aggravates this situation.
SUGGESTED ACTION:
Please join us in writing to the authorities listing below to demand that an impartial inquiry should be launched to cast light upon the exact circumstances of Dharmandra Barai’s death and that justice should be given to his family.
Please be informed that the AHRC will write a separate letter to the UN Special Rapporteurs on the Question of Torture and Extrajudicial, Summery or Arbitrary Execution and to the Nepal representative of the Office of the High Commission for Human Rights calling for their intervention into this matter.
To support this case, please click here: SEND APPEAL LETTER
SAMPLE LETTER
Dear ___________,
NEPAL: Allegations of torture to death of a minor in Rupendehi District must be independently investigated
Name of victim: Dharmendra Barai, 16 (DoB: 4 Dec 1994), son of Hariram Barai and Vidhyawati Barai, a permanent resident of Gonaha VDC-2, Puraini, Rupendehi district.
Names of alleged perpetrators:
1. Assistant Sub-Inspector Nar Bahadur Khatri, in charge of Khajuriya Police Post, Rupendehi district
2. Other policemen from Khajuriya Police Post, Rupendehi district
3. SuperIntendent of Police Sher Bahadur Basnet and SubInspector Shambhu Upadhaya from Rupendehi District Police Office (reported refusal to file an FIR into the case and request to the victim’s father not to report the case)
4. Deputy Chief District Officer Pitamber Ghimire, Rupendehi District Administration Office(reported refusal to file an FIR into the case)
Date of incident: 3-4 July 2010
Place of incident: Khajuriya Police Office, Rupendehi district
I am writing to voice my deep concern regarding the lack of independent investigation to probe into the circumstances of the death of 16-year-old Dharmendra Barai while he was in custody of Khajuriya Police Post, in Rupendehi District, on 4 July. I am informed that there are strong suspicions that his death may be due to police torture, specifically that police may have applied electric shocks to the boy as there are pictorial evidence of injuries.
According to the information I have received from the Asian Human Rights Commission, the boy was arrested on 3 July because the police suspected his involvement in a lethal bicycle accident and, although he was a minor, he was kept in detention in the same conditions as adults. In the afternoon following his arrest, around 20 persons came to the police station to ask for his release and the boy reportedly complained that the police had aimed their rifles at him and threatened to shoot him. I am informed that at 4 am on 4 July, the victim was brought dead to the Bhim Hospital with several injuries on his body.
I know that an investigation team was set up by the District Administration Office, Rupendehi, to probe into the circumstances of the death which published its report on 3 August 2010. I am informed that the report concludes that “there is no sufficient proof to establish the torture is the cause of death” and limit itself to recommend compensation for the victim’s family and departmental sanctions for the police officers but I am wary that the investigation may not have been completely independent and professional.
Indeed I am told that the investigation team was composed exclusively of three policemen (DSP Mr. Umal Prasad Chaturvedi from Rupendehi District Police Office, DSP Mr. Kushal Prasad Gadtoula from Lumbini Zonal Police Office and Investigation Officer Mr. Thakur Chandra K.C. from the District Office of National Investigation Department) under the leadership of a government official Mr. Pitamber Ghimire, Deputy Chief District Officer in Rupendehi District Administration Office and did not include any representative of the deceased’s family or the civil society. I know that to protect the individuals from police torture, the impartiality of the investigations into all the allegations of torture is essential and that it implies that the investigation must be conducted by an independent authority with no connection to the alleged perpetrators. I am therefore very much concerned that having a team of police officers probing into the actions of their colleagues may not abide by the definition of independent investigations.
I am further informed that the forensic testing of the victim’s viscera was done by the Central Forensic Lab of Nepal Police rather than by the National Forensic Lab, raising further questions regarding the credibility of its findings.
I am concerned that the conclusion that it could not be established that torture was the cause of death seems to be based on the postmortem report which mentions the cause of death as “unknown” but does not take into account the details of the injury records which mentions “a small contusion over left front head and right shoulder, an abrasion in the central part of his left palm and some redness over the right sole”. I am also told that the investigation team did not consider pictures of the deceased’s body showing that he had sustained different injuries that were provided by the victim’s side and which could be signs of torture.
Moreover, although the authorities acknowledge that the death occurred while the victim was in police custody, it is reported that the investigation team did not properly interrogate the police officers on duty in the police station at the time of the death and limited themselves to asking general questions. The police officers, who interrogated Dharmendra while in detention, are to be held responsible for the death of the victim and should prove that they did not kill the boy.
I therefore consider that the investigation was not conducted in a truly impartial and professional manner and that doubts can be casted upon its findings.
The Home Ministry set up a 3-member investigation team on 18 July but that its report has not been made public yet.
I know that on 22 August, Hariram Barai-the victim’s father, and Lal Bahadur Barai visited the Rupendehi District Police Office to file an FIR against the policemen allegedly involved in Dharmendra’s death. I am concerned to hear that Superintendent of Police Mr. Sher Bahadur Basnet refused to file a complaint regarding the custodial death under the fallacious pretext that Hariram had already filed an FIR in that DPO regarding the same case. According to the information I have received, Hariram had only sent a written application in the name of the DPO to receive the dead body of his son after the postmortem.
SI Shambhu Upadhaya from the same police station upon reading the FIR that Hariram Barai wanted to file noticed that it mentioned the deceased’s complaint that the police had threatened him with their rifles. I am appalled to hear that Hariram allegedly threatened Hariram that the police had already promised that they would recruit his (Hariram’s) elder brother in the police force, on the condition that he should not report the case anywhere.
I know that Hariram and his relatives then turned to the Rupendehi District Administration Office and met with Deputy CDO Pitamber Ghimire, the chairman of the investigation team formed by the DAO. They asked him to issue an order in the name of DPO, Rupendehi to register the FIR but the Deputy CDO allegedly refused saying that as the FIR was addressed to the DPO, it could not be registered in the District Administration Office.
I am eventually told that the same day, Hariram Barai then sent the FIR by post in the name of both concerned authorities.
I consider that the victim’s family has a right to justice and a right to know the truth about the circumstances of the death of their child, which imply that the independence of the investigation must be guaranteed, that they must be protected against attempts to intimidate them and that the police should accept to file an FIR in the case. I therefore urge you to:
1- ensure that a fully impartial and independent investigation will be conducted to probe into the circumstances of Dharmendra Barai’s death. The investigation must be conducted by a truly impartial team and must include representatives of the victim’s side and of the civil society and the alleged perpetrators must be suspended from duty for the length of the investigation.
2- grant adequate protection to the victim’s family, the witnesses and their lawyers.
3- if the allegations of torture are believed to be well-founded, those found to have inflicted torture on the boy must be properly prosecuted and relieved from duty. Further, adequate compensation must be granted to the victim’s family
4- ensure that the victim’s father is allowed to file an FIR in this case
5- probe into the allegations that the DPO and the DAO refused to file the FIR and that police officers at the DPO tried to intimidate the victim’s father into not reporting his case and if proven, take sanction against the wrongdoers.
Yours sincerely,
—————-
PLEASE SEND YOUR LETTERS TO:
1.Mr. Ramesh Chand Thakuri
Inspector General of Police
Police Head Quarters, Naxal
Kathmandu
NEPAL
Fax: +977 1 4415593
Tel: +977 1 4412432 (Secretary to IGP)
E-mail: info@nepalpolice.gov.np, phqigs@nepalpolice.gov.np
2. Attorney General
Office of Attorney General
Ramshahpath, Kathmandu
NEPAL
Fax: +977 1 4262582
Tel: +977 1 4262506
Email: attorney@mos.com.np
3. Mr. Kedar Nath Upadhaya
Chairperson
National Human Rights Commission
Pulchowk, Lalitpur
NEPAL
Fax: +977 1 55 47973
Tel: +977 1 5010015
E-mail: complaints@nhrcnepal.org or nhrc@nhrcnepal.org
4. Mr. Sarbendra Khanal
Superintendent of Police
Police HR Cell
Nepal Police, Kathmandu
NEPAL
Fax: +977 1 4415593
Tel: +977 1 4411618
E-mail: hrcell@nepalpolice.gov.np
5. Home Minister,
Ministry of Home Affairs,
Singha Darbar,
Kathmandu,
NEPAL
Fax: +977 1 42 11 232
Tel: +977 1 4211211 / 4211264
6. Minister for Women, Children and Social Welfare
Singha Durbar, Kathmandu
NEPAL
Fax: +977 1 4241516
Tel: +977 1 4241728/4241551
E-mail: info@mowcsw.gov.np
Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)
