An interview with a human rights activist published by the Asian Human Rights Commission
The Asian Human Rights Commission is publishing an interview with Kamal Pathak, Deputy Director of Advocacy Forum-Nepal. Advocacy Forum (AF) is a leading non-profit, non-governmental organization working at the frontline of the fight against torture in Nepal. Based on his organisation’s ten years of experience in providing assistance to victims of torture in Nepal, he explains the severity of the problem and the difficulties faced by the victims to get justice.
Q: How would you describe the practice of torture in Nepal since the end of the conflict?
After signing the comprehensive peace agreement in 2006 and since the beginning of the Nepalese peace process, the practice of torture has been seen as decreasing in comparison with the conflict time. Advocacy Forum has been working for 10 years with torture victims and has collected data related to the practice of torture. Our data shows that the percentage of detainees who report that they had been tortured or ill-treated in police custody was around 33% in 2006 and around 19-20% in 2010. Although statistics are decreasing, the individual cases show that the severity of torture practice is still the same. For instance, every year, even after 2006, there were cases of custodial death. In 2009 it was reported that private houses were rented in Kathmandu itself by the police and used to torture individuals secretly. This showed that torture was still widely practiced even in Kathmandu. The data also shows that the practice of torture has actually recently been increasing in some of the Terai districts. Interviews with torture victims reveal that methods of torture used during the conflict are still being practiced today by the police. This includes beating on the soles of the feet with sticks or pipes, beating on the victims’ thighs, shoulder, back, joints, punching and kicking randomly on various parts of the victim’s body. From the data it seems that torture is constantly declining but when we look at the severity of the cases, it shows that torture is still widely practiced in Nepal.
The situation of the torture of women and juveniles is also very serious. Last year for the International Day in Support of the Victims of Torture, Advocacy Forum released a report about the torture of juveniles, which found that one child out of four was being tortured in police custody. This year we are releasing a report as well on torture of women in detention. When we interviewed female detainees we found that they had been forced to undress, that in some occasion police put objects in them or that some have been beaten on sensitive parts of their bodies. We also found instances in which women had been raped in detention.
Q: What are currently the possibilities for victims of torture to get justice? What obstacles do they face?
For victims of torture, there are actually very few possibilities to get justice in Nepal. There is no legislation to criminalize torture in Nepal, although the country is part to the Convention against Torture. The constitution says that torture is a criminal act but no law has been endorsed to make torture a crime punishable. We only have a Torture Compensation Act, which was endorsed in 1996. It gives victims of torture some space to claim compensation.
Torture victims can also file a case with the National Human Rights Commission to seek redress but recommendations issued by the NHRC to take sanctions in cases of torture are not being implemented by the government. Therefore the victims of torture are deprived of any avenues to seek legal remedy and they are deprived of justice. Because of that impunity, a lot of victims are discouraged to file cases to the court. Further, those who do so are at risk of being threatened by the police. Because of that situation a lot of torture victims are reluctant to file a case and to seek justice.
Other obstacles faced by torture victims include the fact that the case of torture have to be filed 35 days after the facts, which makes it very difficult to file the case. Other obstacles include lack of good medico-legal documentation of torture, lack of awareness among the general public…etc
In spite of those, we have filed hundreds cases of torture in court. We have even filed a case at the UN Human Rights Committee in January 2008 and the committee decided that Nepal had breached its treaty obligation under the International Covenant for Civil and Political Rights and had violated the right of the victim to be free from torture and that it should grant the victim an effective remedy.
Q: Do you see a change in the attitude of judges toward torture victims?
The attitude of not only the judges, but also of the police and other stakeholders of the criminal justice system is gradually changing and they are calling for reforms of the criminal justice system. But we realize that this is not sufficient and that the evolution needs to be much more significant to bring real changes in the criminal justice system of Nepal.
Q: Are confessions, extracted under torture, admitted in court proceedings?
Confessions extracted under torture are not accepted in court proceedings, when it is known that the confession was actually extracted under torture. But there are numerous instances, in which it is not known that the confession was not a voluntary one.
Q: Are victims of torture usually willing to press charges against the perpetrators or do they fear further victimization?
Victims of torture may not be willing to file the case because of the impunity for the perpetrators; they do not feel encouraged to do so. Also, they know that if they file a case, it may bring them more problems than if they do not. As I mentioned, after filing the case, victims have been receiving threats, including death threats, to force them to withdraw the case and some of them are even bribed by the police. So because of that they are not very willing to file the case. But if we had a good legislation and if they knew that they could get justice and see the perpetrators punished, a lot more torture victims would probably be willing to come forward and file cases.
Q: The proposed new criminal code would criminalize torture. According to your experience, which conditions should be met to make for this criminalization to lead to the eradication of torture in Nepal?
The new penal code is pending before the parliament in a draft form and it indeed criminalizes torture. Nevertheless, we have seen the content of the draft penal code and it is not yet in line with international standards. For instance, the definition of torture is very broad and does not correspond to the definition of torture in the Convention against Torture, which may makes it difficult to convict someone of that crime. We have submitted some recommendations to the government of Nepal to amend the draft penal code to make it in line with international standards. If provisions criminalizing torture are adopted in line with the CAT, it can be efficient to address the issue of torture but as of now the draft penal code needs ameliorations.
Q: According to your experience, what are the needs of victims of torture (in terms of justice, medical treatment, reparations)?
Torture victims need of course immediate medical examination, check-up as well as medical treatment. A lot of them suffer from deep psychological trauma and they need psychological counselling. They also need to be rehabilitated because in the society of Nepal, it is perceived that once a person has been tortured by the police it is because he or she has done something bad and they are treated in a different way. The security issue of victims of torture is also an issue which must be addressed immediately. Victims also need to see perpetrators being punished.
Q:You have dedicated your work to the fight against torture, can you explain in your own words why torture is unacceptable under any circumstances?
Torture is always an inhumane act and, being humane, we cannot accept to see other human beings being tortured. The international law and customs also say that torture can never be practiced and that people have the right not to be tortured. That is why it should always be unacceptable and we have to fight to suppress it from the society.
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The views shared in this article do not necessarily reflect those of the AHRC, and the AHRC takes no responsibility for them.
About the interviewee:
Kamal Pathak is the Deputy Director of Advocacy Forum-Nepal. Since its establishment in 2001, Advocacy Forum has been at the forefront of human rights advocacy and actively confronting the deeply entrenched culture of impunity in Nepal. In its work against torture, AF specifically aims at challenging impunity and promoting accountability in torture and ill-treatment in Nepal in general and prevention of torture common in government detention facilities in particular. It advocates for the application of international and regional standards prohibiting torture and effective implementation of and reforms on existing legislation on torture. For more information about Advocacy Forum’s work against torture and impunity, please visit http://www.advocacyforum.orgÂ
