An interview with Tika Ram Pokharel, legal coordinator at the Centre for Victims of Torture (CVICT) published by the Asian Human Rights Commission
I started my work as a professional lawyer in 2001 which led me to see a lot of torture, corruption and human rights violations and I noticed that only a few people were interested in working on those issues. I realised it was my responsibility as a lawyer to start working on human rights violations. I joined CVICT as it was very difficult to work on those issues independently. In CVICT my responsibility is to conduct fact findings missions, legal counselling, to prepare case documentation, to file the cases in the courts and to plead on behalf of the victims. Since 2005, I have dealt with more than 100 torture cases filed under the Torture Compensation Act.
Have you dealt with cases of torture of children?
Torture in itself is a very wrong practice; it is a gross human rights violation. When children receive the torture, it is even worse. Tortured children are in a very vulnerable situation, the children who have been subjected to torture are unable to speak about it. In my experience, when I conducted a research in Juvenile Reform Homes, the children didn’t talk about torture. It is when they were asked to draw a picture about their past life — with no instruction to talk about torture — that a lot of them drew pictures representing situations in which they had been tortured. (See the report Untold Stories by CVICT which documents that research project) I have dealt with some cases of torture of children but we were unable to provide justice under the Torture Compensation Act. In particular, we suffered from a lack of proper documentation of the victim’s physical and mental conditional. Recently, I started to file the torture case under the Children Act, 1992. It contains some provisions criminalizing torture against children. Under this act the perpetrator are liable to up to one year imprisonment. I have filed one case under the Children Act in 2010. This case may be the first time in Nepal that someone may be convicted for juvenile torture under the Children Act, 1992. But this case is yet to be decided. The case is well documented so I hope the decision would be made in favour of the victim.
In which places does torture of children take place?
Torture of children takes place mostly in detention centres. Children are receiving torture from police officers. In some cases, children domestic servants have been tortured in the house of police officers, Army officers, government officials and politicians. I have received a lot of these cases. Some of those girls’ domestic workers have been raped and abused by police officers. According to the police act, every police officer has a 24-hour duty; they must therefore be liable for every criminal activity they indulge in. If the children are being beaten and abused in the house of a police officer in duty, it is not a personal issue; it is a human rights abuse. Rape itself has been acknowledged as a form of torture. In addition to the torture inflicted by the police officers, in the past, children have been recruited in armed groups as child soldiers, and some were also at risk to be recruited by criminal groups. The children remain in a very vulnerable situation in the country.
Based on the “Untold Stories” research conducted by CVICT, can you describe the impact of torture on Children?
When the juveniles fall into delinquency, they are arrested by the policemen, brought to custody and are often tortured severely through various methods. Most of the juvenile are from very poor families; they did not get any kind of opportunity. Because of torture, the victims will suffer from severe physical and psychosocial problems. They cannot speak about the torture. Although doctors frequently visit the juvenile reform homes they are not aware about the impact of torture. The children do not have access to psychiatrists and other experts. Further, another major problem is that after having been arrested, the juveniles are often rejected by their family and society. A lot of the juveniles who have been subjected to torture see gloomy prospects for their future.
What are the specific needs of children who have been subjected to torture? (In terms of justice, medical treatment, reparations etc…)
The juveniles who are staying in the juvenile’s reform home need first of all a good access to holistic care, including to a proper medical treatment, psychosocial counselling with psychiatric doctor and legal support. We must focus on creating an environment in which the juveniles feel enabled to speak out about their past torture, and give them access to legal support, so that they can file the case against perpetrator.
Can you see that the situation of torture of children is improving?
In 2005, the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, visited Nepal. In his country report he states that juveniles are vulnerable to torture in the detention centers and made recommendations to improve that. Nevertheless, now the situation has not improved considerably. Nepal has started to develop the concept of Juveniles Bench. Formally, we can see some developments in the law, but if we dig deeper, none of those provisions are implemented comprehensively. The Juveniles Bench was established more than five years ago but that did not bring an end to torture of children. A lot of juveniles continue to be tortured in the detention centers but they are unwilling to speak out about their torture and file the case against perpetrators as they fear re-victimization.
How do police officers treat children under interrogation?
Under the interrogation police officers treat children as they treat adults. There is not any separate system in the police offices to deal with children. Juveniles are kept in detention with adults and hard core criminals.
How is the court interrogating children who have been subjected to torture?
Most judges remain unaware about the extent of torture. The children are brought handcuffed, chained to each other or chained to adults in court by the police officers and the judge feels that he cannot take action against the police. According to Juvenile Justice Procedure regulation, every Juvenile should be treated in a child friendly environment; some courts have a separate room for the juveniles, but again those are hardly used and those dispositions are scarcely implemented. Judges show indifference to the issue.
Further, I’ve seen in a lot of cases that when there are allegations of torture, the judge does not show interest to know whether the child has really been tortured or not. Some of them think those allegations are fabricated by the children and do not want to interrogate them further about it. The judges can ask to see the body marks of torture, he/she can have a look at medical reports, he/she can order a medical check-up in a forensic lab but a lot still don’t because of a lack of sensitization to the issue. There exists a bias among judges toward cases of torture.
Other government employees are even more biased, even the court staff handling the case, hearing the case must be aware on how to handle the torture case, on how to deal with juveniles, on how to treat them with dignity. For the moment, the justice system does not recognize the dignity of the people.
The Children Act, 1992 contains a provision criminalizing torture on juveniles (under 16 years old) and makes it an offense punishable with one year imprisonment. Is that disposition applied?
If we talk torture in Nepal there are thousands of torture victims. There are a lot of torture cases but not a lot of people bring this kind of cases to court, because of a lack of knowledge of the dispositions of the law and fear of re-victimization. In my experience, out of one hundred torture victims, hardly five would be ready to file a case against the perpetrators.
The Children Act itself is not in the line of the Convention of the Rights of the Child and its provisions are rarely implemented. Nevertheless, the Children Act contains a provision that perpetrators of torture should get a sentence of up to one-year imprisonment. Why wouldn’t we try to apply that provision? We first needed to raise the awareness of the community, of the victim’s family about the issues of torture. If the families are not ready to file the case, it is impossible to go forward. We still lack a proper law criminalizing torture and the existing provisions are not implemented. In addition to that, there is a lack of awareness and sensitization on the issue. Those remain the major obstacles to put an end to torture of children in Nepal
What are currently the possibilities for children victims of torture to get justice? What obstacles do they face?
First of all we need to properly document the torture, with forensic experts able to properly document the effects of torture. So far, there is no proper documentation of the cases of torture in the juvenile’s reform homes. We must provide the victims with holistic medical care, and raise their awareness as well as that of their family’s against the torture. Afterwards, they may become ready to file the case against the perpetrators. If we provide them some legal support to file a case under the Children Act, this kind of de facto impunity would decrease. Those seeking justice are facing lot of problem. This provision of the Children Act falls under the category of “public criminal cases”, according to the Muluki Ain distinction between state party criminal cases and public party criminal cases. For cases that fall under the “state party criminal cases” category, the Attorney General can prosecute (file the charges in court) on behalf of the victims. But this is not the case for torture of juveniles and the victims have to file their cases themselves. If they do not file their cases in courts, the perpetrators will have impunity. Unfortunately in a lot of cases, they lack access to a lawyer who could support them to file the case against the torture. The juveniles lack access to justice but NGOs or lawyers are working to support them to file their cases in court. Psychologically, it is hard also as juveniles torture victims cannot speak out easily about the torture.
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The views shared in this interview do not necessarily reflect those of the AHRC, and the AHRC takes no responsibility for them.
About the Author:
Tika Ram Pokharel is an advocate and legal advisor in the Center for Victims of Torture-Nepal. CVICT was established in 1990 and has focused its work on the rehabilitation of torture victims and the prevention of torture. CVICT’s goals are to restore human dignity, end impunity, and work towards eradicating torture from Nepal. For more information: http://www.cvict.org.np/
