Richard Bennett

Torture and other forms of cruel, inhuman and degrading treatment have been and remain serious problems in Nepal. During the conflict, both parties to the conflict used torture. OHCHR-Nepal has documented and published reports on many of these cases, by both the Maoist Army and the Nepal Army (NA) including reports documenting torture by the then Royal Nepal Army at the Bhairabnath Battalion in Maharajgunj and the Chisapani Barracks in Bardiya, and on abuses by cadres of the Young Communist League (YCL), including serious allegations of ill-treatment of individuals taken under their control. Cadres of various political parties continue to use intimidation and violence, which often includes the use of beatings and serious ill-treatment.

Since the end of the conflict, there has been a significant improvement in Nepal’s record on torture. OHCHR no longer receives new reports of torture by the NA. However, OHCHR continues to receive reports of the use of torture and cruel, inhuman or degrading treatment in places of detention, and has documented many instances of serious beatings and other forms of ill-treatment by police during interrogations. OHCHR has tried to identify ways to both prevent these violations and to improve accountability when they happen. For instance, detainees in police custody, including those who have been abused, often go without medical care, and health examinations are poorly documented. The failure of police and health officials to properly document the health of detainees after arrest makes it more difficult to identify abuse in custody when it happens, and more difficult to defend against baseless allegations.

Another problem frequently encountered by OHCHR monitoring teams is a lack of compliance with the rule that detainees must be presented before judicial authorities within 24 hours of arrest. The lack of proper registration and production before a court has resulted in persons being kept in illegal detention for periods from several days up to several weeks. This still remains a common practice. Those who detained illegally are particularly vulnerable to abuse.

There have been some positive developments. The language of the Interim Constitution suggests that the state is under an obligation to adopt laws criminalising torture. That provision of the Constitution has yet to be fully enacted in anti-torture legislation. We understand that a draft bill criminalising torture has been prepared, but it has yet to be made public or tabled before the Parliament. While the Torture Compensation Act has proved to be a valuable tool for victims of torture to obtain some relief, its provisions have not been fully implemented, and the Act itself could also be improved in many ways. For instance, its short 35-day statute of limitations has prevented many victims from seeking compensation pursuant to the Act.

In addition to the passage of strong anti-torture legislation, we believe that instances of torture can be reduced if the current laws and regulations giving due process rights to detainees are more closely followed – for instance, laws requiring timely access to a lawyer, bringing suspects before a judge within 24 hours of arrests, and providing thorough medical examinations upon arrest or transfer into and out of police custody.

OHCHR is collaborating very closely with both government and non-government institutions to combat impunity for torture in Nepal. Our teams monitor incidences of torture through regular visits to police custody facilities throughout the country. We then use the information gathered during this monitoring to develop targeted technical advice and training programmes for the police. For instance, OHCHR – in collaboration with the Nepal Police, National Human Rights Commission (NHRC) and Advocacy Forum – has developed a series of programmes targeted at providing better health examinations to detainees in police custody. We hope that the provision of thorough and well-documented health exams will act as a deterrent to the abuse of detainees in police custody. In addition to these workshops, OHCHR worked with the police to develop its human rights curriculum, which includes issues of torture and ill-treatment. In addition to its work directly with the police, OHCHR has also participated in organising workshops with the NHRC and civil society organizations on establishing effective national mechanisms in accordance with the Optional Protocol to the Convention Against Torture (CAT), which Nepal ratified in 1991.

Above all, the political will needs to be built to take steps to prevent the occurrence of serious human rights violations, including torture – and to end ongoing impunity for such acts of violence. The problem of torture has to be addressed at many levels – at the level of national legislation and at the level of police procedures and practices. OHCHR has found that there is an over-emphasis among police on eliciting a confession from criminal suspects, rather than a focus on a broader criminal investigation. This leads many police to use coercive tactics during interrogation. Increased training and resources for criminal investigation, and a clear message from the police command and civilian authorities that coercive interrogation techniques will not be tolerated, will have a positive impact on reducing torture and ill-treatment.

There are also certain legislative initiatives that can help make torture a thing of the past. Incorporating the provisions of the CAT into domestic law, defining torture as a crime in national criminal law, making appropriate revisions of the Torture Compensation Act and ratifying the Optional Protocol would all be positive steps. Ensuring that past cases of torture are properly investigated and, where appropriate, prosecuted is also crucial. We remain concerned, for instance, that those responsible for the torture and death of Maina Sunuwar have yet to be brought to justice.

The key recommendations of the Special Rapporteur included: the need to define torture in accordance with the CAT, the criminalisation of in-communicado detention, establishing an independent authority to investigate cases of torture and developing a broader approach to compensation for victims of torture, including not just financial compensation but also medical treatment and rehabilitation. OHCHR has been monitoring the implementation of these recommendations. There have been some developments in the recent past, though many of the Special Rapporteur’s recommendations are yet to be implemented.

But the Government of Nepal need not look only to the international community for guidance on this. Its own institutions have spoken loudly against torture. Many of the NHRC’s recommendations relating to torture have yet to be implemented, and the Nepal Supreme Court issued a December 2007 decision requiring the government to pass legislation criminalising torture in accordance with the Interim Constitution and Nepal’s international treaty obligations.

The main laws regulating the prohibition against torture in Nepal are the Interim Constitution and the Torture Compensation Act. As mentioned before, the Interim Constitution, promulgated in 2007, states that torture “shall be punishable by law”, but the government has yet to pass legislation criminalising torture, and OHCHR-Nepal urges it do so promptly.

The Torture Compensation Act also provides an opportunity for victims to seek compensation, but it is limited by focusing solely on financial compensation. It also does very little to combat impunity because the actual perpetrators are not responsible to pay compensation – which is paid by the government. The Act also does not obligate the government to take institutional action against a perpetrator of torture. Instead, perpetrators are subject only to “departmental action,” such as demotions and suspensions. The Act should be amended to ensure that the perpetrators themselves suffer some consequences as a result of their actions. The authorities should take action whenever there is an allegation of torture, and these acts certainly should have formal consequences where a case of torture is substantiated under the Torture Compensation Act. OHCHR has so far not heard of any cases of torture substantiated under the TCA in which the police officers had faced any action.

Ultimately, it is up to the Constituent Assembly and the people of Nepal to decide precisely how the new Constitution will protect victims of torture and ensure that perpetrators are properly punished. Some options include constitutional provisions allowing for retrospective criminal prosecution of international crimes, prohibiting amnesties for torture, providing for the non-admissibility of evidence gathered through the use of torture and ensuring that torture by state actors such as police and Army officials fall within the jurisdiction of civilian courts. The new Constitution could take a progressive approach toward international law by directly incorporating Nepal’s treaty obligations under international human rights instruments such as the CAT. OHCHR stands ready to advice and assist the Constituent Assembly, the Government and other stakeholders in these matters.

Our main role has been to respond to requests for advice concerning the international human rights provisions to be included in the new Constitution. We have also been working to ensure participation of all Nepalis in the constitution-making process, primarily by providing training on that process to journalists.

I would like to say a few words about the extension of OHCHR-Nepal's agreement with the Government. First, I very much appreciate the support that OHCHR has received from civil society about the extension: we all remember the role you played to bring OHCHR to Nepal. As you know, the agreement has been extended until 9 September as an interim measure; however government officials have assured us that once the new cabinet is formed, discussions will be held urgently about the longer extension requested by the High Commissioner.

OHCHR believes that there is ample space for all of us to work for the protection and promotion of human rights in Nepal, including civil society, the NHRC and other national institutions, and the Government. There is not a competitive market in human rights as there is in other endeavours. Rather it is an area in which our efforts, whether in monitoring, investigating, reporting or building capacity, should be mutually reinforcing.

[Courtesy: INFORMAL Vol. 27, No. 2, April-June 2009]