NEPAL: Rooting out torture requires new measures, mechanisms
6 November 2017
An Article by the Asian Human Rights Commission
NEPAL: Rooting out torture requires new measures and mechanisms
by Raksha Ram Harijan
The routine practice of torture in Nepal is nothing new; decades of work by human rights organizations working on torture and impunity can provide solid examples of the Nepal Police and Nepal Army practicing torture during their work. Despite the government’s ratification of the Convention against Torture (CAT) on 14 May 1991, and the subsequent promulgation of the Torture Compensation Act (TCA) in 1996, statistics show that torture is still prevalent in detention centres, mainly to extract confessions.
According to the Terai Human Rights Defenders (THRD) Alliance’s report, Torture in Terai, 2016 and other reports, 24 victims filed cases in various district courts, seeking justice and compensation from 2013 to 2016. Out of 16 cases settled in the courts, the courts awarded compensation to victims in six cases. The compensation ranges from NPR 3000 to 75,000. The court has also recommended departmental action against the perpetrators, but what actions were taken is not known. Furthermore, the victims who were awarded compensation have still not received it.
According to the same report, nearly half of the 16 cases were settled through mediation. The victims stopped reporting to the court, leading to dismissal of the case, or the victims have made an application to the court stating that the evidence to prove the claim cannot be produced, thus he or she wants to withdraw the case. The victims have withdrawn the cases or have mediated a settlement due to the undue financial benefit provided by the alleged perpetrator, or due to threats. As cases under the TCA are not prescribed under the State Cases Act, it leaves space for the parties to mediate the case in the court, which is a dangerous practice for such serious crimes.
The investment of time and resources in the court system, and other hardships, for just a very small amount of compensation like NPR 3,000, is also a factor discouraging victims from filing cases under the TCA.
Torture victims cannot get justice due to existing laws related to torture and negligence of administrative officials. I am not going to explain weaknesses of existing laws related to cruel, inhuman or degrading treatment of a person who has been arrested by the police. The focus is to present the scenario of Nepalese judicial system and administrative behaviours. According to the TCA, the Chief District Officer must provide the amount of compensation to the applicant within 35 days of receipt of the application. But in reality, torture victims have not received the compensation amount even after more than a year of filing the application. Due to administrative hurdles, torture victims do not receive any compensation after frequenting the District Administration Office (DAO).
For instance, Kalu Chaudhary and Hikmat Chaudhary of Bhimdatta Municipality, Kanchanpur district, filed an application in the DAO Kanchanpur on 11 January 2017 claiming compensation awarded from the District Court of Kanchanpur on 1 July 2015, but they have still not received the compensation. The District Court of Kanchanpur awarded compensation of NPR 25,000/ each to Kalu Chaudhary and Hikmat Chaudhary for torture inflicted upon them by the police authorities in detention centre. The court also recommended departmental action against the police officials who inflicted torture upon the victim.
The victims have already spent three years and more than NPR 60 thousand in seeking compensation, which only amounts to NPR 25 thousand. Moreover, it is not certain when or even if, they will get the compensation amount. Justice will not be served until they receive the compensation, and police officials are punished.
In another similar case, Phul Chandra Pasi, Ramesh Yadav and Dinesh Teli of Rupandehi district filed cases in the district court of Rupandehi claiming compensation and departmental action against the police officers involved. The court awarded NPR 3000 compensation each and recommended departmental action against the police personnel involved in torture on 22 June 2014. While the victims have applied for compensation at the DAO, Rupandehi, they have yet to receive it, and the status of any departmental action is also unknown.
Similarly, Ram Bhajan Yadav of Rupandehi filed a case at the District Court Rupandehi, and the court awarded NPR 20,000 as compensation and recommended departmental action against the police personnel involved in torture on 15 June 2014. He has applied for the compensation in DAO Rupandehi in 2016, but he has not received the compensation amount yet, and the status of departmental action is also unknown.
The District Court of Bara gave a verdict on 30 April 2017 in favour of victim, Brij Kishor Shah, who was tortured during police custody. The court ordered the government to provide compensation of NPR 75,000 to the victim. Similarly, the court has recommended departmental action against police officers responsible of torture.
Awadhesh Kumar Pandey had registered a case in District Court Rupandehi claiming he was tortured by the police. When his two younger brothers applied for Myadi Police during the local election, the police officers assisted his younger brothers in the selection. Due to this, Awadhesh withdrew the case. According to Awadhesh, “What benefit can I get from fighting with them, I am always under threat. I can only get court dates, and even if I win the case, the compensation will be next to nothing.”
Several district courts have awarded compensation in torture cases within the last five years, but very few victims have actually received compensation from the authorities.
It is clear that far fewer cases are registered in court, compared to the allegations of torture documented. The causes behind this are the victim's fear of future reprisals, their reluctance to be involved in a burdensome legal process, financial constraints, and the lack of confidence in the justice system, among others. Victims do not feel safe from the perpetrators and other state authorities when they register cases. They are always under threat and the government cannot protect torture victims. According to existing Nepalese laws, up to one hundred thousand Nepalese rupees can be provided as compensation, but in practice, much less is awarded; in fact, victims generally have to spend more money during the court process than the compensation amount. One of the reasons for this is that the process of getting compensation is long and complicated. Judges and defence lawyers often delay the case and usually postpone the case more than twice. Under the existing laws, cases of torture get less priority in the courts and are never put on the fast track process.
Furthermore, the court needs sufficient evidence and witness to prove the offence. Torture victims could not collect proper evidence and witness because it happened inside the custody under police watch. Even if there is a witness, they do not feel safe to provide testimony. There is no witness protection act or mechanism in Nepal. Due to the lack of evidence and witnesses, many victims cannot file a case in court.
On the other hand, there are also no mechanisms to investigate cases of torture. Torture remains a civil offence in Nepal, whereas internationally, torture is considered a crime against humanity.
While bringing an anti-torture law may be a priority recommendation at the moment, it is not going to put the elephant inside the room. In order to truly address torture, the government must redesign justice institutions and ensure robust mechanisms to root out the scourge of torture from Nepal. In particular, a robust witness protection mechanism must be put in place so that more witnesses come forward to provide their testimonies and assist victims of torture. Cases of torture must be put under a fast track process for speedy trial. The amount of compensation must not be limited to NPR one hundred thousand, but decided according to the complexity of cases. The burden of compensation must be placed on the perpetrators. This will act as a strong deterrence, and be a strong measure against the administrative hurdles.
 Details of torture have already been published in Torture In the Terai, THRD Alliance 2015 report, p. 40.
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The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and promote human rights in Asia. Established in 1984, the Hong Kong based organisation is a Laureate of the Right Livelihood Award, 2014.