Human Rights Committee

Communication No.  2051/2011

Views adopted by the Committee at its 112th session(7–31 October 2014)

Submitted by:Jit Man Basnet and Top Bahadur Basnet (represented by counsel, Track Impunity Always-TRIAL)

Alleged victim:The authors

State party:Nepal

Date of communication:8 February 2011 (initial submission)

Document references:Special Rapporteur’s rule 97 decision, transmitted to the State party on 21 April 2011 (not issued in document form)

Date of adoption of Views:29October 2014

Subject matter:Enforced disappearance

Substantive issues:Prohibition of torture and cruel and inhuman treatment, right to liberty and security of person, respect for the inherent dignity of the human person, recognition as a person before the law and right to an effective remedy

Procedural issue :Exhaustion of domestic remedies; level of substantiation of claims

Articles of the Covenant :7, 9, 10 and 16 alone, and in conjunction with article 2 (para. 3)

Article  of the Optional Protocol:2 and 5 (para. 2 (b))

Annex

Views of the Human Rights Committee under article  5, paragraph  4, of the Optional Protocol to the International Covenant on Civil and Political rights (112th session)

concerning

Communication No. 2051/2011 *

Submitted by:Jit Man Basnet and Top Bahadur Basnet (represented by counsel, Track Impunity Always-TRIAL)

Alleged victim:The authors

State party:Nepal

Date of communication:8 February 2011 (initial submission)

The Human Rights Committee , established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on29October2014,

Having concludedits consideration of communication No. 2051/2011, submitted to the Human Rights Committee by Jit Man Basnet and Top Bahadur Basnet under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into accountall written information made available to it by the authors of the communication and the State party,

Adoptsthe following:

Views under article  5, paragraph  4, of the Optional Protocol

1.The authors of the communication are Jit Man Basnet, and Top Bahadur Basnet, Nepalese nationals, born on 17 December 1975 and 27 October 1981, respectively. They claim that the State party has violated Jit Man Basnet’s rights under articles 7, 9, 10 and 16, alone and in conjunction with article 2 (para. 3); as well as Top Bahadur Basnet’s rights under article 7, in conjunction with article 2 (para. 3), of the Covenant. The authors are represented by counsel.

The facts as submitted by the authors

2.1As a result of the armed conflict prevailing in the country, the State party’s authorities declared a state of emergency in November 2001. The Terrorist and Disruptive Activities (Prevention and Control) Ordinance allowed State agents to arrest individuals on the basis of mere suspicion of involvement in terrorist activities, and various constitutionally granted human rights and freedoms were suspended. Against that background, both parties to the conflict, including the police and the Royal Nepalese Army (RNA), committed atrocities and enforced disappearances became a widespread phenomenon. In 2003, the RNA Bhairavnath Battalion barracks in Kathmandu, also known as the Maharajgunj barracks (the barracks), became notorious as a place in which persons suspected of being Maoists were detained, severely ill-treated, tortured, disappeared and killed.

2.2Jit Man Basnet was a journalist and the founder of the newspaper Sagarmatha Times. He also worked as a human rights lawyer in a law firm in Kathmandu. Top Bahadur Basnet is his cousin. They grew up living in the same house as one family. On 4 February 2004, Jit Man Basnet was approached by three persons wearing the Army’s uniform in front of his house. They started insulting him whilst people gathered to watch his arrest. He was blindfolded and forced to get into an army vehicle. He was taken to the Bhairavnath Battalion barracks. He was not informed of the grounds for his arrest.

2.3In his first night at the barracks, Jit Man Basnet was questioned about Maoist activities and locations by the Army’s personnel. As he denied any knowledge thereon, they kicked him and hit him with bamboo sticks and polythene pipes, pushed his head into a drum full of dirty, smelly water and threatened to kill him. He was intermittently unconscious. During the first night, he received a phone call from a co-worker, Mr. G.L., and managed to tell that person that he was in a “tense situation” before the guards cut off the phone. On 5 February 2004, Mr. G.L. informed the Basnet family about the arrest. Since the family did not have more information about his arrest, they presumed that he had been arrested by the Army. Top Bahadur Basnet visited several organizations and authorities to discover his cousin’s whereabouts, without success.

2.4Over the next two days, Jit Man Basnet was again interrogated and subjected to torture and severe ill-treatment for several hours. On one occasion, Colonel R.B. threatened him with being tortured to death, as had happened to another journalist. During the full duration of his detention that lasted 258 days, he was kept in inhuman conditions of detention and suffered more torture. He had to spend days and nights lying on a thin mattress on the floor, with his hands handcuffed behind his back and blindfolded. In winter, with the temperature below zero, he was kept in a tent with holes in the roof and provided with only a thin blanket to sleep in. Food was of very poor quality and served in small quantities. There was only one toilet for more than 100 detainees. Furthermore, he was prevented from having any contact with the outside world, including his family and legal representatives. Detainees were not allowed to talk among themselves and they were moved and hidden in different areas of the barracks each time the International Committee of the Red Cross (ICRC) visited the barracks.

2.5Since Jit Man Basnet’s detention was well publicized, on 1 March 2004, advocate Mr. B.L., at his own initiative, filed a writ of habeas corpus to the Supreme Court of Nepal and requested the authorities to disclose his place of detention and release him. The writ pointed out that Mr. Basnet’s relatives did not know the place of his detention and the reasons for his arrest.

2.6On 8 March 2004, Top Bahadur Basnet submitted a request for investigation into his cousin’s disappearance to the National Human Rights Commission (NHRC).

2.7On 11 March 2004, the RNA informed the Supreme Court that Jit Man Basnet was not held in military detention. On the same day, he was forced to sign a fake confession stating that he was a Maoist and had been involved in violent activities and killings. The statement also indicated that he had not been tortured.

2.8Despite their efforts, the Basnet family received contradicting information concerning Jit Man Basnet’s whereabouts and could not ascertain whether he was alive and held in the Bhairavnath barracks. Top Bahadur Basnet met the Commander of the Bhairavnath barracks, the Senior Superintendent of the Armed Police Force and representatives of the RNA Human Rights Cell. However, they threatened him and refused to provide him with information about the whereabouts and fate of his cousin.

2.9On 4 June 2004, as part of habeas corpus proceedings, the Supreme Court ordered the NHRC to inquire with the RNA and police as to the alleged arrest and illegal detention of Jit Man Basnet and submit a report to the Court. In July 2004, Top Bahadur Basnet informed the NHRC that he had met former detainees held at the Bhairavnath barracks, two of whom had told him that Jit Man Basnet was in those barracks, that he had chest number 97 and that these persons refused to corroborate that information before the authorities as they were afraid of reprisals.

2.10On the first week of October 2004, Top Bahadur Basnet managed to get into the Bhairavnath barracks and meet Jit Man Basnet, with the help of a friend, Mr. R.C., who was an army officer. On 18 October 2004, Jit Man Basnet was released. An army officer told him that he had been under investigation, but was found innocent. He was also threatened, asked not to reveal information about the barracks, forced to sign a document indicating that he had been in detention for 90 days and ordered to report to the Army in Kathmandu every 15 days.

2.11As a result of the conditions of detention, Jit Man Basnet had eyesight problems and was in fragile health. He indicates that he stopped reporting to the Army after the third time, fearing re-arrest. On 25 November 2004, he filed a petition to the NHRC requesting compensation for his illegal detention.

2.12On 24 December 2004, Jit Man Basnet provided the NHRC with a detailed statement of his detention conditions at the Bhairavnath barracks and a list of names of detainees, on the condition that his name remained confidential. Nevertheless, in a report issued by the NHRC in January 2005, his name was disclosed as the source of information in a case of a disappeared person that had been announced in the media. Subsequently, he received death threats several times.

2.13On 19 January 2005, the NHRC concluded that Jit Man Basnet was illegally detained by the RNA at the Bhairavnath barracks and subjected to torture. It stated that despite the Police and the Ministry of Home Affairs’ refusal to acknowledge the arrest, Jit Man Basnet’s statement, and photographs and a medical report of the Institute of Medicine of Tribhuvan University, submitted to the NHRC after his release, supported the conclusion. The NHRC recommended that the authorities, inter alia, carry out an investigation to identify and sanction those responsible, and provide him with 50,000 rupees as compensation. However, at the time that the communication was submitted, none of the recommendations had been implemented and the compensation had not been paid.

2.14On 18 September 2006, Jit Man Basnet submitted a contempt of court writ petition to the Supreme Court against the Commander-in-Chief of the RNA, the chief of army staff, the Brigadier General of the law division of RNA, the RNA spokespersons, the Commander of the battalion and the Major of the Bhairavnath Battalion. He claimed that they had caused contempt of court during the habeas corpus proceedings instituted by advocate Mr. B.L., as they misled the Court by denying that he had been detained in the Bhairavnath barracks and subjected to torture. Accordingly, the author requested the Court to impose on them the maximum possible punishment as provided for in section 7(1) of the Supreme Court Act, 2048 (1991). On 19 September 2006, the Joint Registrar of the Supreme Court denied the registration of the author’s petition as it was addressed against defendants not all of whom were included in the original writ of habeas corpus, and failed to identify which acts constituted contempt of court. On 22 September 2006, the author requested the Supreme Court to overturn the Joint Registrar’s decision. On 14 December 2006, the author’s request was rejected by the Supreme Court.

2.15In parallel, on 29 October 2006, Jit Man Basnet filed a writ of mandamus to the Supreme Court, claiming that he had been illegally detained and subjected to ill-treatment and torture. He requested that the Court order the Government to establish a high-level independent judicial commission to investigate the disappearance of persons held in the Bhairavnath barracks. On 22 December 2006, Lieutenant Colonel R.J.K., on behalf of the Bhairavnath Battalion, informed the Supreme Court that the author had been arrested by the security forces on the grounds of his involvement in terrorist activities and held in detention by “virtue of the order of the competent authority under the law”. He also stated that Mr. Basnet was not subjected to torture or ill-treatment. On 2 January 2007, the Army Legal Department reiterated that information before the Supreme Court. On 3 March 2009, the Supreme Court dismissed the mandamus writ due to the absence of Mr. Basnet’s lawyer in one hearing. The authors, however, claim that the lawyer missed only 1 out of 15 hearings.

2.16On 6 March 2010, Jit Man Basnet filed a request for compensation with the Ministry of Peace and Reconciliation in connection with his illegal arrest and detention by the RNA. At the time that the communication was submitted, he had received no compensation.

2.17The authors claim that they have exhausted all domestic remedies. Despite their efforts, no investigation has been carried out by the State party and no one has been sanctioned for Jit Man Basnet’s arbitrary detention, enforced disappearance and torture. Moreover, the NHRC cannot be considered an effective remedy. The authors argue that they did not try to file a first information report to the police as that procedure is limited to the crimes listed in Schedule 1 of the Government Cases Act of 1992 which does not include enforced disappearance and torture. The Supreme Court ordered the Government in 2007 to criminalize enforced disappearance, but no action has been taken in that respect. As a result of the loopholes in the existing legislation concerning enforced disappearance and torture, perpetrators of those crimes are almost impossible to prosecute and sanction.

The complaint

3.1The authors argue that Jit Man Basnet was victim of enforced disappearance and that the State party violated his rights under articles 7, 9, 10 and 16, alone and in conjunction with article 2, paragraph 3. As for Top Bahadur Basnet, his rights under article 7, read in conjunction with article 2, paragraph 3, of the Covenant were violated.

3.2Jit Man Basnet was subjected to enforced disappearance, as he was arbitrarily deprived of his liberty by State party’s officials, held incommunicado at the Bhairavnath barracks between 4 February and 18 October 2004 and hence placed outside the protection of the law. His enforced disappearance and incommunicado detention amount per se to a treatment contrary to article 7. In addition, while in detention, he was also subjected to torture and other forms of physical and psychological ill-treatment. The authors request the Committee to consider those violations within the general context of systematic human rights violations existing in the State party against those suspected of being Maoists, in particular in the Bhairavnath barracks.

3.3The authorities arrested Jit Man Basnet, without providing the legal grounds. His detention was not entered in any official record or registered and his relatives and defence counsel were not allowed to see him. He was never brought before a judge or any other official authorized by law to exercise judicial power, nor could he take proceedings before a court to challenge the lawfulness of his detention. Those facts amount to violations of article 9.

3.4Jit Man Basnet’s incommunicado detention and enforced disappearance, as well as the conditions to which he was subjected, constitute by themselves violations of article 10 of the Covenant.

3.5Jit Man Basnet’s incommunicado detention for over nine months placed him outside the protection of the law. In that regard, the authors point out that each time NHRC representatives or ICRC delegates visited the Bhairavnath barracks, he was moved and hidden in different areas of the barracks in order to prevent him from obtaining any form of protection or access to a possible remedy. Consequently, the State party is responsible for a violation of his rights under article 16.

3.6The State party failed to carry out an ex officio, prompt, impartial, thorough and independent investigation concerning Jit Man Basnet’s arbitrary detention, enforced disappearance, torture and severe ill-treatment, and those responsible have not been sanctioned. The existing legal framework is not effective and it materially leaves victims and their relatives without remedy, further fostering impunity. The use of habeas corpus is in practice illusory in cases of enforced disappearance. Habeas corpus decisions issued by the courts against the security forces are said not to be complied with. In addition, the success of the habeas corpus procedure is dependent upon the admission of the security forces that the person sought is in their custody. Only then can the military authorities even be asked to explain why a person should remain in detention. A central difficulty in such cases is that government officials are not considered to be “witnesses” and are not constrained by any legal provision to tell the truth.

3.7With regard to Top Bahadur Basnet’s rights, he was subjected to deep anguish and distress due to the arbitrary arrest and subsequent enforced disappearance of his cousin, as well as the lack of investigation. Furthermore, while looking for his cousin, he was repeatedly subjected to episodes of intimidation and harassment. The State party failed to adequately prevent those incidents and to investigate them when they occurred. Furthermore, in the absence of his cousin, Top Bahadur Basnet had to take over the responsibility as a head of the Basnet family and to provide for his cousin’s four sisters and father. As a result, his life was drastically affected as he had to renounce to his commercial activities and borrow large amounts of money. He still suffers the psychological consequences of the severe distress endured. However, he has not received any compensation for the material and moral harm suffered, nor any measure of rehabilitation. Accordingly, he claims that those facts constitute a violation of article 7, in conjunction with article 2, paragraph 3, of the Covenant.

3.8The authors request the Committee to recommend the State party to: (a) bring the perpetrators of Jit Man Basnet’s arbitrary deprivation of liberty, torture and enforced disappearance before the competent civilian authorities for prosecution, judgement and sanction, and disseminate publicly the results of those measures; (b) provisionally separate from service, all army officials against whom there is prima facie evidence that they were involved in the crimes against Jit Man Basnet, pending the outcome of investigation; (c) ensure that persons suspected of having committed those crimes are not in a position to influence the progress of the investigation by means of pressure or acts of intimidation or reprisal against the complainant, witnesses, their families or their defence counsels or other persons participating in the investigation;(d) ensure that the authors obtain integral reparation and prompt, fair and adequate compensation; and (e) ensure that the measures of reparation cover material and moral damages, and measures of restitution, rehabilitation, satisfaction and guarantees of non-repetition are issued. In particular, they request that the State party acknowledge its international responsibility, on the occasion of a public ceremony, in the presence of the authorities and of the authors to whom official apologies shall be issued; and that the State party name a street or build a monument or a commemorative plate in Kathmandu to preserve the memory of all the victims of enforced disappearance during the internal armed conflict, including a specific reference to the case of Jit Man Basnet whereby his reputation is fully restored. The State party should also provide the authors with medical and psychological care immediately and free of charge, through its specialized institutions, and grant them access to free legal aid where necessary, in order to ensure to them available, effective and sufficient remedies. As a guarantee of non-repetition, the State party should take the necessary measures to ensure that enforced disappearance and torture, and the different forms of participation in those crimes, constitute autonomous offences under its criminal law, punishable by appropriate penalties which take into account their extreme seriousness. Finally, the State party should establish as soon as possible educational programmes on international human rights law and international humanitarian law for all members of the Army, the security forces and the judiciary.

State party’s observations on admissibility and the merits

4.1By note verbale of 24 June 2011, the State party challenged the admissibility of the communication on the grounds of failure to exhaust domestic remedies.

4.2Regarding Top Bahadur Basnet, there are no records of violations of his rights by State agents during the armed conflict. The communication does not explicitly mention which of his rights were violated, in which circumstances, and what steps were undertaken by him in that regard. The State party maintains that an abstract communication cannot be considered by the Committee and that, therefore, the allegations concerning his rights should be declared inadmissible.

4.3As for Jit Man Basnet, he was released unharmed from custody by the security forces on 18 October 2004. Further, his name appears in the records of the Ministry of Peace and Reconstruction as victim of enforced disappearance and, as per recommendation of the NHRC, he is entitled to receive a compensation of 50,000 rupees. The State party sanctioned a sum of 120 million rupees to provide compensation to victims of the armed conflict. Section 5 of the Procedures relating to Relief, Compensation and Financial Assistance, 2066 (2009) provides that a person who has been kidnapped or disappeared, or his or her heir, may obtain monetary relief of 25,000 rupees through the concerned District Administration Office. If the author has not yet received the 50,000 rupees as an interim compensation, he can still request it.

4.4Article 33 (q) and (s) of the Interim Constitution of Nepal 2007 and section 5.2.5 of the Comprehensive Peace Agreement provide for the establishment of transitional justice mechanisms, such as a high-level truth and reconciliation commission, to investigate gross violations of human rights during the armed conflict and create an environment of reconciliation in the society. To that end, the Government submitted to the Parliament the Truth and Reconciliation Commission Bill and the Enforced Disappearance (Offence and Punishment) Bill. The main aim of those bills is to establish independent, impartial and autonomous commissions to carry out thorough and credible investigations into all allegations of disappearances and serious human rights violations that occurred between 13 February 1996 and 21 November 2006. At the moment the State party’s observations were submitted, the bills were pending approval by the Legislative Committee of the Parliament. The State party holds that, against that background and in the light of its sincere effort to establish those transitional justice mechanisms, it could not be concluded that domestic remedies have been unreasonably prolonged. Accordingly, the authors have not exhausted domestic remedies.

5.On 11 January 2012, the State party informed the Committee that the two bills were at the final stage of the Legislative Committee of the Parliament, and requested the Committee to refrain from considering the communication in the light of its sincere commitment and steps taken to establish transitional justice mechanisms to bring the perpetrators to justice.

Author’s comments on the State party’s observations

6.1On 9 March 2012, the authors rejected the State party’s observations. They uphold that their communication provides explicit allegations of violations of Top Bahadur Basnet’s rights under article 7, read in conjunction with article 2, paragraph 3, of the Covenant. It gives a detailed account of his efforts before private institutions and the authorities in order to find out Jit Man Basnet’s whereabouts and secure his release. In spite of the risk for his own personal safety, he took contact and met high-ranking members of the Army, including some who were involved in his cousin’s enforced disappearance and torture, such as Colonel R.B., commander of the Bhairavnath barracks, and Mr. S.K.B., the senior superintendent of the armed police force. The fact that the State party found no records about the human rights violations against Top Bahadur Basnet does not mean that his rights were not violated. He has duly substantiated his proximity with Jit Man Basnet, and explained in detailed his efforts to search for his cousin, the indifference of the authorities to his requests for information on his fate and whereabouts and the consequences on his mental health.

6.2The State party did not provide relevant information to challenge the admissibility of the claims related to Jit Man Basnet’s rights. The fact that he was released in no way absolves the State party from its responsibility for the violations of his rights.

6.3The amount of 50,000.00 rupees recommended by the NHRC as compensation for the violations suffered by Jit Man Basnet is a negligible amount to cover the material and moral harm suffered by him and cannot be considered as an effective domestic remedy within the meaning of article 2, paragraph 3, of the Covenant. Furthermore, mere pecuniary compensation for human rights violations of that nature is not a sufficient remedy. Reparations in cases of gross human rights violations shall include restitution, rehabilitation, satisfaction and guarantees of non-repetition.

6.4At the time that the authors’ comments were submitted, the establishment of the future Truth and Reconciliation Commission and the Commission on Disappearance was uncertain. Furthermore, the draft bills included a general amnesty clause for perpetrators of serious violations of international human rights law and international humanitarian law, including enforced disappearances. Fact-finding processes by non-judicial bodies, though crucial for the establishment of the truth, could never replace access to justice and redress for victims of gross human rights violations, the criminal justice system being the more appropriate avenue for immediate criminal investigation and punishment. In that regard, the authors point out that the commissions would not be judicial bodies and would only have the power to make recommendations to relevant organs, including the Office of the Attorney General.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not the case is admissible under the Optional Protocol to the Covenant.

7.2The Committee has ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

7.3The Committee takes note of the State party’s argument that the claims of violations of Top Bahadur Basnet’s rights are formulated in an abstract fashion as they do not explicitly mention which of his rights were violated and in which circumstances. The Committee, however, observes that Top Bahadur Basnet alleges violations of his rights under article 7, read in conjunction with article 2, paragraph 3, owing to the events he had to go through in connection with the alleged illegal detention, enforced disappearance and torture of his cousin, Jit Man Basnet. The Committee considers that Top Bahadur Basnet has sufficiently substantiated his claims for purposes of admissibility.

7.4With respect to the requirement of exhaustion of domestic remedies, the Committee notes the State party’s argument that the authors have not exhausted domestic remedies; that Jit Man Basnet’s case should be addressed within the transitional justice mechanisms to be established in conformity with the 2007 Interim Constitution and the 2006 Comprehensive Peace Agreement; and that Jit Man Basnet can request compensation of 50,000 rupees for his illegal detention and torture, as a victim of the armed conflict, in the light of the NHRC recommendations. The Committee also takes note of the authors’ allegation that, on 8 March 2002, Top Bahadur Basnet filed a request for investigation into his cousin’s disappearance to the NHRC; that Jit Man Basnet himself filed requests for investigation into his alleged illegal detention, disappearance and torture after his release; and that, although 10 years have elapsed since the alleged violations were committed, the investigation has not come to any conclusion yet. The Committee observes that the State party has contested the requirement of exhaustion of domestic remedies in a general fashion. However, it has not explained to the Committee which concrete remedies could adequately and effectively satisfy the claims made by each of the authors. The Committee recalls its jurisprudence that, in cases of serious violations, a judicial remedy is required. In that respect, the Committee observes that the transitional justice bodies to be established are not judicial organs and considers that the investigation in relation to Jit Man Basnet’s case has been unreasonably prolonged. Accordingly, the Committee concludes that there are no obstacles to the examination of the communication under article 5, paragraph 2 (b), of the Optional Protocol.

7.5In view of the foregoing, and in the absence of other obstacles to admissibility, the Committee considers the communication admissible and proceeds to the examination of the claims with respect to Jit Man Basnet under articles 7, 9, 10 and 16, read alone and in conjunction with article 2, paragraph 3; as well as Top Bahadur Basnet under article 7, read in conjunction with article 2, paragraph 3, of the Covenant.

Consideration of the merits

8.1The Human Rights Committee has considered the communication in the light of all the information made available to it by the parties, as provided for under article 5, paragraph 1, of the Optional Protocol.

8.2The Committee takes note of the authors’ unrefuted allegations that Jit Man Basnet was arrested by persons wearing the Army’s uniform on 4 February 2004 and taken to the Bhairavnath Battalion barracks, where he was held incommunicado, with no access to his family, a lawyer or anyone else from the outside world until the first week of October 2004; and that during that time the authorities refused to inform his family that he was being kept at Bhairavnath barracks or elsewhere. Furthermore, the authorities did not collaborate with the investigation carried out by the NHRC to discover Jit Man Basnet’s fate and whereabouts. The Committee therefore considers that Jit Man Basnet’s deprivation of liberty, followed by the authorities’ refusal to acknowledge it and the concealment of his fate, constituted an enforced disappearance.

8.3The Committee recognizes the degree of suffering involved in being held indefinitely without contact with the outside world. It recalls its general comment No. 20 (1992) on the prohibition of torture or other cruel, inhuman or degrading treatment or punishment, in which it recommends that States parties make provision against incommunicado detention. It notes that, in the present case, Jit Man Basnet was kept incommunicadobetween 4 February and the first week of October 2004, without contact with the outside world. It also takes note of the authors’ allegation that he was tortured, in particular during the first days of his detention, while being interrogated. The Committee observes that the State party has limited its response to maintaining that, on 18 October 2004, Jit Man Basnet was released from custody of the security forces unharmed. However, the State party has not provided any response to the authors’ allegation regarding the specific circumstances of his detention, nor has it refuted the allegations of torture and findings of the NHRC in this respect. Accordingly, the Committee concludes that keeping Jit Man Basnet in captivity without allowing any contact with his family and the outside world, and subjecting him to acts of torture amount to a violation of his rights under article 7 of the Covenant.

8.4The Committee notes the anguish and distress caused to Top Bahadur Basnet by the disappearance of his cousin Jit Man Basnet, from the time of his arrest until the first week of October 2004, when he managed to gain access to the Bhairavnath barracks and confirm that his cousin was alive. The Committee observes that, during that period, Top Bahadur Basnet took over the responsibility as head of the Basnet family and provided for his cousin’s four sisters and father, and that both authors have not only a formal family link, but a very close relationship since they grew up living in the same house as one family. It also observes that, soon after  Jit Man Basnet disappeared, Top Bahadur Basnet submitted a request for investigation to the NHRC and addressed himself to several authorities and private institutions in order to establish his cousin’s whereabouts; and that he received contradicting information as to his cousin’s fate and whereabouts by the authorities, who officially denied the detention. In the particular circumstances of the present case, the Committee considers that the facts before it also disclose a violation of article 7 of the Covenant with regard to Top Bahadur Basnet.

8.5With regard to the alleged violation of article 9, the Committee notes the authors’ allegations that, on 4 February 2004, Jit Man Basnet was arrested without a warrant, held incommunicado at the RNA’s Bhairavnath barracks and never brought before a judge or any other official authorized by law to exercise judicial power; nor could he take proceedings before a court to challenge the lawfulness of his detention. The State party has not refuted those allegations. Accordingly, in the absence of any pertinent explanations from the State party, the Committee considers that Jit Man Basnet’s detention constitutes a violation of his rights under article 9 of the Covenant.

8.6Regarding the complaint under article 10, paragraph 1, the Committee reiterates that persons deprived of their liberty may not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty and that they must be treated with humanity and respect for their dignity. In the instant case, the Committee notes the authors’ claims that Jit Man Basnet was handcuffed behind his back and blindfolded for long periods, that he was kept in a tent with holes which was inadequate for winter weather, that there was only one toilet for more than 100 detainees and that food was of very poor quality and served in small quantities. In view of his incommunicado detention, the treatment inflicted on him and the harsh conditions of detention, the Committee finds that the author’s rights under article 10, paragraph 1, of the Covenant have been violated.

8.7In respect of article 16, the Committee reiterates its established jurisprudence, according to which intentionally removing a person from the protection of the law for a prolonged period of time may constitute a refusal of recognition as a person before the law if the victim was in the hands of the State authorities when last seen and, at the same time, if the efforts of his or her relatives to obtain access to potentially effective remedies, including judicial remedies (see art. 2, para. 3, of the Covenant) have been systematically impeded. In the present case, the authorities subjected Jit Man Basnet to incommunicado detention for about eight months and, despite his family’s efforts, refused to provide them with information concerning his whereabouts and officially denied his detention in a military facility. Furthermore, it is not refuted that the authorities moved and hid the detainees, including Jit Man Basnet, in different areas of the barracks every time the NHRC and ICRC visited them. The Committee, therefore, finds that the enforced disappearance of Jit Man Basnet deprived him of the protection of the law during that period, in violation of article 16 of the Covenant.

8.8The authors invoke article 2, paragraph 3, of the Covenant, which requires States parties to ensure that individuals have accessible, effective and enforceable remedies for asserting the rights recognized in the Covenant. The Committee reiterates the importance it attaches to States parties establishing appropriate judicial and administrative mechanisms for addressing alleged violations of rights under domestic law. It refers to its general comment No. 31 (2004) on the nature of the general legal obligations imposed on States Parties to the Covenant, in which it states that failure by a State party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. In the present case, the Committee observes that Jit Man Basnet did not have access to an effective remedy while in detention and after his release. During his detention, Top Bahadur Basnet also approached several authorities looking for his cousin, including the authorities of the Bhairavnath barracks, who threatened him and refused to provide him with information about the whereabouts and fate of his cousin. Despite the authors’ efforts and the NHRC’s recommendations for investigation of 19 January 2005, almost after 10 years of Jit Man Basnet’s arrest no thorough and effective investigation has been conducted by the State party in order to elucidate the circumstances surrounding his detention and to bring the perpetrators to justice. Further, the 50,000 rupees granted to Jit Man Basnet by the NHRC as compensation does not constitute an adequate remedy commensurate to the serious violations inflicted. Accordingly, the Committee concludes that the facts before it reveal a violation of article 2, paragraph 3, in conjunction with articles 7, 9, 10 (para. 1) and 16, with regard to Jit Man Basnet; and of article 2, paragraph 3, in conjunction with article 7, with respect to Top Bahadur Basnet.

9.The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the information before it discloses violations by the State party of articles 7, 9, 10 (para. 1) and 16; and of article 2, paragraph 3, read in conjunction with articles 7, 9, 10 (para. 1) and 16 of the Covenant with regard to Jit Man Basnet; and of articles 7 and article 2 (para. 3) in conjunction with article 7, with respect to Top Bahadur Basnet.

10.In accordance with article 2, paragraph 3, of the Covenant, the State party is under an obligation to provide the authors with an effective remedy, including by: (a) conducting a thorough and effective investigation into the facts surrounding the detention of Jit Man Basnet and the treatment suffered at the Bhairavnath barracks; and prosecuting, trying and punishing those responsible for the violations committed; (b) providing the authors with detailed information about the results of this investigation; (c) providing adequate compensation to the authors for the violations suffered; (d) ensuring that the necessary and adequate psychological rehabilitation and medical treatment is provided to the authors; and (e) providing appropriate measures of satisfaction. The State party is also under an obligation to take steps to prevent similar violations in the future. In that connection, the State party should ensure that its legislation allows the criminal prosecution of the facts that constituted a violation of the Covenant.

11.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether or not there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure for all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when a violation has been established, the Committee wishes to receive from the State party, within 180 days, information concerning the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and disseminate them broadly in the official languages of the State party.

Appendix

[Original: English]

Individual opinion of Committee member Yuval Shany (partly concurring partly dissenting)

1.While I agree with all of the majority’s conclusions concerning the first author — Jit Man Basnet — I am unable to join the conclusion that those parts of the complaint concerning the second author — Top Bahadur Basnet — are admissible. Under article 5, paragraph 2, of the First Optional Protocol, the Committee must ascertain that the individual has exhausted all available remedies. However, nothing in the case file indicates that the second author attempted to take any steps to obtain a domestic remedy or even alert the State party of the fact that he regards himself a victim of a human rights violation prior to the filing of the Communication. Indeed, the State party’s claim that no such steps were taken has not been refuted by the second author.

2.The majority took the view that the State party “has not explained to the Committee which concrete remedies could adequately and effectively satisfy the claims made by each of the authors”. This holding is consistent with the Committee’s general approach that State parties claiming lack of exhaustion of local remedies must “specify the available and effective remedies that the author of the communication has failed to exhaust”. Still, I am of the view that an exception to this approach should be recognized where no steps whatsoever were taken by the author to claim remedies or even to bring his claim for a victim status to the attention of the State authorities. Under those circumstances, and in the absence of any explanation on the part of the author for his omission to take such steps, it is hard for me to accept that the State party has been afforded a reasonable opportunity for putting right the violation before the Communication has been brought to the Committee. As a result, I believe that under the particular circumstances of the case at hand, the Committee is not in a position to ascertain that remedies were exhausted as far as the second author’s complaint is concerned.