Human Rights Committee
Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communicationNo. 2185/2012 * , **
C ommunication submitted by:Bimala Dhakal, Rabindra Dhakal and Manjima Dhakal (represented by counsel, Philip Grant, of Track Impunity Always (TRIAL))
Alleged victims:The authors and Rajendra Dhakal (husband, father and brother of the authors, respectively)
State party:Nepal
Date of communication:31 January 2012 (initial submission)
Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 2 August 2012 (not issued in document form)
Date of adoption of Views:17 March 2017
Subject matter:Enforced disappearance
Procedural issue: Exhaustion of domestic remedies
Substantive issues: Right to life; 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; right of the child to measures of protection; and right to an effective remedy
Articles of the Covenant: 2 (3), 6, 7, 9, 10, 16 and 24 (1)
Article of the Optional Protocol:5 (2) (b)
1. The authors of the communication are Bimala, Rabindra and Manjima Dhakal, the wife, brother and daughter of Rajendra Dhakal, respectively. They submitted the communication on their own behalf and that of Rajendra Dhakal. They are nationals of Nepal born on 27 August 1970, 25 September 1971, 29 September 1990 and 13 November 1968, respectively. They claim that the State party has violated Rajendra Dhakal’s rights under articles 6, 7, 9, 10 and 16, separately and read in conjunction with article 2 (3) of the Covenant; Bimala and Rabindra Dhakal’s rights under article 7, read alone and in conjunction with article 2 (3); and Manjima Dhakal’s rights under article 7, read in conjunction with articles 2 (3) and 24 (1) of the Covenant. The Covenant and its Optional Protocol entered into force for the State party on 14 August 1991. The authors are represented by counsel.
The facts as submitted by the authors
2.1As a result of the armed conflict that started in 1996 in the State party between the Government and the Communist Party of Nepal (Maoist), there was a marked deterioration in the human rights situation in the country. All parties to the conflict, including the police and the Royal Nepalese Army, committed atrocities, and enforced disappearances became a widespread phenomenon. Reliable sources indicate that there was a large number of cases of enforced disappearances in Nepal in 2003 and 2004. The victims were mainly Maoist sympathizers or supporters, many of whom were students, businessmen, farmers, journalists and human rights defenders.
2.2Rajendra Dhakal and the first author (Bimala Dhakal) have three children. Rajendra Dhakal was a human rights defender and a member of the Nepal Bar Association. He worked in a law firm called Progressive Legal Services Centre and was Chair of the Gorkha district branch of the Forum for the Protection of Human Rights. He was also district secretary of the United People’s Front, an umbrella organization of various Communist groups, until 1995. He resigned from that post when the Communist Party of Nepal (Maoist) started the armed conflict in February 1996. Between March and June 1996, he was illegally detained by the Nepalese police and released by order of a district court in June 1996. During his detention he was ill-treated, tortured and was permitted almost no contact with the outside world. In June 1998, in the framework of a homicide and robbery case in Tanahun District Court, he was charged of attacking police personnel, carrying explosives, opening fire indiscriminately and killing a police deputy inspector. A warrant and summons were issued against him. At that time, Rajendra Dhakal was actively working as a lawyer in cases of torture and harassment by State agents. After the issuance of the arrest warrant against him, he began receiving death threats from the security forces. As a result, in August 1998 he ended his legal career and went into hiding.
2.3On 8 January 1999, Rajendra Dhakal was attending a closed-door political awareness programme at Jamdi village, Khairenitar, in Tanahun District. As he approached the stream in Jamdi, he was arrested by the police. Two other persons, P.B.T and N.D.A., primary school teachers, were also arrested and taken to Bel Chautara Area Police Office. However, they were separated from Rajendra Dhakal, who was put in solitary confinement. That was the last time he was seen. After two days, the teachers were released.
2.4In the following days, the first author, who had last seen her husband one month earlier in Chitwan, heard rumours about Rajendra Dhakal’s arrest. At her request, the second author (Rabindra Dhakal) started searching for his brother. Between 12 and 19 January 1999, the second author visited the District Police Office in Tanahun, the District Police Office in Nawalparasi, the District Police Office in Kaski, Pokhara, and the Armed Police Battalion, Pokhara. The officers in charge in all those places informed him that his brother had been transferred to another police post. At the Armed Police Battalion, Pokhara, he was informed that Rajendra Dhakal had been transferred to the District Police Office in Gorkha. The second author visited the Gorkha office, where he was informed that Rajendra Dhakal was indeed there, but he was not allowed to visit him. A few weeks later, the second author met the two teachers who had been arrested with his brother. They told him that Rajendra Dhakal had been arrested on 8 January 1999 and transferred to the Tanahun District Police Office. Rajendra Dhakal’s whereabouts have remained unknown since then. The second author kept the first author and her family regularly informed of the steps he was taking to search for her husband.
2.5On 21 January 1999, the second author lodged a writ of habeas corpus on behalf of his brother, Rajendra Dhakal, before the Nepalese Supreme Court. The Court issued a show cause order to, inter alia, the Ministry of Home Affairs, the Police Headquarters in Naxal, Kathmandu, the District Police Offices in Gorkha, Kaski, Nawalparasi and Tanahun, the Armed Police Battalion in Pokhara, Kaski, and Bel Chautara Area Police Office. The authorities there responded by denying the detention. They also denied the second author’s allegations that police officers had informed him that his brother had been moved from one police facility to another (see paragraph 2.4 above).
2.6On 23 March 1999, the Supreme Court ordered the Police Headquarters to search for Rajendra Dhakal in all places of detention and to produce him before the Court. On 19 April 1999, the Police denied all knowledge of the case and stated that charges of homicide had been pending against Rajendra Dhakal at Tanahun District Court since 1998 in connection with the murder of a police deputy inspector, and that the police were searching for him.
2.7In December 1999, the affidavits of the two teachers who were arrested with Rajendra Dhakal were presented to the Supreme Court. They confirmed that on 8 January 1999, Rajendra Dhakal had been arrested by policemen led by Inspector K.B.R. and transferred to Tanahun District Police Office. Afterwards, the Ministry of Home Affairs informed the Court that Rajendra Dhakal had not been found in custody.
2.8In August 2000, the Special Rapporteur on extrajudicial, summary or arbitrary executions issued a report on her mission to Nepal, in which she noted that she had been briefed about Rajendra Dhakal’s case (see E/CN.4/2001/9/Add.2, para. 41). In 2001, Amnesty International submitted his case to the Working Group on Enforced or Involuntary Disappearances. His name was also included in the list of disappeared persons maintained by the National Human Rights Commission of Nepal, and in the missing persons database of the International Committee of the Red Cross (ICRC).
2.9 The authors claim that the first author had long been mildly involved in political activities with the Communist Party of Nepal (Maoist); that after Rajendra Dhakal’s disappearance, she became very much engaged, along with the second author, in a group called the State Enforced Disappearance Family Society; and that in early 2001, she was arrested for having connections with the Maoist party. Policemen told her that her husband had already been killed by the security forces and threatened that she would meet the same fate if she continued her involvement in Maoist activities. She was held in detention and repeatedly ill-treated during interrogation. She was blindfolded and constantly beaten about the head with a stick. After 10 days, she was released but obliged to report to the police post in Thantipokhari, Palungtar Village Development Committee, Gorkha district every Saturday.
2.10Due to the violence in Nepal, the judicial system was adversely affected and no additional steps were taken concerning Rajendra Dhakal’s case until the end of the armed conflict in 2006. On 28 August 2006, in order to follow through with pending habeas corpus petitions concerning enforced disappearances, the Supreme Court decided to establish a Detainee Investigation Task Force, led by a judge of the Appellate Court, to inquire into four cases of disappearance, including that of Rajendra Dhakal. The investigation concluded that he had been arrested by a police team comprised of 10-12 policemen from the Police Office in Bel Chautara, Tanahun, under the command of Inspector K.B.R, brought to the Area Police Office, Bel Chautara, and made to disappear. The Task Force recommended that criminal charges be brought against the perpetrators and that relief be granted to the family members who had been affected.
2.11On 1 June 2007, the Supreme Court ruled on the habeas corpus petition of 83 disappeared persons. The Court took note of the findings of the Task Force and concluded that Rajendra Dhakal had been arrested and his disappearance brought about by members of the security forces; and that there was no information about his fate and whereabouts. The Court ordered the Government, inter alia, to enact legislation in order to define and criminalize enforced disappearances, prosecute the perpetrators of those crimes, and provide compensation to the victims and their families.
2.12On 3 August 2007, the first author received Nr 150,000 from the Chief District Office, Ghorka, as interim relief, in the framework of the Interim Relief Plan set up by the Government. On 14 April 2008, she received Nr 100,000 from the Ministry of Peace and Reconstruction. However, the judgment’s additional orders were not implemented by the Government. The authors claim that they did not take further action since there was no point in bringing the case before the police or judicial authorities given the impunity prevailing in the country, as indicated by the lack of implementation of the decisions of the Supreme Court.
2.13The authors affirm that they have taken all possible steps to exhaust domestic remedies. Nevertheless, the remedies are ineffective and unreasonably prolonged. The proceedings after filing the habeas corpus writ lasted more than seven years, and the Supreme Court’s final decision of 1 June 2007 has not been implemented to date, which constitutes an unreasonable delay, rendering the prospect of any further complaint futile. Despite that decision, the Nepalese authorities have failed to conduct an investigation into the circumstances of Rajendra Dhakal’s disappearance, and his fate and whereabouts remain unknown. The authors submit that they did not file a first information report application before the police because it would not have been an effective remedy. That is because a criminal investigation can only start after registration of such a report, but such reports can be lodged only when they relate to a crime listed in schedule 1 of the 1992 State Cases Act. Since enforced disappearance has not been codified in the State party’s national legislation to date, it is impossible for relatives of victims of enforced disappearance to file a first information report for those acts. It is also questionable whether such reports can be considered an effective remedy, as they have often been discretionarily refused by the police. Furthermore, a potential fact-finding process in the context of a transitional justice mechanism does not replace access to justice and redress for victims of gross human rights violations and their relatives and therefore cannot be deemed a remedy within the meaning of article 5 (2) (b) of the Optional Protocol.
The complaint
3.1 The authors claim that Rajendra Dhakal was a victim of enforced disappearance and that the State party has violated his rights under articles 6, 7, 9, 10 and 16, separately and in conjunction with article 2 (3) of the Covenant; the first and second authors’ rights under article 7, read alone and in conjunction with article 2 (3); and the third author’s (Manjima Dhakal) rights under article 7, read in conjunction with articles 2 (3) and 24 (1) of the Covenant.
3.2Rajendra Dhakal was arbitrarily deprived of his liberty by Nepalese police on 8 January 1999 and was last seen alive in life-threatening circumstances in the hands of agents of the State. His arbitrary arrest, ill-treatment and subsequent enforced disappearance were perpetrated in a context in which those practices were widespread and systematic. Although the Supreme Court’s decision of 1 June 2007 endorsed the Detainee Investigation Task Force’s findings and concluded that Rajendra Dhakal had been taken to Bel Chautara Area Police Office and subsequently forcibly disappeared by the police, the Court’s orders have never been implemented and no thorough and effective investigation has been carried out to establish his fate and whereabouts. In that context, the burden of proof rests on the State party to show that it has complied with its obligation to guarantee the right to life of the person under its control. Therefore, in the light of the State party’s failure to demonstrate the contrary, the authors submit that Rajendra Dhakal’s enforced disappearance constitutes a violation of his rights under article 6 of the Covenant.
3.3 The incommunicado detention and enforced disappearance of Rajendra Dhakal amount to treatment contrary to article 7 of the Covenant. By keeping him in detention without contact with the outside world since 8 January 1999, the authorities placed him at the mercy of the police. In addition, it is likely that he suffered immensely from mental anguish as to his fate, owing to the circumstances surrounding his disappearance, including his previous ill-treatment in detention and the death threats received from the security forces after the issuance of the arrest warrant against him.
3.4Over 12 years have passed since Rajendra Dhakal was arbitrarily deprived of his liberty, taken to Bel Chautara Area Police Office and subjected to enforced disappearance by policemen. His long-lasting incommunicado detention constitutes per se a violation of article 9 of the Covenant. Even admitting that his arrest was made pursuant to a valid arrest warrant, such as the one issued on 7 August 1998 by Tanahun District Court, none of the procedures required by Nepalese and international law have been met. His detention was not entered in any official record or registered and his relatives have never seen him again. He was never charged with a crime, nor was he brought before a judge or any other official authorized by law to exercise judicial power. He was unable to bring proceedings before a court to challenge the lawfulness of his detention.
3.5The authors argue that Rajendra Dhakal’s arbitrary arrest, incommunicado detention and enforced disappearance, as well as the conditions to which he was subjected by the police, themselves constitute violations of article 10 of the Covenant.
3.6Rajendra Dhakal’s incommunicado detention, subsequent enforced disappearance and the failure by the authorities to conduct an effective investigation into his whereabouts and fate have denied him the protection of the law since 8 January 1999, preventing him from enjoying his human rights and freedoms. Consequently, the State party is responsible for a continuing violation of article 16 of the Covenant.
3.7Although the authors promptly reported the arbitrary deprivation of liberty and enforced disappearance of Rajendra Dhakal and the Supreme Court found that he was indeed forcibly disappeared by the police, no ex officio, prompt, impartial, thorough and independent investigation has been carried out and his fate and whereabouts remain unknown to date. Moreover, to date, no one has been summoned or convicted for his arbitrary deprivation of liberty, enforced disappearance, torture and possible death and the subsequent concealment of his mortal remains. Accordingly, the State party has violated and is continuing to violate his rights under articles 6, 7, 9, 10 and 16, read in conjunction with article 2 (3) of the Covenant.
3.8The State party has violated the first and second authors’ rights under article 7, read in conjunction with article 2 (3) of the Covenant, as they were subjected to deep anguish and distress owing to the arbitrary arrest and subsequent enforced disappearance of their relative, as well as to the acts and omissions of the authorities in dealing with those issues. Rajendra Dhakal’s disappearance has grievous emotional and psychological consequences for the family. It clearly disrupted the first author’s family life and adversely affected its financial sustainability. The first author faced difficulties providing for her children and their education. She used to take medication in order to overcome anxiety and recurrent nervous breakdowns and is still deeply affected by her husband’s disappearance. The second author was distressed by the utter lack of cooperation by the police authorities and feared being detained himself for his frequent visits and inquiries to police posts. Not feeling safe in Gorkha, he eventually decided to move to Japan, but still maintained regular contact with the first author and her family. Despite having moved abroad, he used to have recurrent nightmares picturing his brother being beaten up or himself travelling to find him. He consulted a doctor to try to recover from those tribulations and he undertook treatment with antidepressant and anxiolytic medication. To date, the authors’ right to know the truth about the circumstances of Rajendra Dhakal’s enforced disappearance, his fate and whereabouts, the progress and result of the investigation has been constantly violated by the State party.
3.9The third author is a victim of a violation of her rights under article 7, read in conjunction with articles 2 (3) and 24 (1) of the Covenant. She was 9 years old at the time of her father’s disappearance. She suffered from anguish as she was growing up in dire financial conditions and seeing her mother having an extremely hard time taking care of the family. During the critical years of her youth, she had to withstand the emotional and social burden of living in a stigmatized family and to hear the stories about her father’s death. Her plans to complete her studies in Kathmandu were curtailed by the economic hardship the family was experiencing and around 2001 she had to go back to Gorkha.
3.10The authors request the Committee to recommend the State party, inter alia, to: (a) order a thorough investigation, as a matter of urgency, into Rajendra Dhakal’s fate and whereabouts; (b) release Rajendra Dhakal, should he be alive and, in the event of his death, to locate, exhume, identify and respect his mortal remains and return them to the family; (c) bring the perpetrators before the competent civilian authorities for prosecution, judgment and sanction, and disseminate publicly the results of that measure; (d) ensure that the authors obtain comprehensive 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. 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 Rajendra Dhakal’s relatives, to whom official apologies should be issued. 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 that they are granted effective and sufficient remedies. As a guarantee of non-repetition, the State party should take the necessary steps 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 that take into account their extreme seriousness.
State party’s observations on admissibility
4.1On 10 October 2012, the State party submitted its observations on admissibility, contending that the authors had failed to exhaust domestic remedies.
4.2 The State party maintains that the authors’ allegations before the Committee were considered by the Supreme Court of Nepal within the habeas corpus proceeding lodged by the second author. During that proceeding, all the authorities stated that Rajendra Dhakal had not been arrested or detained by the security forces. The Supreme Court issued a search warrant, but Rajendra Dhakal’s whereabouts could not be established.
4.3The authors have not filed a first information report with the police, as required by the State Cases Act of 1992. If they do, the police will investigate the case in accordance with the law. The authors have therefore failed to exhaust the available domestic remedies.
4.4The State party notes that the alleged human rights violations contained in the communication appear to have been committed during the armed conflict. To address that situation, it has decided to establish a commission to investigate cases of disappearances and a truth and reconciliation commission, in compliance with the Interim Constitution of Nepal of 2007. To that end, bills on a truth and reconciliation commission and a commission on enforced disappearances have been submitted to the parliament. At the time the State party submitted its observations, the bills were pending approval. The two commissions to be formed after endorsement of the bills will investigate cases that occurred during the conflict and bring to light the truth about those cases. The State party holds that, against that background and in the light of its sincere efforts to establish those transitional justice mechanisms, it could not be concluded that domestic remedies have been unreasonably prolonged.
4.5The State party has provided Nr 300,000 to the family of each victim of the armed conflict whose whereabouts remain unknown, as interim relief. Victims may obtain further relief or reparation from the State after the establishment of a transitional justice system.
4.6The State party contends that the existing criminal justice system is functioning well. Under the State Cases Act of 1992, the Nepalese police have conducted investigations in relation to some offences committed during the period of armed conflict.
Authors’ comments on the State party’s observations on admissibility
5.1On 14 December 2012, the authors submitted their comments on the State party’s observations and reiterated the allegations contained in their communication.
5.2The authors allege that within the habeas corpus proceedings, the authorities replied to the Supreme Court’s show cause order simply by denying that Rajendra Dhakal had been arrested or detained, without providing any evidence that an investigation had been conducted into his whereabouts, before submitting their replies to the Court. Moreover, they did not refute the Detainee Investigation Task Force’s findings concerning his detention and disappearance by policemen, on which the Supreme Court based its decision. In that connection, they note that the Working Group on Enforced or Involuntary Disappearances stated that the success of the writs of habeas corpus in Nepal was entirely dependent upon the admission of the security forces; that the security force personnel were not constrained by any legal provision to tell the whole truth; and that impunity remained.
5.3The authors submit that they have not received interim relief of Nr 300,000 from the State party. It was only the first author who received relief, as indicated in the communication (see paragraph 2.12 above). The other authors and Rajendra Dhakal have not received any compensation. In any event, monetary compensation for violations of such a grave nature does not amount to an effective remedy within the meaning of article 2 (3) of the Covenant.
5.4At the time the authors submitted their comments, the establishment of the future truth and reconciliation commission and the commission of inquiry into disappearances was uncertain. Fact-finding processes by non-judicial bodies, although crucial for the establishment of the truth, could never replace access to justice and redress for victims of gross human rights violations and their relatives, as the criminal justice system is the more appropriate avenue for immediate investigation into and punishment of perpetrators of criminal acts. Accordingly, transitional justice mechanisms cannot be considered an effective remedy to be exhausted by the authors.
5.5As to the State party’s contention that the authors have failed to file a first information report, the authors reiterate their previous allegations (see paragraph 2.13 above). Since enforced disappearance, torture and extrajudicial executions have not been criminalized in the State party, no first information reports can be filed for those crimes. There are thus no remedies available in practice. The authors highlight the fact that they made several inquiries with the police in 1999. The ineffectiveness of their inquiries led them to lodge a writ of habeas corpus on 21 January 1999. Moreover, they argue that the effectiveness of the first information report as a remedy is questionable, since according to a Supreme Court decision rendered in 2008, a first information report related to a case of homicide is to be rejected since it falls within the jurisdiction of the future truth and reconciliation commission. The authors point out that, while the 1992 State Cases Act establishes procedures related to murder and kidnapping, those procedures are inappropriate in Rajendra Dhakal’s case since he was not kidnapped, but illegally detained and subsequently forcibly disappeared.
State party’s observations on the merits
6.1On 4 April 2013, the State party submitted its observations on the merits and reiterated that the authors had not exhausted domestic remedies and that steps had been taken to establish a transitional justice mechanism.
6.2The State party informed the Committee that, on 13 March 2013, an executive ordinance on a commission for the investigation into disappeared persons and truth and reconciliation had been promulgated by the President and that it intended to establish a high-level commission for that purpose. Against that background, it would not be appropriate for the Committee to consider cases pertaining to the conflict period in Nepal, given that the transitional justice mechanism was about to take up its functions.
Authors’ comments on the State party’s observations on the merits
7.1On 24 June 2013, the authors submitted their comments on the State party’s observations on the merits. They regret that the State party has failed to address the merits of the communication, as that denotes indifference towards their suffering. The State party, inter alia, failed to provide any information about the fate and whereabouts of Rajendra Dhakal, leaving them to bear the brunt of the efforts to uncover any facts.
7.2The authors reiterate their submission that the first information report is not a remedy that has to be exhausted for the purpose of admissibility under article 5 (2) (b) of the Optional Protocol. Moreover, although the Supreme Court decision of 1 June 2007 found that Rajendra Dhakal was forcibly disappeared by the police and ordered an investigation, his fate and whereabouts remain unknown.
7.3The authors also reiterate that the first author received interim relief of Nr 150,000 on 3 August 2007 and Nr 100,000 on 14 April 2008 for Rajendra Dhakal’s enforced disappearance. Monetary compensation for violations of such a grave nature does not amount to an effective remedy within the meaning of article 2 (3) of the Covenant.
7.4At the time that the authors’ comments were submitted to the Committee, the prospect of establishing a commission for the investigation into disappeared persons, and truth and reconciliation did not yet exist. Notwithstanding the fact that the executive ordinance immediately came into force, its legal effects had been suspended by the Supreme Court of Nepal.
Additional submissions from the parties
8.1On 10 October 2013, the State party reiterated its observations about the transitional justice mechanism and maintained that the authors had not exhausted domestic remedies.
8.2The State party submitted that it had granted Nr 300,000 to Rajendra Dhakal’s family as interim relief. That amount was part of an initial package and was not compensation for the violations suffered. Victims had the right to receive adequate reparation after the investigation of cases.
8.3The authors have not lodged a complaint with the relevant authorities in connection with the allegations of Rajendra Dhakal’s enforced disappearance, notwithstanding the fact that a chapter on kidnapping and hostage-taking is in force under the General Code (Muluki Ain).
9.On 6 November 2013 and 10 January 2014, the authors informed the Committee that, on 2 January 2014, the Supreme Court of Nepal had declared that the executive ordinance of 14 March 2013 establishing the commission for investigation into disappeared persons and truth and reconciliation was unconstitutional and inconsistent with international standards. The Supreme Court had ordered the authorities to establish a new commission, but no precise deadline had been provided.
Issues and proceedings before the Committee
Consideration of admissibility
10.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether the claim is admissible under the Optional Protocol to the Covenant.
10.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement. The Committee notes that in 2011, Rajendra Dhakal’s case was reported to the Working Group on Enforced or Involuntary Disappearances. However, it recalls that extra-conventional procedures or mechanisms established by the Commission on Human Rights or the Human Rights Council, and whose mandates are to examine and report publicly on human rights situations in specific countries or territories, or cases of widespread human rights violations worldwide, do not generally constitute an international procedure of investigation or settlement within the meaning of article 5 (2) (a) of the Optional Protocol. Accordingly, the Committee considers that it is not precluded from examining the communication under that provision.
10.3Concerning the requirement to exhaust domestic remedies, the Committee notes the State party’s arguments that the authors have not exhausted domestic remedies, as they failed to register a first information report with the police and to file a complaint under the chapter on kidnapping and hostage-taking in the General Code (Muluki Ain); and that Rajendra Dhakal’s case will be addressed within the transitional justice mechanisms established in conformity with the Interim Constitution of 2007. The Committee also notes the authors’ allegations that they promptly reported Rajendra Dhakal’s disappearance to the authorities on several occasions, including to the police; that a first information report is not an appropriate remedy, as it is limited to the crimes listed in schedule 1 of the State Cases Act of 1992, which does not include enforced disappearance and torture; and that transitional justice mechanisms do not replace access to justice and cannot be considered an effective remedy to be exhausted. The Committee further notes that the second author lodged a writ of habeas corpus before the Supreme Court of Nepal, which was decided on 1 June 2007. In its decision, the Supreme Court found that Rajendra Dhakal was forcibly disappeared by the police and ordered the authorities to carry out an investigation to establish his fate and whereabouts. Despite that decision and the authors’ efforts, the specific circumstances of Rajendra Dhakal’s detention and disappearance remain unclear more than 17 years later and no investigation has yet been concluded. The Committee recalls its jurisprudence that in cases of serious violations a judicial remedy is required, and that the transitional justice bodies established by Act 2071 (2014) are not judicial organs. Accordingly, the Committee considers that the remedies identified by the State party have been ineffective and that there are no obstacles to the examination of the communication under article 5 (2) (b) of the Optional Protocol.
10.4As all admissibility requirements have been met, the Committee declares the communication admissible and proceeds with its consideration of the merits.
Consideration of the merits
11.1The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
11.2The Committee takes note of the authors’ allegations that on 8 January 1999, Rajendra Dhakal was illegally detained by policemen in Jamdi village, taken to Bel Chautara Area Police Office, kept incommunicado and subsequently forcibly disappeared; and that, at the first author’s request, the second author promptly reported the arrest and disappearance to the authorities. As the authorities did not carry out any investigation, the second author lodged a writ of habeas corpus before the Supreme Court of Nepal. Despite the authors’ efforts, no prompt, impartial, thorough and independent investigation has been carried out by the authorities; the fate and whereabouts of Rajendra Dhakal remain unknown to date; and no one has been summoned or convicted for those acts.
11.3The Committee also takes note of the State party’s argument that the authors’ allegations were considered by the Supreme Court of Nepal when dealing with the habeas corpus proceeding lodged by the second author; that within that proceeding, all the authorities stated that Rajendra Dhakal had not been arrested or detained by the security forces; and that, although the Supreme Court issued a search warrant, his whereabouts could not be established.
11.4The Committee reaffirms that the burden of proof cannot rest solely on the author of the communication, especially considering that the author and the State party do not always have equal access to evidence, and that frequently the State party alone has access to the relevant information. It is implicit in article 4 (2) of the Optional Protocol that the State party has the duty to investigate in good faith all allegations of violations of the Covenant made against it and its representatives, and to provide the Committee with the information available to it. In cases where the author has submitted allegations to the State party that are corroborated by credible evidence, and where further clarification depends on information that is solely in the hands of the State party, the Committee may consider the author’s allegations substantiated, in the absence of satisfactory evidence or explanations to the contrary presented by the State party.
11.5The Committee recalls that, while the Covenant does not explicitly use the term “enforced disappearance” in any of its articles, enforced disappearance constitutes a unique and integrated series of acts that represent continuing violation of various rights recognized in that treaty.
11.6In the present case, the Committee observes that the authors promptly reported Rajendra Dhakal’s disappearance to the authorities in January 1999 within the habeas corpus proceeding instituted by the second author before the Supreme Court, and that the Ministry of Home Affairs, the Police Headquarters in Naxal, Kathmandu, the District Police Offices in Gorkha, Kaski, Nawalparasi and Tanahun, the Armed Police Battalion in Pokhara, Kaski, and Bel Chautara Area Police Office, among others, denied having arrested or detained Rajendra Dhakal. Nevertheless, the Detainee Investigation Task Force concluded that he had been arrested by a team of 10-12 policemen, taken to the Area Police Office, Bel Chautara, and disappeared. Those findings were subsequently confirmed by the Supreme Court’s decision of 1 June 2007, which ordered the authorities to carry out an investigation to establish the circumstances of Rajendra Dhakal’s disappearance. The Committee observes that the State party has produced no evidence refuting the Supreme Court’s findings. Rather, it maintains that despite a Supreme Court search warrant, Rajendra Dhakal’s whereabouts could not be established. The State party has not provided the Committee with any information on the specific steps taken to carry out a thorough and effective investigation and the results thereof. Rajendra Dhakal’s whereabouts remain unknown to date, and in case of his death, his mortal remains have not been located and returned to his family. The Committee recalls that, in cases of enforced disappearance, the deprivation of liberty followed by a refusal to acknowledge the deprivation of liberty, or by concealment of the fate of the disappeared person, denies the person the protection of the law and places his or her life at serious and constant risk, for which the State is accountable. In the present case, the State party has produced no evidence to show that it met its obligations to protect the life of Rajendra Dhakal. Accordingly, the Committee concludes that the State party failed in its duty to protect Rajendra Dhakal’s life, in violation of article 6 (1) of the Covenant.
11.7The Committee takes note of the authors’ allegations that the incommunicado detention since 8 January 1999 and subsequent enforced disappearance of Rajendra Dhakal amount per se to treatment contrary to article 7. The 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, which recommends that States parties should make provision to ban incommunicado detention. In the present case, in the absence of a satisfactory explanation from the State party, the Committee finds that the enforced disappearance of Rajendra Dhakal constitutes a violation of article 7 of the Covenant. Having reached that conclusion, the Committee will not examine the claims regarding the violation of article 10 of the Covenant on the same grounds.
11.8The Committee notes the anguish and distress caused to the three authors by Rajendra Dhakal’s disappearance in January 1999. Despite their efforts and the Supreme Court’s decision of 1 June 2007, the authors have never received sufficient explanation concerning the circumstances surrounding his disappearance and, in case of his death, his remains have not been returned to his family. In the absence of a satisfactory explanation from the State party, the Committee considers that those facts reveal a violation of article 7 of the Covenant with respect to the authors. Having reached that conclusion, the Committee will not examine the claims regarding the violation of the third author’s rights under article 24 (1) of the Covenant.
11.9The Committee takes note of the authors’ allegations under article 9 that Rajendra Dhakal was detained by the police without an arrest warrant. Even admitting that his arrest was made pursuant to a valid arrest warrant, such as the one issued on 7 August 1998 by Tanahun District Court, none of the procedures required by Nepalese and international law have been met. He was never brought before a judge or any other official authorized by law to exercise judicial power, and he could not institute proceedings before a court to challenge the lawfulness of his detention. In that regard, the Committee observes that the State party has not refuted the findings of the Supreme Court’s decision of 1 June 2007. In the absence of a pertinent explanation from the State party, the Committee considers that the facts described constitute a violation of article 9 of the Covenant.
11.10With regard to the alleged violation of article 16, the Committee notes the authors’ allegations that Rajendra Dhakal was arrested by policemen; that despite the authors’ efforts, the State party has failed to provide them with sufficient information concerning his disappearance; and that despite the Supreme Court’s ruling of 1 June 2007, no effective investigation has been carried out to ascertain his fate and whereabouts, denying him the protection of the law since 8 January 1999. The Committee is of the view that the intentional removal of a person from the protection of the law constitutes a refusal of the right to recognition as a person before the law, in particular if the efforts of his or her relatives to obtain access to effective remedies have been systematically impeded. The Committee, therefore, finds that the enforced disappearance of Rajendra Dhakal deprives him of the protection of the law and of his right to recognition as a person before the law, in violation of article 16 of the Covenant.
11.11The authors invoke article 2 (3) of the Covenant, which imposes on States parties the obligation to ensure an effective remedy for all persons whose rights under the Covenant have been violated. The Committee attaches importance to the establishment by States parties of appropriate judicial and administrative mechanisms for addressing claims of rights violations. It refers to its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, which provides, inter alia, 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 (para. 15). In the present case, the Committee observes that, shortly after Rajendra Dhakal’s detention, the second author approached different authorities seeking information, and later filed a writ of habeas corpus before the Supreme Court. On 1 June 2007, the court found that Rajendra Dhakal was forcibly disappeared by the police and ordered the authorities to carry out an investigation. Despite the authors’ efforts and the Supreme Court’s decision, more than 17 years after Rajendra Dhakal’s disappearance, no thorough and effective investigation has been conducted by the State party in order to elucidate the circumstances surrounding his detention and whereabouts and to bring the perpetrators to justice. The State party has failed to explain the effectiveness and adequacy of investigations carried out by the authorities and the concrete steps taken to clarify the circumstances surrounding Rajendra Dhakal’s disappearance, as ordered by the Supreme Court of Nepal on 1 June 2007. In case of his death, the State party has also failed to search for his mortal remains and return them to his family. Therefore, the Committee considers that the State party has failed to conduct a prompt, thorough and effective investigation into Rajendra Dhakal’s disappearance. Additionally, the sums received by Rajendra Dhakal’s family as interim relief do not constitute an adequate remedy commensurate with the serious violations inflicted. Accordingly, the Committee concludes that the facts before it reveal a violation of article 2 (3), read in conjunction with articles 6 (1), 7, 9 and 16, with regard to Rajendra Dhakal; and article 2 (3), read in conjunction with article 7 of the Covenant, with respect to the authors.
12.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the information before it discloses violations by the State party of articles 6, 7, 9 and 16 of the Covenant; and of article 2 (3), read in conjunction with articles 6, 7, 9 and 16 of the Covenant with regard to Rajendra Dhakal. The information also discloses violations of article 7 and article 2 (3), read in conjunction with article 7, with respect to the authors.
13.In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide individuals whose Covenant rights have been violated with an effective remedy in the form of full reparation. Accordingly, the State party is obligated to, inter alia: (a) conduct a thorough and effective investigation into the disappearance of Rajendra Dhakal and provide the authors with detailed information about the results of the investigation; (b) if Rajendra Dhakal is dead, locate his remains and hand them over to his family; (c) prosecute, try and punish those responsible for the violations committed and make the results of such measures public; (d) ensure that any necessary and adequate psychological rehabilitation and medical treatment are made available to the authors free of charge; and (e) provide adequate compensation and appropriate measures of satisfaction to the authors and Rajendra Dhakal, if he is alive, for the violations suffered. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future. In particular, the State party should ensure that its legislation allows for the criminal prosecution of those responsible for serious human rights violations, such as torture, extrajudicial execution and enforced disappearance, and that any enforced disappearances give rise to a prompt, impartial and effective investigation.
14.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 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 it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official language of the State party.