Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2164/2012 * , * *

Communication submitted by:Sabita Basnet (represented by counsel, Philip Grant, of TRIAL: Track Impunity Always)

Alleged victim:The author and Milan Nepali (her husband)

State party:Nepal

Date of communication:21 May 2012 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 18 June 2012 (not issued in document form)

Date of adoption of Views:12 July 2016

Subject matter:Enforced disappearance

Procedural issue: Failure to sufficiently substantiate allegations; incompatibility ratione materiae

Substantive issues: Right to life; 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; right to an effective remedy

Articles of the Covenant: 2 (3), 6, 7, 9, 10 and 16

Articles of the Optional Protocol:2 and 5 (2) (b)

1.The author of the communication is Sabita Basnet, who submits the communication on behalf of herself and her husband, Milan Nepali. They are Nepalese nationals, born on 8 August 1970 and 22 May 1968, respectively. The author claims that the State party has violated Mr. Nepali’s rights under articles 6, 7, 9 (1-4), 10 (1) and 16, alone and read in conjunction with article 2 (3), and her rights under article 7, in conjunction with article 2 (3) of the Covenant. The Optional Protocol entered into force for the State party on 14 August 1991. The author is represented by counsel.

The facts as submitted by the author

2.1As a result of the armed conflict that started in 1996 in the State party, there was a marked deterioration of the human rights situation in the country. The number of arbitrary arrests and detentions, torture and enforced disappearances increased significantly. Although the Communist Party of Nepal-Maoist was not declared an illegal “terrorist organization” by the State party until 2001, persons suspected of involvement with it were detained by the Nepal Police under the Public Security Act 2046 (1989), held incommunicado and disappeared. According to the Working Group on Enforced or Involuntary Disappearances, the majority of the outstanding cases of disappearance reported to it occurred between 1998 and 2004 in the context of counter-insurgency operations launched by the security forces against members and supporters of the Party.

2.2The author and her husband lived in Kathmandu Municipality, Dhapasi VDC, Wead No. 3, at the time of the events. They had two children, born in 1994 and 1995. The author claims that her husband worked as journalist for a left-wing (Maoist) daily newspaper Janadesh since 1992. She worked as an administrative assistant for a private firm. Both were active members of the Communist Party of Nepal-Maoist and frequently participated in its activities. The author’s husband had been arrested and detained by the police as a suspected Maoist on two previous occasions: in July 1995, together with the author, and in March 1997. He was released after 17 days and one month, respectively.

2.3On 21 May 1999, the author and her husband went together to the main shopping district in central Kathmandu. While they were in Sundhara, six or seven unarmed policemen, some of them wearing uniform, approached them, arrested the author’s husband and informed him that he had to come with them for questioning. The author claims that at the time of his arrest, her husband was not accused of any offence. He was put into a van and driven away to an unknown destination. She further claims that she did not say anything to the policemen as he had been arrested and released on two previous occasions. She also did not want to be identified as his wife to avoid being arrested. Over the next few days, she went several times to every police station and substation in Kathmandu in search of her husband, without success. On an unspecified date, the Hannumandhoka District Police Office, Kathmandu, told her that her husband was not allowed to receive visits, including from his family, by order of the police and the Ministry of Home Affairs.

2.4On 26 May 1999, a friend of the author’s husband, A.M., filed a writ of habeas corpus before the Supreme Court in favour of Mr. Nepali. It was claimed that Mr. Nepali had been illegally arrested and taken away in a van by policemen on 21 May 1999; and that despite requests to the police, no one, including his relatives, had been able to see him.

2.5The author claims that on 4 June 1999, she received an anonymous phone call from a man who told her that her husband was being held in the Nepal Police Headquarters in Naxal, Kathmandu. The next day she went there and asked to see her husband. The police refused her request, but allowed her to hand over some clean clothes for him. The author claims that although she was denied access to her husband, the manner in which the policeman on duty took the clothes to pass on to him indicated an implicit acknowledgement that he was indeed being held inside the police premises. After that date, she went to police headquarters almost every day but her requests to see her husband were always refused.

2.6On 10 June 1999, the author and a friend, K.B., visited police headquarters again and handed over some more clean clothes for her husband. The policeman on duty gave her some dirty clothes belonging to her husband for washing. Afterwards, the author and her friend walked to a nearby hill, from which they could have a view of the inner compound of the building. The author claims that from this place, they saw her husband for approximately two minutes as he was taken to and from the toilet by a single policeman. He was handcuffed, but looked in fairly good physical condition. The author shouted out to get her husband’s attention, but she was too far away and he did not hear her. The author submits that this was the only time she saw him following his arrest. On 20 June 1999, Mr. Nepali’s relatives submitted a written appeal to the Parliament requesting that his whereabouts be made public and that he be immediately released from police custody.

2.7On 12 July 1999, the Supreme Court quashed the writ of habeas corpus submitted by A.M., because it had not been established that Mr. Nepali was in fact in detention, as A.M. had failed to provide information to the Court concerning the location where he was being held. The Court pointed out that the Ministry of Home Affairs, the Nepal Police Headquarters and the District Administration Office in Kathmandu, stated that they had not arrested Mr. Nepali and that he was not in their custody.

2.8The author claims that on 6 August 1999, the Prime Minister met members of the Families of Victims of State Disappearance Association, co-founded by her, and that in reply to a request for information, the Prime Minister said that their relatives who had disappeared, including Mr. Nepali, had already been killed. The author requested the assistance of Amnesty International, which on 13 August 1999 issued an urgent action appeal calling on the Nepalese authorities for information on the whereabouts of eight individuals arrested between November 1998 and May 1999, including her husband.

2.9On 17 August 1999, the author lodged a writ of habeas corpus before the Supreme Court in favour of her husband. The Secretary of the Ministry of Home Affairs, the Chief District Officer and the Nepal Police Headquarters informed the Court that they had not detained Mr. Nepali. The Sub-inspector of the District Police Office in Hannumandhoka stated that the author’s allegations as to the detention of her husband on 21 May 1999 by the police were false; that no police personnel were sent to arrest him; and that he had not been illegally detained, tortured or made to disappear by the police.

2.10On 31 August 1999, a national daily newspaper Mahanagar Daily, published an article, which stated that Mr. Nepali and five other persons arrested as suspected Maoists had been kept in conditions of high security at the premises of the Western Regional Riot Control Armed Police Force in Pokhara, Kaski District, and that although the Prime Minister had stated that they had already been killed, certain sources indicated that they were still alive and had been tortured by the police. The author maintains that she could not verify this information and that she was unable to go to Pokhara to search for her husband as she had to take care of her two young children. She further claims that this was the last time that she received any news concerning her husband’s fate and whereabouts.

2.11On 6 September 1999, the author informed the Supreme Court that according to the Mahanagar Daily, Mr. Nepali had been moved from police headquarters in Kathmandu, to the premises of the Riot Control Police Force in Pokhara.

2.12On 10 and 20 September 1999, members of the Families of Victims of State Disappearance Association requested the Prime Minister to make public the information concerning the fate of their relatives, including that of Mr. Nepali, and to bring those responsible for the disappearances to court.

2.13At the author’s request, on 1 October 1999 the Supreme Court issued an order for a search warrant to the Riot Control Police in Pokhara. On 24 January 2000, the Deputy Inspector of the Pokhara police battalion denied that Mr. Nepali had been held by them. On 11 February 2000, the Supreme Court ordered the Inspector-General of Police to provide a written response concerning Mr. Nepali’s whereabouts within 15 days. In the absence of a response, on 20 March 2000, the Court reiterated its order to the Inspector-General. On 9 June 2000, police headquarters stated before the Court that it had been unable to locate Mr. Nepali and that he was not in police detention. On 5 July 2000, the Supreme Court decided on the writ of habeas corpus submitted by the author and stated that after exhausting all possible means to find the applicant, it could not be held that Mr. Nepali was in police detention and the court could not issue an order without strong evidence and based merely on “hunch and guesswork”.

2.14The author points out that the National Human Rights Commission was established in 2000 and that she registered a complaint with it concerning her husband’s disappearance. His name was included on the list of conflict-related disappearances; however an investigation was never carried out. The offices of the United Nations High Commissioner for Human Rights (OHCHR) and the International Committee of the Red Cross (ICRC) in Nepal were set up several years after Mr. Nepali’s disappearance. His name is also listed in the ICRC missing persons database.

2.15In addition, the author claims that approximately a year after her husband’s disappearance, the case received a lot of publicity; that as a result her employer fired her alleging that she was a Maoist; that since the job was not a permanent one, she was unable to take any legal action against the employer; and that it became very difficult to provide for herself and her children. Moreover, she became fully occupied by the public campaign to locate her husband and did not undertake salaried work again until 2007.

2.16In 2008, the author was awarded Nr 100,000 as an interim relief provided to the relatives of a victim of enforced disappearance. That interim relief cannot be considered adequate compensation or a substitute for an integral reparation.

2.17The author claims that she has exhausted all domestic remedies. The writs of habeas corpus submitted by her and A.M. were quashed by the Supreme Court, the highest domestic tribunal, and there is no other domestic remedy to exhaust. Furthermore, no remedies are available in practice to obtain a prosecution for those responsible for enforced disappearance and torture. The National Human Rights Commission cannot be considered an effective remedy. As regards a complaint to the police, the first investigative report, it is limited to the crimes listed in schedule 1 of the State Cases Act of 1992, which do not include enforced disappearance and torture. Furthermore, the filing of such reports in cases of disappearance does not constitute an appropriate remedy, as the authorities usually argue that the person’s death cannot be proved in the absence of a body. Although torture is forbidden pursuant to article 14 (4) of the Interim Constitution and section 3 (1) of the Compensation Relating to Torture Act, it has not been criminalized in national law. The Compensation Relating to Torture Act does not provide for criminal accountability but only for compensation of a maximum of Nr 100,000 and a claim must be filed within 35 days of the torture or release from detention. Despite the order of the Supreme Court in 2007 to criminalize enforced disappearance, no action has been taken in that respect.

The complaint

3.1The author argues that her husband is a victim of enforced disappearance and that the State party violated his rights under articles 6, 7, 9 (1-4), 10 (1) and 16, read alone and in conjunction with article 2 (3), as well as her rights under article 7, in conjunction with article 2 (3), of the Covenant.

3.2The author’s husband was arbitrarily deprived of his liberty by the security forces on 21 May 1999 and taken to the police headquarters in Naxal, Kathmandu, where he was last seen by the author and her friend K.B. On 31 August 1999, the Mahanagar Daily published an article that reported that although the Prime Minister had announced that Mr. Nepali had been killed, he and other individuals detained by the security forces were still alive and being held at the premises of the Riot Control Police in Pokhara. Despite the fact that Mr. Nepali was last seen alive in life-threatening circumstances in the hands of agents of the State party and that his deprivation of liberty was promptly denounced by his wife, the authorities have systematically denied having arrested and detained him. His arbitrary deprivation of liberty took place within a context of massive arrests, enforced disappearances and torture of persons suspected of being Maoist. Against that background, the burden of proof rests on the State party to provide a satisfactory and convincing explanation, establishing and disclosing with certainty her husband’s fate and whereabouts. Therefore, in light of the State party’s failure to demonstrate the contrary, the author submits that her husband’s enforced disappearance as such, and subsequent most likely killing, constitute a violation by the State party of his right under article 6.

3.3The incommunicado detention and enforced disappearance of the author’s husband per se amount to a treatment contrary to article 7. By keeping him in detention, without contact with the outside world since 21 May 1999, the authorities placed him at mercy of his captors, which resulted in a constant state of mental anguish. Further, according to the article published by Mahanagar Daily, he was a victim of torture while in detention at the premises of the Riot Control Police in Pokhara.

3.4The author points out that prolonged isolation and deprivation of communication with the outside world are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being. She therefore considers that in spite of scant evidence regarding the conditions in which Mr. Nepali was detained, the fact that he was kept incommunicado with no access to legal recourse or family members, constitutes a violation of article 10 (1) of the Covenant.

3.5The author’s husband was also a victim of a violation of his rights under article 9 (1-4). The fact that he was last seen alive at police headquarters in Kathmandu, in the context of increasing numbers of arrests of persons suspected of involvement in Communist Party of Nepal-Maoist activities, allows for a presumption that he was deprived of his liberty by agents of the State on 21 May 1999. No legal grounds were provided for his deprivation of liberty. His detention was not entered in any official record or register. 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 take proceedings before a court to challenge the lawfulness of his detention.

3.6Mr. Nepali’s enforced disappearance and the failure by the authorities to conduct an effective investigation concerning his whereabouts and fate, have maintained him outside the protection of the law since May 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 author reported promptly the arbitrary deprivation of liberty and enforced disappearance of her husband, no ex officio, prompt, impartial, thorough and independent investigation was carried out. As of today, no one has been summoned or convicted for his arbitrary deprivation of liberty, enforced disappearance and torture. Likewise, if he is no longer alive, his mortal remains have not been located, identified and returned to his loved ones. Accordingly, the State party has violated and continues to violate his rights under articles 6, 7, 9 (1-4), 10 (1) and 16, read in conjunction with article 2 (3), of the Covenant.

3.8The author claims that the State party violated her rights under article 7, read in conjunction with article 2 (3), as she was subjected to deep anguish and distress owing to the arbitrary arrest and subsequent enforced disappearance of her husband, and to the acts and omission of the authorities in dealing with the case. As a result of her husband’s disappearance, she has had to bring her children up alone. In that regard, she claims that wives and families of disappeared persons are often stigmatized in Nepal.

3.9The author requests the Committee to recommend the State party, inter alia, to (a) order an independent investigation as a matter of urgency concerning the fate and whereabouts of her husband and, in the event of his death, to locate, exhume, identify and respect his mortal remains and return them to the family; (b) bring the perpetrators before the competent civilian authorities for prosecution, judgment and sanction, and disseminate publicly the results of those actions; and (c) ensure that the measures of reparation cover material and moral damages, and measures of restitution, rehabilitation, satisfaction and guarantees of non-repetition. In particular, she requests that the State party acknowledge its international responsibility on the occasion of a public ceremony to be held in the presence of the authorities and of Mr. Nepali’s relatives, to whom official apologies shall be issued, and that the State party name a street or build a monument or a commemorative plate in memory of all the victims of enforced disappearance and torture during the internal armed conflict, including a specific reference to the case of Mr. Nepali whereby his reputation is fully restored. In order to reduce the psychological and mental suffering that the events described above have caused to the author and in general the material harm inflicted, the State party should also provide her without delay with medical and psychological care free of charge, through its specialized institutions, and grant her access to free legal aid where necessary. 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.

State party’s observations on admissibility

4.1In a note verbale dated 22 August 2012, the State party submitted its observations on admissibility, challenging the admissibility of the communication on the grounds of failure to exhaust domestic remedies and being manifestly ill-founded.

4.2The State party maintains that the author’s allegations concerning the circumstances in which the alleged arrest and detention of her husband took place are not supported by any direct and circumstantial evidence. In that regard, the Supreme Court quashed the two writs of habeas corpus lodged in favour of the author’s husband, because the applicants were unable to show that he was in fact detained by the police. The fact that the fate and whereabouts of Mr. Nepali have not been established cannot prove the allegations of his arrest, detention and subsequent disappearance at the hands of the police or any other authority.

4.3The State party has serious concerns as to the existence of human rights violations 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. By 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 which occurred during the conflict and bring to the surface 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. Accordingly, the author has not exhausted domestic remedies.

Author’s comments on the State party’s observations on admissibility

5.1On 19 October 2012, the author submitted her comments on the State party’s observations. She argues that the State party’s observations in fact focus on the merits of the communication rather than on the admissibility. In that regard, she points out the existence of direct evidence of her husband’s arrest, detention and subsequent enforced disappearance, as described in her initial communication: inter alia, she herself witnessed his arrest, on 4 June 1999 she received an anonymous call that informed her of the location of her husband, on 10 June 1999, a policeman on duty at police headquarters handed her Mr. Nepali’s dirty clothes in exchange for the clean ones she had brought; on the same day she, together with her friend, K.B., saw him within the police facilities from a distance; and a newspaper later reported that he had been transferred to the premises of the Riot Control Police in Pokhara.

5.2In cases of enforced disappearance, where the clarification of the facts depends on information exclusively on the hands of the authorities, the State party is under the obligation to investigate allegations ex officio in good faith, even in the absence of direct evidence. The habeas corpus writ concerning her husband’s case was quashed by the Supreme Court on merely procedural grounds because she was unable to provide proof of Mr. Nepali’s detention. The State party maintained that his detention must be proven in order for the habeas corpus writ to be issued. However, if that were the rationale of the remedy, its effectiveness would be rendered useless in cases of enforced disappearance. In the present case, neither the Supreme Court nor any other authority carried out an effective investigation into the circumstances of her husband’s arrest and subsequent disappearance.

5.3At the time that the author submitted her comments, the establishment of the future truth and reconciliation commission and the commission on enforced disappearances, as well as their powers to carry out prompt, independent and effective investigations and prosecutions, were uncertain. Further, they would not be judicial bodies and 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, although crucial for establishing the truth, can 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 criminal acts. Accordingly, transitional justice mechanisms cannot be considered an effective remedy to be exhausted by the author.

State party’s observations on the merits

6.1On 12 August 2013, the State party submitted its observations on the merits. It reiterates that the author’s allegations concerning the arrest of her husband on 21 May 1999 by the police in Sundhara, Kathmandu, and his subsequent disappearance are not supported by any direct and circumstantial evidence. According to the response of the Metropolitan Police in Kathmandu, there is no information on or record of Mr. Nepali’s case. Within the habeas corpus proceedings lodged by the author, the Supreme Court issued an order for a search warrant to the Riot Control Police battalion, in Pokhara, and to the Inspector-General of Police, but it could not be established that Mr. Nepali was in police detention.

6.2In relation to the armed conflict, which took place between 1996 and 2006, the State party maintains that it is committed to carrying out thorough investigations, bringing perpetrators to justice and providing reparations to the victims of human rights violations. In that regard, the State party reiterates its observations on the transitional justice mechanisms and informs the Committee that an executive ordinance on the establishment of a commission on the investigation of disappeared persons and on truth and reconciliation has been promulgated.

6.3The State party informed the Committee that it had granted the author Nr 275,000 and that she would receive an additional amount of Nr 50,000 under the interim relief scheme. She may also receive another amount as reparation, following the future recommendations of the commission.

6.4The author has failed to file a complaint or first investigative report, which would allow the police to initiate an investigation about her husband’s case.

Author’s comments on the State party’s observations on the merits

7.1On 1 October 2013, the author submitted her comments on the State party’s observations on the merits. She considers that it reiterates the observations already raised in its previous submission and does not provide any significant argument or matter for consideration. The State party’s attitude denotes an indifference towards her suffering. Inter alia, it failed to provide any information about the fate and whereabouts of her husband, leaving her to bear the brunt of the efforts to uncover any facts.

7.2The author reiterates her allegations about first investigative reports and submits that this is not a remedy that has to be exhausted for the purpose of admissibility under article 5 (2) (b) of the Optional Protocol. First investigative reports rarely lead to any investigation being opened into the disappearance of the person concerned.

7.3The author contends that she was only awarded Nr 100,000 in 2008 and that she has not received the amounts the State party says it has provided (see para. 6.3 above). It is a negligible amount in relation to the material and moral harm suffered by her and cannot be considered as an effective remedy within the meaning of article 2 (3) of the Covenant.

Further submissions from the parties

8.1On 10 January 2014, the author informed the Committee that on 2 January 2014, the Supreme Court of Nepal had declared unconstitutional the executive ordinance of 14 March 2013 establishing the commissions on investigation into disappeared persons and on truth and reconciliation. The Supreme Court ordered the Nepalese authorities to establish new commissions without delay.

8.2In notes verbales dated 11 August and 11 December 2014, the State party informed the Committee that the Truth and Reconciliation Commission Act had been enacted by the parliament in April 2014 and that a commission on enforced disappearances and a truth and reconciliation commission would soon be established. It also provided a brief description of the main provisions of the Act and held that it was a landmark instrument to address the issue of past human rights violations committed by both the State party and non-State actors. It also submitted that the bills to criminalize torture and enforced disappearance had been drafted and were in the process of resubmission to the parliament. The criminal justice system could not provide full remedy to the victims of the armed conflict without the transitional justice mechanisms. In that respect, the author’s claims would be addressed fully after the establishment of the said mechanisms. It also reiterated that the author had been awarded Nr 275,000 as interim relief.

8.3On 2 September 2014 and 12 January 2015, the author reiterated her allegations concerning transitional justice mechanisms and argued that several provisions of the Act were incompatible with international human rights standards and would not offer her an effective remedy.

Issues and proceedings before the Committee

Consideration of admissibility

9.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether the case is admissible under the Optional Protocol.

9.2The 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.

9.3With respect to the requirement of exhaustion of domestic remedies, the Committee notes the State party’s arguments that the author has not exhausted domestic remedies, as she failed to register a first information report with the police, and that her husband’s case will be addressed within the transitional justice mechanisms established in conformity with the Interim Constitution of 2007. The Committee also notes the author’s allegations 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 do not include enforced disappearance and torture; that the Compensation Relating to Torture Act does not provide for criminal accountability, but only for compensation of a maximum of Nr 100,000; and that transitional justice mechanisms do not replace access to justice and cannot be considered an effective remedy to be exhausted. The Committee observes that the author’s writ of habeas corpus was quashed by the Supreme Court on 5 July 2000. Although she promptly reported her husband’s disappearance to the authorities, more than 17 years later the circumstances of his alleged disappearance remain unclear and no investigation has yet been concluded. The Committee further 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 established by the Act on the Commission on Investigation of Disappeared Persons, Truth and Reconciliation are not judicial organs. Accordingly, the Committee considers that the investigation has been ineffective and unreasonably prolonged and that there are no obstacles to the examination of the communication under article 5 (2) (b) of the Optional Protocol.

9.4The Committee takes note of the State party’s observations that the author’s allegations are manifestly ill-founded. The Committee considers, however, that for the purposes of admissibility, the author has sufficiently substantiated her allegations with plausible arguments in support thereof. As all admissibility requirements have been met, the Committee declares the communication admissible and proceeds with its consideration of the merits.

Consideration of the merits

10.1The Committee has considered the present communication in the light of all the information made available to it by the parties, as required under article 5 (1) of the Optional Protocol.

10.2The Committee takes note of the author’s allegations that on 21 May 1999 her husband was arrested by policemen in Sundhara, Kathmandu, and taken to police headquarters in Naxal, Kathmandu; that although he was incommunicado, she managed to see him within the police premises from a distance and for the last time on 10 June 1999; and that although she reported promptly the arrest and disappearance to the authorities and filed a writ of habeas corpus, no prompt, impartial, thorough and independent investigation has been carried out by the authorities. His fate and whereabouts remain unknown to date and no one has been summoned or convicted for those acts. In these circumstances, her husband is a victim of enforced disappearance.

10.3The Committee also notes the State party’s argument that the author’s allegations are based on mere suspicion and that within the habeas corpus proceedings she was unable to prove that her husband had been arrested and detained by the police or other State agents. The 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 credible 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.

10.4The 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 the treaty.

10.5In the present case, the Committee observes that after losing contact with her husband in May 1999, the author promptly approached several police stations in Kathmandu searching for him; that although the police at the headquarters in Naxal, Kathmandu, refused her access to her husband, she was allowed to hand over some clean clothes for him and a policeman on duty gave her some dirty clothes belonging to her husband; that after 10 June 1999 when she allegedly last saw him, from a distance, in the hands of the police at police headquarters, she continued to inquire as to his fate and whereabouts, but received contradictory information. In that regard, the Committee observes that in an article published in the Mahanagar Daily on 31 August 1999, provided by the author, it was reported that, although the then Prime Minister had stated that Mr. Nepali had been killed, he was in fact alive and being tortured and held by the Riot Control Police in Pokhara; whereas within the habeas corpus proceedings before the Supreme Court the authorities denied that he had ever been detained by the police. No further information has been provided as to the fate and whereabouts of the author’s husband. However, Mr. Nepali’s name is included in the National Human Rights Commission list of conflict-related disappearances and the ICRC missing persons database. In the light of the documentation submitted by the author, the Committee considers that the State party has not provided sufficient and concrete explanations to refute the author’s allegations regarding her husband’s enforced disappearance. 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, removes the person from 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 Mr. Nepali. Accordingly, the Committee concludes that the State party failed in its duty to protect Mr. Nepali’s life, in violation of article 6 (1) of the Covenant.

10.6The Committee takes note of the author’s allegations that the detention and subsequent enforced disappearance of her husband amount per se to treatment contrary to article 7 of the Covenant. 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, in which it recommends that States parties should make provisions against 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 the author’s husband 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 (1) of the Covenant for the same facts.

10.7The Committee also takes note of the anguish and stress caused to the author by the disappearance of her husband. In particular, the author has never received an adequate explanation of the circumstances surrounding Mr. Nepali’s disappearance or his alleged death, nor has she received his body remains. In the absence of a satisfactory explanation from the State party, the Committee considers that these facts reveal a violation of article 7 of the Covenant with respect to the author.

10.8The Committee takes note of the author’s allegations under article 9 (1-4) that her husband was detained without an arrest warrant, that he was never brought before a judge or any other official authorized by law to exercise judicial power, and that he could not take proceedings before a court to challenge the lawfulness of his detention. In the absence of a response from the State party in that regard, the Committee considers that the detention of the author’s husband constitutes a violation of his rights under article 9 of the Covenant.

10.9With regard to the alleged violation of article 16, the Committee notes the author’s allegations that her husband was arrested by policemen in her presence; that since then the State party has failed to provide her with relevant information concerning her husband’s fate and whereabouts; and that no effective investigation has been carried out to ascertain his whereabouts, maintaining him outside the protection of the law since then. 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 Mr. Nepali 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.

10.10The author invokes 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 paragraph 15 of 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. In the present case, the Committee observes that shortly after the detention of the author’s husband, she approached different police offices seeking information and later filed a writ of habeas corpus before the Supreme Court and complained to the National Human Rights Commission. Despite the author’s efforts, more than 17 years after the disappearance of her husband no thorough and effective investigation has been concluded by the State party in order to elucidate the circumstances surrounding his detention, enforced disappearance and alleged death, and no criminal investigation has even been started to bring the perpetrators to justice. The State party has failed to explain the effectiveness and adequacy of the investigations carried out by the authorities and the concrete steps taken to clarify the circumstances surrounding Mr. Nepali’s disappearance and possible death. It has also failed to locate 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 the disappearance of Mr. Nepali. Additionally, the Nr 100,000 received by the author as interim relief does 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), in conjunction with articles 6 (1), 7, 9 and 16, with regard to Mr. Nepali, and article 2 (3), read in conjunction with article 7 of the Covenant, with respect to the author.

11.The Committee, acting under article 5 (4), of the Optional Protocol, is of the view that the information before it discloses a violation 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 Mr. Nepali. The facts also disclose violations of article 7, and article 2 (3), read in conjunction with article 7, with respect to the author.

12.In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to (a) conduct a thorough and effective investigation into the disappearance of Mr. Nepali and provide the author with detailed information about the results of its investigation; (b) if her husband 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 provided to the author free of charge; and (e) provide effective reparation, including adequate compensation and appropriate measures of satisfaction, to the author and her husband, if he is alive, for the violations suffered. The State party is also under an obligation to take steps to prevent similar violations in the future. In particular, the State party should ensure that (a) its legislation allows for the criminal prosecution of those responsible for serious human rights violations, such as torture, extrajudicial execution and enforced disappearance; and (b) any enforced disappearances give rise to a prompt, impartial and effective investigation.

13.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 to all individuals within its territory and 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 languages of the State party.