16 September 2005
The Special Rapporteur of the Commission on Human Rights on torture made the following statement today:
The Special Rapporteur of the United Nations Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, undertook a visit to Nepal from 10 to 16 September 2005, at the invitation of the Government.
Over the course of the visit, he met with officials, including: the chief and joint secretaries of the Office of the Prime Minister, the Attorney General, the Minister of Home Affairs, the Secretary of the Ministry of Home Affairs, the Director General of the Department of Prison Management, the Chief Justice of the Supreme Court, and inspector generals of the police and armed police. He met senior officials of the Royal Nepalese Army (RNA), including the Chief of General Staff and the commanders of the eastern and mid-western divisions of the RNA, among others. Meetings were held with members of the National Human Rights Commission, as well as the chiefs of the human rights cells of the police, armed police and the RNA. He expressed his appreciation for the full cooperation he received from the Government throughout his visit.
The Special Rapporteur also met representatives of non-governmental organizations (NGOs), the diplomatic corps in Nepal, the International Committee of the Red Cross (ICRC), and the United Nations Country Team.
In Kathmandu, the Special Rapporteur visited the Central Prison, Hanumandhoka Police Office, Patan Police Office, Chauni barracks of the RNA, and Sundarijal Prison, where he interviewed detainees and staff.
During the visit, the Special Rapporteur travelled to Nepalganj in the west of the country, where he met with NGOs and the Chief District Officer, among others. In Nepalganj he visited the Central Prison, the RNA’s Midwestern Division Headquarters, the Chisapani and Kohalpur barracks, the Armed Police Force Tactical Training Centre, and the District Police Office.
On the basis of his interviews with current and former detainees, with the support of forensic medical evidence, and interviews with Government and military officials, lawyers and representatives of NGOs, the Special Rapporteur concludes unequivocally that torture and ill-treatment is systematically practiced in Nepal by the police, armed police and the RNA in order to extract confessions and to obtain intelligence, among other things.
Over the last few years, the Special Rapporteur and his predecessors have received a high number of allegations related to torture and ill-treatment from Nepal, primarily in the context of the armed conflict. Welcoming the recent ceasefire by the Maoists and expressing sincere hopes for a durable solution in the very near future, he acknowledged the difficult and dangerous situation prevailing in the country, particularly outside of Kathmandu. He recognized the obligation of the Government to ensure the security of the country’s inhabitants and to prevent future violent attacks, however, he emphasized that such measures must respect international human rights norms, in particular the absolute prohibition of torture, as contained in the Convention Against Torture that Nepal has ratified. The need for the Government to send a clear and unambiguous message against torture and ill-treatment could not be made clearer to the Special Rapporteur than when he received repeated and disturbingly frank admissions by senior police and military officials that torture was acceptable in some instances, and was indeed systematically practiced. Methods of torture that he came across in the cases he examined included, among other things, beatings with bamboo poles and plastic pipes, kicking with boots, electric shock to the ears, rolling rods over the thighs, jumping on thighs and legs, maintenance of stress positions, being bound to a pole and hung upside and beaten, especially on the soles of the feet, and prolonged periods of being blindfolded and handcuffed.
According to the Special Rapporteur, legislation such as the Terrorist and Disruptive Activities Ordinance (TADO) and the Public Security Act effectively provide the police and the military with sweeping powers to detain suspects for preventive reasons, sometimes for months on end. Indeed, he has received a very high number of allegations related to persons involuntarily taken by security forces and are disappeared. The link between these disappearances and torture is inextricable. The UN Commission on Human Rights has repeatedly stated that prolonged incommunicado detention or detention in secret places may facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment and can in itself constitute a form of such treatment. Moreover, in the experience of the Special Rapporteur, it is this initial period in custody where the risk of torture to extract confessions is most high. Throughout his meetings with Government, police and military officials, he heard references to due process safeguards contained in these and other pieces of legislation, which they argued are effective to prevent and deter any arbitrary detention or torture. However, from the many victims and lawyers he spoke with, it was plain to the Special Rapporteur that these safeguards are largely illusory in practice; preventive detention is rubber-stamped by Chief District Officers with almost no enquiry into the merits of the request for detention, or the physical condition of the suspect.
Closely tied to this, the Special Rapporteur was deeply concerned with the prevailing culture of impunity in Nepal for torture, especially the emphasis on compensation to victims versus criminal sanctions against the perpetrator. Time and again, officials would cite the 1996 Torture Compensation Act as an effective preventive and deterrent measure against the practice of torture. However, neither does it contain a definition of torture in line with article 1 of the Convention, nor does it provide for effective remedies; it does not provide for the criminalization of torture, and the imposition of punishment commensurate with the gravity of torture. According to the Special Rapporteur, the sanction of “departmental action” against perpetrators such as demotions, suspensions, fines, delayed promotions, etc. is so grossly inadequate that any preventive or deterrent effect envisaged by the Act is nullified in practice. Moreover, since the Act came into force, in only one case to date has compensation actually been paid out, despite several decisions to award compensation. Thus in practice, according to the Special Rapporteur, if the Act does anything it actually prevents and discourages victims from seeking and receiving justice for torture and ill-treatment.
The Special Rapporteur found a yawning gap between Constitutional and legal provisions to safeguard the rights of detainees and what actually happens in practice when a person is arrested. Basic requirements are not respected, such as timely access to a lawyer, being brought to a judge within 24 hours of arrest, or medical examinations upon arrest or transfer. Detainee registers are poorly kept, if at all, at police offices or army barracks. In general, the Special Rapporteur was of the opinion that there is a lack of confidence in the justice system and the rule of law on the part of victims and their families. Preventive measures such as regular unannounced visits to all places of detention by independent monitors do not occur because of varying restrictions of access to NGOs and the NHRC, although the OHCHR-Nepal does have unrestricted access.
Concerning the conditions of detention of the facilities he visited, in relative terms they were generally poor, especially in terms of overcrowding and sanitation. However, the conditions in Hanumandhoka Police Office could only be described as inhuman. Among other things, the cells were filthy, overcrowded—sometimes 12 persons in a cell approximately 3m X 4m—poorly ventilated, and no provision for any leisure activities. The detention of several 14 year-old boys among adults was seriously disturbing to the Special Rapporteur. The places of detention of suspects at army barracks were unacceptable. For example, at the RNA’s Chauni barracks detainees are kept in a converted garage with inadequate ventilation or lighting, and at the mid-western division headquarters, detainees are held in steel-plated boxes.
The Special Rapporteur also received shocking evidence of torture and mutilation carried out by the Maoists in order to extort money, punish non-cooperation, and intimidate others. Methods included beatings with sticks on the legs, piercing of legs with metal rods, beatings with rifle butts on ankles, and even mutilation, such as amputation of toes.
Among his key preliminary recommendations to the Government, he calls for the Government at the highest levels to make a clear public statement against impunity; that no torture or other forms of cruel, inhuman or degrading treatment or punishment will be tolerated. Legislation should be enacted and/or repealed to conform to the requirements of the Convention Against Torture, including the imposition of appropriate criminal sanctions. Prompt and impartial investigations should be carried out into the cases that he has put forward to the Government. Due process safeguards, such as access to lawyers, families, doctors, being brought before a judge, and medical checks, and unrestricted and independent monitoring of places of detention should be scrupulously enforced, particularly in the case of preventive detention. He calls on the Government to continue its cooperation with the OHCHR. The Special Rapporteur also calls on the Maoists to end torture.
He acknowledged the positive development of responding to the communications sent to the Government by him and other Special Procedures of the Commission on Human Rights, and encourages the human rights cells of the police, armed police and RNA to continue this cooperation and improve the quality of its investigations and the responses it transmits.
The Special Rapporteur once again expresses his appreciation to the Government for the full cooperation it provided him throughout the visit, and looks forward to a long-term process of cooperation with the Government to prevent and combat the practice of torture. He also extends his sincere appreciation for the excellent support provided to him by the UN Country Team, and the Office of the High Commissioner for Human Rights in Nepal.
The Special Rapporteur will submit a comprehensive written report on the visit to Commission on Human Rights at its sixty-second session in 2006.
Mr. Nowak was appointed Special Rapporteur of the Commission on 1 December 2004. As Special Rapporteur, he is independent from any government and serves in his individual capacity. The Commission first decided to appoint a special rapporteur to examine questions relevant to torture in 1985. The mandate covers all countries, irrespective of whether or not a State has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
He has previously served as a member of the Working Group on Enforced and Involuntary Disappearances; the UN expert on missing persons in the former Yugoslavia; the UN expert on legal questions on enforced disappearances; and as a judge at the Human Rights Chamber for Bosnia and Herzegovina. He is Professor of Constitutional Law and Human Rights at the University of Vienna, and Director of the Ludwig Boltzmann Institute of Human Rights.
For further information on the mandate of the Special Rapporteur, please visit the website: http://www.ohchr.org/english/issues/torture/rapporteur/index.htm
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