CCPR/C/114/D/2038/2011
9.4
As all admissibility requirements have been met, the Committee declares the
communication admissible and proceeds to its examination of the merits.
Consideration of the merits
10.1 The Human Rights Committee has considered the communication in the light of all
the information made available to it by the parties, as provided for under article 5 (1) of the
Optional Protocol.
10.2 The Committee observes that the State party has not provided any concrete
observation as to allegations raised by the communication. The Committee recalls that 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
in which the author has submitted allegations that are corroborated by credible evidence
and in which 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.15
10.3 The Committee takes note of the authors’ allegations that on 11 April 2002 members
of the Royal Nepalese Army took their eight relatives and that they were never informed
where their relatives were taken. The authors also claim that, although they reported
promptly the arrest and disappearance of their relatives and filed several complaints and writs
of habeas corpus, no ex officio, prompt, impartial, thorough and independent investigation has
been carried out by the authorities; the fate and whereabouts of their relatives remain
unknown to date; no one has been summoned or convicted for these acts; and that, in these
circumstances, their relatives were victims of enforced disappearance.
10.4 The 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 represents a continuing violation of various rights
recognized in that treaty.16
10.5 The Committee observes that in 2002, when the events occurred, the authors
received contradictory information concerning their relatives’ detention by different police
offices and Army barracks and that, within the habeas corpus proceedings before the
Supreme Court, the Ministry of Defence, the Ministry of Home Affairs, the Bardiya District
Administrative Office and the Bardiya District Police Office, among other authorities,
denied having arrested or detained their relatives. Later, on 25 July 2006, the Ministry of
Home Affairs Royal Nepalese Army, concluded that Dhaniram, Chillu, Mohan, Kamala,
Lauti, Soniram and Radhulal had been killed on 11 April 2002 in crossfire with the security
forces in the nursery area of Manau. No information has been provided as to the fate and
whereabouts of Prem Prakash. The State party has not, however, challenged the authors’
allegation that the authorities did not undertake a thorough investigation and that it gave
full credence to the information provided by the Human Rights Cell of the Army, which did
not rely on any supporting evidence. The Committee also observes that the mortal remains
of the authors’ relatives’ have not been returned to the families and no information has been
provided by the authorities as to the location of the remains or the efforts that may have
been undertaken to return them, thus keeping the authors in constant uncertainty. Against
this background, the Committee considers that the State party has not explained the specific
circumstances of the alleged death of the authors’ relatives, nor has it produced evidence to
15
16
12
See communication No. 2111/2011, Tripathi v. Nepal, Views adopted on 29 October 2014, para. 7.2.
See communication No. 2000/2010, Katwal v. Nepal, Views adopted on 1 April 2015, para. 11.3.