Article 20 to provide information on inquiries into systematic
practices.
communication, such as a copy of the first information report with
police, a writ of habeas corpus or mandamus filed with the court, a
copy of decisions of the court, a petition before other non-judicial or
quasi-judicial bodies like the National Human Rights Commission,
Women’s Commission, or the Chief District Officer, as well as a
copy of the petition before other national or international human
rights organizations like AF, World Organisation Against Torture
(OMCT), International Committee of the Red Cross (ICRC), and
Office of the High Commissioner for Human Rights (OHCHR).
It is very difficult to actually carry out the inquiry and to feed
information to the Committee under Article 20. The information
on inquiry to the Committee was articulated in the Concluding Observations (2005) of the Committee in its Periodic Report,33 where
the Committee said that there are patterns of systematic practice of
torture by the different law enforcement agencies. There was also a
visit from the Special Rapporteur in 2005, which led to a strong report that came to the same conclusion.34 Further, there were reports
from the UN Office of the High Commissioner for Human Rights,35
while it was located in Nepal, as well as a report from the AF36 that
indicates, out of its daily work, at least twenty percent of people
are tortured. Thus, the pattern is consistent, indicating that the state
does practice torture systematically—during this period, there was
an armed conflict, and the army, the armed police force, and the
other quasi-judicial bodies that do law enforcement work practiced
torture in the same way as that practiced by other agencies.
Advocacy Forum also provides evidence showing that certain
remedies are unavailable or ineffective. The alleged violation of
torture in Nepal is not criminalized, so the only remedy available
under the Torture Compensation Act38 is financial compensation,
which must be brought within 35 days from the event of torture
or the date of release, something the HRC has already dubbed
flagrantly inconsistent with the gravity of the crime of torture.
Maharjan vs. Nepal39 is one of the cases that AF brought, with
REDRESS, to the HRC regarding this issue.
Based on the information provided by the AF and other organizations, and as a result of the unwillingness of the government
to effectively engage with the Committee to allow Committee
personnel to visit the country, the Committee issued a report under
Article 2037 with the consent of the government. The government
submitted its response, stating that it accepted the presence of
torture but that the practice was not systematic, but sporadic. After
obtaining the government’s consent, the Committee published its
report. The government will be asked again by the Committee to
substantiate its claims and to respond to the Committee’s questions.
Organizations like AF provide further information to substantiate
claims and to verify that a similar practice does continue. One of
the government responses was that there was an armed conflict
before 2006 and, since then, there has been no conflict and the
torture has been reduced. Advocacy Forum analyzed the pattern of
torture after 2006, after the armed conflict, finding that there has
been a consistent practice of torture; it has not been reduced from
twenty percent even after the armed conflict.
Additionally, evidence showing unreasonably prolonged
delays should be submitted in the communication. This can be
substantiated by showing either that no investigation was initiated by the State Party over a considerable period of time since
the allegation was first brought to the authorities concerned, or
by the non-compliance with a court order by the State Party over
a considerable period of time can also be taken into account to
prolong delay. Any views or decisions of quasi-judicial bodies
should be attached as an addendum to the communication.
Other evidence that should be submitted includes the following: medical and psychological reports explaining that physical
and/or mental injuries resulted from torture and ill-treatment
while in detention; physical evidence such as photographs;
newspaper reports or articles relating to the incident; reports of
national or international organizations (such as Advocacy Forum, OHCHR, Amnesty International, OMCT, etc.) relating to
the general trend of the allegation such as torture, extrajudicial
execution, sexual violence, disappearance; and identification of
the perpetrator, which helps to strengthen the case. Evidence
showing pecuniary and other non-pecuniary losses is also important, such as anguish and distress caused to the victim and/or
his/her immediate relatives as result of the acts of the State Party;
physical and mental problems faced by the victim or his/her relative after the torture; killing or disappearance of the victim; and
the impact on their social and economic wellbeing.
Presenting Cases Before the UN Treaty Bodies
Advocacy Forum has experience working with the Human
Rights Committee (HRC) on cases involving torture. Some of
the cases are conflict-related, requiring different strategies such
as assisting the victim in filing the communication to prove
exhaustion of domestic remedies or ineffectiveness of available
remedies, and preparing documentation (collection, translation,
verification) that comes from the documentation work of AF.
These forms of evidence are the result of best practices when
presenting a case before the Committee. Advocacy Forum works
with many cases. When preparing the case, it chooses a strong
case with a lot of evidence in the supporting documents. It is
very difficult to simply choose one case.
This is some of the evidence required in the context of cases
submitted to the Human Rights Committee. In torture-related cases,
it is especially important for AF to prepare communications to the
Human Rights Committee. Advocacy Forum has succeeded in at
least two cases in which it ensured that the petitioner had exhausted
all domestic remedies, which can be done by mentioning in the
communication every legal or judicial step the petitioner had taken
for legal redress. Advocacy Forum also attached evidence to the
Challenges in Gathering Evidence
Some challenges exist in providing authentic information. One
challenge is the ineffective medico-legal examination facilities
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