CCPR/C/112/D/2051/2011
investigation into his alleged illegal detention, disappearance and torture after his release;
and that, although 10 years have elapsed since the alleged violations were committed, the
investigation has not come to any conclusion yet. The Committee observes that the State
party has contested the requirement of exhaustion of domestic remedies in a general
fashion. However, it has not explained to the Committee which concrete remedies could
adequately and effectively satisfy the claims made by each of the authors. The Committee
recalls its jurisprudence that, in cases of serious violations, a judicial remedy is required.7 In
that respect, the Committee observes that the transitional justice bodies to be established are
not judicial organs and considers that the investigation in relation to Jit Man Basnet’s case
has been unreasonably prolonged. Accordingly, the Committee concludes that there are no
obstacles to the examination of the communication under article 5, paragraph 2 (b), of the
Optional Protocol.
7.5
In view of the foregoing, and in the absence of other obstacles to admissibility, the
Committee considers the communication admissible and proceeds to the examination of the
claims with respect to Jit Man Basnet under articles 7, 9, 10 and 16, read alone and in
conjunction with article 2, paragraph 3; as well as Top Bahadur Basnet under article 7, read
in conjunction with article 2, paragraph 3, of the Covenant.
Consideration of the merits
8.1
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,
paragraph 1, of the Optional Protocol.
8.2
The Committee takes note of the authors’ unrefuted allegations that Jit Man Basnet
was arrested by persons wearing the Army’s uniform on 4 February 2004 and taken to the
Bhairavnath Battalion barracks, where he was held incommunicado, with no access to his
family, a lawyer or anyone else from the outside world until the first week of October 2004;
and that during that time the authorities refused to inform his family that he was being kept
at Bhairavnath barracks or elsewhere. Furthermore, the authorities did not collaborate with
the investigation carried out by the NHRC to discover Jit Man Basnet’s fate and
whereabouts. The Committee therefore considers that Jit Man Basnet’s deprivation of
liberty, followed by the authorities’ refusal to acknowledge it and the concealment of his
fate, constituted an enforced disappearance.
8.3
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 make provision against
incommunicado detention. It notes that, in the present case, Jit Man Basnet was kept
incommunicado between 4 February and the first week of October 2004, without contact
with the outside world. It also takes note of the authors’ allegation that he was tortured, in
particular during the first days of his detention, while being interrogated. The Committee
observes that the State party has limited its response to maintaining that, on 18 October
2004, Jit Man Basnet was released from custody of the security forces unharmed. However,
the State party has not provided any response to the authors’ allegation regarding the
specific circumstances of his detention, nor has it refuted the allegations of torture and
findings of the NHRC in this respect. Accordingly, the Committee concludes that keeping
Jit Man Basnet in captivity without allowing any contact with his family and the outside
world, and subjecting him to acts of torture amount to a violation of his rights under
article 7 of the Covenant.
7
10
See communication No. 1761/2008, Giri v. Nepal, Views adopted on 24 March 2011, para. 6.3.