CCPR/C/119/D/2185/2012
disappearance to the authorities. As the authorities did not carry out any investigation, the
second author lodged a writ of habeas corpus before the Supreme Court of Nepal. Despite
the authors’ efforts, no prompt, impartial, thorough and independent investigation has been
carried out by the authorities; the fate and whereabouts of Rajendra Dhakal remain
unknown to date; and no one has been summoned or convicted for those acts.
11.3 The Committee also takes note of the State party’s argument that the authors’
allegations were considered by the Supreme Court of Nepal when dealing with the habeas
corpus proceeding lodged by the second author; that within that proceeding, all the
authorities stated that Rajendra Dhakal had not been arrested or detained by the security
forces; and that, although the Supreme Court issued a search warrant, his whereabouts
could not be established.
11.4 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.12 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 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.
11.5 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 represent continuing violation of various rights recognized
in that treaty.13
11.6 In the present case, the Committee observes that the authors promptly reported
Rajendra Dhakal’s disappearance to the authorities in January 1999 within the habeas
corpus proceeding instituted by the second author before the Supreme Court, and that the
Ministry of Home Affairs, the Police Headquarters in Naxal, Kathmandu, the District
Police Offices in Gorkha, Kaski, Nawalparasi and Tanahun, the Armed Police Battalion in
Pokhara, Kaski, and Bel Chautara Area Police Office, among others, denied having arrested
or detained Rajendra Dhakal. Nevertheless, the Detainee Investigation Task Force
concluded that he had been arrested by a team of 10-12 policemen, taken to the Area Police
Office, Bel Chautara, and disappeared. Those findings were subsequently confirmed by the
Supreme Court’s decision of 1 June 2007, which ordered the authorities to carry out an
investigation to establish the circumstances of Rajendra Dhakal’s disappearance. The
Committee observes that the State party has produced no evidence refuting the Supreme
Court’s findings. Rather, it maintains that despite a Supreme Court search warrant,
Rajendra Dhakal’s whereabouts could not be established. The State party has not provided
the Committee with any information on the specific steps taken to carry out a thorough and
effective investigation and the results thereof. Rajendra Dhakal’s whereabouts remain
unknown to date, and in case of his death, his mortal remains have not been located and
returned to his family. 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, denies the person the protection of the
law and places his or her life at serious and constant risk, for which the State is
accountable.14 In the present case, the State party has produced no evidence to show that it
met its obligations to protect the life of Rajendra Dhakal. Accordingly, the Committee
12
13
14
10
See communications No. 1422/2005, El Hassy v. the Libyan Arab Jamahiriya, Views adopted on 24
October 2007, para. 6.7; No. 1297/2004; Medjnoune v. Algeria, Views adopted on 14 July 2006, para.
8.3; and No. 1804/2008, Il Khwildy v. Libya, Views adopted on 1 November 2012, para. 7.2.
See communications No. 2000/2010, Katwal v. Nepal, Views adopted on 1 April 2015, para. 11.3;
and No. 2134/2012, Serna et al. v. Colombia, Views adopted on 9 July 2015, para. 9.4.
See communication No. 1913/2009, Abushaala v. Libya, Views adopted on 18 March 2013, para. 6.2.