CCPR/C/119/D/2185/2012 Issues and proceedings before the Committee Consideration of admissibility 10.1 Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether the claim is admissible under the Optional Protocol to the Covenant. 10.2 The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement. The Committee notes that in 2011, Rajendra Dhakal’s case was reported to the Working Group on Enforced or Involuntary Disappearances. However, it recalls that extra-conventional procedures or mechanisms established by the Commission on Human Rights or the Human Rights Council, and whose mandates are to examine and report publicly on human rights situations in specific countries or territories, or cases of widespread human rights violations worldwide, do not generally constitute an international procedure of investigation or settlement within the meaning of article 5 (2) (a) of the Optional Protocol. 9 Accordingly, the Committee considers that it is not precluded from examining the communication under that provision. 10.3 Concerning the requirement to exhaust domestic remedies, the Committee notes the State party’s arguments that the authors have not exhausted domestic remedies, as they failed to register a first information report with the police and to file a complaint under the chapter on kidnapping and hostage-taking in the General Code (Muluki Ain); and that Rajendra Dhakal’s case will be addressed within the transitional justice mechanisms established in conformity with the Interim Constitution of 2007. The Committee also notes the authors’ allegations that they promptly reported Rajendra Dhakal’s disappearance to the authorities on several occasions, including to the police; that a first information report is not an appropriate remedy, as it is limited to the crimes listed in schedule 1 of the State Cases Act of 1992, which does not include enforced disappearance and torture; and that transitional justice mechanisms do not replace access to justice and cannot be considered an effective remedy to be exhausted. The Committee further notes that the second author lodged a writ of habeas corpus before the Supreme Court of Nepal, which was decided on 1 June 2007. In its decision, the Supreme Court found that Rajendra Dhakal was forcibly disappeared by the police and ordered the authorities to carry out an investigation to establish his fate and whereabouts. Despite that decision and the authors’ efforts, the specific circumstances of Rajendra Dhakal’s detention and disappearance remain unclear more than 17 years later and no investigation has yet been concluded. The Committee recalls its jurisprudence that in cases of serious violations a judicial remedy is required, 10 and that the transitional justice bodies established by Act 2071 (2014) are not judicial organs.11 Accordingly, the Committee considers that the remedies identified by the State party have been ineffective and that there are no obstacles to the examination of the communication under article 5 (2) (b) of the Optional Protocol. 10.4 As all admissibility requirements have been met, the Committee declares the communication admissible and proceeds with its consideration of the merits. Consideration of the merits 11.1 The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol. 11.2 The Committee takes note of the authors’ allegations that on 8 January 1999, Rajendra Dhakal was illegally detained by policemen in Jamdi village, taken to Bel Chautara Area Police Office, kept incommunicado and subsequently forcibly disappeared; and that, at the first author’s request, the second author promptly reported the arrest and 9 10 11 See communications No. 1874/2009, Mihoubi v. Algeria, Views adopted on 18 October 2013, para. 6.2; No. 1882/2009, Al Daquel v. Libya, Views adopted on 21 July 2014, para. 5.2; and No. 2038/2011, Tharu et al. v. Nepal, Views adopted on 3 July 2015, para. 9.2. See communication No. 1761/2008, Giri v. Nepal, Views adopted on 24 March 2011, para. 6.3. See Tharu et al. v. Nepal, para. 9.3. 9