CCPR/C/122/D/2364/2014
liberty suffered by Ms. Sharma for over 10 months infringed upon her dignity, in violation
of article 10 (1) of the Covenant.
3.7
The authors consider Ms. Sharma’s enforced disappearance as a failure to recognize
her as a person before the law insofar as the State refused to disclose her fate or
whereabouts, putting her outside of the protection of the law. 10 The authors thus contend
that the State party violated Ms. Sharma’s rights under article 16 of the Covenant.
3.8
The authors argue that the ongoing failure of the authorities of the State party to
conduct an ex officio, prompt, impartial and independent investigation into Ms. Sharma’s
arbitrary detention, disappearance and torture, in order to provide her with adequate
remedies, and to prosecute and sanction the perpetrators, constitute a violation of article 2
(3), read in conjunction with articles 6, 7, 9 (1–4), 10 (1) and 16 of the Covenant.
3.9
While Ms. Sharma’s enforced disappearance ended on 25 August 2004, when she
succeeded in secretly sending a letter to her husband, her arbitrary detention continued until
30 June 2005. According to the authors, the circumstances during that period reveal a
violation of articles 7, 9 (1–4) and 10 of the Covenant, read alone and in conjunction with
article 2 (3).
3.10 The authors allege that Ms. Sharma was subjected to a violation of articles 7 and
10 (1) of the Covenant during that second period of detention owing to the poor detention
conditions, especially taking into account her weak health after hospitalization, and because
of the reprisals she was subjected to when the letter she had sent to her husband had
become public. She was also placed in isolated detention for around six months until her
release on 30 June 2005.
3.11 The authors also contend that the continuation of Ms. Sharma’s detention after her
hospitalization remained arbitrary, and that she was neither shown an arrest warrant when
she was brought back from the hospital, nor accused of any crime. She was not brought
before a judge, nor was she given the possibility to consult a legal counsel. In its 8 June
2005 ruling ordering the release of Ms. Sharma, the Supreme Court confirmed the
arbitrariness of her detention, which amounted to a violation of article 9 (1–4) of the
Covenant.
3.12 During the second period of detention, no ex officio, prompt, impartial or
independent investigation was launched with reference to Ms. Sharma’s arbitrary detention
and ill-treatment, which the authors argue represents a continuing violation of article 2 (3),
read in conjunction with articles 7, 9 and 10 (1) of the Covenant.
3.13 The authors allege that Mr. Paudel was subjected to a violation of article 7 of the
Covenant owing to the anguish and distress he experienced during the enforced
disappearance of his wife, and the fear for his sons’ safety as well as his own. Those fears
were made greater by the frequent presence of soldiers at his apartment, for the purpose of
keeping a close watch on his family.
3.14 The authors contend that, in addition to the anguish and distress linked to his search
for his wife, Mr. Paudel had to suffer the arbitrary presence of soldiers at his apartment and
the holding of his children at Nilgagan Public School for a month against his will, all while
working and taking care of the children. The threats by the Army, and Ms. Sharma’s duty to
report to the barracks after her release, continued to affect his family. Therefore, the
enforced disappearance of his wife caused a grave disruption to his family life, in violation
of articles 17 and 23 (1) of the Covenant.
3.15 Mr. Paudel submits that the existing domestic legal framework does not make it
possible to claim any compensation or redress, in violation of article 2 (3), read in
conjunction with articles 7, 17 and 23 (1) of the Covenant.
3.16 The authors also contend that Ms. Sharma’s disappearance disrupted her eldest son’s
family life. Basanta Sharma Paudel missed parental attention and care, since his father had
10
6
The authors refer to Aouali, Faraoun and Bouregba v. Algeria; Larbi v. Algeria
(CCPR/C/108/D/1831/2008); Azouz v. Algeria; and Abushaala v. Libya (CCPR/C/107/D/1913/2009).