CCPR/C/122/D/2364/2014
latest relevant date to take into account when assessing the compatibility of the current
communication with article 96 (c) of the rules of procedure of the Committee. They also
argue that the measures they have taken show beyond any doubt that they have been
proactive in seeking justice.
3.23 The authors request the Committee to recommend that the State party: (a) bring the
perpetrators of Ms. Sharma’s arbitrary deprivation of liberty, torture and enforced
disappearance before the competent ordinary authorities for prosecution, judgment and
sanction, and disseminate publicly the results of those measures; (b) immediately suspend
from office all army officials against whom there is prima facie evidence of involvement in
the crimes against Ms. Sharma, pending the outcome of the investigation; (c) amend the
Commission on Investigation of Disappeared Persons, Truth and Reconciliation Ordinance
adopted on 14 March 2013 in order to make sure that no person accused of gross human
rights violations, including torture, enforced disappearance and arbitrary killing, may
benefit from any amnesty provision exempting him or her from criminal responsibility; (d)
ensure that the authors obtain integral reparation and prompt, fair and adequate
compensation; and (e) ensure that the measures of reparation cover material and moral
damages, and that measures of restitution, rehabilitation, satisfaction and guarantees of nonrepetition are issued. In particular, they request the State party to acknowledge its
international responsibility, by way of a public ceremony conducted in the presence of the
authorities and of the authors to whom official apologies shall be issued. The State party
should also provide the authors with medical and psychological care immediately and free
of charge, through its specialized institutions, and grant them access to free legal aid where
necessary, in order to provide them with effective and sufficient remedies. As a guarantee
of non-repetition, the State party should take the measures necessary to ensure that enforced
disappearance and torture, and the different forms of participation in those crimes,
constitute autonomous offences under its criminal law, punishable by appropriate penalties
that take into account their extreme seriousness. Finally, the State party should establish as
soon as possible educational programmes on international human rights law and
international humanitarian law for all members of the Army, the security forces and the
judiciary.
State party’s observations on admissibility
4.1
In a note verbale dated 23 May 2014, the State party submitted its observations,
challenging the admissibility of the communication on the grounds of lack of substantiation
and failure to exhaust domestic remedies, and requested the Committee to examine the
admissibility separately from the merits.
4.2
The State party maintains that Ms. Sharma was arrested and detained in accordance
with the provisions of the prevailing law of Nepal and, during her detention, she was treated
humanely. Medical facilities were provided to her at Birendra Military Hospital, and while
in detention, she was visited by her family members, whose visit was recorded officially.
She was released in the presence of her husband on 30 June 2005. Hence her detention was
not an act of enforced disappearance. The State party notes that the state of emergency was
in force at the time of Ms. Sharma’s arrest and detention.
4.3
The State party also maintains that the authors’ allegations that Ms. Sharma was
tortured while in detention are not supported by any evidence. If she had been tortured, she
should have sought remedy as provided in the Compensation Relating to Torture Act.
According to the State party, it is not logical to argue that she could not file a case because
the statute of limitation had elapsed. The State party has also categorically refuted the
reports of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment
or punishment and the Working Group on Enforced or Involuntary Disappearances that
torture was systematically practised by the police and the Nepalese Army.
4.4
Ms. Sharma filed a petition with the National Human Rights Commission and
received 161,000 rupees as per the recommendation of the Commission. The Government
provided 25,000 additional rupees as interim relief. The Commission has been empowered
by the Supreme Court to forward its recommendations to file cases on violations of human
rights, and the Attorney General has an obligation to prosecute those cases. The authors
may be entitled to receive reparations in accordance with the investigation and
recommendation of the Commission in relation to the transitional justice mechanism.
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