CCPR/C/122/D/2364/2014 4.5 In line with the Constitution and the Comprehensive Peace Agreement, Parliament enacted the Disappearance, Truth and Reconciliation Commission Act, which has paved the way for the establishment of the Commission of Investigation on Enforced Disappearance and the Truth and Reconciliation Commission. Hence, the State party does not consider it appropriate to continue to consider the present communication, as the transitional justice mechanism is in the process of being established. The Government is also in the process of criminalizing torture and enforced disappearance. According to the State party, the ordinary criminal justice system cannot be used effectively to seek the truth, prosecute perpetrators and provide reparations to victims of human rights violations committed during the armed conflict. Authors’ comments on the State party observations on admissibility 5.1 On 3 June 2014, the authors submitted their comments on the State party’s observations. They noted that the State party did not challenge the violations with regard to Messrs Bijaya and Basanta Sharma Paudel. As regards Ms. Sharma, the authors contend that the State party also presented arguments on the merits and therefore consider it necessary to address some of its allegations. The authors argue that the Committee should consider the reply submitted on 23 May 2014 by the State party as related both to the merits and the admissibility of the complaint and proceed to adopt its Views. 5.2 With regard to the argument of the State party that Ms. Sharma’s arrest and detention were not arbitrary, the authors refer to their communication, in which they described in detail how she had been arbitrarily deprived of her liberty and held in unacknowledged and incommunicado detention. The authors argue that the State party did not clarify the provisions pursuant to which Ms. Sharma was arrested, and did not rebut the fact that Ms. Sharma was not informed of the reasons for her arrest, was not allowed to contact her family or legal representative and could not challenge the lawfulness of her detention as she was never brought before a judge or other officer authorized by law. The fact that Ms. Sharma obtained medical attention at the military hospital was never challenged by the authors, but she was only given access to that medical care in June 2004, more than eight months after her arrest. The authors also do not contend that Ms. Sharma was released in the presence of her husband on 30 June 2005, but her release did not change the fact that, between 20 October 2004 and 25 August 2004, she was held incommunicado. In fact, her release followed an order of the Supreme Court of Nepal, which affirmed that her detention had been illegal. The National Human Rights Commission and the Kathmandu District Administrative Office also affirmed that Ms. Sharma had been subjected to enforced disappearance. 5.3 With regard to the State party’s contention that the authors did not provide evidence that Ms. Sharma was tortured, the authors refer to the details provided in their communication, the declarations made by witnesses and the evidence of the physical and psychological impairment suffered as a consequence of the treatment to which Ms. Sharma was subjected. The authors argue that torture is not yet defined in Nepalese law and is not a criminal offence. The State party does not challenge the fact that Ms. Sharma was subjected to incommunicado detention and that she endured inhumane conditions throughout her entire period of detention. The burden of proof should not rest alone on the authors of the communication, considering that the authors and the State party do not have equal access to the evidence.16 In addition, being subjected to prolonged incommunicado detention in an unknown location amounts to torture, as the Committee has affirmed in the past. 17 Furthermore, the authors argue that the widespread and systematic use of torture in Nepal has also been confirmed by the Committee against Torture pursuant to its enquiry procedure.18 5.4 The authors do not contest that Ms. Sharma obtained interim relief, but assert that this was only a temporary measure that must be complemented by other measures aimed at granting integral reparation. Interim relief does not even amount to fair and adequate compensation for the harm suffered. The State party does not contend that the authors never 16 17 18 The authors refer to Hugo Dermit Barbato v. Uruguay (CCPR/C/OP/2). The authors refer to Sedhai v. Nepal. See A/67/44, annex XIII, paras. 1-130. 9