CCPR/C/122/D/2364/2014
incommunicado between 20 October 2003 and 25 August 2004. It also notes the authors’
allegations that Ms. Sharma was tortured, and the evidence provided in support of those
allegations.31 The Committee further notes the authors’ claim that, between 25 August 2004
and 30 June 2005, Ms. Sharma’s conditions of detention remained very harsh, as she
continued to be handcuffed and blindfolded, and was placed in isolated detention until her
release. She was also subjected to reprisals when the letter she sent to her husband became
public on 19 November 2004. Taking into account that the State party has not challenged
the fact that Ms. Sharma was subjected to incommunicado detention and has not provided
evidence to clarify the facts regarding Ms. Sharma’s treatment while in detention, the
Committee finds that the enforced disappearance and the incommunicado detention of Ms.
Sharma, the acts of torture to which she was exposed as well as her conditions of detention,
reveal singular and cumulative violations of article 7 of the Covenant.32 Having reached
that conclusion, the Committee will not examine the claims regarding the alleged violation
of article 10 (1) of the Covenant for the same facts.
9.9
The Committee notes the authors’ allegation under article 9 (1–4) of the Covenant
that Ms. Sharma was arrested on 20 October 2003 without a warrant and without being
informed of the reasons of her arrest. The State party has not challenged the fact that she
was held in unacknowledged and incommunicado in the Bhairabnath Battalion barracks,
that she was not brought before a judge or any other official authorized by law to exercise
judicial power, and that she was unable to bring proceedings before a court to challenge the
lawfulness of her detention. The Committee also notes the authors’ position that Ms.
Sharma’s detention after her hospitalization remained arbitrary, since the conditions of her
detention remained unchanged, she was not brought before a judge and was unable to
consult a legal counsel. Therefore, the Committee considers that the enforced disappearance
of Ms. Sharma from 20 October 2003 to 25 August 2004, and her arbitrary detention
between 25 August 2004 and 30 June 2005, amount to a violation of her rights under
article 9 (1–4) of the Covenant.33
9.10 The Committee is of the view that the intentional removal of a person from the
protection of the law constitutes a refusal to recognize that person as a person before the
law, in particular if the efforts of his or her relatives to obtain access to effective remedies
have been systematically impeded.34 The Committee, therefore, finds that the enforced
disappearance of Ms. Sharma deprived her of the protection of the law and of her right to
recognition as person before the law, in violation of article 16 of the Covenant.
9.11 The Committee notes the anguish and distress caused to Messrs Bijaya and Basanta
Sharma Paudel by the disappearance of Ms. Sharma. The Committee observes that, during
that period, Bijaya Paudel had to work, look after and bring up his two children alone, and
try to locate Ms. Sharma and obtain her release. Messrs Bijaya and Basanta Sharma Paudel
were frightened for their own safety. Those fears were made greater by the frequent
presence of soldiers at their apartment. The Committee observes that the State party has not
provided any argument to refute the allegations relating to the anguish and distress caused
to Messrs Bijaya and Basanta Sharma Paudel by the disappearance of Ms. Sharma. In the
particular circumstances of the present case, the Committee therefore considers that the
facts before it also reveal a violation of article 7 of the Covenant with regard to Messrs
Bijaya and Basanta Sharma Paudel. In the light of the above findings, the Committee will
not examine separately the authors’ allegations under articles 17, 23 (1) and 24 (1) of the
Covenant.35
9.12 As to the authors’ allegations under article 2 (3) of the Covenant, which imposes on
States parties the obligation to ensure an effective remedy for all persons whose rights
under the Covenant have been violated, the Committee recalls that it attaches importance to
31
32
33
34
35
14
See the declarations of co-detainees and the medical evidence of the physical and psychological
impairments suffered by Ms. Sharma as a consequence of the violations she was subjected to.
See Sedhai v. Nepal, para. 8.3.
See Neupane and Neupane v. Nepal, para. 10.9; Basnet and Basnet v. Nepal, para. 8.5.
See Basnet v. Nepal, para. 10.9; Tharu and others v. Nepal, para. 10.9; Serna et al v. Colombia, para.
9.5.; Nakarmi v. Nepal, para. 11.10; Dhakal and others v. Nepal, para. 11.10; and Neupane and
Neupane v. Nepal, para. 10.10.
See Tharu and others v. Nepal, para. 10.11.
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