CCPR/C/113/D/2000/2010
Committee recommended that States parties should make provisions to ban incommunicado
detention. In the present case, in the light of the findings of the Supreme Court, the
Committee finds that the acts of torture to which the author’s husband was exposed and his
incommunicado detention constitute a violation of article 7 of the Covenant. In the light of
this conclusion, the Committee decides not to consider separately the author’s claims under
article 10 of the Covenant.
11.7 The Committee takes note of the anguish caused to the author by the disappearance
of her husband, the failure of the State party to provide her with adequate reparation, the
alleged threats against and ill-treatment of the author, the misleading explanations provided
to her for a long period by the authorities about the whereabouts of her husband, and the
continued impossibility of obtaining the remains of her husband. The Committee considers
that the material on file reveals a violation of article 7 of the Covenant with respect to the
author.
11.8 The Committee takes note of the author’s complaint under article 9 (1–4), to the
effect that there is no evidence that her husband, who was arrested and detained by security
personnel, was notified about the reasons for and the basis of his arrest and brought before a
judge to challenge the lawfulness of his detention. In the absence of any specific
information by the State party in this regard, due weight must be given to the author’s
allegations. Accordingly, the arrest and detention of the author’s husband constitute a
violation of article 9 of the Covenant.
11.9 In respect of the author’s allegation under article 16, the Committee reiterates its
established jurisprudence, according to which intentionally removing a person from the
protection of the law for a prolonged period of time may constitute a refusal of recognition
as a person before the law if the victim was in the hands of the State authorities when last
seen and, at the same time, if the efforts of his or her relatives to obtain access to potentially
effective remedies, including judicial remedies, have been systematically impeded.23 In the
present case, until 2007 the authorities repeatedly provided the family of Mr. Katwal with
misleading information about his fate, making it impossible for them to find him. Having
not received any comments by the State party on this matter, the Committee finds that the
enforced disappearance of Mr. Katwal deprived him of the protection of the law from the
moment of his arrest, in violation of article 16 of the Covenant.
11.10 The author invokes article 2 (3) of the Covenant, which requires States parties to
ensure that individuals have accessible, effective and enforceable remedies for asserting the
rights recognized in the Covenant. The Committee reiterates the importance it attaches to
States parties establishing appropriate judicial and administrative mechanisms for
addressing alleged violations of rights under domestic law. It refers to its general comment
No. 31, in which it states that a failure by a State party to investigate allegations of
violations could in and of itself give rise to a separate breach of the Covenant.
11.11 The facts in the present case indicate that Mr. Katwal did not have access to an
effective remedy while in detention. Since the moment of her husband’s disappearance, the
author repeatedly approached authorities in different cities, looking for him, but was
provided with misleading information about his whereabouts and fate. Thirteen years after
Mr. Katwal’s arrest, despite the author’s efforts and the Supreme Court order for a criminal
investigation, no thorough and effective investigation has been conducted by the State party
in order to elucidate the exact circumstances surrounding his disappearance and possible
23
See communications No. 2051/2011, Basnet v. Nepal, Views adopted on 29 October 2014, para. 8.7;
No. 2031/2011, Bhandari v. Nepal, Views adopted on 29 October 2014, para. 8.8; No. 1495/2006,
Madoui v. Algeria, Views adopted on 28 October 2008, para. 7.7; and No. 1905/2009, Khirani v.
Algeria, Views adopted on 26 March 2012, para. 7.9.
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