C. Factors and difficulties impeding the implementation of the Convention
(10)
The Committee acknowledges the difficult situation of internal armed conflict faced by the State party, and is
alarmed by the high incidence of atrocities committed by the Communist Party of Nepal (CPN) - Maoist. However, it
points out that no exceptional circumstances whatsoever may be invoked as a justification of torture.
(11)
The Committee regrets the adverse impact of the absence of the Parliament since May 2002 on the capacity of
the State party to implement the Convention, and in particular in respect of the enactment or amendment of legislation,
as well as the ratification of international conventions.
D. Concerns and recommendations
Definition
(12)
The Committee notes with concern that the definition of torture in article 2 (a) of the Compensation Relating to
Torture Act of 1996, the lack of a legal provision in current domestic law to make torture a criminal offence and the
draft Criminal Code are not in line with the definition of article 1 of the Convention against Torture (articles 1 and 4 of
the Convention).
The State party should adopt domestic legislation which ensures that acts of torture, including the acts of
attempt, complicity and participation, are criminal offences punishable in a manner proportionate to the
gravity of the crimes committed, and consider steps to amend the Compensation Relating to Torture Act
of 1996 to bring it into compliance with all the elements of the definition of torture provided in the
Convention. The State party should provide information to the Committee on domestic jurisprudence
referring to the definition of torture as per article 1 of the Convention.
Widespread use of torture
(13)
The Committee is gravely concerned about the exceedingly large number of consistent and reliable reports
concerning the widespread use of torture and ill-treatment by law enforcement personnel, and in particular the
Royal Nepalese Army, the Armed Police Force and the Police, and the absence of measures to ensure the effective
protection of all members of society (arts. 2 and 11).
The State party should publicly condemn the practice of torture and take effective measures to prevent
acts of torture in any territory under its jurisdiction. The State party should also take all measures, as
appropriate, to protect all members of society from acts of torture.
Detention
(14)
The Committee is also concerned about:
(a)
The number of detainees in prolonged detention without trial under the Public Security Act and the
Terrorist and Disruptive (Control and Punishment) Ordnance (TADO) of 2004;
(b)
The extensive resort to pretrial detention lasting up to 15 months and the lack of fundamental
guarantees under the Terrorist and Disruptive (Control and Punishment) Ordnance 2005 of the rights of persons deprived
of liberty, including the right to challenge arrest, resulting in numerous alleged cases of incommunicado detention.
The State party should bring the practice of pretrial detention into line with international human rights
norms and ensure that the fundamental rights of persons deprived of liberty are guaranteed, including
the right to habeas corpus, the right to inform a relative, and the right of access to a lawyer and a doctor
of one’s choice. The State party should ensure that any measure taken to combat terrorism is in
accordance with Security Council resolutions 1373 (2001) and 1566 (2004), which require that
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