CCPR/C/126/D/2560/2015
therefore hold that the remedies offered by the Act in terms of reparations cannot be
considered effective in their case. The authors highlight that, as in cases of gross human
rights violations such as those to which they and Amrit Kandel have been subjected, they
are entitled to integral redress for the harm suffered and this must be interpreted in
accordance with the Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law. In particular, the authors call on the Human
Rights Committee to spell out in detail the measures of reparation to which they are entitled.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the claim is admissible
under the Optional Protocol.
6.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of
international investigation or settlement.
6.3
With respect to the requirement of exhaustion of domestic remedies, the Committee
notes the State party’s argument that the authors should have filed their case before the
Commission of Investigation on Enforced Disappeared Persons as part of the transitional
justice process, to seek redress for violations committed during the armed conflict. The
Committee also notes the authors’ argument that the Supreme Court of Nepal, on 1 June
2007, issued a judgment based on its consideration of a writ filed on behalf of 34
disappeared persons, including Amrit Kandel, and ordered the Government to investigate
the status of those disappeared. The Committee further notes the authors’ submission that
Amrit Kandel’s family was awarded monetary compensation in 2009 and 2011 in an
indirect recognition of Amrit Kandel’s enforced disappearance, that the transitional justice
mechanisms have been established only in 2015 and that they have made slow progress in
the conduct of their investigations, and that it has not been necessary to resort to the
Commission, as a non-judicial body, given the Attorney General’s obligation to carry out
an effective investigation ex officio. Additionally, the State party has not taken any
concrete action to investigate the whereabouts of Amrit Kandel or to bring those
responsible to justice since his disappearance was reported to the authorities, despite the
directives from the Supreme Court to do so. Instead, the State party has admitted that the
fate and whereabouts of Amrit Kandel remain unknown. The Committee considers that, in
the present circumstances, the authors have exhausted all available domestic remedies and
that article 5 (2) (b) of the Optional Protocol does not preclude it from considering the
communication. In addition, it recalls that recourse to non-judicial bodies does not have to
be exhausted to fulfil the requirements of the article, in particular when the transitional
justice mechanisms, which are meant to reinforce the regular justice system, have not been
effective in cases of enforced disappearance, as evidenced in the present case.
6.4
As all admissibility requirements have been met, the Committee declares the
communication admissible and proceeds to the examination of the authors’ allegations
under articles 6 (1), 7, 9, 10 and 16, read alone and in conjunction with article 2 (3) of the
Covenant, in respect of Amrit Kandel, and article 7, read alone and in conjunction with
article 2 (3), in respect of Tikanath Kandel and Ramhari Kandel.
Consideration of the merits
7.1
The Committee has considered the communication in the light of all the information
submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
7.2
The Committee takes note of the authors’ allegation that Amrit Kandel has been
arbitrarily arrested, detained and subjected to enforced disappearance since 10 October
2003, and that his fate and whereabouts have not been effectively investigated. It further
notes that the State party has not challenged these allegations. The Committee observes that
the Office of the United Nations High Commissioner for Human Rights has included Amrit
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