CCPR/C/115/D/2077/2011 6.2 The author submits that the fact that he was tortured during his arbitrary arrest and detention by the Nepalese police on 18 July 2007, as well as the long-term physical and psychological consequences, have been substantiated by medical reports. He also points out that both the Kathmandu District Court and the Kathmandu Appellate Court confirmed that the author had been subjected to torture while in police custody. The violations of articles 9 (1), (2) and (5), 10 (1) and 17 are also, according to the author, well documented. 6.3 With regard to abuse of the right of submission, the author notes that the communication was submitted well within the deadline of five years set in rule 96 (c) of the Committee’s rules of procedure, that it does not contain insulting or inappropriate language and does not misuse the complaint procedure. 6.4 Turning to the argument presented by the State party that torture is prohibited under domestic legislation and provides for redress of violations of any fundamental rights, the author indicates that he does not contest that torture is prohibited in the Constitution. However, he submits that the fact that torture and ill-treatment are prohibited under domestic law does not mean that it does not occur, or that the existing legal framework fully meets international human rights standards on the matter. The author refers to reports of the Working Group on Enforced and Involuntary Disappearances (E/CN.4/2005/65/Add.1) and of the Special Rapporteur on torture (E/CN.4/2006/6/Add.5), in which the existence of a systematic practice of torture in Nepal has been pointed out. Further, a number of local and international organizations, including OHCHR, have documented the widespread and systematic nature of torture in Nepal, as well as the deficiencies in the legal system that allow for the perpetuation of the practice.12 Despite provisions in the Constitution stating that acts of torture shall be punishable by law, acts of torture are neither autonomously criminalized nor sanctioned in Nepalese legislation. The author points out that the draft criminal code does not contain any provision making torture a separate criminal offence. In addition, the Compensation related to Torture Act is an act of civil nature; it does not envision the possibility of criminal prosecution for those found responsible for acts of torture, but rather only pecuniary compensation and disciplinary action against the perpetrators. This situation of impunity, the author argues, does not discourage the commission of acts of torture. 6.5 In the present case, the author notes that the fact that the highest Nepalese judicial organ confirmed a negligible amount of compensation determined under vague criteria,13 which is clearly not an adequate remedy for torture, and that no serious disciplinary action has been taken against the perpetrator, demonstrates the inefficiency of both the legislation prohibiting torture and the means provided to obtain redress. 6.6 Regarding the argument presented by the State party regarding the 2007 events, namely, that the author should have used other mechanisms to seek redress, including the National Human Rights Commission, the author notes that the Commission is not a judicial body. Its powers are limited to documenting cases of human rights violations, conducting enquiries and investigations, recommending potential disciplinary action against alleged perpetrators and making their names public. It has neither the power to undertake criminal proceedings against perpetrators nor to impose punishment. The Commission can never replace access to justice and redress for victims of human rights violations. Referring to the 12 13 See A/HRC/10/53; Advocacy Forum, “Torture still continues: a brief report on the practice of torture in Nepal” (2007); Advocacy Forum, Hope and Frustration: Assessing the Impact of Nepal’s Torture Compensation Act –1996 (2008); and Human Rights Watch, “Still waiting for justice: no end to impunity in Nepal” (2009). The amount granted to the author, 20,000 rupees (about $280) is only one fifth of the maximum amount provided for in the Compensation related to Torture Act. 11