CCPR/C/122/D/2265/2013 5.8 The authors assert that they have alleged not that Ms. Sharma was arrested, detained, harassed or tortured but that she suffered trauma, anguish and stress owing to her husband’s disappearance. State party’s observations on the merits 6.1 In its observations dated 5 March 2014, the State party submits that the authors failed to provide evidence of the arbitrariness of Mr. Sharma’s detention. It reiterates that a detention order was duly delivered and that Mr. Sharma was treated humanely during his detention. It is noted that the state of emergency was declared on 26 February 2001, in conformity with the Covenant. Mr. Sharma’s detention was in accordance with the prevailing law in Nepal and was not an enforced disappearance. 6.2 The State party contends that the authors have not been able to provide evidence of the allegations of torture and rejects the assertions of the Special Rapporteur on torture and the Working Group on Enforced or Involuntary Disappearances that torture was systematically practiced by the police and the army. If Mr. Sharma had been a victim of torture, he would have sought a remedy under the Compensation Relating to Torture Act or lodged a petition with the National Human Rights Commission, which is an independent and autonomous body established in conformity with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles). There are no statutory limitations on bringing cases of torture to the Commission. 6.3 The State party maintains that it is committed to establishing a transitional justice mechanism. The Government of Nepal promulgated the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Ordinance, but on 2 January 2014 the Supreme Court ordered the Government not to implement it and to amend it to bring it into line with the Constitution and the principles of justice. The process will be continued by the newly elected Constituent Assembly. The State party is of the view that it would be inappropriate for the Committee to continue considering the communication, as the Committee’s communication mechanism is meant to complement domestic mechanisms, not to supplant them. The difficult context of Nepal should be taken into consideration when assessing the progress it had made towards the establishment of a transitional justice mechanism. The Government is currently drafting bills to criminalize torture and enforced disappearance. 6.4 The authors, according to the State party, have failed to exhaust domestic remedies, and the matter at hand can be addressed through the transitional justice mechanism. Authors’ comments on the State party’s observations on the merits 7.1 On 10 April 2014, the authors submitted their comments on the State party’s observations on the merits. Regarding the non-exhaustion of domestic remedies, they reiterate their arguments presented on 14 October 2013. 7.2 In their comments, the authors note that the State party does not challenge the allegations concerning the violations suffered by Ms. Sharma and that it seems to acknowledge that she is a victim of a violation of her rights under article 7, read alone and in conjunction with articles 2 (3) and 17. 7.3 The authors reiterate that Mr. Sharma was subjected to an enforced disappearance (paras. 5.6 and 5.7). Furthermore, as he was deprived of liberty on 21 October 2003, this deprivation of liberty could not have been in compliance with the Terrorist and Disruptive Activities (Control and Punishment) Ordinance, which was adopted only in 2004. He was never provided with a detention order, and the State party has failed to provide any evidence of any such document. The arbitrariness of Mr. Sharma’s detention was confirmed by the Supreme Court of Nepal on 19 December 2005. 7.4 The authors note that, although Mr. Sharma was taken to Birendra Military Hospital, he did not obtain any treatment or assistance and that he suffers from permanent health impairments. 7.5 The authors reiterate that Mr. Sharma was subjected to torture and ill-treatment and that the State party has not been able to refute those allegations. They note that they have provided a picture taken after a torture session as a piece of evidence and that the State party has not challenged the fact that Mr. Sharma was detained incommunicado for 17 9