CCPR/C/119/D/2184/2012
been carried out to ascertain his whereabouts, thereby maintaining him outside the
protection of the law since then. The Committee is of the view that the intentional removal
of a person from the protection of the law constitutes a refusal of the right to recognition as
a person before the law, in particular if the efforts of his or her relatives to obtain access to
effective remedies have been systematically impeded. 16 The Committee, therefore, finds
that the enforced disappearance of Mr. Nakarmi deprives him of the protection of the law
and of his right to recognition as a person before the law, in violation of article 16 of the
Covenant.
11.11 The author invokes article 2 (3) of the Covenant, which imposes on States parties the
obligation to ensure an effective remedy for all persons whose rights under the Covenant
have been violated. The Committee attaches importance to the establishment by States
parties of appropriate judicial and administrative mechanisms for addressing claims of
rights violations. It refers to its general comment No. 31 (2004) on the nature of the general
legal obligation imposed on States parties to the Covenant, which provides, inter alia, in
paragraph 15, that failure by a State party to investigate allegations of violations could in
and of itself give rise to a separate breach of the Covenant. In the present case, the
Committee observes that, shortly after the detention of the author’s husband, she
approached different barracks of the Royal Nepalese Army and police facilities seeking
information and later filed a writ of mandamus before the Supreme Court. Despite the
author’s efforts, more than 13 years after the disappearance of her husband, no thorough
and effective investigation has been conducted by the State party in order to elucidate the
circumstances surrounding his detention and whereabouts and to bring the perpetrators to
justice. Therefore, the Committee considers that the State party has failed to conduct a
prompt, thorough and effective investigation into the disappearance of Mr. Nakarmi.
Additionally, the sum received by the author as interim relief does not constitute an
adequate remedy commensurate to the serious violations inflicted. Accordingly, the
Committee concludes that the facts before it reveal a violation of article 2 (3), in
conjunction with articles 6 (1), 7, 9 and 16, with regard to Mr. Nakarmi; and article 2 (3),
read in conjunction with article 7, of the Covenant with respect to the author and her minor
daughter.
12.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view
that the information before it discloses violations by the State party of articles 6, 7, 9 and 16
of the Covenant; and of article 2 (3), read in conjunction with articles 6, 7, 9 and 16, of the
Covenant with regard to Mr. Nakarmi. The facts also disclose violations of article 7 and
article 2 (3), read in conjunction with article 7, with respect to the author and her minor
daughter.
13.
In accordance with article 2 (3) (a) of the Covenant, the State party is under an
obligation to provide the author with an effective remedy. This requires it to make full
reparation to individuals whose rights under the Covenant have been violated. Accordingly,
the State party is obligated to, inter alia: (a) conduct a thorough and effective investigation
into the disappearance of Mr. Nakarmi and provide the author with detailed information
about the results of its investigation; (b) if her husband is dead, locate his remains and hand
them over to his family; (c) prosecute, try and punish those responsible for the violations
committed and make the results of such measures public; (d) ensure that any necessary and
adequate psychological rehabilitation and medical treatment are made available to the
author and her minor daughter; and (e) provide adequate compensation and appropriate
measures of satisfaction, to the author, her minor daughter and her husband, if he is alive,
for the violations suffered. The State party is also under an obligation to take steps to
prevent the occurrence of similar violations in the future. In particular, the State party
should ensure that: (a) its legislation allows for the criminal prosecution of those
responsible for serious human rights violations, such as torture, extrajudicial execution and
enforced disappearance; and (b) any enforced disappearance gives rise to a prompt,
impartial and effective investigation.
14.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether there has been a
16
See communications No, 2164/2012, Basnet v. Nepal, Views adopted on 12 July 2016, para. 10.9;
No. 2038/2011, Tharu et al. v. Nepal, Views adopted on 3 July 2015, para. 10.9; and No. 2134/2012,
Serna et al. v. Colombia, para. 9.5.
11