CCPR/C/114/D/2038/2011
for implementation of the Supreme Court’s decision, as the main political leaders had
issued public statements rejecting the decision.
8.
On 11 December 2014, the State party reiterated its commitment to establishing a
transitional justice mechanism and informed the Committee about the adoption of the Act
by its parliament, providing a brief description of the main provisions. It held that the Act
was a landmark instrument to address the issue of past human rights violations committed
by both the State party and non-State actors.
Issues and proceedings before the Committee
Consideration of admissibility
9.1
Before considering any claim contained in a communication, the Human Rights
Committee must, in accordance with rule 93 of its rules of procedure, decide whether the
case is admissible under the Optional Protocol to the Covenant.
9.2
As required under article 5 (2) (a) of the Optional Protocol, the Committee has
ascertained that the same matter is not being examined under another procedure of
international investigation or settlement. The Committee notes that the cases of Dhaniram,
Radhulal, Kamala, Chillu, Lauti, Mohan, Prem Prakash and Soniram were reported to the
Working Group on Enforced or Involuntary Disappearances. However, it recalls that extraconventional procedures or mechanisms established by the Commission on Human Rights
or the Human Rights Council, and whose mandates are to examine and report publicly on
human rights situations in specific countries or territories, or cases of widespread human
rights violations worldwide, do not generally constitute an international procedure of
investigation or settlement within the meaning of article 5 (2) (a) of the Optional Protocol.14
Accordingly, the Committee considers that it is not precluded from examining the
communication under this provision.
9.3
The Committee notes the State party’s argument that the communication does not
fulfil the requirements of article 5 (2) (b) of the Optional Protocol, owing to the fact that the
authors have failed to lodge a complaint before a court under the Compensation relating to
Torture Act and to invoke the State Cases Act, and that the cases of the authors’ relatives
should be addressed within the transitional justice mechanisms established by Act 2071
(2014), in conformity with the 2007 Interim Constitution and the 2006 Comprehensive
Peace Agreement. The Committee also notes the authors’ allegations that the Supreme
Court quashed their writs of habeas corpus because they failed to identify where and by
whom their relatives had been detained; the Compensation relating to Torture Act is not an
adequate remedy for the violations suffered by their relatives; and that a first information
report is not an appropriate remedy, as it is limited to the crimes listed in Schedule 1 of the
State Cases Act, which does not include enforced disappearance. The Committee observes
that, although the authors promptly reported their relatives’ disappearance to the authorities,
more than 13 years later the circumstances of their disappearance remain unclear and no
investigation has yet been concluded. The Committee further recalls its jurisprudence that,
in cases of serious violations, an effective judicial remedy is required. In this respect, the
Committee observes that the transitional justice bodies established by Act 2071 (2014) are
not judicial organs. Accordingly, the Committee considers that the investigation has been
ineffective and unreasonably prolonged and that there are no obstacles to the examination
of the communication under article 5 (2) (b) of the Optional Protocol.
14
See communication Nos. 1874/2009, Mihoubi v. Algeria, Views adopted on 18 October 2013, para. 6.2;
and 1882/2009, Al Daquel v. Libya, Views adopted on 21 July 2014, para. 5.2.
11