CCPR/C/112/D/2111/2011
explanation from the State party, the Committee considers that the facts described
constitute a violation of article 9 of the Covenant.
7.7
In respect of article 16 of the Covenant, the Committee reiterates its established
jurisprudence, according to which intentionally removing a person from the protection of
the law for a prolonged period of time may constitute a refusal of recognition as a person
before the law if the victim was in the hands of the State authorities when last seen and, at
the same time, if the efforts of his or her relatives to obtain access to potentially effective
remedies, including judicial remedies (see art. 2, para. 3, of the Covenant), have been
systematically impeded.16 In the present case, the author claims that, despite the efforts of
Mr. Tripathi’s family, the State party has failed to provide them with relevant information
concerning his fate and whereabouts and that despite the recommendations of the National
Human Rights Commmission and the ruling by the Supreme Court of 1 June 2007, no
effective investigation has been carried out to ascertain his whereabouts, maintaining him
outside the protection of the law since September 2003. The Committee, therefore, finds
that the enforced disappearance of Mr. Tripathi deprives him of the protection of the law
and deprived him of his right to recognition as person before the law, in violation of
article 16 of the Covenant.
7.8
The author invokes article 2, paragraph 3, of the Covenant, which requires States
parties to ensure that individuals have accessible, effective and enforceable remedies for
asserting the rights recognized in the Covenant. The Committee reiterates the importance it
attaches to States parties establishing appropriate judicial and administrative mechanisms
for addressing alleged violations of rights under domestic law. It refers to its general
comment No. 31 (2004) on the nature of the general legal obligation imposed on States
parties to the Covenant, in which it states 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 losing contact with her
husband, the author approached several barracks in Kathmandu, tried to report his
disappearance to the Chief District Officer in Hanumandhoka and lodged a writ of habeas
corpus with the Supreme Court. Despite the author’s efforts, almost 12 years after the
disappearance of her husband, no thorough and effective investigation has been concluded
by the State party in order to elucidate the circumstances surrounding his detention, and no
criminal investigation has even been started to bring the perpetrators to justice. Therefore,
the Committee considers that the State party has failed to conduct a thorough and effective
investigation into the disappearance of the author’s husband. Additionally, the Nr. 300,000
received by the author as interim relief does not constitute an adequate remedy
commensurate with the seriousness of the violations inflicted. Accordingly, the Committee
concludes that the facts before it also reveal a violation of article 2, paragraph 3, read in
conjunction with articles 6, paragraph 1; 7; 9 and 16 of the Covenant, with regard to
Mr. Tripathi; and article 2, paragraph 3, read in conjunction with article 7 of the Covenant
with respect to the author and C.T.
8.
The Human Rights Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights, is of the view that the
information before it discloses violations by the State party of articles 6, paragraph 1; 7; 9
and 16 of the Covenant; and of article 2, paragraph 3, read in conjunction with articles 6,
paragraph 1; 7; 9 and 16 of the Covenant with regard to Gyanendra Tripathi; and of
16
See El Abani v. Libyan Arab Jamahiriya, para. 7.9; and communications No. 1327/2004, Grioua v.
Algeria, Views adopted on 10 July 2007, para. 7.8; No. 1495/2006, Madoui v. Algeria, Views adopted
on 28 October 2008, para. 7.7; and No. 1905/2009, Khirani v. Algeria, Views adopted on 26 March
2012, para. 7.8.
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