CCPR/C/117/D/2164/2012
or any other official authorized by law to exercise judicial power, and that he could not take
proceedings before a court to challenge the lawfulness of his detention. In the absence of a
response from the State party in that regard, the Committee considers that the detention of
the author’s husband constitutes a violation of his rights under article 9 of the Covenant.
10.9 With regard to the alleged violation of article 16, the Committee notes the author’s
allegations that her husband was arrested by policemen in her presence; that since then the
State party has failed to provide her with relevant information concerning her husband’s
fate and whereabouts; and that no effective investigation has been carried out to ascertain
his whereabouts, 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. Nepali 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.
10.10 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 paragraph 15 of 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, 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 police offices seeking information and later filed a writ of habeas corpus before
the Supreme Court and complained to the National Human Rights Commission. Despite the
author’s efforts, more than 17 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, enforced disappearance and alleged death, and no
criminal investigation has even been started to bring the perpetrators to justice. The State
party has failed to explain the effectiveness and adequacy of the investigations carried out
by the authorities and the concrete steps taken to clarify the circumstances surrounding Mr.
Nepali’s disappearance and possible death. It has also failed to locate his mortal remains
and return them to his family. Therefore, the Committee considers that the State party has
failed to conduct a prompt, thorough and effective investigation into the disappearance of
Mr. Nepali. Additionally, the Nr 100,000 received by the author as interim relief does not
constitute an adequate remedy commensurate with 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. Nepali, and article 2
(3), read in conjunction with article 7 of the Covenant, with respect to the author.
11.
The Committee, acting under article 5 (4), of the Optional Protocol, is of the view
that the information before it discloses a violation 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. Nepali. The facts also disclose violations of article 7, and
article 2 (3), read in conjunction with article 7, with respect to the author.
12.
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 Covenant rights have been violated. Accordingly, the State
party is obligated, inter alia, to (a) conduct a thorough and effective investigation into the
16
12
See Tharu and others v. Nepal, para. 10.9, and Serna and others v. Colombia, para. 9.5.