CCPR/C/123/D/2658/2015
present case, the State party has produced no evidence to show that it met its obligations to
protect the life of Mr. Bolakhe when he was in the authorities’ custody.
7.9
The Committee notes the author’s allegation that Mr. Bolakhe was executed
extrajudicially during an Army patrol. Two witnesses heard the shooting at the time coming
from one direction and from one type of gun the day Mr. Bolakhe was killed. The
Committee observes that this was supported by the findings of the Commission and other
evidence of B.T. himself to the Commission, stating that there had been no crossfire
incident during that time. The Committee takes note of the author’s argument that Mr.
Bolakhe’s execution was not compatible with a possible argument of use of reasonable
force or self-defence and was not subjected to a judicial process. The Committee takes note
of the findings of the Commission in this case stating that the security forces did not follow
legal process for the death of a person in their custody, and concealed the incident, making
the whereabouts of the person unknown.
7.10 The Committee takes note of the State party’s claim that the Army does not use the
type of gun the bullets of which were found during the autopsy in Mr. Bolakhe’s remains.
The Committee also notes the author’s claim that this does not disprove the responsibility
of the Army and the Police for the killing. She adds that there is insurmountable evidence
that her husband was shot by the Army or the Police on a joint operation. This evidence is
corroborated by the finding of Mr. Bolakhe’s remains in the spot referred to in the witness
evidence, and corresponds with the findings of the Commission. The Committee observes
that the Commission named responsible individuals from the Police and Army, and called
on the Government to hold them accountable and to provide the author’s family with
compensation.
7.11 The Committee further recalls that States parties should take measures not only to
prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing
by their own security forces. 36 The Committee also recalls that, under article 2 (3) of the
Covenant, States parties must ensure that all persons have accessible, effective and
enforceable remedies in order to claim the rights enshrined in the Covenant. The
Committee further recalls its general comment No. 31 (2004) on the nature of the general
legal obligation imposed on States parties to the Covenant, particularly the fact that, when
investigations reveal violations of certain Covenant rights, States parties must ensure that
those responsible are brought to justice. As with failure to investigate, failure to bring to
justice perpetrators of such violations could in and of itself give rise to a separate breach of
the Covenant. Those obligations arise notably in respect of violations recognized as
criminal under either domestic or international law, such as torture and similar cruel,
inhuman and degrading treatment, and summary and arbitrary killing (para. 18).
7.12 The Committee takes note of the writ petition before the Supreme Court demanding
a mandamus order for Kavre District Police Office to register the first information report,
which was quashed. The Committee also notes the State party’s argument that Kavre
District Police Office registered the report under culpable homicide in 2006, and that the
case is still under investigation. The Committee also takes note of the State party’s
argument that the author should register the complaint regarding the death of her husband
with the Truth and Reconciliation Commission, and that the Government would take legal
action against those involved in the offence, in accordance with the recommendations of
this Commission.
7.13 Despite the efforts made by the author and her family, no investigation has been
concluded by the State party in order to elucidate the circumstances surrounding the arrest
and death of Mr. Bolakhe and no perpetrator has been tried and punished, although the
Commission has identified three of them. The State party refers to ongoing investigations,
but the status of such investigations and the reasons for their delay remain unclear.
7.14 Accordingly, the Committee considers that the State party has failed to conduct a
prompt, thorough and effective investigation into the circumstances of the arrest, detention
and killing of the author’s husband, in violation of article 6, read alone and in conjunction
with article 2 (3) of the Covenant.
36
14
See the Committee’s general comment No. 6 (1982) on the right to life, para. 3.