CCPR/C/122/D/2265/2013
party in that regard, the Committee finds that the enforced disappearance of Mr. Sharma
and the acts of torture he was subjected to thereafter constitute a violation of article 7 of the
Covenant. Having reached that conclusion, the Committee will not examine the authors’
claims, which are based on the same facts, regarding the alleged violation of article 10 (1).
10.8 The Committee considers that the enforced disappearance that Mr. Sharma was
subjected to constitutes a violation of his rights under article 9 of the Covenant.
10.9 The Committee is of the view that the intentional removal of a person from the
protection of the law constitutes a refusal to recognize that person 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.24 The Committee therefore finds that the enforced
disappearance of Mr. Sharma deprived him of the protection of the law and of his right to
recognition as person before the law, in violation of article 16 of the Covenant.
10.10 The Committee notes the anguish and distress caused to Ms. Sharma by the
disappearance of her husband from the time of his arrest to 8 March 2005, when the
authorities confirmed his whereabouts. The Committee observes that, during that period,
Ms. Sharma had to look after and bring up their three young children alone. It also observes
that, soon after Mr. Sharma disappeared, Ms. Sharma made several attempts to establish her
husband’s whereabouts and that she was treated in a hostile manner by the authorities, who
officially denied the detention. The Committee notes that the State party denied that the
authorities had arrested, detained, tortured or harassed Ms. Sharma but also that the authors
never alleged that she had suffered this kind of treatment. The Committee also notes that
the State party has not refuted the allegations that Ms. Sharma was treated with hostility by
the authorities or contested her claims about the anguish and distress caused by the
disappearance of her husband. In the particular circumstances of the present case, the
Committee therefore considers that the facts before it also disclose a violation of article 7 of
the Covenant with regard to Ms. Sharma.25 In the light of the above findings, the
Committee will not examine separately the authors’ allegations concerning the violation of
their rights under article 17.26
10.11 As to the authors’ allegations under 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 notes that it attaches importance to
the establishment by States parties of appropriate judicial and administrative mechanisms
for addressing claims of human rights violations. In general comment No. 31 (2004) on the
nature of the general legal obligation imposed on States parties to the Covenant, the
Committee 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 Mr. Sharma did not have access to an effective remedy while in
detention or after his release. During her husband’s detention, Ms. Sharma approached a
police station seeking information. She later filed a writ of habeas corpus before the
Supreme Court and complained to the National Human Rights Commission. The authors’
efforts, the Commission’s recommendations to investigate and the Supreme Court’s
mandamus order directing the Government to initiate an investigation into the
circumstances of Mr. Sharma’s detention and enforced disappearance and provide
appropriate reparations have all been to no avail. It has been more than 11 years since
Mr. Sharma was first detained, but no thorough and effective investigation into the
circumstances surrounding Mr. Sharma’s detention and enforced disappearance has been
carried out by the State party, and no criminal investigation to bring the perpetrators of the
crimes he was a victim of to justice has been launched. The payment of 100,000 rupees that
he received as interim relief is not a remedy commensurate with the serious rights
violations he and his wife endured. Accordingly, the Committee concludes that, in respect
of Mr. Sharma, the facts before it disclose a violation of article 2 (3), read in conjunction
24
25
26
See Basnet and Nepali v. Nepal (CCPR/C/117/D/2164/2012), para. 10.9; and Tharu et al. v. Nepal
(CCPR/C/114/D/2038/2011), para. 10.9.
See El Abani (El Ouerfeli) et al. v. Libyan Arab Jamahiriya (CCPR/C/99/D/1640/2007), para. 7.5.
See Mandić v. Bosnia and Herzegovina (CCPR/C/115/D/2064/2011), para. 8.6.
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