CCPR/C/122/D/2265/2013 standards. The authors further argue that, according to the jurisprudence of the Committee, administrative, disciplinary or civil remedies are not adequate to address crimes of such seriousness as torture and enforced disappearance.7 5.3 In relation to not having filed a first information report, the authors note that torture and enforced disappearance are not crimes that can be reported under this remedy, as such reports are limited to the crimes listed in schedule 1 of the State Cases Act of 1992, which does not include torture. They submit that they cannot be expected to report crimes different from the ones they were subjected to. Furthermore, the police refused to register the first information report Ms. Sharma tried to submit (paras. 2.4 and 2.5). The authors note that the Committee has considered that the first information report is not an effective remedy for the purposes of article 5 (2) of the Optional Protocol.8 They further consider that the State party recognized that they could not have used either of these two remedies when it stated that judicial proceedings against the perpetrators of human rights violations could be initiated in a court of law once the truth commission submitted a report. 5.4 The authors also note that, although they were unable to file a first information report or a complaint, they have taken other steps to seek justice (see paras. 2.16 and 2.19). The State, however, has failed to explain why it has not pursued an ex officio investigation. 5.5 The authors informed the Committee that on 2 January 2014, the Supreme Court of Nepal had declared the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Ordinance, 2069 (2012), of 14 March 2013 unconstitutional. The Court had ordered the Nepalese authorities to establish a new commission without delay. Furthermore, fact-finding processes by non-judicial bodies, although crucial for the establishment of the truth, could never replace access to justice and redress for victims of gross human rights violations, as the criminal justice system was the more appropriate avenue for the immediate investigation into and punishment of criminal acts. Accordingly, the prospective commission could not be considered an effective remedy to be exhausted by the authors. 5.6 The authors note that, notwithstanding the State party’s claim to the contrary, they have submitted a number of documents in support of their allegations. Their allegations were confirmed by a former fellow detainee of Mr. Sharma’s, Mr. Jit Man Basnet, in his testimony before the National Human Rights Commission. A report by the Nepal office of OHCHR (OHCHR–Nepal) expressly names Mr. Sharma as one of the prisoners detained from late November to mid-December 2003.9 The authors also attached a picture portraying Mr. Sharma with a tyre forced around him by army personnel. They also contend that the way in which the writ of habeas corpus was processed demonstrates that his detention was denied and concealed by the authorities. Since an enforced disappearance is characterized by deprivation of liberty and the State’s refusal to acknowledge it, the authors maintain that Mr. Sharma was subjected to arbitrary arrest and enforced disappearance. These allegations fit in the context of the widespread use of torture and enforced disappearance against members of the Maoist-affiliated All Nepal National Independent Student Union (Revolutionary). Finally, the authors argue that, as supported by the jurisprudence of the Committee, the burden of proof in this regard cannot rest solely on the authors.10 5.7 The authors deny the State party’s claim that a detention order was handed to Mr. Sharma prior to his arrest in February 2005 and maintain that he was first subjected to enforced disappearance and then arbitrarily detained from 8 March 2005 to 19 December 2005. The authors contend that the fact that a detention is not a violation of domestic law does not imply that it complies with international human rights law. In this case, Mr. Sharma was not charged with any crime during these two periods; he was never given an opportunity to challenge the legality of his detention, and the writ of habeas corpus that Ms. Sharma initiated on 29 October 2003 did not lead to his release until 19 December 2005. 7 8 9 10 8 The authors refer to Benaziza et al. v. Algeria (CCPR/C/99/D/1588/2007), para. 8.3, among others. The authors refer to Sharma and Prasad Sharma v. Nepal (CCPR/C/94/D/1469/2006), para. 6.3. “Report of investigation into arbitrary detention, torture and disappearances at Maharajgunj RNA barracks, Kathmandu, in 2003–2004” (May 2006). p. 52. The authors refer to Sharma and Prasad Sharma v. Nepal (CCPR/C/94/D/1469/2006), para. 7.5.