ICCPR Case Digest
Chhedulal Tharu and others v. Nepal
- Effective remedy
- Enforced disappearance
- Right to life
- Torture / ill-treatment
- Article 10
- Article 16
- Article 17.1
- Article 23
- Article 24.1
- Article 6
- Article 7
- Article 9
Between 1996 and 2006, an internal armed conflict took place within the State party. The authors are Nepalese nationals and they belong to the Tharu indigenous community. They submit the complaint on behalf of their disappeared relatives and for themselves; they claims that on the night of 11 April 2002, Royal Nepalese Army soldiers arrived in the village and surrounded their house. They have arrested and taken their relatives and these persons never returned. The authorities denied any knowledge of or involvement in the detention of these persons. The Supreme Court quashed their actions because they had failed to identify where and by whom their relatives had been detained.
Regarding the victims of enforced disappearance, authors claim that there is a violation of the article 6 of the Covenant, relating to the right of life because of the relatives’ arbitrary detention and subsequent disappearance by the authorities. They also evoke a violation of the article 7 because the enforced disappearance of their relative and the degree of suffering involved in being held without contact with the outside world. Moreover, the fact that their relatives were arrested or subsequently detained without any explanation from the authorities and, in addition, the State’s failure to treat them, who remain subject to disappearance, constitute violations of the articles 9 and 10 of the Covenant, providing the right to liberty and security of the person and the right to by treated with humanity and respect for the inherent dignity of the human person.
The author also maintain that the failure of the State party to conduct an effective investigation concerning their whereabouts and fate places their relative outside the protection of law, guaranteed by article 16 of the Covenant. Finally, the authors submit that there is a violation of article 23(1) of the Covenant, because of the disappearance of their relatives which results from a separation of family members, and a violation of article 24(1) because some of their disappeared relatives were minors.
The authors claim that they are themselves victims of violation of theirs rights under the Covenant. They express that they have suffered anguish and distress because of their relatives’ disappearance and also because of the failure of authorities to carry out any effective investigation. In this way, they consider that they are victims of a violation of the article 7 of the Covenant, read alone because of the level of suffering, and in conjunction with article 2(3) because of the absence of remedy. They recall that the State party has violated their right to privacy, guaranteed by the article 17(1) of the Covenant, and their right to be protected as a family, provided by the article 23 of the Covenant, by the fact that the soldiers had surrounded their house.
The Committee recalls its jurisprudence that, in cases of serious violations, an effective judicial remedy is required. The Committee observes that the transitional justice bodies are not judicial organs. Accordingly, the Committee considers that the investigation has been ineffective and unreasonably prolonged and that there are no obstacles to the examination of the communication.
Firstly, the Committee recalls that whilst the Covenant does not explicitly use the term “enforced disappearance” in any of its articles, enforced disappearance constitutes a unique and integrated series of acts that represents a continuing violation of various rights recognized in that treaty (see communication N°2000/2010, Katwal v. Nepal, Views adopted on 1 April 2015, para 11.3, http://ccprcentre.org/decision/15284).
Under the consideration of the Committee about disappeared persons, the fact that their mortal remains have not been returned to the without any explanation from the State party, is a violation of the article 6 of the Covenant, relating to the right of life. The Committee finds that there is a violation of article 7, recognizing the degree of suffering involved in being held indefinitely without contact with the outside world. It also recognized the violation of their right to liberty and security, guaranteed by the article 9 of the Covenant, because of the detention without an arrest warrant or proceedings before a court. Finally, it concludes that authorities, shortly after the arrest, was not able to give reliable information about theses disappeared persons and by this attitude, they deprive them to the right to recognition everywhere as a person before the law. It’s a violation of article 16 of the Covenant.
Regarding the authors themselves, the Committee recognizes their anguish and stress caused by the disappearance of their relatives and, in absence of satisfactory explanation, these sufferings constitute a violation of the article 7 of the Covenant. Moreover, it recall its general comment N°31 (http://ccprcentre.org/ccpr-general-comments CCPR/C/Rev.1/Add.13) which provides that a failure by a State party to investigate allegation of violation could, in and of itself, give rise to separate breach of the Covenant. Therefore, the Committee considers that no remedy was provided to the victims of the previous violations and thus, there is a violation of the article 2(3), in conjunction with articles 6(1), 7, 9 and 16 of the Covenant, regarding to the victim of enforced disappearance and with the article 7 of the Covenant, regarding to the authors.
In accordance with article 2(3) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy, including by:
- conducting a thorough and effective investigation into the disappearance of their relatives and providing the authors with detailed information regarding the results of its investigation;
- if their relatives are dead, locating their remains and handing them over to their families;
- prosecuting, trying and punishing those responsible for the violations committed and making the results of such measures public;
- ensuring that any necessary and adequate rehabilitation and treatment are provided to the authors;
- providing effective reparation, including adequate compensation and appropriate measures to the satisfaction of the authors for the violation suffered.
The Committee wishes to receive from the State party, within 180 days, information concerning the measures taken to give effect to the Committee’s Views- on 3 January 2016.