ICCPR Case Digest

CCPR/C/125/D/2556/2015

Communication

2556/2015

Submission: 2014.06.20

View Adopted: 2019.03.18

Fulmati Nyaya v. Nepal

Arbitrary deprivation of liberty of 14 year old Nepalese author, Committee finds rape to be an interference with family life, dissenting member disagrees

Substantive Issues
  • Arbitrary interference with family
  • Effective remedy
  • Forced labour
  • Liberty and security of person
  • Non-discrimination
  • Privacy
  • Recognition as a person before the law
  • Respect for the inherent dignity of the human person
  • Right to liberty
  • Rights of the child
  • Torture / ill-treatment
Relevant Articles
  • Article 10.1
  • Article 17
  • Article 2
  • Article 23.1
  • Article 24.1
  • Article 26
  • Article 3
  • Article 5.2.b
  • Article 7
  • Article 8.3(a)
  • Article 9
Full Text

Facts

The author is a member of the indigenous Tharu community and a national of Nepal who claimed that the state party has violated her rights under articles 2, 3, 7, 8 (3) (a), 9, 10 (1), 17, 23 (1), 24 (1) and 26 of the Covenant.

The author was arrested when she was 14 years old by the Royal Nepalese Army. She was dragged into a truck where she was blindfolded, handcuffed and taken to an army barracks. During the arrest, the author was sexually assaulted by a group of six to seven soldiers. Later that day, she was taken to another barracks where she was detained incommunicado. During the first 9 days of her detention, she was held in inhuman and degrading conditions, with 80 to 90 other detainees. She was interviewed at regular intervals, with numerous interviews each day.

During her detention, she was raped and subjected to other forms of sexual violence, including forced nudity, insertion of objects in her vagina and other sexual assaults. She was also subjected to beatings, kicking, punching, prolonged blindfolding and handcuffing, threats, insulting and denigrating language, and coerced extraction of confessions. Following the sexual assault, she was unable to urinate and was bleeding profusely, which lasted for a week and she did not receive any medical attention. She was threatened not to inform anyone or she would be murdered.

The author was later moved to a different detention facility, where she was subjected to further sexual assault and forced to work in laborious conditions.

In June 2002, the author's father petitioned her release, and paid NPR 50,000 to secure the author's release. After a month and a half, the author's father found her and brought her back to the village. Upon her return, she was considered a social outcast owing to the cultural attitudes and stigma around women who have been raped, and was often referred to as "impure girl".

The author was married in 2009, however when her husband found out about her history in detention, her husband and in-laws rejected her. The author was deeply humiliated, and returned to her family home.

The author claimed unsuccessfully to have her case heard in the Nepali courts, with the case still pending at the time of submission to the Human Rights Committee.

Complaint

The author claimed that the state party has articles 7, 8 (3) (a) and 10 (1), read alone and in conjunction with articles 2 (1, 2 and 3), 3, 24 (1) and 26 of the Covenant because of the rape, sexual abuse, torture, ill-treatment, inhumane conditions of detention and the forced labour that she was subjected to and the subsequent failure by the State party to provide an effective remedy and to carry out an ex officio, prompt, effective, independent, impartial and thorough investigation into her allegations, and to prosecute and sanction those responsible.

The author also alleged to be a victim of article 9 (1, 2 and 3), read alone and in conjunction with articles 2 (3) and 24 (1) of the Covenant because she was subjected to arbitrary arrest and detention. 

The author also alleged a violation of articles 17 and 23(1), and article 26 of the Covenant, due to the arbitrary interference with her privacy and sexual life as a woman, the disruption of her family life and unlawful attacks on her honour and reputation. 

Merits

The Committee considered that the rape and other acts of sexual violence inflicted by the Nepalese Army and the Police upon the author, a 14-years-old indigenous girl at the time of the events, violated the author’s rights under articles 7 and 24 (1) of the Covenant. The Committee also noted that these allegations were uncontested by the state party.

In light of the violence that the author was subjected to, the Committee also found that the State party had violated the author’s right not to be subjected to gender discrimination under articles 2 (1) and 3, read alone in conjunction with articles 7, 24 (1) and 26 of the Covenant. 

The Committee also found that the exercise of authority over a child in arbitrary detention, including in such a degrading and discriminatory context, falls within the scope of the proscriptions set out in article 8 of the Covenant and, therefore, constitutes a violation of article 8 (3), read alone and in conjunction with articles 7 and 24 (1) of the Covenant.

On the issue of the author being forcibly removed by a large police and military contingent, the Committee considered that the ers that the author’s arrest and detention constituted a violation of article 9 of the Covenant. 

On the author’s complaint regarding article 17 of the Covenant, the Committee found that the rape of the author constituted an arbitrary interference with her privacy and sexual autonomy, in violation of article 17 of the Covenant. On this basis, and in view of the shame and stigma the author felt as a result of such a violation, the Committee also found a violation of article 23(1) of the Covenant.

Recommendations

In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors 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 facts surrounding the arrest, detention and rape of Ms. Nyaya and the treatment she suffered in detention;
  • (b) prosecute, try and punish those responsible for the violations committed;
  • (c) provide the author with detailed information about the results of the investigation;
  • (d) ensure that any necessary and adequate psychological rehabilitation and medical treatment is provided to the author free of charge; and
  • (e) provide effective reparation, adequate compensation and appropriate measures of satisfaction to the author for the violations suffered, including arranging an official apology in a private ceremony.

The State party is also under an obligation to take steps to prevent the occurrence of similar violations in the future. In particular, the State party should ensure that its legislation

  • (i) criminalize torture and provide for appropriate sanctions and remedies commensurate with the gravity of the crime,
  • (ii) adapt the definition of rape and other forms of sexual violence in accordance with international standards,
  • (iii) guarantee that cases of rape, other forms of sexual violence and torture give rise to a prompt, impartial and effective investigation;
  • (iv) allow for criminal prosecution of those responsible for such crimes; and
  • (v) remove obstacles that hinder the filing of complaints and effective access to justice and compensation for victims of rape and other forms of sexual violence against women and girls in the context of the Nepali armed conflict, as forms of torture, including a significant increase of the statute of limitations commensurate with the gravity of such crimes.

Separate Opinions

Individual opinion of Committee Member Mr. José Santos Pais (partly concurring)

  • Committee Member Mr. José Santos Pais fully concurred with the Committee in all findings of violations except the holding of the state party for the disruptions of the author's marriage.
  • On this basis, Santos Pais concurred with the Committee’s finding that the sexual violation constituted an arbitrary interference with the authors privacy and family life, however could not agree that the flow-on effects on the author’s life (namely stigma, social ostracization and shame) constituted a violation of article 17 and article 23(1) by the state. 
  • Santos Pais argued that holding the state party responsible opened up an avenue for state responsibility that has little boundaries, both in terms of the number of years to take into account after the events and as to the extent of such responsibility. 

Implementation

The Committee requested that the state party provide an update outlining measures taken to give effect to the Committee's views within 180 days, or prior to 18 September 2019.

For more information, see: 

Rules of Procedure of the Human Rights Committee

Rules of Procedure of the Human Rights Committee CCPR/C/3/Rev.10

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CCPR NGO Participation

Documents adopted by the Human Rights Committee (March 2012)

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CCPR NHRI Participation

Documents adopted by the Human Rights Committee (November 2012)

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