ICCPR Case Digest

CCPR/C/126/D/2560/2015

Communication

2560/2015

Submission: 2014.04.11

View Adopted: 2019.07.15

Tikanath and Ramhari Kandel v. Nepal

Enforced disappearance of teenage students in Kathmandu

Substantive Issues
  • Arbitrary arrest
  • Arbitrary detention
  • Effective remedy
  • Enforced disappearance
  • Fair trial
  • Respect for the inherent dignity of the human person
  • Right to liberty
  • Right to life
  • Torture / ill-treatment
Relevant Articles
  • Article 10
  • Article 2.3
  • Article 6
  • Article 7
  • Article 9
Full Text

Facts

The authors are two Nepali nationals who claim violations by the state party of Mr. Amrit Kandel’s rights under articles 2(3), 6, 7, 9, 10 and 16, and of Mr. Tikanath’s and Ramhari’s rights under article 7 alone, and in conjunction with article 2 (3) of the Covenant.

At the time of the communication, Mr. Ramhari Kandel  was a student in Kathmandu, and affiliated to the All Nepal National Independent Student Union- Revolutionary (ANNISU-R), the students’ wing of the then Communist Party of Nepal-Maoist (hereinafter CPN-M). His brother Mr. Amrit Kandel was a windowpane shopkeeper.

In October 2003, Mr. Amrit Kandel was walking in Kathmandu when 12 armed men in plain clothes attacked Mr. Kandel and took him under their control. A month earlier, his brother had also been taken by seven RNA personnel who broke into his apartment.

Both brothers were detained incommunicado, and subject to inhuman and degrading treatment including beatings and interrogations for three months. The brothers noticed each others' voices while in detention, and managed to briefly communicate on a few occassions.

Both boys were subject to cruel, inhuman and degrading treatment. They were often forced to sleep in open air gravel, and most of the time kept in blindfolds and handcuffed. Many detainees were subjected to electroshocks and submerged in water.

Mr. Tikanath Kandel found out about the arrests in September 2003, and filed a complaint with the National Human Rights Commission, as well as the ICRC. Mr. Ramhari Kandel was was released in December 2009, however the fate and whereabous of Mr. Amrit Kandel were never revealed.

For further info, see: https://www.theguardian.com/world/2009/mar/05/nepal-human-rights.

Complaint

The authors of the communication submit that Nepal has violated articles 6, 7, 9, 10 and 16 of the Covenant, read alone and in conjunction with article 2 (3) of the Covenant, with regard to the arbitrary arrest, torture and enforced disappearance of Mr. Amrit Kandel, as well as the ongoing failure of the Nepalese authorities to carry out an ex officio, prompt, effective, independent, impartial and thorough investigation into his disappearance and to judge and sanction those responsible.

The authors further claimed a violation of article 7, in relation to the mental stress and anguish they have felt over the last 11 years, and continue to suffer as a result of Mr. Amrit Kandel’s enforced disappearance.

Merits

The Committee considered that Nepal has failed to conduct a prompt, thorough and effective investigation into the circumstances of the arrest, detention and enforced disappearance of Mr. Amrit Kandel, in violation of article 6, read in conjunction with article 2 (3) of the Covenant.

As Nepal denies the arrest and does not provide any evidence to clarify the facts regarding Mr. Amrit Kandel’s treatment in detention, the Committee finds that his enforced disappearance and treatment while in detention constitute a violation of article 7 of the Covenant.

Regarding the authors’ alleged violation of article 9 of the Covenant that Mr. Amrit Kandel was deprived of his liberty on 10 October 2003, without an arrest warrant being presented at the time of his arrest, no legal grounds were provided by the State party for his detention, nor his arrest and detention have been recorded. Therefore, the Committee considered that the detention of Mr. Amrit Kandel constituteed a violation of his rights under article 9 of the Covenant.

In regards of the author's alleged violation of article 16, no effective investigation was carried out by the State party to ascertain Mr. Amrit Kandel's whereabouts, effectively placing him outside the protection of the law. The Committee was of the view that the intentional removal of a person from the protection of the law constituted a refusal of the right to recognition as a person before the law, and therefore a violation of article 16 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

  • The State party is also under an obligation to take steps to prevent the occurrence of similar violations in the future.
  • The Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views.

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 15 January 2020.

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