ICCPR Case Digest

CCPR/C/126/D/2773/2016

Communication

2773/2016

Submission: 2016.05.11

View Adopted: 2019.07.15

Bholi Pharaka v. Nepal

Forced labour and torture of a minor in Nepal, violation of numerous covenant rights, including torture, inhuman and degrading treatment

Substantive Issues
  • Best interest of the child
  • Effective remedy
  • Fair trial
  • Forced labour
  • Liberty and security of person
  • Respect for the inherent dignity of the human person
  • Torture / ill-treatment
Relevant Articles
  • Article 10
  • Article 14
  • Article 2
  • Article 24.1
  • Article 7
  • Article 8.3(a)
  • Article 9
Full Text

Facts

The author is a national of Nepal and a member of the indigenous Tharu community, who claimed that the state party had violated his rights under articles 2, 7, 8 (3) (a), 9, 10, 14 and 24 (1) of the Covenant.

The author was sent to work in Kathmandu as a domestic worker in 2007, where he served in houses for a modest salary. In 2010 he was moved to working for the family of a Nepalese Army officer, where he was not allowed to attend school. Being 14, the author was forced to work every day from 4am to 10pm and did not receive any salary.

During this role, the author was subject to physical and psychological abuse. In 2012, he escaped to return to his home village as he could not tolerate the abuse, however the daughter of the officer filed a complaint against the author for theft. In order to force the author to return, the authorities abducted and tortured his maternal uncle.

The author presented himself at the Metropolitan Police Range in Kathmandu in August 2012, where he was arrested and placed in detention with adults. He was tortured, punched, and kicked all over his body, hit with pipes, and had his hair pulled. During his detention, he was subject to grossly inhumane conditions, tortured, and interrogated. His father filed a report alleging torture conditions however no response was ever provided. In September he was formally charged however as his parents were unable to pay the bail fee, he was sent to a juvenile detention centre where he was held until he was formally released in June 2013. 

In June 2014, the Kathmandu District Court found the author guilty of stealing valuables and sentenced him to one-month imprisonment and a 4,000 Rupees (32 Euros) fine. Any appeals or complaints relating to his arrest, treatment in detention or torture were never responded to.

Complaint

The author claimed that the state party violated articles 7 and 10 with regard to the torture and ill-treatment he endured, in order to extract a confession about his alleged involvement in the theft of gold and valuables, and because of the inhumane conditions of his detention. Additionally, the author claimed a violation due to the state's inability to conduct a full an impartial investigation into his treatment, as well as the failure of the state to place the protections afforded by the Covenant into domestic legislation.

The author also claimed a violation of article 9, paragraphs 1, 2, 3 and 5 owing to his arbitrary arrest and detention, where he was not informed of the reasons for his arrest nor brought before a judge.

The author also claimed to be a victim of a violation of article 14, owing to procedural deficiencies in his trial process. The author also claimed to be a victim of a violation of article 8, owing to the state party's failure to adopt the adequate measures to prevent him from being subjected to child and forced labour and to conduct an investigation.

The author also claimed that indigenous children have been historically marginalised and discriminated against in Nepal, aggravating his treatment during employment and at the hands of authorities. On this basis, the author also submits he is a victim of a violation of article 24.

Merits

Regarding the author's claim under article 7 of the Covenant, the Committee noted that the State party denies that the author was tortured (...) and that the author provided a credible description of the torture he endured as well as copy of the forensic report in question. Therefore the Committee concluded that the State party has violated article 7, read alone and in conjunction with article 24, paragraph 1, of the Covenant. Further, it concludes that the failure of the State party to conduct any investigation on the author’s torture allegations, especially as a child, and the fact that  the statute of limitation for torture compensation claims under Nepalese law in force at the time of the events prevented the author from accessing an effective remedy, violated, in both instances, his rights under article 7, read alone and in conjunction with article 2, paragraph 3 and article 24, paragraph 1 of the Covenant.

  • With regards to the alleged violation of article 9 of the Covenant, the Committee considered that the author presented a consistent and detailed description of  the facts surrounding his arrest and deprivation of liberty, which have not been contested by the State party. Therefore, the Committee found that the State party violated the author’s rights under article 9, read alone and in conjunction with article 24, paragraph 1, of the Covenant.
  • In reference to the author's claim of violation of article 8(3)(a), the Committee considered that the failure of the State party to protect the author, who was 14 years old at the time, from such abuses and its failure to conduct any investigation into his allegations, especially given his condition as a child, was in violation of his rights under article 8, paragraph 3, read in conjunction with article 2, paragraph 3 and article 24, paragraph 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 author with an effective remedy, including:

  • investigate the facts of the case and ensure that those found responsible are sanctioned with penalties commensurate to the gravity of the crimes and, if necessary, suspend or remove suspected police officers while the investigation is on-going;
  • provide free of charge medical and psychological care if needed;
  • provide effective reparation and appropriate measures of satisfaction to the author for the violations suffered, including the provision of educational support as appropriate;
  • ensure that the author obtains prompt, fair and adequate compensation, proportional to the gravity of the violations suffered; and
  • indicate the specific domestic authorities that are in charge of implementing each measure of reparation; 
  • publish the present views widely in the official languages of the state party.

Separate Opinions

Joint individual opinion of Committee members Tania María Abdo Rocholl, Arif Bulkan, Hernán Quezada and Hélène Trigroudja

  • Committee members Tania María Abdo Rocholl, Arif Bulkan, Hernán Quezada and Hélène Trigroudja offered a joint individual opinion in agreement with the merits of the case, however disagreeing on the recommendations provided to the state party. 
  • The members disagreed on the basis that the majority did not recommend that the state party apologise to the author. They noted that only is there significant precedent for this, but in the case that no amount of money can compensate the author for the suffering endured or for the loss of his childhood, a formal apology is entirely suitable in the circumstances.
  • The members referred to the guidelines on measures of reparation under the Optional Protocol, which provides that apologies are warranted in cases of grave or systemic violations where the injury cannot be fully redressed by restitution or compensation only, and further noted that in this case the level of grave and systemic is met for three reasons:
    1. First, as the author was a child when he was tortured and ill-treated by state agents.
    2. The second factor relates to the failure of the state authorities to open any investigation into the violations of absolute human rights, including those protected by article 7 and 8. 
    3. Finally, the statute of limitations in seeking redress for these crimes is contrary to the state’s obligations to fight against impunity, especially in relation to such grave violations. 
  • See - Human Rights Committee of the Guidelines on measures of reparation under the Optional Protocol to the ICCPR:  http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsne2uEj3E0swlZyi4OedV3IQjGfAQSgkf6y%2f2FsuOqQlDvRhx9zuigbMzQv6DlA7WPNKW9GVkp8KRXNrYFzFjX5Pnw2EEIn40E1K2oYCaqeg

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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