Communication
2906/2016
Submission: 2015.12.10
View Adopted: 2022.03.14
The authors of the communication are K.R. and S.R., two nationals of Nepal who claim that the State party violated the rights of their daughter, R.R., killed in 2004. The events took place in the context of the internal armed conflict in Nepal (1996-2006). In 2004, when the daughter was 16 years old, 20 armed soldiers of the Royal Nepali Army stormed into the family’s home and accused the girl of being a Maoist. Though she denied it, she was pulled out of the house and questioned. That morning, R.R.’s family found her body. The authors claim a violation of article 6 read alone and in conjunction with article 2 (3) of the Covenant as R.R. was fatally shot while under control of soldiers. They also claim a violation of article 7 alone and in conjunction with article 2 (3) since they argue that it is clear, based on what witnesses saw and heard and from the statements of the soldier that shot the alleged victim, that she was subjected to acts amounting to torture and other ill-treatment. Given the inherently gender-discriminatory nature of rape, the authors also claim a violation of article 3 of the Covenant, and article 7 in conjunction with article 2 (1) of the Covenant. Further, the authors claim that their own mental suffering and the impunity despite their fight for justice amounts to inhuman treatment and thus a violation of article 7 read alone and in conjunction with article 2 (3) of the Covenant.
The authors also argue that her arrest was arbitrary and that the arrest, torture, including rape, and extrajudicial execution of R.R. also amount to a violation of article 24 (1) read alone and in conjunction with article 2 (3) of the Covenant, as the alleged victim was only 16 years old at the time. Lastly, the authors claim a violation of article 2 (3) in conjunction with articles 6, 7, 9, 10 and 24 (1) of the Covenant, as the investigation was ineffective.
The Committee notes that the Court of Appeal of Patan was made aware of the soldier’s acknowledgment that the daughter of the author’s had been raped, so the Committee considers that this remedy was ineffective and unavailable to the authors. The Committee also considers that the transitional justice mechanisms of the State party, including the Truth and Reconciliation Commission, are unable to provide an adequate remedy in this case, so the Committee concludes that it is not precluded from considering the communication under article 5 (2) (b) of the Optional Protocol. Moreover, the Committee considers that the authors have sufficiently substantiated their claims based on the torture and killing of R.R. and the lack of investigation thereof, and the Committee declares the communication admissible regarding claims made under articles 2 (1), 2 (3), 3, 6, 7, 9, 10 (1), 24 (1) and 26 of the Covenant.
The Committee concludes that there is a violation of article 4 (2) of the Optional Protocol since the State party has not provided any evidence that would corroborate its version of the story in which the alleged victim was not tortured or raped, nor has it explained the contradictions in its version. The Committee also considers that the State party has failed to demonstrate how the 16-year-old unarmed girl posed any threat to a squad of armed soldiers or how the indiscriminate use of lethal force was strictly necessary. The Committee finds that the State party has directly and arbitrarily deprived R.R. of her life in violation of article 6 (1), read alone and in conjunction with article 24 of the Covenant. Regarding the authors’ claim that the girl. was subjected to physical and mental torture, the Committee finds that the facts constitute a violation of article 7 of the Covenant, read alone and in conjunction with article 24 of the Covenant. Having reached that conclusion, the Committee will not examine the claims regarding the violation of article 10 (1) of the Covenant for the same facts.
Given the context surrounding the rape of the girl and the failure to investigate and establish accountability for such crimes, the Committee considers that the State party has violated R.R.’s right not to be subjected to gender discrimination under articles 3 and 26, read alone and in conjunction with articles 7 and 24 of the Covenant. Having reached this conclusion, the Committee will not examine separately the authors’ claims under article 2 (1) in conjunction with articles 3 and 7 of the Covenant for the same facts. Moreover, the Committee notes the authors’ argument that the girl’s arrest was arbitrary and concludes that the facts before it reveal a violation of article 9, read alone and in conjunction with article 24 of the Covenant. Lastly, the Committee considers that both the authors’ witnessing of R.R.’s torture and the State party’s failure to ensure an effective investigation constitute treatment contrary to article 7 alone and read in conjunction with article 2 (3) of the Covenant. The Committee will not examine the authors’ claim of a violation of article 2 (3) read in conjunction with articles 7 and 26 of the Covenant based on the same facts.
The State party is obligated, inter alia, to:
The State party is also under an obligation to take steps to prevent the occurrence of similar violations from occurring in the future, including by amending the legislation and statutes of limitations in accordance with international standards and by prescribing sanctions and remedies for the offence of torture commensurate with the gravity of such crimes and consistent with its obligations under article 2 (2) of the Covenant.
Deadline: 14 October 2022
By: Irene Aparicio
