Communication
3199/2018
Submission: 2018.03.28
View Adopted: 2022.03.14
During the Nepal conflict, the Tharu community were routinely targeted by security forces due to suspected association with the Maoist guerrilla. Systematic human rights violations, including torture, enforced disappearances, extra-judicial killings, arbitrary arrests, and sexual violence, were inflicted upon the community. On 15 March 2004, the authors’ son and his friend were intercepted on their way to school. They were immediately restrained, subjected to physical and verbal abuse during questioning, and extrajudicially executed. The authors submit that over the past 14 years, they have tried, without success, to obtain redress before the domestic courts and the ad hoc mechanism under the Comprehensive Peace Agreement. Additionally, the authors suffered mental anguish and anxiety due to the continued unlawful interference with their privacy, family, and home.
The authors claim that their son is a victim of a violation of his rights under articles 6, 7 and 9 (1–5) of the Covenant, read alone and in conjunction with articles 2 (1), 24 (1) and 26, because of the arbitrary deprivation of liberty and torture he was subjected to, and his subsequent extrajudicial killing. The authors also argue that their son’s arrest was arbitrary, in violation of his rights under article 9 (1). Additionally, the authors also allege that their son’s rights under articles 6, 7 and 9, read in conjunction with articles 2 (3) and 24 (1), were violated due to the failure of the Nepalese authorities to conduct a thorough, impartial, independent and effective investigation. It was also claimed that there is a violation of article 7, read in conjunction with articles 2 (2) and 24 (1), in respect of the failure of Nepalese authorities to adopt adequate legislative measures to prevent instances of torture against children. Lastly, the authors claim that they themselves are victims of a violation of their rights under articles 7 and 17, read alone and in conjunction with article 2 (3), due to the suffering provoked by the incidents herein discussed.
The State party claims that the communication submitted herein is inadmissible due to the non-exhaustion of domestic remedies available. The State party further claims that a CPN Maoist combatant was riding the bicycle of the alleged victim. Upon routine inspection, the person pillion riding the bicycle took out a grenade. This forced the team to act in self-defence, killing the persons on the bicycle.
The communication is admissible. The claims pertaining to the authors’ son’s rights and the authors’ rights are proceeded with consideration of the merits. As regards the State party’s claims on inadmissibility, transitional justice mechanisms cannot serve to dispense with the criminal prosecution of serious human rights violations. It is not necessary to exhaust avenues before the Truth and Reconciliation Commission to fulfil the requirements of the Optional Protocol. Thus, the Committee may examine the present communication.
The authors’ son’s rights under articles 6 and 7 of the Covenant, read alone and in conjunction with articles 24 (1) and 26 of the Covenant have been violated. The Committee considers the authors’ allegations as substantiated in the absence of satisfactory evidence to the contrary by the State party. The State party failed to clarify the circumstances of the authors’ son’s death nor provided any information on any effort made to identify those responsible for the herein violations nor has it produced evidence to indicate that it has fulfilled its obligation to protect the authors’ son’s life. The claim of targeted attacks against the Tharu is supported by country reports describing a pattern of similar violations against members of this indigenous community.
Having found a violation of articles 6 and 7 of the Covenant, read in conjunction with articles 24 (1) and 26, the Committee decides not to separately examine the author’s claims of a violation of articles 6 and 7, read in conjunction with article 2 (1), for the same facts. Furthermore, in the absence of a pertinent explanation by the State party of the authors’ son’s deprivation of liberty, the Committee considers such a violation of his rights under article 9, read alone and in conjunction with articles 24 (1) and 26. Additionally, the Committee finds that the facts reveal a violation of the authors’ son’s rights under articles 6, 7 and 9, read in conjunction with articles 2 (3) and 24 (1) due to the failure of State party authorities to conduct a thorough, impartial, independent and effective investigation into the arbitrary deprivation of liberty, torture and subsequent extrajudicial killing and to prosecute and sanction those responsible. Lastly, the searches of the authors’ home without a warrant, the public labelling of their son as a terrorist, and the repeated threats by the State party’s security forces constituted an unlawful interference with the authors’ privacy, family and home, in violation of article 17.
The State party is obligated, inter alia, to:
The State party is also under an obligation to take all steps necessary to prevent the occurrence of similar violations 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 for Implementation: 14 September 2022
By: Maricon Torres Lorenzo
