The Committee against Torture this afternoon
heard the response of Nepal to questions raised by Committee Experts on the
second periodic report of that country on how it was implementing the provisions
of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.
Responding to a series of questions raised by the Committee members on
Wednesday, 9 November, Gyan Chandra Acharya, Ambassador and Permanent
Representative of Nepal to the United Nations Office at Geneva who led the
delegation, said regarding the commitment of the Government, the issue of
torture and the current situation in the country and the reports of the various
non-governmental organizations on the situation, the Government was
unequivocally opposed to the use and practice of torture. The conflict had put
the country under immense pressure, but the Government was committed to human
rights issues and to be responsive to all commitments including those with
regards to the Convention on Torture, in order to pursue its mission to promote
and protect human rights. It would be appropriate to put the entire situation
and the country into the proper perspective.
There were gaps, Mr. Acharya said, but Nepal would like to see them filled and
taken into account when it spoke of consolidating its efforts for the promotion
and protection of human rights. The Government was committed to not using
torture to extract information, or to garner confessions. The Government was
ready to cooperate with the Committee, although it did not agree with the
allegation of systematic torture in Nepal. On the oversight of the human rights
situation of the country, there was a Committee in the Parliament which reviewed
the situation and made recommendations. At the moment, however, there was no
Parliament, but as soon as it resumed, the Committee would also resume its
functions.
The Committee will submit its conclusions and recommendations on the report of
Nepal towards the end of the session on 25 November 2005.
As one of the 140 States parties to the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Nepal is obliged to provide
the Committee with periodic reports on the measures it has undertaken to fight
torture.
When the Committee reconvenes at 10 a.m. on Friday, 11 November, it is scheduled
to take up the third periodic report of Ecuador (CAT/C/39/Add.6/).
Response of Nepal
GYAN CHANDRA ACHARYA, Ambassador and Permanent Representative of Nepal to the
United Nations Office at Geneva, responding to a series of questions raised
by the Committee Experts on Wednesday, 9 November, said the delegation had taken
good note of what had been said, and had tried to understand how the Experts
viewed the report which Nepal had prepared for presentation, and had held
internal consultations in order to provide answers. Many of the issues raised by
Experts had been answered during the meeting the day before, but as there were
specific issues that had been raised, these would be dealt with today in a
manner allowing for interaction and dialogue with the Experts. Those questions
which the delegation could not answer would be given a response in the course of
time.
Regarding the commitment of the Government, the issue of torture and the current
situation in the country and the reports of the various non-governmental
organizations on the situation, the Government was unequivocally opposed to the
use and practice of torture, Mr. Acharya said. The conflict had put the country
under immense pressure, but the Government was committed to human rights issues
and to be responsive to all commitments including those with regards to the
Convention against Torture, in order to pursue its mission to promote and
protect human rights. It would be appropriate to put the entire situation and
the country into the proper perspective. On reports of extrajudicial killings
and disappearances, these were not policy-driven as such, and the Government
took allegations of these practices very seriously and had investigated them
thoroughly.
There were many cases of disappearances reported in 2004, and out of the 267
cases, answers were given to about 122 so far. The majority of the
disappearances made it clear that they were caused by a lack of information.
Almost all cases were linked to detention, but they had not been cycled back to
the locations where the report of disappearance had been made. Nepal was
committed to the special procedures, in order to remedy this situation. There
had been a significant drop in the recent numbers of reports of disappearances.
There were now more procedures and mechanisms ensuring that people did not
disappear, and these were slowly falling into place as a result of the dialogue
and systematisation of the process that had begun within Nepal. There had been
various numbers put forth by different organizations, but these needed to be
viewed from the correct perspective, including their origin.
There were gaps, Mr. Acharya said, but Nepal would like to see them filled and
taken into account when it spoke of consolidating its efforts for the promotion
and protection of human rights. The Government was committed to not using
torture to extract information, or to garner confessions. The Government was
ready to cooperate with the Committee, although it did not agree with the
allegation of systematic torture in Nepal. Some of the information in the
reports had been given by individuals, and should not be taken as evidence of a
systematic policy of torture in the country. The Government had established an
investigative committee on disappearances, which had made eight reports to date.
There were many difficulties, which were also reported, and which remained to be
overcome, notably that there was no strict registration within the country.
Impunity was also something that was taken very seriously, Mr. Acharya said. It
was not something that was widespread. The Government had taken a number of
steps and decisions with regards to reports of torture, and had provided details
on the actions taken by the Government against individual violators, and this
was included in the report. To say that there was total impunity did not fit
with the facts. On incommunicado detention, the position of the Government was
that it was going through a situation in which it was faced with a difficult
insurgent situation, and despite this situation, the Government had given
unhindered access to international organizations to visit places of detention,
including army barracks. The Government did not have a practice of incommunicado
detention.
The judiciary in the country was independent, and there was a system of
judiciary review, and it was not true to say that any judicial body was above
the High Court, which was the supreme body, Mr. Acharya said. There were various
measures that had been taken over the period to strengthen the judicial body, to
train judges, to make them aware of international obligations, and to make them
aware of the capacity-building exercises that were taking place. On the
definition of torture, the Government appreciated the views expressed by the
Committee on the definition of torture in domestic legislation, and these would
be taken into account in the forthcoming review of the legislation. Nepal was
serious with regards to the need to criminalize torture and to provide redress
thereto.
In response to the situation Nepal was in, preventative detention was provided
for only six months. In exceptional cases, this could be extended for a further
six months. There was no blanket provision for detention, it was aimed towards a
certain group of crimes of a similar nature. Preventative detention was not even
applicable in all cases, and could only be applied if there was an immediate
threat to national security, sovereignty, and law and order application. On
human rights education, Nepal had given details on training and sensitising
programmes the day before. These programmes would continue to be reviewed in
order to make them more relevant and more effective.
The National Human Rights Commission was a statutory body, with the right to
inquire into any situation of violation of human rights, and the Government gave
its recommendations due weight and paid due regard to implementing them. Its
functioning was based on the Paris Principles, and it was independent, Mr.
Acharya said. It reinforced Nepal’s view that it was part of the consolidation
of national human rights principles. The improvement of the situation of the
marginalized would help improve equality and inclusiveness in society. There
were a number of legal provisions in the country against any discrimination on
the basis of caste, which was a criminal offence. There had been substantial and
perceptible progress with regards to this issue, but how much remained to be
done was a matter of opinion, as it was a continuous process, although the
commissions and organizations that had been set up continued to be effective.
The burden of proof in criminal cases generally lay on the prosecutors, but in
certain cases including trafficking, drugs and corruption, this was not the
case, Mr. Acharya said. On the witness protection scheme, the Government had
taken into account the need for one, and was having discussions and would take
into account what the Experts said yesterday in order to see that the needs for
protection of victims and witnesses were covered, as this would strengthen the
process of justice in the country. The Government provided compensation to the
victims of torture as mandated by the courts. The Government had also provided
compensation as per the decisions of the National Human Rights Commission. Any
statement made due to coercion or torture was not valid before the courts.
Court rules were being amended, Mr. Acharya said, with the support of
development partners in the context of a five-year plan to strengthen the
judiciary, and clear the large backlog of cases. The large number of detainees
was mainly due to courts’ limited capacities. The number of cases taken up
over the last year had however, increased. Concerns expressed on various issues
linked to the refugee situation had been taken note of, and the Government had
been providing support to the refugees in the country as far as possible. Nepal
was a poor country in term of economic resources, and was providing asylum to
large numbers of refugees, including Tibetans and Bhutanese, but there were
fundamental principles that had to be taken into account. The Government had
given access to 31,000 Tibetan asylum seekers to go to a third country, as it
had only limited funds to provide for their care. UNHCR had been involved in
that move.
Security agencies were obeying court orders, and there were no single pending
cases in their regard at the moment, Mr. Acharya said. There were no children
who were held in detention in the country. With regards to making disappearances
a penal offence, the proposed draft penal code contained proposals in this
regard, and would punish disappearance with imprisonment, and there were other
provisions that would further strengthen the judicial and administrative system
in the country, but this was still at a draft stage. On the monitoring of
trafficking, this last was a serious issue in Nepal, and it was a problem, but
over the last 10 years, the situation had improved with regards to awareness due
to various campaigns, and there was a perceptible improvement in the issue,
although awareness had to be constantly stimulated in order to monitor and
control trafficking, as it was an ongoing process. Regional cooperation was
active in this field.
On human rights defenders and lawyers, the Government was committed to
protecting their rights, and to promoting their access to disputed areas, Mr.
Acharya said. If civilians were involved with the military, it was appropriate
to carry out trials in the ordinary courts, and the Government saw this as a
positive way of dealing with, for example, rape cases, rather than dealing with
them in military courts. On the oversight of the human rights situation of the
country, there was a Committee in the Parliament which reviewed the situation
and made recommendations. At the moment, however, there was no Parliament, but
as soon as it resumed, the Committee would also resume its function.
OLE VEDEL RASMUSSEN, Committee Expert serving as Rapporteur for the report of
Nepal, said that the Committee appreciated the oft-repeated assertion that
it was not a policy of Nepal to condone torture. He also asked further
questions, including a request to clarify the difference between prisoners and
detainees in Nepalese terminology. What would be interesting for the Committee
would be to identify how many police stations could hold detained persons, and
how many army barracks were also used for this purpose, he said, and what was
their capacity, and how many were each body holding. The difference between a
detention centre and a prison was also of interest, and who was in charge of the
two.
Responding to these questions, the delegation said prisoners were those who were
already convicted, and detainees were pre-trial persons, in prison due to the
unavailability of infrastructure in police stations. The country was divided
into 75 districts, each of which had a police station and a judiciary court. The
district court and the trial court were the first basis of jurisdiction. Prisons
were managed by civilians - the police and security forces provided security,
but did not run the prisons. Detention centres were also managed by civil
officials, and detainees therein were looked after by civil authorities. There
was access by all authorities to both prisons and detention centres.
Mr. Rasmussen praised that detainees were kept in prison, as he noted police
stations were not appropriately designed for keeping detainees for a long period
of time.
SAYED KASSEM AL-MASRY, Committee Expert serving as Co-Rapporteur for the
report of Nepal, said the Committee would appreciate having full information
about developments. He also agreed that not only the Dalit problem but also
human rights problems in general were affected adversely by customs, traditions,
history, culture, and by many other things, and it took time to change. But the
most important thing was to have the will and the perseverance to continue to
make the effort to bring about the change, and Nepal had today made the
assurance that it had the determination to change. Mr. Al-Masry said he had not
received a response to some of his questions, and had some comments to make on
the independence of the judiciary in the context of political decisions; article
15 of the Convention, namely the right to complain, and reported cases where
this was denied; further issues linked to detention centres; and the phenomenon
of re-arrest.
Responding to these issues, the delegation said that on the independence of the
judiciary and the establishment of the Royal Commission for Judicial Control,
the judiciary was independent and had a very wide power and reach. The
Constitution had given it enormous power, and it defended the Constitution,
interpreting it and allowing the people to get justice from the Supreme Court.
Corruption undermined the norms of justice as well as the rule of law, damaged
democratic institutions and damaged the process of development, and to fight
against this the King had established the Commission, which was also under the
review of the Supreme Court, and its decisions could be appealed therein.
Other Committee Experts then asked further questions on various topics,
including the issue of the burden of proof and on who lay the responsibility of
proving it in various exceptional circumstances; the repeated assertions by
police and security officials that torture was systematically practised and the
delegation’s assertion that torture cases should be taken as isolated
incidents and whether this could be reconsidered; and whether there was a
procedure to ensure that refugees were not returned to countries where they
could be subjected to torture.
Responding briefly, Mr. Acharya said it was a principle of the Government to
follow certain fundamental international norms, including those with regard to
the return of refugees, although it was not necessarily part of international
agreements on such topics. There had to be a balance of all factors in the
context of the judiciary, and note had been taken with regards to the
suggestions made on the burden of proof.
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