convention on torture

8/6/2019 Convention on Torture

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1 Historical background

Torture has been practiced in many parts of the world in many periods of history, in particular

as a method to obtain evidence for judicial proceedings. in Europe, this practice assumed large

proportions in the later Middle Ages, when confession came to be regarded as the 'queen of

proofs". the totalitarian regimes that established themselves in the period between the first and

the second world wars deliberately employed torture as one of the mainstays of their

power.1Extraction of evidence was only the secondary function of their torture practices, the

primary one was to spread terror among the population. Besides torture, these regimes also

applied many other forms of inhumane treatment to to inmates of their prison and

concentration camps2

It is against this background that the prohibition of all such practices was explicitly included in

the universal declaration of human rights. Article reads, "no one shall be subjected to torture or

to cruel, inhumane or degrading treatment or punishment".

In 1966 the prohibition was included in the international Covenant on Civil and Political

Rights. Article 7 of the Covenant reads: "No one shall be subjected to torture or to cruel,

inhuman or degrading treatment or punishment. In particular, no one shall be subjected without

his free consent to medical or scientific experimentation." The Covenant allows no exceptionsto this prohibition. According to article 4, the States Parties may take measures derogating

from some of their obligations under the Covenant in time of public emergency which

threatens the life of the nation; however, the same article mentions article 7 as one of the

provisions from which no derogation may be made.

Practically the same rules can be found in the European Convention for the Protection of

Human Rights and Fundamental Freedoms of 1950. Article 3 of this Convention reads: "No

one shall be subjected to torture or to inhuman or degrading treatment or punishment." Article

3 is further mentioned in article 15 of the Convention as one of the provisions from which no

1Bayefsky ,Anne F.," How to Complain to the UN Human Rights treaty System", Transnational Publishers, 5

2 See Generally, Aggarwal ,Nomita,"Mainstreaming of Human Rights Education;Challenges and

Prospects",published in "Social Responsive Human Rights Legal Education,SALS(2004:Kathmandu),40


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derogation shall be made , even in time of war or other public emergency threatening the life of

the nation.

Similar provisions are contained in the two other regional human rights conventions.

Article 5, paragraph 2, of the American Convention on Human Rights of 1969 reads: "No one

shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All

persons deprived of their liberty shall be treated with respect for the inherent dignity of the

human person." According to article 27, suspension of this provision is not possible, even in

time of war, public danger, or other emergency that threatens the independence or security of

the State. Article 5 of the African Charter on Human and Peoples' Rights of 1981 reads: "Every

individual shall have the right to the respect of the dignity inherent in a human being and to the

recognition of his legal status. All forms of exploitation and degradation of man , particularly

slavery, slave trade, cruel, inhuman or degrading punishment and treatment shall be

prohibited."The African Charter does not contain any provisions relating to derogation or

suspension.

The prohibition of torture has also been included in a Universal Islamic Declaration

of Human Rights, which was issued in 1981. According to article 7 of this Islamic declaration,

"No person shall be subjected to torture in mind or body, or degraded, or threatened with injury

either to himself or to anyone related to or held dear by him,"

Whereas article 3 of the European Convention of 1950 was the first treaty provision

containing a general prohibition of torture , rules against torture had already been included one

year earlier in the four Geneva Conventions concerning humanitarian law applicable to armed

conflicts. As to international armed conflicts, the 1949 Conventions lay down detailed rules for

the treatment of wounded, sick or shipwrecked combatants , prisoners of war, and civilian

persons in occupied territory.

Besides the afore-mentioned treaty provisions concerning torture and other inhuman

treatment and punishment, relevant norms are also set out in an important non-binding UN

documents ,the Standard Minimum Rules for the treatment of Prisoners of 1955. These rules

included detailed directives for the maintenance of discipline , applicable to prisoners under

sentence as well as to prisoners awaiting trial and persons arrested or detained without charge.

Paragraph 31 of the standard Minimum Rules reads: "Corporal punishment , punishment by


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placing in a dark cell, and all cruel , inhuman or degrading punishments shall be completely

prohibited as punishments for disciplinary offence.

2.1 General Introduction

The word 'torture' comes from the French torture, originating in the Late Latin "tortura" andultimately deriving the past participle of torture meaning 'to twist'. The word may be used

loosely for more ordinary or daily discomforts, which would be described as tedious rather than

painful. For example: "The making of this web site was torture!"

The World Medical Association Declaration of Tokyo defines "torture as the deliberate,

systematic, or wanton infliction of physical or mental suffering by one or more persons acting

alone or on the orders of any authority, to force another person to yield information, to make a

confession, or for any other reason."3

Some common forms of torture are isolation, falanga, electric shock, suffocation, pulling out

teeth, burning by cigarette or red-hot iron bars, mutilation, sexual torture etc.4Statistics on torture

shows that during 1998, no less than 125 countries reportedly tortured people. Furthermore,

torture or ill treatment, lack of medical care and cruel inhumane or degrading prison conditions

resulted in deaths in 51 countries.5

There is a universal consensus in the international community

that torture and forms of cruel, inhumane or degrading punishment or treatment cannot be

reconciled with a global order fundamentally committed to basic respect and human dignity.6

2.2 The Convention

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (the Torture Convention) was adopted by the General Assembly of the United

Nations on 10 December 1984 (resolution 39/46). The Convention entered into force on 26 June

1987 after it had been ratified by 20 States.

33Shrestha,Nirakar man Bhogendra sharmaTorture and Torture Victims A Manual For Medical Professionals,(1995)

CIVIT, 14Aggarwal, H O,"Internationl Law and Human Rights"14th edition,Central Law Pubications(2007:Allahbaad), 777

5Facts and Figures about Amnesty International available at http://www.web.amnesty.org/web.about.tai.nsf'

6 Rahman ,Mizanur,,"Stratizing to prevent Torture,dissapearece and Extra-JUdicial killings and the reole oflaw

schools", published in ""Social Responsive Human Rights Lega Education,SALS(2004:kathmandu),108


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The Torture Convention was the result of many years work, initiated soon after the adoption of

the Declaration on the Protection of All Persons from Being Subjected to Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Declaration) by the

General Assembly on 9 December 1975 (resolution 3452 (XXX)).

In fact, the Torture Declaration was intended to be the starting-point for further work against

torture. In a second resolution, also adopted on 9 December 1975, the General Assembly

requested the Commission on Human Rights to study the question of torture and any necessary

steps for ensuring the effective observance of the Torture Declaration (resolution 3453 (XXX)).

Two years later, on 8 December 1977, the General Assembly specifically requested the

Commission on Human Rights to draw up a draft convention against torture and other cruel,

inhuman or degrading treatment or punishment, in the light of the principles embodied in the

Torture Declaration (resolution 32/62).

The treaty was adopted by the UN General assembly on December 10,1984 and entered into

force on June 28, 1987 after the 20th instrument of ratification necessary to bring it into force

was deposited. The convention is designed to prevent and punish torture committed " by or at the

instigation of or with the consent or acquiescence of a public official or other person acting in an

official capacity".7It thus not only covers the torture inflicted by government officials but also

private individuals or groups whose conduct such officials tolerate or encourage. The convention

defines torture as

"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for

such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or

a third person has committed or is suspected of having committed, or intimidating or coercing him or a third

person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the

instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."8

The Torture Convention declares that there are no exceptional circumstances whatsoever to justify torture and that no orders from superior officers or public authority may be validly

7Convention Against Torture, Article 1.1

8 Convention Against Torture, Article 1.1


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invoked as justification.9

The main objective of the convention is to lay obligations on states to

establish and exercise jurisdiction over crimes of torture. the convention furthermore imposes

significant obligations on states to measures to prevent torture and to facilitate redress to

torture victims and survivors.10

The main demands of the convention are:11

To prohibit torture

y Not to "refouler"y Punish torturersy To rehabilitate torturedy To control the system of interrogation and detentiony To report to the committee

A. Special Features of The Convention

1.Defined Torture:Article 1 of the Convention has defined torture as" any act by which severe

pain or suffering, whether physical or mental, is intentionally inflicted on a person for such

purposes as obtaining from him or a third person, information or a confession, punishing him for

an act he or a third person has committed or is suspected of having committed, or intimidating or

coercing him or a third person, or for any reason based on discrimination of any kind, when such

pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity. It does not include pain or suffering

arising only from, inherent in or incidental to lawful sanctions.' It thus had limited the scope of

torture.

2. Obigations on States:The convention under Article 2 para 1 provides that each party shall

take effective legislative administrative judicial or other measures to prevent act of torture in any

territory under its jurisdiction.12

9Convention Against Torture, Article 2.2, 2.3;

10 Wendland, Lene &Buergenthal ,Thomas," A handbook on State Obligations Under Convention Against

torture"(2001),711

Bertam G. Ramchann and Zayas ,Alfred,"de International HUman Rights Monitering Mecanism", ,MArtinusNijhoff publishers,(2002), 166-16712 Aggarwal ,H O,"Internationl Law and Human Rights"14th edition,central law pubications(2007:Allahbaad), 778


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3. Right Against torture, a non- derogable rights:The convention has said that torture cannot

be justified even in exceptional circumstances whatsoever whether there exists a state of war or

a threat of war internal political instability or any other public emergency and order from a

superior officer or a pubic authority may not be invoked as justification of torture.13

4. Torture as a crime:The convention has interpreted torture as a crime and has obliged the

member states to define it as a criminal act. The same shall apply to as attempt to commit torture

and to an act by any person, which constitutes complicity or participation in torture.Each, state

party shall make these offenses punishable by appropriate penalties which take into account their

grave nature.

5. Multi state jurisdiction: Article 5 provides for a system of multi-State jurisdiction under

which more than one State can exercise jurisdiction over the same act of torture and prosecute

the alleged offender. The State in which torture occurred (the territorial principle). The State of

nationality of the offender (the active personality principle), the State of nationality of the victim

of torture and the State in which the offender is found need to be identified to establish their

jurisdiction and prosecute the offender. Article 6 obliges the State Party in whose territory the

alleged offender of torture is present to take him into custody and make an inquiry into the facts

in accordance with its law and inform other Stats Parties (as the case may be) whether it intends

to exercise its jurisdiction. Article 7 uses the formula of 'extradite or prosecute in relation to

alleged offenders of torture who are found in any territory under the jurisdiction of any StateParty.

6.Individual complaint mechanism: Provisions for individual communication system have

been made under article 22 of the conventional state party may at any time declare that it

recognize the competence of the committee to receive and consider communications from or on

behalf of individual subjects to its jurisdictions who claim to be victim of te violation by a state

party the provisions of the convention.14The communication should be inadmissible if it is

anonymous or which the committee considers to an abuse of the right of submission of such

communications or to be inconsistent with the provisions of the convention.

13 ibid14Aggarwal, H O,"Internation l Law and Human Rights"14th edition,central law pubications(2007:Allahbaad), 780


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B. Main Principle of the Convention

It is expedient to redress at the outset a widespread misunderstanding as to the objective of the

Convention against Torture and Other Cruel, inhuman or degrading treatment or punishment,

adopted by the General Assembly of the United Nations in l984.15

Many people assume that the

Convention principal aim is to outlaw torture and other cruel, inhuman or degrading treatment or

punishment. This assumption is not correct insofar as it would imply that the prohibition of

these practices is established under international law by the Convention only that this prohibition

will be binding as a rule of international law only for those States which have become parties to

the Convention. On the contrary, the Convention is based upon the recognition that the above-

mentioned practices are already outlawed under international law. The principal aim of the

Convention is to strengthen the existing prohibition of such practices by a number of supportive

measures.

A second aspect that has to be noted is that the Convention does not deal with cases of ill-

treatment, which occur, in an exclusively non- governmental setting. It only relates to practices,

which occur under some sort of responsibility of public officials or other persons acting in an

official capacity.

In aiming at the effective elimination of torture and other forms of cruel, inhuman or degrading

treatment or punishment, the Convention pays particular attention to influencing the behaviour of

persons who may become involved in situations in which such practices might occur.

In all these the Convention has been inspired primarily by the Declaration on the same subject-

matter, adopted by the General Assembly of the United Nation 1975

C. Structure of the convention

The articles of the Convention are divided in three parts. Part I (articles l-16) contains the

substantive provisions. Most of these provisions relate only to torture and not to other forms of

cruel, inhuman or degrading treatment or punishment. However, a limited number of provisions

apply to all categories.

15. Herman Burgers and Hans Danelius," The UN Convention against torture: A handbook on the Convention

Against torture and other Cruel, Inhumane or degrading treatment or punishment", Kluwer Academic Publications ,

1


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Part II (articles 17-24) contains the implementation provisions. These articles provide for forms

of international supervision with regard to the observance by States Parties of their obligations

under the substantive provisions. Part III (articles 25-32) contains the final clauses. These

provisions deal with such matters signature and ratification of the Convention, its entry into

force, amendments, denunciation, settlement of disputes concerning the Convention

interpretation or application, and optional exclusion of one of the implementation.

7. Enforcement Mechanism

The Torture Convention contains two different types of enforcement mechanism. The first is on

the national level of States, where enforcement is by individual State Parties, and consists of

Articles 5, 6 and 7.

Article 5 provides for a system of multi-State jurisdiction under which more than one State can

exercise jurisdiction over the same act of torture and prosecute the alleged offender.16

The State

in which torture occurred (the territorial principle). The State of nationality of the offender (the

active personality principle), the State of nationality of the victim of torture and the State in

which the offender is found need to be identified to establish their jurisdiction and prosecute

the offender.

Article 6 obliges the State Party in whose territory the alleged offender of torture is present to

take him into custody and make an inquiry into the facts in accordance with its law and informother Stats Parties (as the case may be) whether it intendsto exercise its jurisdiction.

Article 7 uses the formula of 'extradite or prosecute in relation to alleged offenders of torture

who are found in any territory under the jurisdiction of any State Party.

The second type of enforcement mechanism is on the international level of States. It consists of

Articles 11 through 22, which provides for the establishment of an International Committee

responsible for the consideration of the reports of States on the implementation of their

obligations under the Convention. The Committee is authorized also to receive complaints of

violations of the Torture Convention from private individuals and States Parties alike, if the

16 Martinus Nijhoff," The UN convention on Torture and the prospects for Enforcement",Kluwer Law International

Publishers(2001),176


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requirement of the declaration of competence is met, and to investigate such complaints if the

States Parties agree to be investigated.

The measures of implementation provided for in the Torture Convention are administered by the

Committee on Torture. The committee is composed of ten independent experts elected by the

States Parties to the convention. The measures of implementation provided for in the convention

consist of an obligatory reporting system as well as optional interstate and individual complaint

mechanisms. In addition to these measures of implementation, the Torture Convention empowers

the CAT to undertaken certain investigatory action on its own initiative


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Author submits ComplaintInterim measures

requested by author

and considered by

reporter on new

complaints and

interim measures

(RNC), or working

group or committee

Secretariat (petition

team, office of High

Commissioner)

Registers complaint

Secretariat requests

additional information

Secretariat advices

author submission

does not meet basic

requirements

Working group

decides

unanimously

case

inadmissibleSecretariat transmits to

state party on

admissibility and merits

Secretariat

does not

register

State party seeks to

split admissibility

from merits

Rapporteur (RNC)

agrees to splits

admissibility and

metris

rapporteur(RNC)

refuses to split

admissibility and

merits

state party makes

submissions on admissibility

author makes

submissions on

admissibility

working group

decides

unanimously

case

inadmissible committee

decides case

admissible

working

group decides

by majority

case

committee

decides

case

admissible

state party makes

submissions on merits

state party makes

submissions on


author makes submissions

on merits

author makes submissions on


working group

makes

recommendatio

n (admissibility)

meritscommitteedecides

violation

committee

decides on

violation

Source: Anne F. Bayefsky," How to

Complain to the UN Human Rights

treaty System", Transnational

Publishers, pg 90

The CAT Complaint Procedure


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2.3 The Optional Protocol to the Convention against Torture (OPCAT)

The Optional Protocol to the Convention against Torture (OPCAT) is designed to assist States to

meet these obligations. Unlike other human rights treaty processes that deal with violations of

rights after the fact, the OPCAT is primarily concerned with preventing violations. It is based on

the premise, supported by practical experience, that regular visits to places of detention are an

effective means of preventing ill treatment and improving conditions of detention. This

preventive approach aims to ensure that sufficient safeguards against ill treatment are in place

and that any problems or risks are identified and addressed.

Article 1 of the protocol laid down the objectives of the protocol, namely, to establish a system

of regular visits by independent international and national bodies to states parties where people

are deprived of their liberty in order to prevent torture and other cruel inhuman or degrading

treatment on punishment. Of their liberty in order to prevent torture and other cruel inhuman or

degrading treatment on punishment.17

Article 2 establishes a sub-committee on pre union of torture and other cruel, inhuman or

degrading treatment or punishment of the committee against torture. The sub-committee on

prevention shall perform the function as laid down under article 11, which are:

1. Visit the places where people are deprive of their liberty against torture and other cruel,

inhuman or degrading treatment or punishment and make recommendation to state parties

concerning the protection of such persons.

2. Advice and assist state parties concerning the protection of such persons.

3. Co-operation for the prevention of torture in general with the relevant United Nations

Organization.

OPCAT establishes a dual system of preventive monitoring, undertaken by international and

national monitoring bodies. A new international body, the UN Subcommittee for the

Prevention of Torture, will periodically visit each State Party to inspect places of detention and

17 Aggarwal, H O,"Internation l Law and Human Rights"14th edition,central law pubications(2007:Allahbaad),.781


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make recommendations to the State. At the national level, independent monitoring bodies

called National Preventive Mechanisms (NPMs) are empowered under OPCAT to regularly

visit places of detention, and make recommendations aimed at strengthening protections,

improving treatment and conditions, and preventing torture or ill treatment.

2.4 Convention in the context of Nepal

The convention has been already ratified by Nepal and Nepal has incorporated various

provisions prohibiting torture in various laws. Some of the legal provisions which has prohibited

torture are discussed below.

1. Interim Constitution of Nepal, 2007

Article 26. Right against torture

(1) No person who is detained during investigation, or for trial or for any other reason, shall be

subjected to physical or mental torture, or be treated in a cruel, inhuman or degrading manner.

(2) Any such an act pursuant to clause (1) shall be punishable by law, and any person so treated

shall be compensated in a manner determined by law.

2. Torture Compensation Act 1996

Sec 3. Ban on Torture

(1) No person who is in detention in the course of inquiry, investigation or hearing, or for any

other reason, shall be tortured

(2) While placing in detention or releasing any person, his physical condition shall be examined

by a physician under government service as far as possible, and by the concerned official himself

in circumstances in which no such physician is available, and a record thereof shall be prepared

and maintained.

(3) A report of the examination of the physical or mental condition as mentioned in Sub-Section

(2) shall be sent to the appropriate district court.


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Section 4. Payment of Compensation

In case it is proved that any employee of HMG has inflicted torture on any person, compensation

shall be paid to the victim according to this act.

Section 5. Complaints May be Filed

(1) The victim of torture may file a complaint at the district court of a district where he has been

placed in detention demanding compensation within 35 days after the date when he has been

tortured, or released from detention.

(2) Notwithstanding anything contained in Sub-Section (1), in case the victim has died, or is

unable for any other reason to file a complaint, any adult member of his family, or his attorney,

may file a complaint mentioned in Sub-Section (1) indicating the reasons.

(3) In case any adult member of the family of a detainee, or his attorney, feels that the detainee

has been tortured, he may file a petition to the appropriate district court. In case such a petition is

received, the court may issue an order for the examination of the physical or mental condition of

the detainee within three days. If, in the course of such examination, it is found that treatment is

necessary, such treatment shall be made available by HMG.

(4) Complaints filed under Sub-Section (1) or Sub-Section (2) must contain the following

particulars as far as possible:

(a) Reasons for detention, and the period of time spent in detention.

(b) Particulars of torture inflicted while in detention.

(c) Particulars of losses caused by such torture.

(d) Amount of compensation claimed.

(e) Any other particulars, which help in proving the case.

Section 6. Action on Complaints and Compensation

(1) In respect to a complaint filed under Section 5, the district court shall follow the procedures

mentioned in the Summary Trial Procedure Act, 1971, and in case the particulars of the


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complaint are found correct, decide that compensation not exceeding Rs 100,000 be realized

from HMG on behalf of the victim.

(2) While taking action according to Sub-Section (1), in case it is proved that the complaint has

been filed with malafide motives, the district court may impose a fine not exceeding Rs 5,000 on

the complainant.

Section 7. Action Against Persons Involved in Torture

In case it is proved that torture has been inflicted in the manner mentioned in this law, the district

court. shall order the appropriate agency to take departmental action according to the current law

against. the government employee who has inflicted torture.

3. Civil Right Act 1956

Section 11 : Punishment in the case of conviction:

(1) No one shall be punished for an act which was not punishable by law when the act was

committed and no person shall be subjected to a punishment greater than that the law in force at

the time of offence.

(2) No person shall be prosecuted or punished for the same offence more than once.

(3) No person, accused of any offence, shall be compelled to be a witness against him/herself.

4. Child right act 1992

Section 7 :Prohibition on torture or cruel treatment:

No Child shall be subjected to torture or cruel treatment. Provided that, the act of scolding and

minor beating to Child by father, mother, member of the family, guardian or teacher for the

interests of the Child himself/herself shall not be deemed to be violation of this Section.

Section 15: Prohibition on imposing rigorous punishment:

Notwithstanding anything contained in the existing laws, no Child shall be subjected to

handcuffs and fetters, solitary confinement or be committed to live together in prison with

prisoners having attained the age of majority in case a Child is convicted for any offence.


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5. Police Act, 2012

Section 15(1) of the act has recovered following humane treatment as an obligation of police

officers.

i) Injured and stick people who are arrested or are in detention must be given special treatment

and care.

ii) Adequate food and accommodation must be arranged for people who are arrested or

imprisoned.

c) Uncivilized treatment should not be done which carry out search on the detainee.

Sec 15 of State Cases Act, 1993 states that a detained person needs to be brought before the

Court before 24 hours and the accused may demand for his/her physical check-up.

Sec 9 (2) of Evidence Act,2031 makes clear that the statement should be made in a conscious

state and not in state of coercion or threat or torture.

The chapter on "Unlawful Imprisonment" in Muluki Ain, 2020 too has provision prohibiting

torture.

Role of judiciary

a) Teelu Ghale v.District Police Office, Hanumandhoka, 199318:

Nepal Police arrested Teelu Ghale a women of 26 years with a charge for selling a gram of

heroin and took her to office of DSP at Hanumandhoka at Kathmandu for questioning where she

was beaten, had electric current applied on her wrists and almost raped. She was not allowed to

be visited by her mother then her mother filed a case ofhabeas corpus in the Supreme Court and

was later released. The saddest part of this case is that no action has been taken to investigate the

allegations of torture and prosecute these perpetrators.19

b) Sitaram Yadav v. BidurKumarKarki, 205720

:

18Alternative Report to 2

nd3

rdand 4

thPeriodic (Combined), State Report of Nepal submitted to UN Committee

Against Torture (Dec. 2004) 6019 Ibid.20 Shyambabau Kafle, Yatanasambandhi Ainra yasko Karyanwayan Pakshya, Kanoon, Vol. 45, p:55


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Sitaram and others were discussing about a case in Babiya Police Post Sunsari, meanwhile one of

the accused at the incident escaped from the police post and police charged Sitaram for helping

the accused to escape. Then the police verbally abused him and started beating by boots

randomly on his body in open area. Later Sitaram filed a case in Sunsari District Court

demanding compensation and departmental action against the perpetrator. The District Court

held that it is not found that Sitaram was in police custody. Police has beaten plaintiff in some

minor dispute in front of people at the police post, therefore, it cannot be named as torture and

the Appellate Court Biratnagar also upheld the same verdict of the District Court.

Similarly there are various cases decided by the supreme court where confession obtained from

torture is not taken as evidence.

In Sochindra Prasadandothers v. HMG,205621

, the court held that Confession made before the

police by the accused alone cannot count for the evidence of commission of crime. Confession

should be supported by other evidence.

In Hirapashi v.HMG ,202822

,the court explained thatthere is always a chance of accused being

victimized of torture during the custody of police, therefore, the confession made before the

police only cannot be a primary evidence to give a verdict of case by the court and the accused

was released.

ChandraBahadurand others v. HMG, 2041

23

is a case where Confession made at the PoliceStation was denied before the Court since the accused was compelled to make the Statement as

said by the Police and when Court ordered for the physical examination of the accused, blues due

to torture by police were found all over the body of accused therefore the Court didnt admit that

Statement before the Police as Confession.

In the case ofHMG v. Krishnahari Khatri and others, 205624

though the accused has rejected

the confession made before the Police in the Court due to the unavailability of the proof of

torture inflicted upon the accused by police during confession the court made him liable for the

crime

21NKP 2056, Vol. 1, Decision no. 6656, p:45

22NKP 2028, Vol. 1, Decision no. 612, p:208

23 NKP 2041, Vol. 5, Decision no. 2004, p:47524 NKP 2056, Vol. 2, Decision no. 6674, p:142


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In Manaraj Kaharv.HMG, 202725

the court held thatIn the absence of other evidence, no one

can be made liable only on the basis of the confession made before the Police.

Motimaya alia s Dilmaya Maharjan and others v. HMG, 203526

, is a cases where the Court

decided that with the lack of proper evidence only on the basis of confession of an accused

stating that the crime was done because of order of other person cannot be used to convict

anyone.

Actual situation of torture in Nepal

Unfortunately, in the report of the Commission on Human Rights, the observation team reported

that the tendency of extracting confession is one of the main reasons for the quite frequent cases

of torture or ill treatment inflicted during investigations.27in the scrutiny of 222 criminal cases

carried out, an allegation of physical torture for confessing crime is reported by suspects in their

deposition at courts in 50% of cases, whereas inhuman treatment, like handcuffing, verbal abuse,

etc is reported in 19% of cases28

Some of the cases of torture perpetrated by the police and army as reported in the Nepal HumanRights Yearbook 2008 are given below:

29

On 15 January 2007, Hira Rajbanshi and Bhup Narayan Rajbanshi of Khajurgachhi VDC-3 and

Druba Neupane of Damak Mmunicipality-3 were detained by inspector Santosh Lama of

Gaurigunj area Office following a dispute with the police regarding setting up a fair. They were

beaten by inspector Tamang and released next day when the locals protested.

On 21 March 2007, security guard at Mahendranagar municipality, Birendra Singh Dhami, 22, of

Bankhet, Mahendranagar municipality was subjected to torture at District Police Office for

alleged theft in the house of policeman Karna Bahadur Chand at Haldukhal, Mahendranagar

Municipality-6.

25NKP 2027, Vol.9, Decision no. 560, p:247

26 NKP 2035, Vol. 12, Decision no. 1221, p:26127

Y.R. Sangroula, Compliance of International Standards in Nepal: Critical Analysis of Situation of Fair Trial &

Safeguards of the Rights of accused in Nepal, (Kathmandu: KSL Journal, 2003) 528 Report on Analysis and Reforms of Criminal Justice in Nepal, (CeLRRd) 10529 extracted from http://www.nepalmonitor.com/2008/08/nepal_ranks_ahead_of.html (accessed on 23rd Feb)


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On 26 March 2007, Dil Bahadur Suji (55), Pratap Singh (45), Jagat Singh and Tikaram Singh of

Dally VDC-4 and Jagat Bahadur Shani of Chamunda VDC-4 were beaten by army personnel of

Bhawani box Battalion. The army personnel were allegedly drunk. The victims underwent

treatment at local Primary Health Care Centre, Dallu. Chief of the Batallion informed that

departmental action was taken against the accused.

On 4 April 2007, V Krishna Kumar Thokar of Dandakharka VDC-8 was beaten by ASI Amrit

Bahadur Bhandari of Police Post in an inebriated condition. District Police Officer, Dolakha

informed that ASI Bhandari was called back for departmental action. The victim was treated at

local Chho Rolpa Clinic.

On 7 May 2008, a peon at the District Hospital, Moha Dutta Poudel(37)was arrested by the

police on charges of killing a girl Jharana KC of Baglung municipality-11. The victim was

tortured in the police custody by Police to extract a confession. He was released by the

perpetrators on 8 May and was treated in the District Hospital.

On 29 June 2007, Raju Mandal (28) of Katahari VDC-9 was arrested by a plain clothed

policeman, Shiva Adhikari from a tea shop near traffic Chowk, Biratnagar submetropolis-11. He

was brought to Ward Police Office, Hatkhola and tortured with plastic pipes and boots. The

victim sustained injures at chest and knees were treated at Koshi zonal Hospital under the

assistance Human Rights Project of Nepal Bar Association.

On 29 June 2007, Dilman Rai (37) of Banku VDC-5 and Pawai Biyas Rai, a teacher at Hulu

Lower Secondary School, were tortured by a group of policemen including ASI Rajendra

Khadaka of Area Police Office, Sotang. The victims were arrested on charge of quarreling.

Dilman was seriously injured and taken to the District headquarters for treatment. He was

referred to Kathmandu after failing to receive treatment there.

On 10 July 2007, Gyanendra Khadka (24) of Bhojpur VDC-4, INSEC district representative and

Vice-chairman of FNJ, Bhojpur chapter and Man Bahadur Khatri (30), teacher at Yoshodhara

Secondary Schoolof Bhojpur VDC-3 were beaten up by a group of 13 policemen of APF

barrack.


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The torturers were ASI Santosh Kirala and head constable Bhesh Bahadur Thapa who tortured

under orders of SI Shiva Narayan Mahato. Both received injuries on the face and treated at local

clinic. Khadka filed complaint at the DPO, DAO and NHRC on 12 July seeking .action against

the perpetrators. APF stated that an investigation team decided to halt the promotion of SI

Mahato for three years, Yogya Basnet for two year, Bhesh Bahadur Thapa for three years and, to

demote ASI Santosh Koirala to head constable.

On 21 August 2007, Dev Ram Luhar (21) of Sunsera VDC-4 was tortured by policeman Jay

Bahadur Chand of Sunsera Police Post. The victim was arrested for alleged charge of

manhandling of local woman. The victim was beaten on his feet by a bamboo stick, on his chest

and others parts of the body by boots. The victim was seriously injured and was taken to

Dharchula Hospital in India by policeman Sundar Singh Dhami on 28 August in the help of the

villagers. The victim returned home on 2 September after treatment.

On 18 October, Radha Sarki of Waling Municipality-2, was arrested on charge of thievery and

allegedly tortured in the custody for three days by ASI Hari Krishna Devkota of Area Police

Office, Waling. The victim was hit by plastic pipe on her body including genitals.

On 12 December 2007, Milan Limbu, Sandip Poudel, Bishal BK, Pradeep Poudel, Ranjit Poudel,

Kaji Bhujel and Surya Bahadur Basnet of Triyuga municipality were allegedly tortured by APF

personnel. Milan Limbu sustained serious injuries in the beating and was treated at BP Koirala

Institute of Health Sciences in Dharan. YCL and the locals shut transportation for four hours on

12 December saying those beaten were YCL cadres.

In Nepal, confession forms the basis of criminal investigation and a common method of

extracting confession therefore torture -remains an institutional practice. Advocacy Forum, a

prominent advocacy NGO visits large numbers of detention centres. Their detailed records were

alarming. They found that 30% of children detained by the police were subjected to torture.

Between May 2006 and April 2007 out of 3,908 detainees interviewed 1,595 (55.1%) were

detained illegally30

During the last 6 years of armed conflict in Nepal has been characterized by wide spread

arbitrary arrests, unacknowledged detentions and disappearances at the hand of security forces.

30 http://www.nepalmonitor.com/2008/08/nepal_ranks_ahead_of.html (accessed on 25th Feb)


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Since 1998, 622 cases of disappearance have been reported while local human rights groups

have recorded 1264 disappearance since the conflict began in 1996. Hundreds of people have

been abducted by the CPN (Maoist).31

Centre for Victims of Torture in Nepal recently wrote that, "Conditions in Nepal are

worsening, despite the introduction of special, but flawed, legislation to allow torture survivors

to claim compensation." At the time of writing, in total only 16 cases have been decided by the

courts awarding compensation to a torture victim under the act. Until now, none of those

victims has received the money from the government. There is also nothing in place to assess

whether or not departmental action was taken against the perpetrators in those cases or whether

they were left to carry on with business as usual.32

Situation of Complaints relating to torture received by the 'National Human Rights

Commission

After the establishment of NHRC on 2057BS Jestha 13 till now ((2066) 702 complaints related

to torture has been filed to the commission. Among those, 230 complaints have been investigated

from the facts and evidences collected from the investigation, 57 cases have been decided among

which in 22 cases recommendation has been made to the government to compensate the

complaints the victim and punish the culprits. In 18 cases, no violations of Human Right being

found the complaints were dismissed.

National organizations working for torture Victims

1.National human right commission:33

The National Human Rights Commission (NHRC) of Nepal is an independent and autonomous

constitutional body. It was established in the year 2000 as a statutory body under the Human

Rights Commission Act 1997 (2053 BS). The Interim Constitution of Nepal 2007 (2063 BS) has

made the NHRC a constitutional body. It has a separate sphere of responsibilities in the

constitutional legal system of the country. These responsibilities complement the responsibilities

31 Legal measures for torture prevention in Nepal, Rajendra Ghimire, Advocate, Supreme Court, Kathmandu, Nepal

http://www.article2.org/mainfile.php/0306/172/( accessed on 25th Feb)32

Legal measures for torture prevention in Nepal, Rajendra Ghimire, Advocate, Supreme Court, Kathmandu, Nepalhttp://www.article2.org/mainfile.php/0306/172/( accessed on 20th Feb)33 http://www.nhrcnepal.org/about_us.php accessed on 20th Feb)


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of the normal machinery of the administration of Justice, the Supreme Court, the Office of the

Attorney General, the Commission for the Investigation of Abuse of Authority, and other

existing executive, quasi-judicial or judicial bodies of Nepal

2. Centre for victims of torture, Nepal34

The Centre for Victims of Torture, Nepal (CVICT) is a non-profit, non-governmental

organization that rehabilitates victims of torture, advocates the eradication of torture and

promotes human rights within Nepal. CVICT is the only centre of its kind in Nepal. CVICT

provides professional medical, psychosocial and legal services to Nepalese men, women and

children who are victims of torture, trauma associated with torture or inhuman treatment. We

believe that a comprehensive, holistic and multi-disciplinary approach is required to adequately

assist victims of torture and their families overcome the physical, mental and emotional

consequences of torture. We have been providing comprehensive rehabilitation services for

victims of torture and other human rights abuses to restore their human dignity since 1990.

3. Advocacy forum , Nepal35

Advocacy forum (AF) is a leading non-profit, non-governmental organization dedicated to

promoting the rule of law and upholding international human rights standards in Nepal.

Established in 2001, AF takes proactive measures to combat the pervasive culture of impunity

that has been thriving for decades in the country by systematically documenting human rights

violations/abuses, filing lawsuits against perpetrators, lobbying the state for institutional and

legal reforms, providing psychosocial and legal aid to victims and monitoring government

detention facilities. Our approach is victim-centric and we act as a catalytic force to bring the

voices of the victims to the fore.

4 Women rehabilitation centre36

Women's Rehabilitation Centre (WOREC) works in partnership with grassroots people in orderto resolve the major socio-economic, cultural and human rights injustices prevalent in Nepal in

order to work towards the attainment of social justice and sustainable livelihood at the

34http://www.cvict.org.np/(accessed on 20th Feb)

35 http://www.advocacyforum.org/about-us/index.php accessed on 20th Feb)36 http://www.worecnepal.org/ accessed on 20th Feb)


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community level. WOREC's main goal is to prevent the trafficking of persons from a human

rights perspective

5. Informal sector service centre37

INSEC has been ardently involved in protection and promotion of Human Rights for more than

one and a half decade. Founded by inexorable HR defender late Prakash Kaphley and prominent

HR activist Sushil Pyakurel, INSEC significantly contributed in institutionalizing the democratic

polity in the nation from a rights based approach, both at the policy and grassroots levels,

especially after the restoration of democracy in 1990/91. In course of time, INSEC has gradually

identified its core competency areas which are organizing campaigns, awareness creation and

education programs for making people capable of asserting their civil and political rights and

documentation of human rights situation of the country and its dissemination at national and

international arenas. Education, monitoring, lobbying, advocacy, research and training on issues

related to human rights have been major regular undertakings for INSEC for more than a decade

already.

6.Center For Legal Research And Resource Development Center38

CeLRRd is a non-governmental organization, founded in 1998 to foster human rights culture,

rule of law, good-governance, and access to justice through advocacy and trainings to various

actors involved in the administration of justice as well as creating widespread understanding ofthe rule of law and unrestricted access to free and fair justice

3.1. Conclusion

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment aims to eliminate the torture but article 1 limitized the scope of torture.

Even thought the convention is significant to eradicate the problem of torture throughout theworld and it became the pillar of International Human Right Instrument. Even thought there are

various convention and Declaration which included which prohibited the torture but there were

not specific convention forbidding torture. On this background The United Nations Convention

37 http://www.insec.org.np/ accessed on 20th Feb)38 http://www.celrrd.org/ accessed on 20th Feb)


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against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was drafted

and ratified by many countries.

Nepal ratified the convention in 1991. Immediately Nepal domesticate various laws regarding

torture just like the torture compensation act, child right act, state cases act civil right and so on

and Inspire of various legal provisions proscribing torture, there are a lot of instances where

torture has been inflicted and no legal actions have been taken against the torturers. Even though

existence of these law and convention against the torture, the massive violation of Human Right

and cruel inhuman activities by maoist and government during the period insurgency. In NHRC,

there are about 702 cases were filed and among these about 230 were investigated and about 22

cases recommendation has been made to the government to compensate the complaints the

victim and punish the culprits. So these show the condition of the torture in Nepal.


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convention on torture

Documents