Every year, 26 June marks the day to remember and renew our support to those who have been victims of torture worldwide. A day in support of victims of torture mandates to review which steps were accomplished in the past year to bring torture to an end. Yet, this year as well torture continued to be reported at worrying rates in the country and since the last International Day in Support of Torture Victims, hundreds of Nepalese have faced physical and mental torture in the hands of the security forces, enjoying near-total impunity while violating the fundamental rights they should be protecting.
Although the end of the conflict led to a noticeable decline in the use of torture, its use as a tool for confession or for bribe-extortion remains widespread. According to a recent report by Advocacy Forum, 22.5% of the 2183 detainees they have interviewed between July and December 2010 reported torture or ill-treatment, among them 13.3% of the women detainees and 26.7% of the juvenile detainees. This figure reveals a worrying increase of 6 points in the percentage of detainees claiming torture in comparison to the previous study which covered the period from January to June 2010 where the percentage was of 15.8%. In some districts of the Terai region, this percentage is superior to 30%, with an extremely worrying figure of 46.5% of the detainees of Dhanusha district interrogated claiming to have faced torture or ill-treatment.
This trend of rising torture should trigger a sense of alarm in the minds of the Nepalese government and compel it to take immediate measures to bring to an end this number one challenge to the establishment of the rule of law in the country. In light of the cases documented within the past year, the Asian Human Rights Commission is of the opinion that persisting impunity protects perpetrators of torture from any consequences arising from their abuses and is the major cause of torture in
Stories of women, men, children and adults, having fallen prey to abuse at the hands of the police illustrates how impunity for this gross human rights violation has exposed innocents to the arbitrary brutality of criminals in uniforms. The lack of sanctions taken against the police officers who are violating fundamental rights registered in the Nepalese Constitution allow criminals to retain a position of authority from which they can abuse for their own advantage.
The most pressing challenge that
Nevertheless, as of now, some elements remain a matter of concern for the human rights community as they may prevent the effective implementation of the provisions criminalizing torture and thereby undermine the protection offered by those provisions to the detainees. The lack of a definition of torture in line with the international standards set up in the Convention against Torture is one of those elements which may contribute to the dismissal of cases of torture. The penal code does not set a mandatory prison sentence for perpetrators of torture, a punishment inadequate with regard to the standards set by the CAT which states that those offences should be "punishable by appropriate penalties which take into account their grave nature". The possibilities for those convicted of torture to get through with a fine only is clearly not proportionate to the gravity of the damages inflicted and such a light sanction is unlikely to act as a deterrent for the perpetrators.
Of particular concern are the provisions of the draft criminal code which mandates that written sanctions of the government of
As long as no independent body is created to probe cases which, if investigated by the police, would result in an open conflict of interest as the police themselves are the perpetrators, effective prosecution of cases of torture is impossible. During the Universal Periodic Review of Nepal in January,
Because they had refused to pay a bribe to policemen under the command of an Inspector from
The case of Hom Bahadur Bagale, an inspector of police tortured and detained incommunicado for two weeks in 2002 for having refused to follow an order from a superior, also illustrates at length the aberration of the current justice process, which being unable to ensure the right of remedy to the victim creates situations in which the victims themselves may risk further punishment if they seek justice. Since 2002, no investigation has been launched in the allegations of torture. The victim filed a case for Torture Compensation which was rejected both by the District Court and the Appellate Court. The case was then filed in the Supreme Court on
Those cases abundantly expose that police officers must not be entrusted with the task of registering and investigating cases of alleged misconduct by their peers, as torture has in repeated instances been condoned by the police hierarchy or administration. Making sure that victims of torture have access to independent authorities to register their complaints of ill-treatment is therefore essential for the criminalization of torture to foster an effective remedy for torture victims.
In addition to the criminalization of torture, it is therefore essential that
Acting decisively to eradicate torture from