NEPAL: Ensure fair trial and protection to child torture victim

A Joint Statement by the Asian Human Rights Commission and the Center for Victims of Torture-Nepal

NEPAL: Ensure fair trial and protection to child torture victim

As Lapka Tamang’s torture case will be heard on October 24, 2011 in Dulikhel District Court, Kavre, the Center for Victims of Torture-Nepal (CVICT) and the Asian Human Rights Commission (AHRC) expect the hearing will take place according to the norms of  a free and fair trial, and that the victim will be provided protection against any coercion attempts to change his testimony.

Eleven-year-old Lapka Tamang was tortured in custody of the Pachuwarghat police station on November 16, 2010, while being questioned about a lost ring. In our urgent appeal on his case (AHRC-UAC-010-2011: The torturers of an 11-year-old child must be brought to justice) we reported that Lapka was tortured for one hour.  Assistant Sub Inspector (ASI) Purushottam Shrestha, alias Mashushan Shrestha reportedly asked him to crouch down and used a plastic pipe to beat his back five to six times. His soles were beaten 20 to 25 times.  Lapka also reported that Police Constable Bhishma Kumar Thapa applied electric shocks behind his right ear. The police threatened the 11-year-old with death if he refused to confess to the theft of the ring, or talked to anyone about the torture, leading to Lapka eventually signing a letter of confession. The police then coerced his father to pay Rs 19,000 to the owner of the lost ring.

Only upon returning home that evening did Lapka's father come to know his son had been tortured. A medical examination conducted on November 19 concluded that Lapka’s injuries were consistent with the history provided, and the age of the injuries consistent with the alleged time of infliction. The report also concluded that there was evidence that "falanga", one of the most common methods of torture in detention, was inflicted on the victim. 

The father filed a case against the two alleged perpetrators in Dhulikhel District Court under the Children Act, 1992. Article 7 of the Children Act makes torture of children under 16 years a criminal offence punishable with up to one year imprisonment and/or a fine up to Rs 5000, a punishment in no way commensurable to the seriousness of the offence, which is nothing short of a violation of a child’s basic human rights.

During the last hearing, the victim was threatened by one of the alleged perpetrators, Bhishma Kumar Thapa, who told Lapka’s lawyer that ASI Shresta was the only one to have inflicted torture on the victim and that he himself, had just put electric wires behind the victim’s ear, without the current. He further threateningly said that he would make Lapka say he had not tortured him, by whatever means. This is not the first time the victim was threatened: immediately after the case was filed, the victim received threats from the police to drop the case. When informed of these threats, the District Police Office refused to intervene, saying that it was not the duty of the police to protect the victim any more. 

Threats to victims and the absence of any witness protection mechanisms have barred thousands of individuals from accessing justice, and have stoked the impunity prevalent for perpetrators. Without granting protection to victims and witnesses of human rights abuse, a fair judicial process remains nothing more than wishful thinking.

This lack of protection and the correlating impunity is one of the reasons torture against children remains alarmingly high in Nepal. A recent report by Advocacy Forum found that 32.8 percent of the juvenile detainees interviewed, reported torture or ill-treatment from January to June 2011¹.  Nepal continues to torture its children while the judicial system remains incapable of holding the perpetrators accountable.

Although torture against children was outlawed in Nepal nearly two decades ago, not a single perpetrator has been convicted under article 7 of the Children Act so far. While the country's judiciary has generally supported progress in the field of human rights protection, it has been slow in initiating momentum in the fight against torture and has, at best, lukewarmly implemented legal provisions introducing a minimal degree of accountability for torture perpetrators. To illustrate, the Torture Compensation Act, 1996 provides for departmental sanctions in cases where torture is found to have been applied. While the court has on numerous occasions found that torture has been applied and granted compensation to the victims, occasions in which it has ordered action against the perpetrators have been scant. 
    
It is now time for the judiciary to initiate a reversal of that trend and uphold the principles entrenched in the International Covenant for Civil and Political Rights. It should send a long-awaited signal that uniforms do not protect their wearers from the reach of the law, and that justice will no longer turn a blind eye to torture.

For this to take place, victims of torture must be guaranteed an effective right to a fair trial. We are therefore calling for particular measures to ensure the physical protection of Lapka and his family in the days preceding the judgement, to create the conditions of a fair trial with no party having undue influence or the capacity to interrupt the due course of justice.

The AHRC and CVICT take this opportunity to urge the government to expedite the process of criminalisation of torture by adopting sanctions proportionate to the gravity of the offence, and in line with internationally accepted human rights standards.