Convention on Torture
-
Upload
srijana-regmi -
Category
Documents
-
view
238 -
download
0
Transcript of Convention on Torture
-
8/6/2019 Convention on Torture
1/24
1
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
-
8/6/2019 Convention on Torture
2/24
2
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
-
8/6/2019 Convention on Torture
3/24
3
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
-
8/6/2019 Convention on Torture
4/24
4
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
-
8/6/2019 Convention on Torture
5/24
5
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
-
8/6/2019 Convention on Torture
6/24
6
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
-
8/6/2019 Convention on Torture
7/24
7
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
-
8/6/2019 Convention on Torture
8/24
8
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
-
8/6/2019 Convention on Torture
9/24
9
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
-
8/6/2019 Convention on Torture
10/24
10
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
admissibility and merits
author makes submissions
on merits
author makes submissions on
admissibility and merits
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
-
8/6/2019 Convention on Torture
11/24
11
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
-
8/6/2019 Convention on Torture
12/24
12
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.
-
8/6/2019 Convention on Torture
13/24
13
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
-
8/6/2019 Convention on Torture
14/24
14
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.
-
8/6/2019 Convention on Torture
15/24
15
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
-
8/6/2019 Convention on Torture
16/24
16
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
-
8/6/2019 Convention on Torture
17/24
17
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)
-
8/6/2019 Convention on Torture
18/24
18
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.
-
8/6/2019 Convention on Torture
19/24
19
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)
-
8/6/2019 Convention on Torture
20/24
20
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)
-
8/6/2019 Convention on Torture
21/24
21
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)
-
8/6/2019 Convention on Torture
22/24
22
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)
-
8/6/2019 Convention on Torture
23/24
23
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.
-
8/6/2019 Convention on Torture
24/24
24