Rabindra Prasad Dhakal v. Nepal
Interim/Urgent Measures | Systemic Practice | Refusal to Disclose Fate | Relatives as Victims | Effective Remedy | Duty to Investigate | Duty to Prosecute | Reparations | Deprivation of Liberty | Obligation to Criminalise | Judicial Protection | Obligation to Prevent | Juridical Personality
The Court held that the situation of armed conflict did not exempt the State from its responsibility to protect its nationals, arguing that in time of conflict the State needs to be more responsive in light of the greater risk of violation of human rights. It added that such responsibility is further increased when an arrest is carried out with the involvement of the authorities. The Court found that disappearances violate fundamental rights such as the right to life, freedom and justice. It also found that investigation and proceedings on cases of disappearance are to be considered as a part of the remedy against such violations, together with the process of truth finding. In this regard, it made reference to the International Convention for the Protection of All Persons from Enforced Disappearance as a "fundamental standard" even in the absence of the State's ratification. It concluded that the State had the responsibility to identify the condition of the disappeared persons and make this public, initiate legal action against those responsible and provide appropriate remedy to the victims, finding that no concrete steps had been taken to fulfil such responsibility.
The Court also found that, by making the very existence of a person unknown and doubtful, forceful disappearance denies the possibility for such person to have access to other basic and fundamental human rights. The Court found that the victims' families had to undergo mental torture due to their disappearance, and should therefore be provided with interim relief and adequate compensation. Finally, in light of the fact that the status of the victims remained unknown, and of the high number of disappeared persons, the Court decided that the solution was not the issuing habeas corpus, but rather structural and remedial in nature. The Court held that the task of finding out the whereabouts of those disappeared during the conflict could not be fulfilled without clear and effective legal provisions to that effect. Consequently, the Court ordered the Government to pass legislation for the protection of the disappeared persons, and to provide for an Inquiry Commission to carry out an in-depth and comprehensive inquiry, conduct a criminal investigation, and prosecute the concerned persons.
June 1, 2007
Facts of the Case
Between 1999 and 2004, in the context of the armed conflict taking place in the country, a number of persons were disappeared after having been arrested and detained in army barracks by Nepalese security forces, and at the time of the case, still remained unaccounted for. In several instances the Supreme Court requested information about the individuals' whereabouts, but the relevant authorities denied any involvement in their disappearance and did not conduct any investigation.