Sedhai v. Nepal


Legal Relevance

Keywords: Duty to Investigate | Duty to Prosecute | Deprivation of Liberty | Refusal to Disclose Fate | Relatives as Victims | Right to Know the Truth | Effective Remedy

Themes: Characteristics of the Crime | Related Crimes

The Committee concluded that the State had failed in its duty to protect the victim’s life, recalling that in cases of enforced disappearance the unacknowledged deprivation of liberty places the person outside the protection of the law and their life at serious and constant risk, for which the State is accountable. It further made a finding of torture and inhuman treatment with respect to the victim in light of the acts of torture to which he was exposed, his incommunicado detention and enforced disappearance, as well as his conditions of detention. The Committee also made a finding of inhuman treatment with respect to the victim's family, taking note of the anguish and distress caused by his disappearance and of the fact that they never obtained official confirmation of his detention. The Committee found a violation of the right to liberty and security in light of the fact that the victim was arrested without a warrant; was not informed of the criminal charges against him; was not brought before any judicial authority; as well as the fact that no official information was given to his family regarding his whereabouts or his fate. It concluded that incommunicado detention amounted to a violation of the right of persons deprived of their liberty to be treated with humanity and respect.

Judgment Date

July 19, 2013

Country

Nepal

Judicial Body

Human Rights Committee

Articles violated

Article 2(3) [ICCPR], Article 6 [ICCPR], Article 7 [ICCPR], Article 9 [ICCPR], Article 10 [ICCPR]

Facts of the Case

"Mr. Mukunda Sedhai was apprehended in a shop by a group of armed men in plain clothes in December 2003, taken away in an army van and detained in Chhauni Barracks. A person who had been detained with him reported that Mr. Sedhai had been severely beaten and tortured by the army. A week after the abduction, Mr. Sedhai’s wife was visited by a man in plain clothes who stated that he was from the District Police Office and that Mr. Sedhai would be released if she paid bail. On the same day, the Chief District Officer “disavowed” this person and said he would investigate whether Mr. Sedhai had been arrested by the police. In the first six weeks after his arrest, Mr. Sedhai’s wife received two notes from him. According to witnesses, Mr. Sedhai was taken out of his detention room to be released in early 2004, but there has been no sighting of him since then and his relatives have been unable to discover his whereabouts. An investigation of the National Human Rights Commission concluded in 2006 that Mr. Sedhai had been arrested and detained by army personnel. The decision recommended that the Government make Mr. Sedhai’s whereabouts public and prosecute the army personnel responsible for his disappearance. In June 2007, the Supreme Court issued a decision concerning people who had disappeared during the conflict, including Mr. Sedhai, directing the legislator to criminalise enforced disappearance and investigate allegations of disappearances, including that of Mr. Sedhai. At the time of the application, the Government had taken no effective steps to implement this decision.

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