Sharma v. Nepal
Key Judgment
Legal Relevance
Keywords: Burden of Proof | Deprivation of Liberty | Evidence | Refusal to Disclose Fate | Relatives as Victims | Effective Remedy | Duty to Investigate | Duty to Prosecute
Themes: Characteristics of the Crime | Related Crimes
The Committee made a finding of inhuman treatment both with respect to the victim, in light of the fact that he was kept in captivity and prevented from communicating with his family and the outside world, and with respect to his wife, noting the anguish and stress that the disappearance caused her. It further found a violation of the victim’s right to liberty and security, in light of the fact that he was arrested by uniformed army personnel without a warrant, held incommunicado without being informed of the reasons for his arrest or the charges against him, and never brought before a judge. The Committee also found that the victim's disappearance constituted a violation of his right to be treated with humanity and dignity, as he disappeared and possibly died while he was in the custody of the State. Finally, the Committee found that it was not appropriate to find a violation of the right to life. Whilst the victim's wife and the State seemed to agree that the victim had died, the Committee noted that there had been no official inquiry into the event and that the victim's wife kept appealing for his release, indicating that she had not abandoned hope for his reappearance. In light of this, it was not the Committee's place to speculate on the circumstances of the victim's death.
Judgment Date
October 28, 2008
Country
Nepal
Judicial Body
Human Rights Committee
Articles violated
Article 2(3) [ICCPR], Article 7 [ICCPR], Article 9 [ICCPR], Article 10 [ICCPR]
Articles not violated / not dealt with
Article 6 [ICCPR]
Facts of the Case
Mr. Surya Prasad Sharma was apprehended in January 2002 in his house by a group of uniformed army personnel, on the day when he was expected to submit his application for surrender as a supporter of the Communist Party who was previously living in hiding. Mr. Sharma was informed that he would be taken to the army barracks to be interrogated. Mr. Sharma's wife was informed that her husband would be released after the interrogation. In the following days, she was not permitted to visit him, and heard rumours that her husband had been tortured. Around 10 days after the apprehension, a soldier told Mr. Sharma's relatives that he had escaped the barracks while being taken to a village to reveal the whereabouts of a Communist hideout, and drowned in the river during his escape. In February 2002, Mr. Sharma's wife tried to enquire under which law her husband was detained, but was informed that, because of the state of emergency, she could not be given information about his situation. She kept trying to collect news from the relevant authorities, with no success. When she filed a writ of habeas corpus, she was told that Mr. Sharma had been arrested by the security forces for the purposes of their own investigation. In September 2004, the Commission on the investigation of missing persons published a list which included Mr. Sharma’s name. In 2005, the Supreme Court quashed the writ of habeas corpus stating that since Mr. Sharma had drowned in the river he was not in the custody or control of the state. The authorities took no action to produce Mr. Sharma’s body.