Tharu et al. v. Nepal

Key Judgment


Legal Relevance

Keywords: Refusal to Disclose Fate | Relatives as Victims | Right to Know the Truth | Effective Remedy | Duty to Investigate | Duty to Prosecute | Interim/Urgent Measures | Deprivation of Liberty | Judicial Protection | Juridical Personality

Themes: Related Crimes | Characteristics of the Crime

The Committee found that the State did not explain the specific circumstances of the alleged death of the victims, concluding that it failed in its duty to protect their lives. It further made a finding of inhuman treatment both in relation to the enforced disappearance of the victims, recognising the suffering involved in being held indefinitely without contact with the outside world, and in relation to their relatives, in light of the fact that they have never received sufficient explanation concerning the circumstances of the victims' alleged death or access to their remains. The Committee also found that the victims' detention constituted a violation of their rights to liberty and security, as they were detained without an arrest warrant, never brought before any judicial power, and they could not challenge the lawfulness of their detention. It concluded that their enforced disappearance also denied them the protection of the law and constituted an intentional deprivation of their right to recognition as persons before the law, in light of the fact that the victims were in the hands of the authorities when last seen and that the efforts of their relatives to obtain access to potentially effective remedies had been systematically impeded.

Judgment Date

July 3, 2015

Country

Nepal

Judicial Body

Human Rights Committee

Articles violated

Article 2(3) [ICCPR], Article 6 [ICCPR], Article 7 [ICCPR], Article 9 [ICCPR], Article 16 [ICCPR]

Articles not violated / not dealt with

Article 10 [ICCPR], Article 17(1) [ICCPR], Article 23 [ICCPR], Article 24 [ICCPR]

Facts of the Case

The eight victims were apprehended from home in April 2002 by a group of Royal Nepalese Army soldiers, in the context of the internal armed conflict which took place in Nepal between 1996 and 2006. No reasons were given for the arrest, but the soldiers assured them that some of the apprehended would return to their homes soon after being interrogated. The eight men were never seen again, and no relevant information has been given to their families as to their fate and whereabouts, despite their efforts. In 2006, the victims were registered as missing persons in the ICRC's database. In May 2006, the Government established the Ministry of Home Affairs Disappearances Committee for the purpose of investigating the fate of allegedly disappeared persons. In July 2006, the Disappearances Committee published its report, which concluded that it considered the case to be “clarified” as the Royal Nepalese Army had provided information that the victims had been killed in crossfire with the security forces on 11 April 2002. In June 2007, the Supreme Court issued a judgement concerning a number of cases of enforced disappearance, ordering the Government to provide money to all families of disappeared persons; establish a commission of inquiry; criminalise enforced disappearance; and prosecute those responsible. Following this ruling, the Council of Ministers decided to provide interim relief to victims of the armed conflict, including the relatives of disappeared persons.

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