UN asks Nepal government to bring anti-torture law at par with international standardThe existing provision in criminal code is flexible, legal experts say.
The United Nations Human Rights Committee has called on Nepal government to criminalise torture with sanctions and remedies commensurate with the gravity of such crimes and revise the statutes of limitation at par with international standard.
Responding to a case filed by a forced labour and torture victim with the help from TRIAL International, the human rights committee also asked the government to ensure that the victims of the forced labour and torture can easily file their complaints.
Bholi Pharaka, a name given by the TRIAL, who was working as domestic help for a Nepal Army officer in 2010 was forced to work from 4 am to 10 pm without any pay, according to a report by the committee. The 14-year boy from the Tharu community eventually fled to his hometown, but he was arrested in August 2012 after he was accused of stealing gold and other valuables from his employer.
Based on the complaint filed by a daughter of his landlord, the Metropolitan Police Range, Kathmandu, detained Pharaka and subjected him to torture.
Despite being a minor, Pharaka was held in custody with other detainees, instead of sending him to juvenile correctional centre. Pharaka was released following a ruling from the Supreme Court in June 2013.
In December that same year, his father filed a petition at the Kathmandu District Court under the Torture Compensation Act, seeking redress and prosecution against the people responsible for torturing and unlawfully detaining his son.
The court, however, refused to register the petition, saying that it did not meet the 35-day statute of limitation. Pharaka's family then attempted to file a case with the police, only to be denied again.
The apex court also refused to register a case of torture and forced labour.
“After the victim and his family’s multiple attempts to file complaints failed, the case made its way to the Human Rights Committee via TRIAL International,” read the statement from the committee.
The committee has the mandate to review complaints from individuals who have suffered human rights violations and have been denied justice in their home countries. In its decision, the committee has also found that Nepal violated different provisions of the International Covenant on Civil and Political Rights. Article 7 of the covenant says that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.
“The life of someone is shattered after enduring torture and forced labour as a child. Access to justice and accountability are essential for victims to rebuild their lives and recover their dignity. It is our hope that Nepal will take all necessary measures to protect and help victims of such acts regain their lives,” Helene Trigroudja, member of the committee, said in the statement.
The committee has also requested Nepal to report back within 180 days detailing the measures it had taken to remedy the situation.
Though clause 167 of the Criminal Code has a provision that no one can be subject to torture, legal experts say the actions it has proposed are very flexible. It has envisioned a maximum of five years of jail term and Rs 50,000 fine or both without fixing the minimum penalty. It also has six months of statute of limitation to file the case.
“The given penalty is too low,” said Raju Chapagain, an advocate with an expertise in human rights. He said the statute of limitation should be proportionate to the gravity and nature of the crime, which is not the case with the code.
Chapagain said there is a need of a separate anti-torture law which adheres to the international standard with a retroactive provision to deal with the case during the insurgency. Though a draft of anti-torture bill was prepared and registered in Parliament in 2014, it was not endorsed. The bill was prepared in the wake of the arrest of Nepal Army Colonel Kumar Lama in London. It proposed criminalising torture, providing a mechanism for investigation and prosecution of torture complaints, and providing compensation to the victims.
Any bill that remains unapproved needs to be reintroduced if a new parliament comes into function. The incumbent government has not introduced the bill in Parliament.