COMMITTEE AGAINST TORTURE HEARS RESPONSE OF NEPAL

The Committee against Torture this afternoon heard the response of Nepal to questions raised by Committee Experts on the second periodic report of that country on how it was implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to a series of questions raised by the Committee members on Wednesday, 9 November, Gyan Chandra Acharya, Ambassador and Permanent Representative of Nepal to the United Nations Office at Geneva who led the delegation, said regarding the commitment of the Government, the issue of torture and the current situation in the country and the reports of the various non-governmental organizations on the situation, the Government was unequivocally opposed to the use and practice of torture. The conflict had put the country under immense pressure, but the Government was committed to human rights issues and to be responsive to all commitments including those with regards to the Convention on Torture, in order to pursue its mission to promote and protect human rights. It would be appropriate to put the entire situation and the country into the proper perspective.

There were gaps, Mr. Acharya said, but Nepal would like to see them filled and taken into account when it spoke of consolidating its efforts for the promotion and protection of human rights. The Government was committed to not using torture to extract information, or to garner confessions. The Government was ready to cooperate with the Committee, although it did not agree with the allegation of systematic torture in Nepal. On the oversight of the human rights situation of the country, there was a Committee in the Parliament which reviewed the situation and made recommendations. At the moment, however, there was no Parliament, but as soon as it resumed, the Committee would also resume its functions.

The Committee will submit its conclusions and recommendations on the report of Nepal towards the end of the session on 25 November 2005.

As one of the 140 States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Nepal is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.

When the Committee reconvenes at 10 a.m. on Friday, 11 November, it is scheduled to take up the third periodic report of Ecuador (CAT/C/39/Add.6/).

Response of Nepal

GYAN CHANDRA ACHARYA, Ambassador and Permanent Representative of Nepal to the United Nations Office at Geneva, responding to a series of questions raised by the Committee Experts on Wednesday, 9 November, said the delegation had taken good note of what had been said, and had tried to understand how the Experts viewed the report which Nepal had prepared for presentation, and had held internal consultations in order to provide answers. Many of the issues raised by Experts had been answered during the meeting the day before, but as there were specific issues that had been raised, these would be dealt with today in a manner allowing for interaction and dialogue with the Experts. Those questions which the delegation could not answer would be given a response in the course of time.

Regarding the commitment of the Government, the issue of torture and the current situation in the country and the reports of the various non-governmental organizations on the situation, the Government was unequivocally opposed to the use and practice of torture, Mr. Acharya said. The conflict had put the country under immense pressure, but the Government was committed to human rights issues and to be responsive to all commitments including those with regards to the Convention against Torture, in order to pursue its mission to promote and protect human rights. It would be appropriate to put the entire situation and the country into the proper perspective. On reports of extrajudicial killings and disappearances, these were not policy-driven as such, and the Government took allegations of these practices very seriously and had investigated them thoroughly.

There were many cases of disappearances reported in 2004, and out of the 267 cases, answers were given to about 122 so far. The majority of the disappearances made it clear that they were caused by a lack of information. Almost all cases were linked to detention, but they had not been cycled back to the locations where the report of disappearance had been made. Nepal was committed to the special procedures, in order to remedy this situation. There had been a significant drop in the recent numbers of reports of disappearances. There were now more procedures and mechanisms ensuring that people did not disappear, and these were slowly falling into place as a result of the dialogue and systematisation of the process that had begun within Nepal. There had been various numbers put forth by different organizations, but these needed to be viewed from the correct perspective, including their origin.

There were gaps, Mr. Acharya said, but Nepal would like to see them filled and taken into account when it spoke of consolidating its efforts for the promotion and protection of human rights. The Government was committed to not using torture to extract information, or to garner confessions. The Government was ready to cooperate with the Committee, although it did not agree with the allegation of systematic torture in Nepal. Some of the information in the reports had been given by individuals, and should not be taken as evidence of a systematic policy of torture in the country. The Government had established an investigative committee on disappearances, which had made eight reports to date. There were many difficulties, which were also reported, and which remained to be overcome, notably that there was no strict registration within the country.

Impunity was also something that was taken very seriously, Mr. Acharya said. It was not something that was widespread. The Government had taken a number of steps and decisions with regards to reports of torture, and had provided details on the actions taken by the Government against individual violators, and this was included in the report. To say that there was total impunity did not fit with the facts. On incommunicado detention, the position of the Government was that it was going through a situation in which it was faced with a difficult insurgent situation, and despite this situation, the Government had given unhindered access to international organizations to visit places of detention, including army barracks. The Government did not have a practice of incommunicado detention.

The judiciary in the country was independent, and there was a system of judiciary review, and it was not true to say that any judicial body was above the High Court, which was the supreme body, Mr. Acharya said. There were various measures that had been taken over the period to strengthen the judicial body, to train judges, to make them aware of international obligations, and to make them aware of the capacity-building exercises that were taking place. On the definition of torture, the Government appreciated the views expressed by the Committee on the definition of torture in domestic legislation, and these would be taken into account in the forthcoming review of the legislation. Nepal was serious with regards to the need to criminalize torture and to provide redress thereto.

In response to the situation Nepal was in, preventative detention was provided for only six months. In exceptional cases, this could be extended for a further six months. There was no blanket provision for detention, it was aimed towards a certain group of crimes of a similar nature. Preventative detention was not even applicable in all cases, and could only be applied if there was an immediate threat to national security, sovereignty, and law and order application. On human rights education, Nepal had given details on training and sensitising programmes the day before. These programmes would continue to be reviewed in order to make them more relevant and more effective.

The National Human Rights Commission was a statutory body, with the right to inquire into any situation of violation of human rights, and the Government gave its recommendations due weight and paid due regard to implementing them. Its functioning was based on the Paris Principles, and it was independent, Mr. Acharya said. It reinforced Nepal’s view that it was part of the consolidation of national human rights principles. The improvement of the situation of the marginalized would help improve equality and inclusiveness in society. There were a number of legal provisions in the country against any discrimination on the basis of caste, which was a criminal offence. There had been substantial and perceptible progress with regards to this issue, but how much remained to be done was a matter of opinion, as it was a continuous process, although the commissions and organizations that had been set up continued to be effective.

The burden of proof in criminal cases generally lay on the prosecutors, but in certain cases including trafficking, drugs and corruption, this was not the case, Mr. Acharya said. On the witness protection scheme, the Government had taken into account the need for one, and was having discussions and would take into account what the Experts said yesterday in order to see that the needs for protection of victims and witnesses were covered, as this would strengthen the process of justice in the country. The Government provided compensation to the victims of torture as mandated by the courts. The Government had also provided compensation as per the decisions of the National Human Rights Commission. Any statement made due to coercion or torture was not valid before the courts.

Court rules were being amended, Mr. Acharya said, with the support of development partners in the context of a five-year plan to strengthen the judiciary, and clear the large backlog of cases. The large number of detainees was mainly due to courts’ limited capacities. The number of cases taken up over the last year had however, increased. Concerns expressed on various issues linked to the refugee situation had been taken note of, and the Government had been providing support to the refugees in the country as far as possible. Nepal was a poor country in term of economic resources, and was providing asylum to large numbers of refugees, including Tibetans and Bhutanese, but there were fundamental principles that had to be taken into account. The Government had given access to 31,000 Tibetan asylum seekers to go to a third country, as it had only limited funds to provide for their care. UNHCR had been involved in that move.

Security agencies were obeying court orders, and there were no single pending cases in their regard at the moment, Mr. Acharya said. There were no children who were held in detention in the country. With regards to making disappearances a penal offence, the proposed draft penal code contained proposals in this regard, and would punish disappearance with imprisonment, and there were other provisions that would further strengthen the judicial and administrative system in the country, but this was still at a draft stage. On the monitoring of trafficking, this last was a serious issue in Nepal, and it was a problem, but over the last 10 years, the situation had improved with regards to awareness due to various campaigns, and there was a perceptible improvement in the issue, although awareness had to be constantly stimulated in order to monitor and control trafficking, as it was an ongoing process. Regional cooperation was active in this field.

On human rights defenders and lawyers, the Government was committed to protecting their rights, and to promoting their access to disputed areas, Mr. Acharya said. If civilians were involved with the military, it was appropriate to carry out trials in the ordinary courts, and the Government saw this as a positive way of dealing with, for example, rape cases, rather than dealing with them in military courts. On the oversight of the human rights situation of the country, there was a Committee in the Parliament which reviewed the situation and made recommendations. At the moment, however, there was no Parliament, but as soon as it resumed, the Committee would also resume its function.

OLE VEDEL RASMUSSEN, Committee Expert serving as Rapporteur for the report of Nepal, said that the Committee appreciated the oft-repeated assertion that it was not a policy of Nepal to condone torture. He also asked further questions, including a request to clarify the difference between prisoners and detainees in Nepalese terminology. What would be interesting for the Committee would be to identify how many police stations could hold detained persons, and how many army barracks were also used for this purpose, he said, and what was their capacity, and how many were each body holding. The difference between a detention centre and a prison was also of interest, and who was in charge of the two.

Responding to these questions, the delegation said prisoners were those who were already convicted, and detainees were pre-trial persons, in prison due to the unavailability of infrastructure in police stations. The country was divided into 75 districts, each of which had a police station and a judiciary court. The district court and the trial court were the first basis of jurisdiction. Prisons were managed by civilians - the police and security forces provided security, but did not run the prisons. Detention centres were also managed by civil officials, and detainees therein were looked after by civil authorities. There was access by all authorities to both prisons and detention centres.

Mr. Rasmussen praised that detainees were kept in prison, as he noted police stations were not appropriately designed for keeping detainees for a long period of time.

SAYED KASSEM AL-MASRY, Committee Expert serving as Co-Rapporteur for the report of Nepal, said the Committee would appreciate having full information about developments. He also agreed that not only the Dalit problem but also human rights problems in general were affected adversely by customs, traditions, history, culture, and by many other things, and it took time to change. But the most important thing was to have the will and the perseverance to continue to make the effort to bring about the change, and Nepal had today made the assurance that it had the determination to change. Mr. Al-Masry said he had not received a response to some of his questions, and had some comments to make on the independence of the judiciary in the context of political decisions; article 15 of the Convention, namely the right to complain, and reported cases where this was denied; further issues linked to detention centres; and the phenomenon of re-arrest.

Responding to these issues, the delegation said that on the independence of the judiciary and the establishment of the Royal Commission for Judicial Control, the judiciary was independent and had a very wide power and reach. The Constitution had given it enormous power, and it defended the Constitution, interpreting it and allowing the people to get justice from the Supreme Court. Corruption undermined the norms of justice as well as the rule of law, damaged democratic institutions and damaged the process of development, and to fight against this the King had established the Commission, which was also under the review of the Supreme Court, and its decisions could be appealed therein.

Other Committee Experts then asked further questions on various topics, including the issue of the burden of proof and on who lay the responsibility of proving it in various exceptional circumstances; the repeated assertions by police and security officials that torture was systematically practised and the delegation’s assertion that torture cases should be taken as isolated incidents and whether this could be reconsidered; and whether there was a procedure to ensure that refugees were not returned to countries where they could be subjected to torture.

Responding briefly, Mr. Acharya said it was a principle of the Government to follow certain fundamental international norms, including those with regard to the return of refugees, although it was not necessarily part of international agreements on such topics. There had to be a balance of all factors in the context of the judiciary, and note had been taken with regards to the suggestions made on the burden of proof.

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