Author: Communication Department

Suspect X.

After his involvement in the coup d’état on January 12, 1992, X., of Algerian nationality, held important positions in the Algerian government until 1994. In that period, people suspected of being Islamist supporters or activists were the victims of violent repression (torture, enforced disappearance, etc.).

On November 10, 2004, TRIAL filed a report of torture allegedly committed by X. before the Canton of Geneva’s Attorney General. The Attorney General closed the case in February 2005, arguing that it was Algerian law, and not Swiss law, that should be applied in this case, based on the principle of applying the law most favorable to the accused. The Attorney General concluded that, according to Algerian law, criminal proceedings were already time-barred at the time the complaint was filed.

 

Radomir Šušnjar, otherwise known as “Lalco”, is accused by several Bosnian and Serbian witnesses of being involved in the murders of 59 Bosniaks, who were burnt alive in Visegrad during the conflict. In June 1992, approximately 70 people – mostly women, children and elderly persons – were locked up in a room of a house. The building was set on fire and, despite trying to escape by climbing out of the windows, most of the victims were killed.

The eight survivors, two of whom died a few years later, were able to testify before the International Criminal Tribunal for the former Yugoslavia in The Hague. “Lalco” is accused of personally locking the room where the civilians were, and of setting the building on fire.

Radomir Šušnjar had been hiding in France for many years. TRIAL International managed to trace him in the Parisian region and informed the Bosnian and French authorities of this. In 2014, Radomir Šušnjar was arrested and has since been the subject of extradition proceedings.

On 6 October 2017, he was charged in Bosnia and Herzegovina for the alleged murder of Bosniak civilians. On 18 June 2018, the French Council of State validated his extradition request, and on 30 October 2019, Lalco was found guilty by the Court of Bosnia and Herzegovina for the murder of 57 Bosniaks in Višegrad, and sentenced to 20 years in prison. On 20 March 2020, the Appeals Chamber of the Court of Bosnia and Herzegovina confirmed Šušnjar’s 20-year sentence.

 

General Habib Ammar was Commander of the Tunisian National Guard from 1984 to 1987. Following the coup d’état in 1987, he was promoted to Minister of the Interior, a post which he held for a year.

During his mandate, the Ministry’s offices were transformed into centers of detention and torture. According to numerous human rights organizations, General Habib Ammar was one of the main officials responsible for the widespread use of torture in Tunisia in the 1980s.

On September 17, 2003, TRIAL International and the World Organisation Against Torture referred a report of acts of torture allegedly committed by General Habib Ammar to the Canton of Geneva’s Attorney General. Two victims joined the criminal report, and they also applied for General Habib Ammar’s arrest.

On September 23, 2003, the Attorney General reviewed the reports against Mr Ammar, but considered that, as a member the Tunisian delegation to the International Telecommunications Union, he benefitted from immunity. The Attorney General therefore closed the proceedings.

 

During his presidential mandate in the United States, George W. Bush authorized the CIA, in a directive dated September 17, 2001, to abduct suspected terrorists and hold them in secret detention centers, mainly in Guantanamo Bay, but also in Afghanistan, Thailand, Poland and Rumania. At these centers, Mr Bush authorized the use of “enhanced interrogation techniques”, such as waterboarding.

These very serious acts prompted the Center for Constitutional Rights and the ECCHR to act, with legal assistance from TRIAL International. In February 2011, for Mr Bush’s planned trip to Geneva to attend a conference, these NGOs prepared a criminal complaint for submission to the Canton of Geneva’s Public Prosecutor. Several victims joined the complaint, one of whom was a witness who stated that he had been tortured more than 80 times while detained in Guantanamo Bay.

Seemingly concerned by this action, Mr Bush eventually cancelled his visit and the criminal complaint was not filed. He has not been to Switzerland since then.

 

While Erwin Sperisen was Chief of the National Civil Police (PNC) in Guatemala, numerous crimes were committed by the security forces. In October 2005, after a number of inmates had escaped from Infiernito prison, Mr Sperisen and his colleagues implemented the “Plan Gavilán”, the aim of which was to track down and execute the escapees and then to cover up the crime. Three escapees were murdered. A year later, the intervention by Mr Sperisen and his officers at Pavón prison resulted in the deaths of seven prisoners. Once again, the crime scene was covered up. These executions caused a scandal that forced Mr Sperisen to resign on March 20, 2007. He then fled Guatemala and, thanks to his dual Guatemalan and Swiss nationality, went to live in Geneva.

Shortly afterwards, CGAS, ACAT and Uniterre reported Erwin Sperisen before the competent Swiss authorities. In August 2012, after TRIAL had provided new evidence, an international arrest warrant was issued and Erwin Sperisen was arrested in Geneva. The mother of a Pavón victim, who was traced in Guatemala by the TRIAL team, then joined the proceedings.

In June 2014, Erwin Sperisen’s first instance trial was held before the Geneva Criminal Court, which sentenced him to life imprisonment for the extrajudicial execution of seven inmates during the Pavón operation.

In May 2015, Erwin Sperisen’s trial on appeal was held before the Criminal Chamber of the Geneva Court of Justice, which once again sentenced him to life imprisonment, this time for all the crimes with which he had been charged, that is to say, the extrajudicial execution of 10 detainees on two different occasions. The outcome of this case, of vital importance to the victims, was the first conviction of a Central-American national police chief for extrajudicial executions.

In July 2017, following the defense’s appeal, the Swiss Federal Court referred the case back to Genevan tribunals, without ruling on the guilt of the former Head of the Guatemalan police. Erwin Sperisen’s second trial on appeal took place in April 2018 in Geneva. The public prosecutor requested a life imprisonment for his alleged participation in 2006 in the assassination of several detainees in the Pavon prison. Alternatively, the prosecutor requested 15 years of imprisonment for Erwin Sperisen in case the court decided to convict him merely for complicity in these murders. The defense pleaded for his acquittal.

On 27 April 2018, the judges of the Criminal Chamber of Appeal and Revision of Geneva convicted Erwin Sperisen to a penalty of 15 years of-imprisonment. They found him guilty of complicity in the extra-judicial killings of seven inmates of the Pavon prison. Following this judgment, Erwin Sperisen has not been detained but substitutive measures which were decided upon by the Swiss Federal Court on 20 September 2017, have been maintained. He is therefore serving his sentence under house arrest.

In November 2019, the Swiss Federal Supreme Court (FSC) upheld Erwin Sperisen’s sentence to 15 years in prison. The judicial saga that had occupied TRIAL International’s lawyers and their partners for almost 10 years seemed to be finally over. But this was without counting on the acrimony of the lawyers of the opposing party, who asked for a review of the decision rendered by the FSC, and applied for disqualification of a federal judge.

In April 2020, Sperisen’s two applications were dismissed. The Swiss Federal Supreme Court thus puts an end to Sperisen’s attempts to escape his conviction.

On 27 May 2020, Sperisen brought a case to the European Court of Human Rights (ECtHR) alleging violations of Articles 3, 5, 6 and 13 of the European Convention on Human Rights, including alleged partiality of the judges and a breach of his presumption of innocence.

 

 

In March 2011, TRIAL International and the Palestinian NGO Al-Haq supported six Palestinian families with their filing of a complaint of war crimes against the Swiss subsidiary of Caterpillar, the manufacturer of construction site machinery. The reason for doing so was that the Israeli army had used D9 bulldozers made by the same manufacturer to destroy their homes without any military need in August 2007, during a raid on a neighborhood in the town of Qalqilya (West Bank).

On February 24, 2014, the Office of the Attorney General of Switzerland refused to pursue the complaint on the grounds that the bulldozers in question were not weapons and that the company Caterpillar could not be held responsible for the use that their buyers made of their equipment.

TRIAL International deplored the closure of this case, but welcomed the fact that the prosecutor described the events that happened in Qalqilya in 2007 as “punitive demolitions”, that is to say, war crimes committed by the Israeli army.

 

After several missions in Colombia, and in conjunction with the Colombian NGO Fundación Comité de Solidaridad con los Presos Políticos, TRIAL International managed to trace a former member of a Colombian paramilitary group called United Self-Defense Forces of Colombia (AUC), who may have been involved in the execution of numerous students and lecturers at the University of Barranquilla. Indeed, C. P. might have used his position as a trade unionist at the university to indicate “military targets” to AUC’s killers. Based on the considerable amount of evidence gathered, a criminal report was filed in January 2013, as was a criminal complaint on behalf of a woman and the son of a university lecturer murdered in front of their very eyes.

Based on these, a criminal investigation was opened by the Swiss Federal Prosecutor. These proceedings could have led to the first judgment in respect of war crimes for a member of a paramilitary group outside Colombia. However, the case was closed unexpectedly following the death of the accused.

This precedent nevertheless injected renewed impetus into the investigation in Colombia, which led to several arrests and arrest warrants.

 

Bouguerra Soltani held several ministerial positions in the Algerian government from 1998 to 2009. He is suspected of having ordered, authorized and incited public officials to commit acts of torture.

When Mr Soltani was invited to come to Switzerland as a speaker in October 2009, TRIAL International filed a criminal report against him, immediately followed by a criminal complaint by a victim supported by TRIAL. The victim stated that he had been arrested in June 2005, tortured and then imprisoned because of his opposition to Mr Soltani. The victim appeared before the investigating judge of the Canton of Fribourg, who decided that Mr Soltani would be heard as soon as he arrived on Fribourg territory.

That very same day, the investigating judge received a confidential report on this case, claiming that there were serious doubts about the veracity of the accusations. Having been inexplicably informed about the complaint filed against him, Mr Soltani quickly fled Switzerland. Thus, he was neither heard nor arrested during his stay in Switzerland, and the serious allegations of torture committed against the complainant were not followed up. The case was therefore closed.

 

In partnership with the NGOs Open Society Justice Initiative and Conflict Awareness Project, TRIAL International, filed a report against Argor-Heraeus SA before the Office of the Attorney General of Switzerland in November 2013. That company was accused of refining nearly three tonnes of gold pillaged by rebels in the north of the Democratic Republic of the Congo (DRC) between 2004 and 2005.

What followed on from this was the opening of an investigation of Argor for war crimes and aggravated money laundering, a search and seizure operation, and a civil society campaign against the pillage of precious metals in times of armed conflict. By rejecting the appeal lodged by the Swiss company against the investigation and the search, the Federal Criminal Court agreed with TRIAL International’s report, thus underscoring the importance of the evidence provided by the NGO.

After an investigation lasting for nearly 18 months, on March 10, 2015, the Office of the Attorney General of Switzerland ordered the case to be closed, finding that there was no evidence of the company knowing that it had been refining gold of illegal provenance. The Office of the Attorney General of Switzerland did find, however, that gold had been pillaged from DRC by rebels and that the company had breached its anti-money laundering obligations. This very controversial decision also highlighted the shortcomings of Swiss legislation, which did not allow such acts to be prevented or punished.

Regardless of the outcome, the Argor-Heraeus SA case represents a considerable step forward and highlights the problem of raw material pillage by western companies. It was also the first criminal investigation opened for pillage within a context of armed conflict since the cases resulting from the Second World War.

In parallel to this case, Argor’s commercial partner company, the British company Hussar Ltd, was reported for the same acts to the Metropolitan Police in London. The investigation is ongoing.

 

During the conflicts in the Balkans in the 1990s, Amir Coralic (otherwise known as “Pango”) was a soldier in the pro-independence Bosniak army of Bihac Province – the “National Defense”.

In December 1993, Amir Coralic and two other militiamen abducted Marina, a 14-year-old girl, and her cousin Adela, a 15-year-old girl (assumed names), from their home. The two girls were taken outside the locality; Marina was raped and Adela was sexually assaulted.

Ten years later, TRIAL International conducted an investigation and managed to trace Amir Coralic. The NGO reported him to the Swiss and Bosnian authorities while supporting Marina in her pursuit of justice.

In 2015, a successful appeal before the Federal Criminal Court against the Office of the Attorney General of Switzerland allowed new proceedings to be opened in Switzerland. The accused then decided to surrender to the Bosnian authorities, to which he proposed to admit his guilt and to restitute the victim in exchange for a reduced prison sentence.

On October 19, 2015, the Bihac Cantonal Court (in Bosnia-Herzegovina) convicted Amir Coralic of the war crime of rape perpetrated against a minor. The restitution ordered (approximately US$35,000) was, in 2015, the highest sum ever paid to a victim of sexual violence in Bosnia-Herzegovina.

 

According to human rights organizations, the Bahraini authorities systematically use torture, and the Bahraini Attorney General’s Office plays a significant role in this repressive system. Those arrested are often subjected to torture and forced to sign false confessions.

The annual conference of the International Association of Prosecutors (AIP) was held in Zurich in September 2015. Among the members of the AIP’s Executive Committee attending the conference was the Attorney General of Bahrain, Mr Ali Bin Fadhul Al-Buainain.

The NGOs TRIAL International, ECCHR, REDRESS and BIRD reported Mr Al-Buainain and supported the filing of a complaint by Mr Jaafar Al-Hasabi. This human rights defender states that he was a victim of torture and was forced to sign false confessions during an investigation by Mr Al-Buainain’s services. The latter had personally given the order to have the victim detained incommunicado.

Berne’s Public Prosecutor, which has jurisdiction to handle this case, opened a criminal investigation of the Attorney General on September 15, 2015, for the crime of torture. However, the Public Prosecutor did not wish to have the suspect arrested. The investigation is ongoing.

It is the first time that a criminal investigation of a senior Bahraini official has been opened for acts of torture, and it is the first universal jurisdiction case concerning Bahrain.

 

facts

 Ali Bin-Fadhul Al-Buainain began his career as public minister of the Kingdom of Bahrain in 1985. He became public prosecutor of Bahrain on 24 December 2005. He has a PhD in criminal law.

In February 2011, there was a period of civil unrest in Bahrain, highlighted by an uprising calling for political reform. On 15 March 2011, the government declared a state of emergency. National security courts were established and given legal powers. The military prosecutor was entrusted to carry out legal proceedings.

On 1 June 2011, the state of national security was lifted. In parallel, the Bahrain Independent Commission of Inquiry (BICI) was created to investigate violations against human rights that took place during the protests. On 23 November 2011, the BICI published its report, insisting on the need to proceed with reforms to the judicial system, particularly the criminal authorities.

Throughout the uprising, numerous human rights defenders were arrested and allegedly tortured; one of them, Jaafar Al-Hasabi, a British citizen borned in Bahrain, was arrested in August 2010, allegedly detained in communicado, and tortured for his political activities. He was allegedly victim of electric shocks, beatings on the sole of his feet and that stress position. Al-Hasabi appeared before the court of national security with 22 other political opponents for belonging to, and for financing, a terrorist group aiming at the overthrown of the government. Al-Hasabi was freed in February 2011.

Despite the United Nations concerns regarding the secret detention of Al-Hasabi and the existing risk of torture

 

legal procedure

On 8 September 2015, Jaafar Al-Hasabi filed a criminal complaint in Bern against the Attorney General of Bahrain, Ali Bin Fadhul Al-Buainain, for facilitating torture. He was supported by the European Center for Constitutional and Human Rights (ECCHR), REDRESS, the Bahrain Institute for Rights and Democracy (BIRD) and TRIAL International. On 13 September 2015, an application was filed with the Bern prosecutor, calling for the Attorney General to be summoned for interviewing. The complaint was filed in anticipation of his attendance at the annual conference of the International Association of Prosecutors (IAP) being held that year in Switzerland from 13 to 17 September, at which he was elected vice president of the organization.

On 15 September 2015, the prosecutor issued a decision stating that an investigation would be opened but that the evidentiary threshold for a summons had not yet been met. Ali Bin Fadhul Al-Buainain was allowed to return to Bahrain without questioning.

In June 2016, torture survivor Jaafar Al-Hasabi gave testimony to prosecutors in Bern concerning the Bahraini Attorney General’s alleged complicity in acts of torture.

In November 2016, the Swiss prosecutors made an application to the Swiss Federal Office of Justice seeking to transfer the case to prosecution authorities in Bahrain.

Ali Bin Fadhul Al-Buainain was expected to visit Ireland to attend an IAP conference in Dublin in September 2016. Jaafar Al-Hasabi brought a private prosecution application before the District Court in Dublin on 13 September 2016 requesting that the Attorney General be summoned in connection with the allegations of torture. The application was rejected, with the judge arguing that a sufficient link between the acts of torture and the alleged involvement of the accused had not been established. Police in Ireland opened a parallel investigation into the matter that is still ongoing. Jaafar Al-Hasabi’s complaint was supported by GLAN (Global Legal Action Network), BIRD (Bahrain Institute for Rights and Democracy), ECCHR, and REDRESS.

 

In 1993, Elma Z. (assumed name) was with her daughter at home in Vogosca (Bosnia & Herzegovina) when a member of the Army of the Republika Srpska (VRS) barged in, pointed a gun and forced her to get into his car where he raped her. The same thing happened again later that year. Elma Z. feared she or her daughter would be killed if she resisted her rapist.

Years later, Elma Z. asked TRIAL International for legal assistance. The NGO fully supported her quest for justice, including engaging criminal proceedings, requesting protective measures and filing a compensation claim. After years of impunity, Slavko Savic, a former member of the Light Infantry Brigade of the Army of Republika Srpska Army (VRS) was arrested on charges of wartime rape in September 2014.

The trial took place in 2015, during which Elma Z.’s own daughter testified against Savic. In June 2015, the Court of BiH found Slavko Savic guilty of the rape of Elma Z. and sentenced him to eight years imprisonment. The defense lawyer appealed the decision, calling for a repeal of guilty verdict. A final decision by the Appeals Chamber in 2016 confirmed the first instance decision.

In its guilty verdict, the Court allowed the victim to receive 30 000 KM (about 15 300 euro) as a compensation to the harm suffered. This was an unusual and welcome move. TRIAL International had fought hard to include the compensation claim to the criminal proceedings in this case, thereby saving Elma Z. further proceedings before civil courts to receive her due.

22 years after her rape, Elma. Z was finally able to move on: “TRIAL International gave me the strength I needed to seek justice. It offered me legal and psychological support, but also human support, which is of utmost importance. I am satisfied with this verdict that acknowledges the hardship I have been through, but it will restore neither my life nor my health.”

 

In 1992, Lejla B. (assumed name) left her hometown of Zivinice to join her 19-years old son in Bosanski Samac. Upon arrival, she found that the Army of the Republika Srpska was occupying the town. They had sent her son to a forced labor camp where he was eventually shot on 3 July 1992. On the week of her son’s death, Lejla B. was arrested by three policemen and taken herself to the Zasavica forced labor camp. Lejla B. stayed there for 10 months, under inhumane conditions and forced labor. On three occasions she was raped by a member of the Ministry of Internal Affairs of the Republika Srpska.

After years of silence suffering, Lejla B. found the strength to demand justice in 2007, but the authorities took no subsequent action. TRIAL International offered her its support in 2010, pushing the authorities to open an investigation and to prosecute the perpetrator.

Finally, in 2013, the trial of Dragoljub Kojic started before the Doboj Court. The Court found him guilty of rape and war crimes against civilian population and sentenced him to a three-year prison sentence. In November 2013, the Supreme Court of Republika Srpska confirmed this verdict. The Doboj Court declined, however, to grant the victim compensation and referred her back to a civil court.

TRIAL International also assists victims to claim compensation in civil procedures but highlights, however, that further proceedings can be straining on the victims’ psyche and budget. The NGO advocates for the inclusion of compensation claims directly in the criminal proceedings.

 

Case Bholi Pharaka v. Nepal

At the age of nine years old, Mr. Bholi Pharaka (assumed name) was sent to work in Kathmandu to provide for his family. In the household that employed him, he was subjected to forced labour and daily abuse. When he was fourteen he finally managed to flee this nightmare, only to be arbitrarily arrested, detained and tortured by Nepalese police officers. Since then, Mr. Pharaka and his family have relentlessly sought justice, but to date no one has been prosecuted for these crimes, nor was the victim granted any form of reparation. In May 2016, TRIAL submitted a complaint on behalf of Mr. Pharaka before the United Nations Human Rights Committee, aiming at finally obtaining justice and redress.

 

The Case

Born in an extremely poor family, Mr. Bholi Pharaka had no choice but to start working at the age of nine. He was sent to work as a domestic help for an Army officer in Kathmandu. This already illegal situation turned into an inhumane one when Mr. Pharaka started being subjected to physical and psychological abuse by his employers and was forbidden to leave the house at any time. When he eventually managed to escape in 2012, his employer accused him of stealing gold and other valuables. Following this false accusation, the victim was arbitrarily arrested and detained at the Metropolitan Police Range in Hanumandhoka, Kathmandu.

During his detention, Mr. Pharaka was held in a filthy and overcrowded room, together with adults. Police officers would torture him every day to make him “confess” his theft: punches, beatings with plastic pipes, electrocutions and submission to falanga (beatings with a stick on the bare soles of the feet). Eventually, the victim was forced to sign documents without even being allowed to read them first. He only found out later than he had signed a “confession” acknowledging his involvement in the alleged theft.

Even after his “confession” and in spite of two court’s orders, Mr. Pharaka remained in prison for months because his family could not afford to pay his bail. Only on 25 June 2013 was he finally released, following a Supreme Court ruling recognizing the arbitrariness of his detention and ordering his release.

On the basis of the “confession” extorted from Mr. Pharaka, on 10 June 2014 the Kathmandu District Court found him guilty of theft and sentenced him to one month in jail. However, he had already spent nine months and nineteen days in arbitrary detention.

Even today, Mr. Pharaka suffers from the trauma of his time in detention, including sleeping disorders, nightmares and depression. He was forced to leave school and start working again to support his family.

The Quest for Justice

Mr. Pharaka and his family repeatedly reported his detention conditions and the torture he was subjected to Nepalese authorities, to no avail. At best the latter ignored their claims, and they even sometimes refused to register their complaints altogether. This lenient behavior was facilitated by the seriously flawed domestic legislation regarding torture and forced labour. As a result, no one has yet been prosecuted and sanctioned and Mr. Pharaka has received no compensation for the harm suffered.

Having exhausted all domestic remedies and with the help of TRIAL, Mr. Bholi Pharaka turned to the United Nations Human Rights Committee (HRC) in May 2016. On 22 August 2019, the HRC sided with TRIAL International and the victim.

In its decision, the HRC:

  • Found Mr. Bholi Pharaka a victim of a violation of Arts. 7 (prohibition of torture) and 10 (right to humane treatment), in conjunction with Art. 24, para. 1 (obligation to adopt special measures of protection for minors) of the International Covenant on Civil and Political Rights. In fact, he was tortured and held in inhumane conditions with the aim of extracting a confession from him. Those facts were further aggravated by the fact that the victim was a minor when these events took place and was as such entitled to special protection, which Nepal failed to adopt.
  • Found that Arts. 7 and 10 have also been violated in conjunction with 2, para. 3 (right to an effective remedy), and 24, para. 1, of the same Covenant, due to the failure of Nepalese authorities to conduct an effective investigation into Mr. Pharaka’s allegations, to prosecute and sanction the perpetrators and to provide reparation to the victim. These violations were aggravated by the fact that Nepal failed to afford Mr. Pharaka the special protection he was entitled to as a minor.
  • Found that Art. 7 has also been violated in conjunction with Art. 2, para. 2 (obligation to adopt legislative measures), of the Covenant. In fact, Nepalese authorities failed to adopt legislative measures preventing and sanctioning torture and to provide reparation to the victim including guarantees of non-repetition.
  • Found that Art. 9, paras. 1, 2, 3 and 5 (right to personal liberty), had been violated in conjunction with Arts. 2, para. 3, and 24, para. 1, of the Covenant because Mr. Pharaka had been subjected to arbitrary arrest and detention and Nepalese authorities failed to investigate these allegations and act accordingly – falling doubly short of their international obligations since the victim was a minor then and should have been accorded extra protection.
  • Found that Art. 14, paras, 2, 3(a), 3(b) and 3(g) (right to a fair trial), had been violated in conjunction with Art. 24, para. 1, of the Covenant. In fact, Mr. Pharaka’s trial was unfair in several respects: he was not presumed innocent, was not informed of the charges against him, did not have time and facilities for the preparation of his defense and was compelled to testify against himself. These violations were aggravated by the fact that Nepal failed to afford Mr. Pharaka the special protection he was entitled to as a minor.
  • Found that Art. 8, para. 3(a) (prohibition of forced labor) had been violated in conjunction with Arts. 2, para. 3, and 24, para. 1, of the Covenant, since Nepalese authorities failed to adopt the necessary measures to protect him from child and forced labor. Once it had happened, they failed to conduct an investigation leading to the prosecution and sanction of those responsible. Finally, Nepalese authorities did not adequately redress Mr. Pharaka. All these violations are further aggravated by the fact that Mr. Pharaka should have been, as a minor, under special protection.
  • Requested Nepal to investigate, prosecute and sanction those responsible for Mr. Pharak’s torture proportionally to the extreme gravity of the crime; and to ensure that the victim receives integral reparation, including restitution, rehabilitation, satisfaction and guarantees of non-repetition.

Context

The use of arbitrary detention and torture, especially against minors, is widespread and systematic in Nepal, and perpetrators usually enjoy complete impunity. Most acts of torture appear to be committed in cases of theft – likely due to the fact that in those cases, police officers are under significant pressure to arrest the culprit and locate stolen items. Police officers and other State agents accused of torture are not prosecuted and sanctioned, a climate of impunity fostered by flawed legislation.

Impunity also applies to child and forced labour. In spite of being formally prohibited, they remain alarmingly common practices across the country, affecting mostly the children of marginalized and vulnerable groups. The Nepalese authorities do very little to prevent or sanction this heinous phenomenon.

Finally, detention facilities in Nepal are notorious for their incarceration conditions, which fall well short of international standards for adults – let alone for minors.

 

Ana B. (assumed name) was fourteen years old when she was raped by soldiers of the Army of Republika Srpska in Kotor Varos (Bosnia & Herzegovina) in 1992. Although Ana B. and her family reported the crime immediately and were heard by the authorities, the case stalled for 20 years.

Investigation

In 2012, TRIAL International took up the case and pressured the authorities of BiH to prosecute the perpetrators. The Prosecutor’s Office finally indicted against Bosiljko Markovic and Ostoja Markovic in April 2014, for war crimes against civilians.

 

Procedure

The trial started in September 2014, during which several witnesses testified. Ana B.’s mother and brother gave a moving testimony of how they were unable to help her when she was raped. Both of them went through the whole procedure as protected witnesses.

In June 2015, the Court of BiH delivered its judgment, finding the accused guilty of war crimes and sentencing them to ten years imprisonment each. The defense lawyers have appealed sentence and a final decision by the Appeals Chamber is underway.

 

Outcome

For the first time in Bosnian criminal proceedings, the Court also decided to redress a victim of war crimes: the accused were condemned to pay her a 26 500 KM fine. This outcome is a significant step towards positive court practice regarding victims’ reparation. Compensation claims decided in criminal proceedings save victims additional processes before civil courts, which often burden them with further trauma and costs.

Ana B. concluded: “My fight for justice would not have been possible without TRIAL’s engagement and support. During our exchanges, I felt the honesty of the relationship. This means a lot to me. I am satisfied with the verdict, it proves that justice is within reach and that war crimes cannot be outdated.”

 

In July 2009, TRIAL submitted a communication to the United Nations Human Rights Committee concerning the enforced disappearance of Fikret Prutina, which occurred in June 1992. TRIAL acts on behalf of Fatima Prutina, wife of the disappeared and member of the Association of Relatives of Missing Persons from Vogosca, Bosnia and Herzegovina (BiH).

On 4 May 1992, Fikret Prutina was arrested in Svrake (BiH) by the Serb army together with his wife and their sons Asmir (mentally disabled, then 16 years old) and Hasib (then 18 years old) and most of the inhabitants of the same village. They were all taken to a concentration camp known as Kasarna JNA in Semizovac. A few days later, Fatima Prutina, together with her son Asmir and other women and children, were freed. Fikret Prutina and his other son Hasib were kept prisoners and transferred to different concentration camps, where they were subjected to torture and forced labour. Fikret Prutina was last seen on 16 June 1992 in the concentration camp known as Planjina kuca, located in the municipality of Vogosca. His fate and whereabouts remain unknown since then. Hasib Prutina, who eye-witnessed all the mentioned events, was freed from the concentration camp one month later. To date, he suffers from severe post-traumatic stress due to the brutality he has been subjected to, as well as to the horrifying facts, including the ill-treatment and disappearance of his own father, he was forced to assist.

More than 17 years after the events, no serious investigation has yet been undertaken by BiH authorities in order to locate Mr. Prutina or his remains or to identify, prosecute and sanction those responsible. Mrs. Prutina has taken several steps to obtain information about her husband, through the police of Visoko and Vogosca, the State Commission for Tracing Missing Persons, the Sarajevo Cantonal Prosecutor’s Office, and the Red Cross Society of BiH. These initiatives have proved vain.

On 23 February 2006, the Constitutional Court of BiH, seized by several families of victims of Vogosca, declared a violation by BiH of the right not to be subjected to torture and inhuman and degrading treatment and the right to respect for private and family life of the relatives of disappeared persons. Accordingly, the Court ordered the relevant domestic institutions to disclose all available information on the fate and whereabouts of the disappeared people. On 16 November 2006, the Constitutional Court adopted another ruling, where it declared that the Council of Ministers of BiH, the government of the Republika Srpska, the government of the Federation of BiH and the government of the Brčko District of had failed to enforce its previous decision.

Since then, Mrs. Prutina has not received any information about her husband from the mentioned institutions.

Consequently, Fatima Prutina requests the Human Rights Committee:

to find that her husband, Fikret Prutina, is a victim of a violation of Article 2.3 (right to a remedy) in conjunction with Articles 6 (right to life), 7 (prohibition of torture and inhuman and degrading treatment), 9 (right to liberty and security of person), 10 (right to be treated with humanity and with respect for the inherent dignity of the human person) and 16 (right to be recognized as a person before the law) of theInternational Covenant on Civil and Political Rights, due to his enforced disappearance and to the failure of BiH authorities to conduct a prompt, impartial, independent and thorough investigation on his ill-treatment and enforced disappearance and to identify those responsible and to prosecute, judge and sanction them;

to find that she and her sons Asmir and Hasib are victims of a violation by BiH of Article 2.3 (right to a remedy) in conjunction with Article 7 (prohibition of torture and inhuman and degrading treatment) of the Covenant, because of the severe mental distress and anguish caused by the enforced disappearance of Mr. Prutina and the ongoing lack of information about the fate and whereabouts of the latter and the investigations carried out by BiH authorities;

to request BiH to order independent investigations as a matter of urgency with a view to locating Mr. Prutina and, if necessary, exhuming, identifying, respecting and returning his mortal remains;

to request BiH to bring the perpetrators of the arbitrary arrest, ill-treatment and enforced disappearance of Mr. Prutina before the competent civil authorities for prosecution, judgment and sanction without any further delay; and

to request BiH to ensure that Mrs. Prutina and her sons Hasib and Asmir obtain integral reparation and prompt, fair and adequate compensation for the harm suffered.

The General Context

It is estimated that between 100,000 and 200,000 persons died as a consequence of the conflict (1992-1995) in BiH and that between 25,000 and 30,000 were victims of enforced disappearance. Approximately 13,000 people remain disappeared to date.

The case of Fikret Prutina occurred in the context of a first wave of enforced disappearances and “ethnic cleansing” operations perpetrated by the Serb army in the spring and summer of 1992.

Notwithstanding the existence of strong evidences on the identity of those responsible for the enforced disappearance of Mr. Prutina and eye-witnesses of the events, to date no one has been convicted, prosecuted and sanctioned for the alleged crimes, thus fostering an overall climate of impunity. Up to this day, the families of men disappeared in Vogosca still have not received any information on the fate and whereabouts of their loved ones.

 

The decision

In March 2013, the Human Rights Committee communicated its decision (called “views” in the UN language). The Committee held that Bosnia-Herzegovina violated Article 2.3 in conjunction with Article 6, 7 and 9 of the International Covenant on Civil and Political Rights with regards to the author and her disappeared husband.

The Committee requested Bosnia-Herzegovina to continue the efforts to establish the fate and whereabouts of Fikret Prutina as required by the Missing Persons Act of 2004, to continue the efforts to bring to justice those responsible for his disappearance and to do so by 2015, as required by the National War Crimes Strategy, to abolish the obligation for family members to declare their missing relatives dead to benefit from social allowances and to ensure adequate compensation.

Moreover, the Committee insisted on Bosnia-Herzegovina’s obligation to prevent similar violations in the future and to ensure that investigations into allegations of enforced disappearances be accessible to the missing persons’ families.

 

Introduction

Lakpa Tamang v. Nepal

Mr. Lakpa Tamang was only 11 when he was tortured by police officers in 2010. This ignoble act was partly facilitated by the fact that Nepal sets the age of criminal responsibility at 10 years old – an incredibly young age at odds with international standards and with grave repercussions for the youth. In March 2016, TRIAL submitted a complaint on behalf of Mr. Lakpa Tamang before the United Nations Human Rights Committee, aiming at obtaining justice and redress for the victim and pushing Nepal to change its legislation and its practice of criminalizing minors.

 

The Case

In November 2010, Mr. Lakpa Tamang, aged 11, and his elder sister, aged 14, were accused by their neighbor of having stolen her gold earring. The accusation was based on nothing more than an astrologer’s statement – the consulting of which is customary in this region of Nepal.

Following this accusation, the two siblings were brought by their parents to the local Pachuwaghat police station for interrogation. While Mr. Lakpa Tamang’s sister was briefly interrogated and freed immediately, the boy was kept at the station by two police officers.

The policemen asked if he had stolen the earring and when he denied, he was severely mistreated: slapped on the face, beaten with plastic pipes, submitted to falanga (beatings with a stick on the bare soles of the feet), electrocuted in his ears, and threatened with death unless he “confessed” his alleged theft. In extreme pain and terrified, Mr. Lakpa Tamang signed a “confession” to save his life. Before being freed, he was once more threatened of death should he tell anyone that he had been beaten.

Following his son’s release, Mr. Lakpa Tamang’s father signed a “reconciliation deed”, undertaking to refund his neighbor for the gold earring. Only afterwards did he discovered that his son’s “confession” had been obtained by torture.

Mr. Lakpa Tamang endured lasting psychological harm and has been diagnosed with post-traumatic stress disorder. His education prospects have also been hampered.

 

The Quest for Justice

Mr. Lakpa Tamang and his relatives submitted several complaints before Nepalese authorities, seeking justice and redress for the harm suffered. But the two police officers responsible for torturing him were only sentenced to modest fines (approximately 40 Euros each). They did not face the already low punishment for torturing minors (1 year imprisonment), nor were they ever suspended from duty. Nepalese courts awarded a compensation of approximately 800 Euros to the victim – he is yet to receive the payment.

Considering that the sanctions were by no means commensurate to the extreme gravity of the crime, Mr. Lakpa Tamang and his family appealed the domestic courts’ decisions before the Supreme Court of Nepal. This was to no avail, however, mainly because the legislation on minors victims of torture is fundamentally flawed.

Having exhausted all domestic remedies and with the help of TRIAL, Mr. Lakpa Tamang turned to the United Nations Human Rights Committee in March 2016.

 

Alleged Violations

In their complaint, the victim and TRIAL request the HRC:

To find that Mr. Lakpa Tamang is a victim of a violation of Art. 7 (prohibition of torture), in conjunction with Art. 24, para. 1 (obligation to adopt special measures of protections for minors), of the International Covenant on Civil and Political Rights, because he was subjected to torture and other forms of ill-treatment in the aim of extracting a confession from him. These violations are aggravated by the fact that Mr. Lakpa Tamang was a minor when the events took place. As such, he was entitled to special measures of protection, which Nepal failed to adopt.

To find that Art. 7 has been violated also in conjunction with Arts. 2, para. 3 (right to an effective remedy), and 24, para. 1, of the Covenant, due to the failure of Nepalese authorities to effectively investigate, prosecute and sanction those responsible taking into account the gravity of the crime. Moreover, the victim has not received adequate compensation for the harm suffered. These violations are aggravated by the fact that Nepal failed to afford Mr. Lakpa Tamang the special measures of protection he was entitled to as a minor.

To find that Art. 7 has been violated also in conjunction with Arts. 2, para. 2 (obligation to adopt legislative measures), and 24, para. 1, of the Covenant. In fact, the Nepalese authorities did not adopt adequate legislative measures to prevent acts of torture against minors; to punish those responsible in proportionality to the gravity of the crime; and to provide fair reparations encompassing restitution, rehabilitation, satisfaction and guarantees of non-repetition.

To request Nepal to investigate, prosecute and sanction those responsible for his torture proportionally to the extreme gravity of the crime; to ensure that the victim receives integral reparation, including restitution, rehabilitation, satisfaction and guarantees of non-repetition.

The case is currently pending before the Human Rights Committee.

 

Context

The use of torture, especially against minors, is widespread and systematic in Nepal, and perpetrators usually enjoy complete impunity. Most acts of torture appear to be committed in cases of theft – likely due to the fact that in those cases, police officers are under significant pressure to arrest the culprit and locate stolen items. The climate of absolute impunity is fostered by the highly permissive legislation that envisages a maximum of one-year imprisonment for officers found guilty of torturing minors.

 

Geneva/Berlin/Paris/Madrid, 29 February 2016 – NGOs TRIAL, FIBGAR, ECCHR and FIDH publish for the second consecutive year their annual report on universal jurisdiction. Make way for Justice #2 reviews criminal cases which have, in 2015, involved this groundbreaking but underused principle.

2015 has seen the opening of the most anticipated trial of our time, that of former Chadian dictator Hissene Habre. After 30 years of impunity, he has finally been judged for the atrocities he has inflicted on his people. This historical trial could not have taken place without a unique legal tool: universal jurisdiction.

Thanks to this principle, States can – under certain conditions – prosecute the authors of international crimes, regardless of the place where these crimes were committed or the nationality of the victims and perpetrators.

TRIAL, FIBGAR, ECCHR and FIDH make daily use of universal jurisdiction to defend victims of international crimes and fight impunity. Today, this expertise leads these NGOs to publish their second annual report of the topic, Make way for Justice #2.

12 countries under scrutiny

In this report, 40 cases illustrate the developments of universal jurisdiction in 2015: the atrocities perpetrated by Boko Haram in 2014, the crimes committed in Syria since 2011, the repression of Bahrein’s demonstrations in 2010 and many others.

This study reviews 12 countries – from Sweden to Chile and from France to Senegal – who have opened inquiries, indicted or judged suspects of the most serious crimes thanks to universal jurisdiction. It also reports setbacks, such as the closing of several ongoing inquiries in Spain.

Fighting impunity using universal jurisdiction

A lot remains to be done for justice to triumph. In spite of its potential, universal jurisdiction is still insufficiently used by States reluctant to jeopardize their economic or diplomatic interests.

Engaged in favor of a strong international justice, TRIAL, FIBGAR, ECCHR et FIDH hope that Make way for Justice #2 will give legal practitioners, media representatives, NGOs and human rights defenders a better understanding of universal jurisdiction, so that this tool can finally become a strong lever in the fight against impunity.

Kathmandu/London/Geneva, 26 February 2016 – Illegal arrests, torture, enforced disappearances: for years, the United Nations Human Rights Committee (HRC) has repeatedly found Nepal responsible for gross human rights violations against its own citizens. Despite these many decisions, the government has shown no sign of properly compensating victims and letting justice prevail. Today, civil society organizations TRIAL, REDRESS and Advocacy Forum launch a joint campaign to demand justice for victims of international crimes in Nepal.

For one year, partner NGOs TRIAL, REDRESS and Advocacy Forum will give the floor to the victims’ stories, highlighting their long – and on-going – fight for truth and justice. This campaign, entitled
“Real Rights Now”, calls on the government to act on the United Nations’ decisions and finally acknowledge the victims’ rights and needs. A website compiling the victims’ stories and tools for action is available.

Ineffective rights, stalled situation

Since 2006, the NGOs have submitted 25 complaints before the HRC on behalf of Nepalese victims. To date, eleven of those have resulted in decisions. Each time, the United Nations has recognized Nepal’s responsibility and required it to investigate the cases, prosecute the perpetrators and compensate the victims.

These decisions sparked great hope amongst the victims, whose quest for justice had often lasted many years. They have been, however, bitterly disappointed by the government’s inertia.

“I was overjoyed when I learnt that I had won the case before the United Nations”, explains Ram Kumar Bhandari, whose father was unlawfully arrested and has never been seen since. “I thought the authorities were at last going to acknowledge my father’s disappearance, and punish the perpetrators. But that was not the case: more than a year after the decision, nothing has changed for me.”

“I had lost all hope of receiving justice,” says Yashoda Sharma, whose husband disappeared after he was arrested by the army in 2002. However, submitting my case to the Human Rights Committee raised a shimmer of hope in me. The Committee gave the decision I was expecting: its recommendation to locate my husband within 180 days and to compensate my family was really good. Yet I am still deprived of justice”.

Real rights for victims, now!

The failure to implement decisions of the Human Rights Committee sends a dangerous message that human rights violations can go unpunished and that the Nepali justice system does not make victims’ rights its priority. The campaign calls for the authorities to uphold their international obligations, follow the United Nations decisions and finally bring victims long-awaited justice.

For more information

Visit the campaign’s website http://www.realrightsnow.org
Follow the Hashtag #RealRightsNow

Introduction

TRIAL lodged an individual complaint before the United Nations Human Rights Committee on behalf of Mrs Khaourkha Marouf, spouse Azizi, in January 2009. She acts in the name of her husband, Abdelkrim Azizi, and her son, Abdessamad Azizi, both kidnapped on September 22, 1994 in Algers and missing since. The victims disappeared during a widespread campaign of forced disappearances in Algeria between 1992 and 1998.

During the night of September 22, 1994, Abdelkrim and Abdessamad Azizi were arbitrarily arrested by members of the Algerian police force at their home. During this arrest, Abdelkrim Azizi was tortured by his assailants and his family was forced to witness his torment. Furthermore, the police officers pillaged the family’s home and adjoining store. Abdelkrim and Abdessamad Azizi were taken away to an undisclosed location and the whereabouts have remained unknown to their family since then.

Despite Khaourkha Marouf’s repeated pleas for information, the Algerian authorities have refused to admit that Abdelkrim and Abdessamad Azizi were in their custody or to give their family any information as to their situation.

A former police officer has that Abdelkrim and Abdessamad Azizi were detained at the “cité de la Montagne” police station in Bourouba and alleged that they were there tortured to death. The detention of Abdelkrim and Abdessamad Azizi was also confirmed by former cellmates.

In her complaint before the UN Human Rights Committee, Mrs Khaourkha Marouf requests that her husband and son be recognized as victims of forced disappearance and that Algeria be found in violation of the following rights in regards to its treatment of Abdelkrim and Abdessamad Azizi: to life; not to be subjected to torture; to liberty and security of the person; to be treated with humanity and dignity while in detention; to recognition as a person before the law; to be free from arbitrary or unlawful interference with one’s privacy and family; to the protection of the family and to an effective remedy when such rights are violated (articles 6 § 1, 7, 9 §§ 1, 2, 3 et 4, 10 § 1, 16, 17, 23 § 1 and 2 § 3 of the International Covenant on Civil and Political Rights).

Furthermore, the Committee is asked to recognize the Algerian authorities’ actions towards Khaourkha Marouf and her family as violations of the rights to be free from cruel, inhuman or degrading treatment; to be free from arbitrary or unlawful interference with one’s privacy and family; to the protection of the family and to an effective remedy when such rights are violated (articles 7, 17 et 23 § 1 and 2 § 3 of the Covenant) considering the psychological pain and suffering endured by the author and her family during the years of uncertainty since the arrest of her husband and son.

Mrs Marouf also asks that an investigation be initiated into the alleged violations and that the responsible parties be brough t to justice.

The proceedings are currently underway before the United Nations Human Rights Committee.

 

General Context

These events occurred during the Algerian civil war during which thousands of civilians were kidnapped. It is reported that between 7,000 and 20,000 people were disappeared by the Algerian police forces between 1992 and 1998. Secret detentions during long periods were a common instrument of repression in Algeria during this time. The use of torture was also very prevalent and often led to deaths of detainees. The members of the police forces acted with complete impunity. Since the implementation of the Charter for National Peace and Reconciliation in 2006, these forces have officially received amnesty for their acts during the civil war. It is now illegal to bring a complaint for crimes or exactions like the ones Abdelkrim and Abdessamad Azizi suffered.

 

The decision

In July 2013, the Human Rights Committee adopted its decision in the case of Azizi father and son.

The Committee held that Algeria violated several articles of the International Covenant on Civil and Political Rights, especially rights to:

  • life (art. 6 alone or in conjunction with art. 2 & 3)
  • liberty and security (art. 9 alone or conjunction with art. 2 & 3)
  • adequate detention conditions (art. 10 alone or conjunction with art. 2 & 3)
  • interdiction of torture (art. 7 alone or conjunction with art. 2 & 3)
  • recognition of the legal personality (art.16 alone or conjunction with art. 2 & 3)
  • not be subjected to arbitrary interference in one’s private life (art. 17 alone or conjunction with art. 2 & 3)

 

Moreover, the Committee found other violations of the Covenant regarding the victim’s spouse :

  • interdiction of inhumane treatment (art. 7 alone and in conjunction with art. 2 & 3)
  • not be subjected to arbitrary interference in one’s private life (art. 17 alone and in conjunction with art. 2 & 3

The Committee requests Algeria to:

  • conduct an investigation into the disappearance of Abdelkrim and Abdessamad Azizi
  • free the victims if they are still being secretly detained or, if they are deceased, to return their remains to their family
  • ensure adequate access to investigation for the victim’s relatives
  • In addition, Algeria has the obligation to:
  • prosecute, judge and punish those responsible for the violations committed
  • provide compensation to the victim’s relatives for the violations endured