Judicial Body: UN Human Rights Committee (CCPR)

Irma Leticia Hidalgo Rea v. Mexico

In the night between 10 and 11 January 2011, a group of heavily armed men broke into Ms. Hidalgo Rea’s house, threatened and beat the members of the family and eventually took away her son Roy (then 18 years old). The fate and whereabouts of Roy remain unknown since then and no one has been judged and sanctioned for this crime. Following a complaint submitted by TRIAL International and the Centro Diocesano para los derechos humanos Fray Juan de Larios on behalf of Ms. Hidalgo Rea, the United Nations Human Rights Committee qualified the abduction of Roy Rivera as an enforced disappearance in March 2021. The Committee called on the State of Mexico to investigate his disappearance and provide reparations to his mother.

The Case

In the early hours of 11 January 2011, a group of armed and camouflaged individuals burst into the home of the Hidalgo Rea family in San Nicolás de los Garza, Nuevo León. Some of them wore anti-bullet vests from the Escobedo Municipal Police. At that time, in the house were Ms. Irma Leticia Hidalgo Rea and her two sons Ricardo (who was then 16 years old) and Roy (who was then 18 years old). After having beaten the two brothers and insulted and threatened Ms. Hidalgo Rea, the armed men took Mr. Roy Rivera Hidalgo, whose fate and whereabouts remain unknown since then. In addition, some objects and property, including two vehicles, belonging to the family were stolen.

As a consequence of Roy’s enforced disappearance, Ms. Hidalgo Rea and her youngest son Ricardo suffer serious psycho-physical affectations. When her son disappeared, Ms. Hidalgo Rea worked as a teacher. However, since then he has not been able to return to her job, in order to fully dedicate herself to the search of Roy. Currently she is the director of the organization “United Forces for Our Disappeared in Nuevo León”. She has been subjected to constant threats and reprisals.

The Quest for Justice

Ms. Irma Leticia Hidalgo Rea reported the facts before numerous Mexican authorities, including the State Attorney General’s Office, the State anti-kidnapping agency, the State Human Rights Commission of Nuevo León, the Unit specializing in the investigation of crimes against the health of the Sub-Attorney’s Office specializing in investigation against organized crime, and the Search Prosecutor’s Office. This was to no avail: the crime remains unpunished, the fate and whereabouts of Roy have not been elucidated, and Ms. Hidalgo Rea and her youngest son Ricardo have not received compensation or other forms of reparation for the enormous damage suffered.

In January 2018, with the support of TRIAL and the Centro Diocesano para los derechos humanos Fray Juan de Larios, Ms. Hidalgo Rea turned to the United Nations Human Rights Committee (HRC).

In October 2018, the HRC registered the case and transmitted it to Mexico. The authorities have 6 months to submit their reply.

On 25 March 2021, the United Nations’ Human Rights Committee found that Roy Rivera Hidalgo’s abduction from his home in Nuevo León was indeed to be considered an enforced disappearance. The Committee called on the State of Mexico to investigate his disappearance, share information about his fate and provide reparations to his mother

Alleged Violations

In her complaint, Ms. Hidalgo Rea requested the HRC:

• To declare that her son Roy is a victim of a violation of 6, 7, 9 and 16 (right to life, prohibition of torture, right to personal liberty, and right to recognition as a person before the law), read alone and in conjunction with Art. 2, para. 3 (right to an effective remedy), of the International Covenant on Civil and Political Rights because of his enforced disappearance and the subsequent absence of an exhaustive and effective investigation, both as regards the search of Roy and the identification of those responsible, their prosecution and punishment. The aforementioned provisions are also considered to be violated due to the failure to adopt adequate reparation and compensation measures for the damages suffered.
• To declare that she is a victim of a violation of Art. 7 (right not to be subjected to torture), read alone and in conjunction with Art. 2, para. 3), of the Covenant, because of the ongoing anguish and suffering and the psychological affectations caused by the enforced disappearance of her son and the uncertainty about his fate and whereabouts, as well as the attitude of indifference shown by the Mexican authorities in the face of her.
• To declare that she is also a victim of a violation of 17, para. 1 (right to family life), read alone and in conjunction with Art. 2, para. 3, of the Covenant due to arbitrary and illegal interference in her home and family and the absence of an effective remedy against such interference by the Mexican authorities. These provisions are violated also because of the failure by Mexican authorities to adopt the appropriate measures to guarantee Ms. Hidalgo Rea’s right to know the truth about the fate and whereabouts of her son and to search for him and, in the event of his death, to locate, respect and return his mortal remains.
• To request Mexico to search for and unveil the fate and whereabouts of Mr. Roy Rivera Hidalgo; to investigate, prosecute and sanction those responsible for this crime; and to ensure that Ms. Hidalgo Rea and her youngest son Ricardo receive integral reparation, including restitution, rehabilitation, satisfaction, compensation and guarantees of non-repetition.

In accordance with the Committee’s decision of March 2021, it is now up to the Mexican State to conduct a prompt, effective, thorough, independent, impartial and transparent investigation into the circumstances of Mr. Rivera Hidalgo’s enforced disappearance. The decision also states that Mr. Rivera must be released if alive, or, in the event of his death, his remains must be returned to the family. Finally, those responsible must be prosecuted and  sanctioned, the results of the investigation must be communicated to Mr. Rivera’s mother and she must obtain adequate compensation for the harm suffered, as well as medical and psychological assistance. Mexico has 180 days to inform the Committee about the measures adopted to implement the decision.

Context

The enforced disappearance of Mr. Roy Rivera Hidalgo occurred in the context of a situation of widespread disappearances across Mexico’s territory. As of the end of 2017, the government acknowledged more than 34,500 missing persons, many of which have been subjected to enforced disappearance. Almost absolute impunity reigns over these crimes. The authorities’ failure to provide access to justice to victims and to unveil the truth on the fate and whereabouts of disappeared persons results in structural impunity, whose effect is, in turn, to perpetuate and even foster the repetition of grave human rights violations.

Together with NGOs FIACAT, CCPR Center, DefendDefenders, OMCT and Protection International, TRIAL International has sponsored the following statement to the UN Human Rights Committee.

Mr. Chairman,

Ladies and gentlemen of the Commission of Inquiry,

I am speaking before you on behalf of a coalition of Burundian NGOs[1], with the support of CCPR Centre, FIACAT, OMCT, Protection International and TRIAL International.

These organisations would like to thank the Commission of Inquiry for the work it has accomplished and for presenting its report. It is extremely worrisome to note that the Commission’s findings are that serious human rights violations still persist, some of which qualify as crimes against humanity.

The signatory Burundian NGOs, thanks to their constant monitoring, agree with the Commission’s findings. Indeed, since 30 June 2018, SOS-Torture / Burundi has documented 35 cases of extrajudicial executions, 2 cases of rape and 158 arbitrary arrests, the victims of which were often opponents – real or perceived – sometimes involving members of the Imbonerakure. Ligue Iteka also drew up a list of 16 cases of gender-based violence and 49 instances of torture, some of which having been perpetrated by SNR and members of the Imbonerakure. These figures are not exhaustive and do not represent all the cases that have been documented by Burudian organisations.

Human rights defenders are also still being persecuted because of their work. Two examples come to mind: the first is that of Nestor Nibitanga, a member of APRODH, sentenced to five years in prison for breach of State security on 13 August 2018; the second is that of Germain Rukuki, a former accountant at ACAT Burundi, who was sentenced to 32 years in prison because of the work he did for ACAT, and who is still in jail as we speak.

In light of these elements and considering the upcoming elections of 2020, ensuring the permanence of an independent and reliable international mechanism to investigate human rights violations in Burundi appears as something of the utmost importance. The existence of such a mechanism is only made more essential by Burundi’s refusal to cooperate with the High Commissioner for Human Rights to enforce resolution 36/2, despite having initially supported it, which was to commission 3 experts to go to Burundi in order to provide the Burundian government with technical assistance and capacity development.

This is why the signatory NGOs ask that the Human Rights Council renew for an additional year the mandate of the Commission of Inquiry for Burundi, as per its own recommendation, and call for the Burundian government to cooperate fully with the High Commissioner for Human Rights and the Commission of Inquiry for Burundi.

Thank you Mr. Chairman.

[1]ACAT Burundi, CB CPI, Ligue Iteka, RCP and SOS-Torture / Burundi

CASE ANIL CHAUDARY V. NEPAL

Anil Chaudhary was a 15-year-old boy when he was shot and killed by security officers. Since then, his parents have relentlessly sought justice. On the 28 March,14 years after Anil Chaudhary’s death, TRIAL International brought the case before the United Nations Human Rights Committee (HRC).

THE CASE

Anil Chaudhary was born in the District of Bardiya and belonged to the indigenous ethnic group Tharus.

On March 15 2004, Anil Chaudhary was cycling with his neighbor Ram Prasad Chaudhary towards the village of Fattepur, where he lived at that time. On their way, the boys were intercepted by a group of approximately 200 security officers.

Some officers tied the boys’ hands behind their backs and questioned them about potential links with the Maoist guerrilla. They subjected the two minors to verbal assault and physical abuse. They then dragged them to a nearby canal, where they continued the beatings. One officer then fired a mortal bullet at Ram Prasad Chaudhary. Anil Chaudhary witnessed the extrajudicial killing. He was subsequently questioned and ill-treated for half an hour, before being killed by three bullets shot in the back of his head.

THE QUEST FOR JUSTICE

Over the past 18 years, Anil Chaudhary’s parents have tried to obtain justice and redress.

They repeatedly submitted complaints to different Nepalese authorities, to no avail. After many attempts, the Police has allegedly registered a criminal complaint (“first information report”), but has refused to provide them with any information.

To date, no one has been held accountable for Anil Chaudhary’s death, and his family has not received adequate compensation for the harm suffered.

Having exhausted all domestic remedies and with the help of TRIAL International, Anil Chaudhary’s parents turned to the HRC on 28 March 2018.

The case is currently pending.

ALLEGED VIOLATIONS

It is alleged that Anil Chaudhary is a victim of arbitrary arrest, torture and extra-judicial killing by Nepalese security officers, in contravention of Articles 6, 7 and 9 of the International Covenant on Civil and Political Rights.

These violations had an allegedly discriminatory ground based on his ethnicity and were aggravated by the fact that he was a minor at the time of the events.

TRIAL International request the HRC, to establish that Nepal violated Anil Chaudhary’s rights, and is under the obligation to, among others, investigate into his death, hold the perpetrators accountable and provide his parents with adequate compensation.

United Nations recognizes Nepal’s responsibility on the torture and extra-judicial killing of Anil in it’s decision of the 20th of May 2022

CONTEXT

This case must be read in the context of the 10 years long internal armed conflict that opposed the Nepalese government and the Communist party of Nepal-Maoist, during which arbitrary arrest, torture and extrajudicial killings were practiced on a systematic basis.

The events took place in the District of Bardiya which was particularly affected by the conflict. Tharus indigenous, including women and children, were often associated with the Maoist guerrilla and targeted by security forces.

Read more on accountability in Nepal
Read another extra-judicial killing of a minor in Nepal case

Read the press release of the HRC decision

In a damning report, TRIAL International denounces the near impossibility for victims of sexual violence to obtain justice. The data, collected in collaboration with Panzi Hospital, reveal structural causes to this impunity.

After almost seven years of delay, the DRC submitted its periodic report to the Human Rights Committee. In this long-awaited report, the question of impunity for crimes of sexual violence was barely addressed. In anticipation of the Committee’s review of the DRC on 16 October, TRIAL International submitted its own report, focused on the causes of impunity. The scourge of sexual violence is particularly ravaging in the East of the country, where rape is systematically used as a weapon of war. And yet perpetrators go unpunished – why? Deficient infrastructure, poorly trained personnel, and a normalisation of violence against women offer some explanation.

Inadequate and ill-equipped courts

Only four courts in all of South Kivu are competent to judge a crime of rape. An absurdity for a territory larger than Switzerland, with a population of over six million. Unsurprisingly, the lack of access to legal assistance is one of the primary reasons cited by victims to explain why they don’t seek justice.

Mobile court hearings, which were intended to address the lack of courts in isolated territories, are showing their limits. First, their cost and organisation depend exclusively on international actors, with very limited engagement from the national authorities. Second, entire regions of the country are too dangerous to travel to, such that even a mobile court hearing are often held far away from where the crime occurred.

Finally, courts are very poorly equipped to adjudicate sexual crimes. The Congolese authorities (police officers, magistrates, and judges) are still ridden with preconceived notions of victims, and this affects the processing of their complaints. Victims, often intimidated or threatened for having dared to file a complaint, lack a sane and supportive environment in which to demand justice. Consequently, they prefer to abandon their quest altogether.

NGOs doing the government’s work

It must also be noted that magistrates frequently take a “wait-and-see” approach to cases of sexual violence, rarely exerting their power to proactively prosecute these cases. It falls on local NGOs to refer cases to the courts, but they lack the necessary skills and resources. In an effort to respond to their needs, TRIAL International facilitates documentation and capacity-building missions.

But the real problem remains: faced with passive authorities, Congolese NGOs carry the disproportionate burden of looking after extremely vulnerable victims. Medical care, psychological counselling, financial assistance…everything must be provided because no holistic support to victims is envisaged by the Congolese government.

In its report to the Human Rights Committee, TRIAL points out numerous other obstacles: concerns for victims’ safety, poor enforcement of court decisions, and politically motivated delays in proceedings.

The conclusion that emerges is that the causes of impunity are structural: “The difficulties experienced by victims in the DRC are not tied to individuals or to specific contexts,” explains Daniele Perissi, Head of the DRC Program at TRIAL. “The shortcomings are generalised, inscribed in laws, structures and mentalities. That is why a profound change must come from the top. We ask the Congolese government to finally tackle this problem head on, leaning on its dynamic civil society and the many international partners present in the country.”

In two cases led by TRIAL, the UN Human Rights Committee recognized – again – Nepal’s failing to deliver justice to its citizens.

The families of Rajendra Dhakal and Padam Narayan Nakarmi received acknowledgment for their sufferings at last. The Human Rights Committee (HRC) recognized Nepalese authorities had failed them in their quest for justice. Both victims were forcibly disappeared as part of a systematic policy targeting alleged Maoists in the civil war.

Mr. Rajendra Dhakal was a lawyer and a committed human rights defender. At the time he was arrested, he was defending victims of torture and harassment at the hand of the State. He had already been withheld and mistreated by the military due to his past involvement with communist groups.

Mr. Padam Narayan Nakarmi was also arrested and disappeared on the basis of his political affiliation. Evidence suggests torture and mistreatments were commonplace in the army barracks where M. Nakarmi was last known to be detained.

The families of both victims had exhausted all domestic remedies when they turned to TRIAL International. Together, they took the case to the HRC. The Committee recognized Nepal’s failure to uphold its obligations and issued recommendations in favor of the victims.

“Now the hardest part begins”

It now falls on Nepal to uphold these recommendations and grant truth and justice to the victims. But HRC decisions are non-binding, leaving their implementation to the good will of States. Failure to implement HRC decisions sends a dangerous message that human rights violations can go unpunished.

“Sadly, Nepal has a history of ignoring, partially or totally, HRC recommendations” says Helena Rodríguez-Bronchú Carceller, Head of the Nepal program. “TRIAL’s work is far from over, in fact the hardest part begins now.”

Read more on accountability in Nepal
Read more on strategic litigation

A UN decision and years of lobbying have been necessary for Alma M. to uphold her rights. Now, at last, she has received tangible acknowledgment of her sufferings.

What can be worse than experiencing the enforced disappearance of a loved one? Experiencing it, and then remaining in limbo for two decades, neglected by the authorities. This is what happened to Alma M. (real name withheld) in BiH.

Her husband was a member of the military when he was forcible disappeared. His family last saw him alive in August 1992, and had never known what happened to him. Now at long last, their right to reparation has been enacted.

For the first time since her husband was disappeared, Alma M. has received the pension she is entitled to: a happy conclusion to a long and exhausting battle.

A funeral and monetary reparation

Alma M. had been navigating arcane bureaucracy for years when she turned to TRIAL for help. Together, they brought her case before the United Nations Human Rights Committee (HRC).

In 2015, the Committee recommended that BiH established the truth about Mr. M.’s disappearance, bring those responsible to justice and redressed his wife accordingly. Since HRC decisions are not self-enforcing, relentless lobbying followed at the domestic level. Throughout it all, TRIAL stayed at the side of Alma M.

Now, thankfully, her life has taken a turn for the better. Last year, the mortal remains of her husband were found near Sarajevo. He finally received a dignified funeral, and his family now have a place to commemorate their loss.

Now, the payment of a monthly pension – an entitlement for the families of missing persons – acknowledges the wrongs she has been through. The sum she will receive from now on will considerably improve her dire living conditions.

UN decisions a paper tiger?

These improvements are significant steps forward, but not the end of the battle. In fact, the HRC also recommended both that the widow should receive adequate compensation and that the murderers of Alma’s husband were brought to justice. At present, they still enjoy complete impunity.

TRIAL International encourages BiH to fully implement the HRC’s decisions – not just for Alma M., but also for the 11 other families who still await its decision to translate into concrete change.

Read more about TRIAL’s work to enact HRC decisions.
Read more about enforced disappearances.

Mr. Nepali was a journalist at a Maoist daily newspaper during the civil war that opposed Nepali security forces with the Maoist guerilla. A political activist, Mr. Nepali was also a member of the Communist Party of Nepal-Maoist (CPN-M). He lived in Kathmandu with his wife. Being a member of the opposition, he had been arrested and interrogated on several occasions – as well as his wife – but was never seriously threatened.

On 21 May 1999, his life took a dramatic turn when six or seven policemen turned up and  asked him to follow them for questioning. Mr. Nepali followed them without resistance and was taken away in a mini-van to an unknown destination. This time, he did not come back.

His wife, who had witnessed his arrest, turned every stone to find where he had been taken. She went repeatedly to the local police station, but was always turned down. Finally, weeks after her husband’s arrest, she received an anonymous call informing her that he was being held in police headquarters in Naxal, Kathmandu.

The following day, Mrs. Basnet went there and asked to see her husband. The police refused her request, but took the clean clothes she had brought for him. This gave her renewed courage, as it meant that he was indeed held there and alive.

After leaving the police headquarters, Mrs. Basnet climbed to a nearby hillock and from there, she was able to get a glimpse of Mr. Nepali inside the compound. He was being escorted to the toilet by a policeman and, though handcuffed, seemed in generally good condition. Mrs. Basnet shouted out to try and get her husband’s attention, but she was too far away and he did not hear.

That was the last time she, or anyone else, saw Mr. Nepali.

Procedure

In the following year, the Supreme Court twice quashed a habeas corpus writ (respectively on 12 July 1999 and 5 July 2000). In both decisions, it argued since the Police denied detaining him, it could not be ordered to release him.

Mrs. Basnet’s fight was not limited to legal action. She and other family members of disappeared individuals held a press conference and issued an appeal requesting the general public and government authorities to come forward if they had any information regarding Mr. Nepali’s whereabouts. She also submitted a written appeal to the Parliament and co-founded the Families of Victims of State Disappearance Association (FVSDA).

The cause of Mrs. Basnet was even supported by Amnesty International in July 1999, who issued two urgent action appeals on 13 August 1999 and February 2000. The government of Nepal remained unwavered in its inertia.

In May 2012, TRIAL International took up the case to the United Nations Human Rights Committee.

Finally, on 1 November 2016, the HRC issued its response, finding that the rights of Mrs Basnet had indeed been violated. It ordered the government of Nepal to:

• Inquire over the enforced disappearance of Mr. Nepali
• If Mr. Nepali is dead, to locate his body and give his remains to his widow
• Prosecute and punish the culprits
• Ensure that reparations and psychological rehabilitation is provided to Mrs. Basnet

The Committee also urged the State to prevent similar cases, by ensuring that all enforced disappearance cases are investigated and that national legislation allows for the prosecution and punishment of perpetrators.

The fight is not over

The next challenge for Mrs. Basnet – in which TRIAL will assist her – is to transform this decision into real change. Nepal has an unfortunate record of ignoring HRC recommendations, thereby further violating victims’ rights.

Join TRIAL International’s Real Rights Now campaign to call on Nepali authorities to act today!

Visit the campaign’s website
Follow the hashtag #realrightsnow
Read another story of enforced disappearance in Nepal

Pascal Kabungulu, one of DRC’s most prominent human rights defenders, was murdered in 2005 at his home. As the Executive Secretary of the human rights NGO Héritiers de la Justice, he had repeatedly reported the corruption and violence committed in Eastern DRC. Over a period of several years, Mr Kabungulu had received threats from many high-ranking people he had accused. In particular, Mr Kabungulu had denounced the involvement of a Lieutenant Colonel of the Armed Forces of the Democratic Republic of the Congo (FARDC) in corruption cases in the gold mines of Mwenga Territory.

The day after Mr Kabungulu’s murder, his family began to receive threats and was subjected to intimidation. His wife was forced to flee the country with her six children, first to Uganda and then to Canada, where they were granted asylum.

For 10 years, his family has never stopped trying to obtain justice, albeit in vain. A commission of investigation set up after his murder led to the opening of a trial and to the identification of the perpetrators, but the case got “lost” in the interstices of the courts and, since 2009, it has been impossible to find any trace of it.

Procedure before the Human Rights Committee

TRIAL International and the Canadian Centre for International Justice filed a complaint on behalf of Pascal Kabungulu’s family before the Human Rights Committee (HRC). They jointly demanded that the violations against the victim and his family be acknowledged, that the perpetrators be punished and that reparation be afforded to the victims.

On 12 January 2021, the HRC recognized that DRC had violated Kabungulu’s right to life and deprived his family of any access to an effective remedy by refusing to investigate the facts. It called on the DRC to pursue the investigation and criminal proceedings into Pascal Kubunglu’s murder in a prompt, effective and transparent manner and to provide his family with adequate compensation.

Read the full decision (in French)

Mr Kabungulu’s murder is a highly symbolic case because it represents the very essence of violence committed against human rights defenders. Winning this case represents a further step towards better protection for human rights defenders within a deleterious national context.

Introduction

Déborah Kitumaini Kasiba is the widow of eminent human rights defender, Pascal Kabungulu, who was assassinated in the Democratic Republic of Congo (DRC) ten years ago. She lost everything: her husband, her belongings, and her country. Since then, she has been living in Canada with her six children. Despite the tremendous loss she has suffered, at 56 years old Déborah remains full of vivacity and courage.

Ten years after Pascal’s death and after years of ineffective judicial processes in the DRC, Déborah and her family have decided to file a complaint with the United Nations, with the help of two NGOs: the Canadian Centre for International Justice (CCIJ) and TRIAL (Track Impunity Always). Before filing this complaint, Déborah shared her story with us.

“A courageous, proud, funny, and tender man”


Deborah, could you please tell us about Pascal Kabungulu and what kind of man he was?

My husband, Pascal Kabungulu, was a journalist and Secretary General of the Congolese NGO Héritiers de la Justice (Heirs of Justice), which works to promote human rights and peace in the region of South Kivu. Pascal was committed to the human rights cause and fought to denounce abuses that were committed in the DRC.+

In July 2005, he was assassinated, in front of my own eyes and those of my children. We have every reason to believe that those who murdered him did so to keep him quiet.

Pascal was an exceptional husband and father. He was the love of my life. He was a courageous, proud, funny, and tender man, who was capable of a love and generosity that was limitless for his loved ones. It has been ten years since he was taken from us, but not a single day goes by that we don’t think of him!

In your opinion, why would your husband need to be kept quiet?

Pascal had denounced many different abuses in which authorities from Mwenga, South Kivu, were implicated – namely corruption, especially in relation to the gold mines. Héritiers de la Justice had compiled a great number of testimonies regarding this matter.

The men who were denounced [in these reports and testimonies] did not appreciate it and wanted to prevent Pascal from speaking out further. Before assassinating Pascal, they had repeatedly threatened him. By targeting Pascal – a well known and popular figure – they wanted to equally send a message to other human rights defenders and the general public.+


“Today, you are going to die!”

 

What happened on the night your husband was assassinated?

On 31 July 2005, my husband had returned home from a trip to Rwanda. He arrived home around 8:30pm and we spent the evening together as a family. Pascal spent some time with the kids and we watched television together before retiring to the bedroom to sleep. In the middle of the night, one of my sons began to scream, and in turn I heard a threatening voice yell out, “If you cry again, I’m going to kill you.”

My husband left the bedroom, while I ran to the window to scream for help. Men in military uniforms had entered our home and captured Pascal. They said: “Kama unakimbiyaka leo utakufa,” which essentially translates to “You have successfully eluded us until now, but today you are going to die.” I suddenly heard the sound of gunfire and of footsteps running out the door, before finally seeing that Pascal was lying on the floor of the living room, bleeding. I approached Pascal and held him in my arms, while my sons ran outside to ask the neighbours for help. Pascal was already unconscious.

Our neighbours eventually appeared and helped us transport Pascal to the local medical centre, but his injuries were so severe that he needed to be taken to the hospital. The doctors pronounced him dead shortly after we reached the hospital.

And you, did you also suffer from threats or intimidation?

Yes, many times, even when Pascal was alive: they would come knocking on our doors but they never managed to come in until that fatal day. After Pascal’s death, armed men in uniforms came to my workplace looking for me, and wandered around our home while the kids and I were alone.

The threats became more palpable every day and my husband’s colleagues took these threats seriously and became concerned. At their insistence we left the DRC in haste, just a few days after Pascal’s death, and in doing so we had to leave almost everything behind.+

Where did you go when you initially fled the DRC?

We left first to the border with Rwanda, carrying just the clothes on our backs and very few belongings in a small suitcase. I left in a taxi with my smallest children in tow, while my older sons fled by foot. Because my son Heri had the Kabungulu family name in his identity documents, he was stopped at the border for several hours. Having seen his passport and his name, the border guard told him: “The Kabungulus are not allowed to leave the country.” Heri was only finally able to leave thanks to the intervention of a friend.

After we finally crossed the Rwandan border, we took a bus to Uganda. We first stayed in a hotel in Kampala, until members of Héritiers de la Justice graciously provided private accommodation for us. We remained refugees in Uganda for about a year.+


“We were filled with fear”



How did you survive this intense period of your life?

It was incredibly difficult! We did not speak the language, my children were not in school, and we were all extremely traumatised by what had happened. We were afraid that the threats and intimidation would continue. One of my cousins also had to flee the DRC shortly after us and the threats continued even in Uganda. These people have a long arm and can reach far, you know!

We were reclusive during the first few months, as we were filled with fear. It was as though my life had ended at the border… I wasn’t coping well at all. A doctor helped me anchor myself in what remained in my life: my children. They were the ones who saved me from falling into despair.

After a year in Uganda, you went to Canada…

Yes, thankfully Canada accepted our refugee claim. We are incredibly grateful for having been given the opportunity to resettle and rebuild our lives here, despite the void and sadness caused by Pascal’s absence.

But I won’t hide the fact that the beginning was not easy: I didn’t have any friends, money, or work, and I had six children to take care of. We had to rebuild everything from scratch.

Thanks to my education and experience, I was able to find work and things slowly came together one by one. Today, all of my children are working or studying. Some are married and have created their own families. Seeing my grandchildren fills me with joy, even though I sorely wish that Pascal could have met them!

And how do you feel today?

My husband had prepared us, the children and me, for the fact that he had enemies and was in danger of being killed. But, this doesn’t prevent the fear, the sadness, or the post-traumatic stress that we endured, even if the intensity of these feelings diminishes slightly with time. Ten years later, this event is just as much a part of our lives: my heart still beats faster at the sight of police and military uniforms, and we still have not felt comfortable to travel outside of Canada!

Your family appears incredibly motivated to contribute to the public interest. Where does this spirit come from?

In Bukavu, Pascal’s NGO had clearly given new meaning to the word “justice” through the work that they carried out. I believe my children have all inherited their father’s spirit and convictions; he was certainly an inspiration to them. For example, my son Heri says, “I owe him my character and my strength. He never allowed things to be too easy; he always encouraged us to work hard. The values that he has passed down to me are forever engraved on my heart.”

You know, after his death, we learned that Pascal had been financially helping several families in our community. He supported them so that they could buy food or pay for their children’s studies. He did all of this with complete discretion and without expecting any recognition.

And you, Déborah, are you also a human rights activist?

My profession has always been a mid-wife. I practiced this profession for many years, before founding my own medical centre in Bukavu, where I served as Director until I left the country. My trajectory shifted once I was in exile and now I work two jobs to make ends meet.

After Pascal’s death, I also assumed a small part of his struggle. In 2011, my family and I created the Pascal Kabungulu Foundation, which most notably supports others like us who are the widows and orphans of human rights defenders. And believe me, there are many, because in the DRC they’ll cut your head off if you dare speak the truth! We help people in the DRC, but also other refugees, like us, in Canada to facilitate their arrival and resettlement in this country.


“There are numerous activists who continue to face death threats”



The struggle your husband fought for during his life, was it different than that of human rights defenders today? What has changed?

Things haven’t radically changed. But I believe that Pascal’s struggle has given strength to many young human rights defenders. The new generation of defenders is extremely courageous, despite the continued repression in the DRC. There are numerous activists who continue to denounce abuses, but this means that there are also numerous activists who continue to face death threats.

We have stayed in touch with many activists. Some of them even still refer to my children as “little brother” and urge them to carry on their father’s struggle. I am proud to see that the seeds planted by Pascal have indeed blossomed!

“Justice must put an end to fear and impunity”



You decided to file a complaint with the United Nations because of Pascal’s murder. Why?

I am a widow. My children are fatherless. It has been ten years since we were forced to flee our country and live in exile, leaving everything behind us. We continue to live in fear, while Pascal’s murderers – who were clearly identified as the culprits – are living freely. These perpetrators stole Pascal away from us, and by doing so they stole a cherished piece of our lives.

Arresting and punishing the perpetrators will not bring back Pascal. Nevertheless, we are hoping that the United Nations and the DRC will ensure that justice is finally served, so that at the very least we can reclaim our lives without living in fear. There needs to be an end to fear, as well as an end to impunity.

What are your hopes for the future, Déborah?

We hope justice will bring us some peace. Although we have obtained Canadian citizenship and we are very happy to be living in this country, we have also remained profoundly attached to our home country and miss it dearly.

I dream of the day I can return to visit the DRC, to see all my loved ones again, to breathe the air of Bukavu and to walk once again on its soil, in safety and security, holding my head high and knowing that the men who killed my husband will no longer be able to harm us or others. I hope that this day will come soon!

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.