Judicial Body: UN Human Rights Committee (CCPR)

The case

In September 2010, TRIAL submitted an individual complaint to the United Nations Human Rights Committee against Bosnia-Herzegovina (BiH) concerning the enforced disappearance of Mensud  Rizvanović, which occurred in July 1992. In this case, ACT is acting on behalf of Mrs Fatima Rizvanović and Mrs. Ruvejda Rizvanović, who are respectively the mother and the wife of Mr. Mensud Rizvanović.

On 20 July 1992 Mr. Mensud Rizvanović was arbitrarily deprived of his liberty in Rizvanovići (BiH) by members of the army of the Republika Srpska (Vojska Republike Srpske – VRS) taking part in ethnic cleansing operationsperpetrated in that area. He was afterwards taken to the detention camp Keraterm, where he was subjected to ill treatment and inhumane conditions. He was seen alive for the last time by eyewitnesses in the hands of the guards of the facility in life threatening circumstances. The fate and whereabouts of Mr. Mensud Rizvanović remain unknown since then.

In spite of numerous attempts from his relatives to establish the truth regarding the circumstances of the arbitrary deprivation of liberty and the subsequent enforced disappearance of Mr. Mensud Rizvanović, his fate and whereabouts and the progress and results of the investigations remain unknown. Since then, Mrs. Fatima Rizvanović and Mrs. Ruvejda Rizvanović have lived in a lacerating situation of uncertainty.

Indeed, 18 years after the events, no ex officio, prompt, impartial, thorough and independent investigation has been carried out by BiH authorities and no one has been prosecuted, judged and sanctioned for the arbitrary deprivation of liberty, the ill-treatment and the enforced disappearance of Mr. Mensud Rizvanović, thus fostering an ongoing climate of impunity. Although both the authors have provided their DNA samples to international mechanisms and national institutions dealing with the subject of missing persons, to date the mortal remains of Mr. Mensud Rizvanović have not been duly located, exhumed, identified and returned to the family.

To date, Mrs. Fatima Rizvanović and Mrs. Ruvejda Rizvanović have not received reparation or compensation for the harm suffered by them and their loved one.

TRIAL therefore submitted an individual communication to the United Nation Human Rights Committee asking it :

to recognise that BiH violated numerous articles of the International Covenant on Civil and Political Rights subsequently to Mr. Rizvanović’s  enforced disappearance, even though BiH has ratified the Covenant;

to declare that BiH also violated the Covenant with regard to the suffering caused byRizvanović‘s mother and spouse owing to his disappearance;

to request BiH undertake all necessary  action to launch independent investigations as a matter of urgency with a view to locating Mr. Mensud Rizvanović and, in the event of his death, exhuming, identifying, respecting and returning his mortal remains to the authors;

to request BiH undertake all necesary action to identify those responsible for his arbitrary deprivation of liberty, ill-treatment and subsequent enforced disappearance, judge and sanction them;

to request BiH undertake all necesary action to guarantee that Mrs. Fatima Rizvanović and Mrs. Ruvejda Rizvanović obtain without any further delay fair and adequate compensation and, in particular, access to medical and psychological care free of charge.

 

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.

The disappearance of Mr. Mensud Rizvanović took place within the general context of the “ethnic cleansing” operations that occurred in July 1992. To date, no one has been convicted, prosecuted and punished for his enforced disappearance, thus fostering an overall climate of impunity.

In 2010 the International Commission on Missing Persons (ICMP) and the International Committee of the Red Cross estimated that around 10,000 people remain disappeared in BiH.

 

The decision

In March 2014, the UN Human Rights Committee released its decision for the case of Mensud Rizvanović.

According to the Committee, Bosnia and Herzegovina violated several articles of theInternational Covenant on Civil and Political Rights. In particular rights to:

  • life
  • prohibition of torture
  • personal liberty

In addition, the fact that the authors of the complaint were forced to declare their disappeared family member dead in order to receive compensation is another violation of the Covenant.

The Committee requested Bosnia and Herzegovina to:

establish the fate and whereabouts of Mensud Rizvanović

bring to justice those responsible for his enforced disappearance by the end of 2015

ensure adequate compensation

ensure that investigations into allegations of enforced disappearances are accessible to missing persons’ families

amend the legal framework so that relatives do not have to obtain a declaration of death to their due social benefits

The author of the complaint, Fatima Rizvanović, a relative of Mensud Rizvanović sadly passed away before the adoption of the Human Rights Committee’s decision.

Bosnia and Herzegovina has now 180 days to inform the Committee about the measures taken to implement the decision.

 

In May 2010, TRIAL submitted a communication to the Human Rights Committeeconcerning 12 cases of enforced disappearance wich occured in June 1992 in Svrake village in Vogošća. TRIAL represents 25 relatives of the disappeared persons. The twelve victims are:

Rasim Selimović (45 years whent he went missing)

Mensud Durić (24 years)

Safet Hodžić (37 years)

Himzo Hadžić (35 years)

Abdulah Jelašković (49 years)

Sinan Salkić (52 years)

Idriz Alić (28 years)

Emin Jelečković (52 years)

Hasan Abaz (32 years)

Hakija Kanđer (31 years)

Esad Fejzović (46 years) and

Demo Šehić (49 years).

On 4 May 1992 these persons were deprived of their liberty in Svrake (BiH) by members of the army of the Republika Srpska (Vojska Republike Srpske – VRS) together with most of the inhabitants of the same village (approximately 850 people). A few days later, women, children and elderly persons were freed, while the men were taken to a concentration camp named “Nakina garaža”, where they stayed for almost 20 days. Afterwards, many prisoners were released and could go home under the condition to report twice a day to members of the VRS. After a few days, the place where they were supposed to report was changed and they had to report to the concentration camp known as “Planjina kuća”, located in the municipality of Vogošća, where they were also forced to sleep. While being held in the different concentration camps, the men were subjected to ill-treatment and forced labour.

Six of the victims (Himzo Hadžić, Safet odžić, Mensud Durić, Idriz Alić, Emin Jelečković and Hakija Kanđer) were last seen on 16 June 1992 in Planjina kuća, when they were taken away on a truck by Serb soldiers towards an unknown destination, together with other prisoners. Four other victims, Rasim Selimović, Abdulah Jelašković, Hasan Abaz and Esad Fejzović were last seen in the same concentration camp on 18 June 1992 when they were taken away in a truck towards an unknown destination by Serb soldiers with a group of other prisoners. After having witnessed the first group of men being taken away from Planjina kuća to an unknown destination on June 16 1992, Đemo Šehić, decided to escape towards a near village, which was under the control of the BiH army in order to save his life. Allegedly, he was also captured and arbitrarily executed by members of the Serb army. For his part, Sinan Salkić had been released on 14 May 1992, under the condition that he should report three times a day to Planjina kuća. On the morning of 10 June 1992 three or four men went to his house and arrested him without charge. Allegedly, he was arbitrarily executed by the same men on the bridge near the entrance of the village of Svrake and his body was thrown into the River Bosna.

The fate and whereabouts of the 12 mentioned men remain unknown since then.

Almost 18 years after the events, no ex officio, prompt, impartial, thorough and independent investigation has been undertaken by BiH authorities in order to locate the mentioned 12 men or their mortal remains or to identify, prosecute and sanction those responsible. The relatives of the disappeared people have taken several steps to obtain information about their loved ones, through the police in Visoko and Vogošća, the State Commission for Tracing Missing Persons, the Sarajevo Cantonal Prosecutor’s Office, and the Red Cross Society of BiH.To date, these initiatives have proved vain.

On 23 February 2006, the Constitutional Court of BiH judged that BiH has violated the right of the families of the missing persons not to be subjected to torture and inhuman and degrading treatment and the right to respect their private and family life. 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, whereby it declared that the concerned authorities failed to enforce its previous decision. Nevertheless, the authors of the communication have not received any information about their loved ones from the mentioned institutions.

Having exhausted all domestic legal remedies, the 25 applicants request the Human Rights Committee:

to find that the 12 disappeared men are victims 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 the ongoing failure of BiH aut Ihorities to conduct an ex officio, prompt, impartial, independent and thorough investigation on their arbitrary detention, ill-treatment and enforced disappearance, in order to establish their fate and whereabouts, as well as to identify those responsible for these crimes and to prosecute, judge and sanction them;

to find that they are victims of a violation by BiH of Article 2.3 in conjunction with Article 7 of the Covenant, because of the severe mental distress and anguish caused by the enforced disappearance of their loved ones and the ongoing lack of information about the cause and circumstances of their loved ones’ disappearance as well as on the progress and results of the investigations carried out by BiH authorities;

to request BiH to order independent investigations as a matter of urgency with a view to locate the 12 men subjected to enforced disappearance and, if necessary, to exhume, identify, respect and return their mortal remains to the families;

to request BiH to bring the perpetrators of the arbitrary arrest, ill-treatment and enforced disappearance of the 12 men before the competent civil authorities for prosecution, judgment and sanction without any further delay; and

to request BiH to ensure that all the authors of the communication 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 25000 an.d 30.000 were victims of enforced disappearance. Approximately 10,000 people are missing to date.

The cases of these victims occurred in the context of the first wave of enforced disappearances and “ethnic cleansing” operations perpetrated by the Serb army in the spring and summer of 1992.

 

The Decision

On 17 July 2014, the UN Human Rights Committee adopted its decision (called “views” in the UN jargon) on the case Selimović and others. The Committee found Bosnia and Herzegovina internationally responsible for the violation of several provisions of the International Covenant on Civil and Political Rights. In particular, the Committee declared that the State is responsible for not having effectively investigated the arbitrary deprivation of liberty, ill-treatment and enforced disappearance of the 12 men, and also for having subjected the 25 applicants to inhumane and degrading treatment because it has not unveiled the truth about the fate and whereabouts of their loved ones. Moreover, the Committee affirmed that forcing relatives of disappeared persons to declare their family members dead in order to receive compensation constitutes an inhumane and degrading treatment.

The Committee requested Bosnia and Herzegovina to:

– Establish the fate and whereabouts of the 12 disappeared men;

– Bring to justice those responsible for the crimes concerned without unnecessary delay;

– Ensure that the applicants receive adequate compensation;

– Amend the existing legal framework to make sure that compensation for relatives of disappeared people is not conditioned upon obtaining a death certificate.

Bosnia and Herzegovina has now 180 days to inform the Committee about the measures taken to implement the decision.

 

In April 2010, TRIAL submitted a communication to the United Nations Human Rights Committee concerning the enforced disappearance and alleged arbitrary execution and the subsequent concealment of the mortal remains of Sejad Hero and Ramiz Kožljak occurred in July 1992.

On 4 July 1992 members of the Yugoslav National Army (Jugoslovenska Narodna Armija – JNA) surrounded the village of Tihovići and arbitrarily apprehended about 13 civilians, including Sejad Hero. Accordingly to eyewitnesses, the men were taken to a meadow in Tihovići where they were tortured and mutilated. Allegedly, they were afterwards arbitrarily executed by members of the JNA, who then set fire to the dead bodies and finally transferred the mortal remains to a nearby stream in Tihovići. The fate and whereabouts of Sejad Hero remain unknown since he was apprehended by members of the JNA and his mortal remains have not been located, identified and returned to the family for mourning and burial. After having learned about the massacre of the 13 men, in order to save his life Ramiz Kožljak decided to escape towards the nearby village of Vrapče, which was under the control of the BiH army. The whole area surrounding Vrapče was under the control of the JNA. Allegedly, Ramiz Kožljak was also captured and arbitrarily executed by members of the JNA. However, his mortal remains have not been located, exhumed, identified and returned to his family and his fate and whereabouts remain unknown since then.

More than 18 years after the events, no ex officio, prompt, impartial, thorough and independent investigation has been undertaken by BiH authorities to locate Sejad Hero and Ramiz Kožljak or their mortal remains or to identify, prosecute and sanction those responsible for the mentioned crimes. Tija Hero, Ermina Hero, Armin Hero, Emina Kožljak and Sinan Kožljak have taken several steps to obtain information about their loved ones, through, among others, the police of Visoko, Ilijza and Vogošća, the State Commission for Tracing Missing Persons, the Sarajevo Cantonal Prosecutor’s Office, and the Red Cross Society of BiH. To date, these initiatives have proved vain.  Tija Hero, Ermina Hero, Armin Hero, Emina Kožljak and Sinan Kožljak are all active members of the Association of Families of Missing People from Vogošća.

On 23 February 2006 the Constitutional Court of BiH, seized by several families of victims of enforced disappearance from Vogošća, including Mrs. Tija Hero and Mrs. Emina Kožljak 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 domestic institutions concerned to disclose all available information on the fate and whereabouts of the disappeared people, including Sejad Hero and Ramiz Kožljak. On 16 November 2006 the Constitutional Court adopted another ruling, whereby 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 BiH failed to enforce its previous decision. Nevertheless, Tija Hero, Ermina Hero, Armin Hero, Emina Kožljak and Sinan Kožljak have not received any relevant information about their loved ones from the mentioned institutions.

Consequently, Tija Hero, Ermina Hero, Armin Hero, Emina Kožljak and Sinan Kožljak request the Human Rights Committee:

to find that Sejad Hero and Ramiz Kožljak are victims 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), and 16 (right to be recognized as a person before the law) of the International Covenant on Civil and Political Rights, due to the ongoing failure of BiH authorities to conduct an ex officio, prompt, impartial, independent and thorough investigation on their apprehension and alleged ill treatment and arbitrary execution, in order to establish their fate and whereabouts, as well as to identify those responsible for these crimes and to prosecute, judge and sanction them;

to find that they 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 and alleged arbitrary execution and the subsequent concealment of the mortal remains of Sejad Hero and Ramiz Kožljak and the ongoing lack of information about the cause and circumstances of their loved ones’ disappearance and alleged arbitrary execution as well as on the progress and results of the investigations carried out by BiH authorities; and that, in the cases of Ermina Hero and Armin Hero, until 21 June 2004 and 28 December 2008 respectively, the mentioned provisions were violated in conjunction with Article 24.1 of the Covenant, as they were minors;

to request BiH to order independent investigations as a matter of urgency with a view to locate Sejad Hero and Ramiz Kožljak and, if necessary, to exhume, identify, respect and return to the families their mortal remains;

to request BiH to bring the perpetrators of the arbitrary deprivation of liberty, enforced disappearance and alleged arbitrary execution of Sejad Hero and Ramiz Kožljak before the competent civil authorities for prosecution, judgment and sanction without any further delay; and

to request BiH to ensure that Tija Hero, Ermina Hero, Armin Hero, Emina Kožljak and Sinan Kožljak 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 10,000 people remain disappeared to date.

The cases of Sejad Hero and Ramiz Kožljak 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 and alleged arbitrary execution and the subsequent concealment of the mortal remains of Sejad Hero and Ramiz Kožljak, to date no one has been convicted, prosecuted and sanctioned for the mentioned crimes, thus fostering an overall climate of impunity. Up to this day, the families of men disappeared and arbitrarily executed in Tihovići have not received any information on the fate and whereabouts of their loved ones and have not had the possibility to mourn and bury their relatives in accordance with their religious customs and beliefs

 

The Decisions

The UN Human Rights Committee dealt with the cases separately. On 28 October 2014, it adopted two decisions respectively on the case of Mr. Sejad Hero and Ramiz Kožljak. The Committee found Bosnia and Herzegovina internationally responsible for the violation of several provisions of the International Covenant on Civil and Political Rights, including the rights to life and personal liberty and the prohibition of torture. In particular, the Committee declared that the State is responsible for not having effectively investigated the arbitrary deprivation of liberty, ill-treatment, and enforced disappearance of Mr. Sejad Hero and Ramiz Kožljak, and also for having subjected their relatives to inhumane and degrading treatment because it has not unveiled the truth about their fate and whereabouts. Moreover, the Committee affirmed that forcing relatives of disappeared persons to declare their family members dead in order to receive compensation constitutes an inhumane and degrading treatment.

The Committee requested Bosnia and Herzegovina to:

– Establish the fate and whereabouts of Mr. Sejad Hero and Ramiz Kožljak;

– Make sure that its investigators contact the applicants as soon as possible to gather the information they can contribute to the investigation, and bring to justice those responsible for the crimes concerned without unnecessary delay;

– Ensure that the applicants receive adequate compensation;

– Amend the existing legal framework to make sure that compensation for relatives of disappeared people is not conditioned upon obtaining a death certificate.

Bosnia and Herzegovina has now 180 days to inform the Committee about the measures taken to implement the decisions.

 

 

In January 2010, TRIAL submitted a communication to theHuman Rights Committee concerning the enforced disappearance of Ibrahim Durić occurred in May 1992. TRIAL acts on behalf of Nevzeta Durić and of NedžadDurić, respectively mother and brother of Ibrahim Durić.

On 14 May 1992 Ibrahim Durić was stopped and interrogated at a check point in Kasindolska Street held by members of the army of the Republika Srpska (VRS) in the suburban neighbourhood of Sarajevo known as Dobrinja. He was in his car together with a friend (Zelimir Vidović) and they were returning from Sarajevo’s Hospital, where they had taken a neighbour who had been heavily wounded in a shelling. That was the last time that Ibrahim Durić was seen alive. His fate and whereabouts remain unknown since then. After the war, Zelimir Vidović’s mortal remains were located, exhumed and identified in Ilidža, another suburban neighbourhood of Sarajevo that was under the control of the Serb army (VRS) during the conflict.

More than 18 years after the events, no ex officio, prompt, impartial, thorough and independent investigation has been undertaken by BiH authorities in order to locate Ibrahim Durić or his mortal remains or to identify, prosecute and sanction those responsible. Nevzeta Durić and Nedžad Durić have taken several steps to obtain information about their loved one, through domestic authorities (in particular, the police, the Red Cross of Sarajevo and the State Commission for Tracing Missing Persons) and international organizations (International Committee of the Red Cross). These initiatives have proved vain.

On 23 February 2006 the Constitutional Court of BiH, seized by several families of victims of enforced disappearance, including Nevzeta Durić 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 domestic institutions concerned to disclose all available information on the fate and whereabouts of the disappeared people, including Ibrahim Durić. On 16 November 2006 the Constitutional Court adopted another ruling, whereby 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 BiH failed to enforce its previous decision. Nevertheless, NevzetaDurić and Nedžad Durić have not received any information about their loved one from the mentioned institutions.

Consequently, Nevzeta Durić and Nedžad Durić request the Human Rights Committee:

to find that Ibrahim Durić is 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 the International Covenant on Civil and Political Rights, due to the ongoing failure of BiH authorities to conduct a prompt, impartial, independent and thorough investigation on his arbitrary deprivation of liberty and his subsequent enforced disappearance, in order to establish his fate and whereabouts, as well as to identify those responsible for these crimes and to prosecute, judge and sanction them;

to find that Nevzeta Durić and Nedžad Durić are themselves 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 Mr. Ibrahim Durić’s enforced disappearance and the ongoing lack of information about the cause and circumstances of Ibrahim Durić’s disappearance as well as on the progress and results of the investigations carried out by BiH authorities;

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

to request BiH to bring the perpetrators of the arbitrary arrest and subsequent enforced disappearance of Ibrahim Durić before the competent civil authorities for prosecution, judgment and sanction without any further delay; and

to request BiH to ensure that Nevzeta Durić and Nedžad Durić 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 Ibrahim Durić 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.

To date no one has been convicted, prosecuted and sanctioned for the arbitrary deprivation of liberty and subsequent enforced disappearance of Ibrahim Durić, thus fostering an overall climate of impunity. Up to this day, the family of Ibrahim Durić still has not received any information on the fate and whereabouts of their loved one.

 

The Decision

On 16 July 2014, the UN Human Rights Committee adopted its decision on the case of Mr. Ibrahim Durić. The Committee found Bosnia and Herzegovina internationally responsible for the violation of several provisions of the International Covenant on Civil and Political Rights. In particular, the Committee declared that the State is responsible for not having effectively investigated the arbitrary deprivation of liberty, ill-treatment and enforced disappearance of Mr. Ibrahim Durić. Moreover, BiH subjected Mr. Durić’s mother and brother to inhumane and degrading treatment because it has not unveiled the truth about the fate and whereabouts of their loved one. The Committee reiterated that forcing relatives of disappeared persons to declare their family members dead in order to receive compensation constitutes a form of inhumane and degrading treatment.

The Committee requested Bosnia and Herzegovina to:

– Establish the fate and whereabouts of Mr. Ibrahim Durić;

– Bring to justice those responsible for the crimes concerned without unnecessary delay;

– Ensure that the applicants receive adequate compensation;

– Amend the existing legal framework to make sure that compensation for relatives of disappeared people is not conditioned upon obtaining a death certifica

 

In December 2009, TRIAL submitted a communication to the Human Rights Committee concerning the enforced disappearance of Salih Čekić which occurred in June 1992, acting on behalf of Ema Čekić,  Sanela Bašić, Sead Čekić and Samir Čekić who are respectively the wife, the daughter and the sons of  Salih Čekić.

On 4 May 1992 Salih Čekić was arrested in Svrake (Bosnia and Herzegovina, hereafter: BiH) by the Serb army together with Ema Čekić and their children Sanela Bašić (then 16 years old), Sead Čekić (then 15 years old) and Samir Čekić (then 13 years old) and most of the inhabitants of the same village. They were all taken to the concentration camp known as Kasarna JNA in Semizovac. A few days later, Ema Čekić, together with her children Sanela Bašić, Sead Čekić and Samir Čekić and other women and children, were freed. Salih Čekić was kept prisoner and transferred to different concentration camps, where he was subjected to torture and forced labour. Salih Čekić was last seen on 16 June 1992 in the concentration camp known asPlanjina kuca, located in the municipality of Vogošća. His fate and whereabouts remain unknown since then.

More than 17 years after the events, no ex officio, prompt, impartial, thorough and independent investigation has been undertaken by BiH authorities in order to locate Salih Čekić or his mortal remains or to identify, prosecute and sanction those responsible. Ema Čekić, Sanela Bašić, Sead Čekić and Samir Čekić have taken numerous steps to obtain information about their loved one, through the police of Visoko and Vogošća, the State Commission for Tracing Missing Persons, the Sarajevo Cantonal Prosecutor’s Office, and the Red Cross Society of BiH. To date, these initiatives have proved vain. Ema Čekić is the President of the Association of Families of Missing People from Vogošća while her children are active members of the same organization.

On 23 February 2006, the Constitutional Court of BiH, seized by several families of victims of enforced disappearance from Vogošća, declared that BiH had violated the right of the relatives of disappeared persons not to be subjected to torture and inhuman and degrading treatment as well as their right to respect for their private and family life. Accordingly, the Court ordered the relevant domestic institutions to disclose all available information on the fate and whereabouts of the disappeared people, including Salih Čekić. On 16 November 2006, the Constitutional Court adopted another ruling, whereby 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 BiH had failed to enforce its previous decision. Nevertheless,  Ema Čekić, Sanela Bašić, Sead Čekić and Samir Čekić have not still received any information about their loved one from the mentioned institutions.

Consequently, Ema Čekić, Sanela Bašić, Sead Čekić and Samir Čekić request the United Nations Human Rights Committee:

to find that Salih Čekić 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 the International Covenant on Civil and Political Rights, due to the ongoing failure of BiH authorities to conduct anex officio, prompt, impartial, independent and thorough investigation on his arbitrary detention, ill-treatment and enforced disappearance, in order to establish his fate and whereabouts, as well as to identify those responsible for these crimes and to prosecute, judge and sanction them;

to find that Ema Čekić and her children Sanela, Sead and Samir 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. Salih Čekić and the ongoing lack of information about the cause and circumstances of their loved one’s disappearance as well as on the progress and results of the investigations carried out by BiH authorities; and that, in the case of Samir Čekić, until 17 August 1996, the mentioned provisions were violated in conjunction with Article 24.1 of the Covenant, as he was a minor (for their part, Sanela Bašić and Sead Čekić were minors when their father was subjected to enforced disappearance, but they attained the majority before BiH ratified the First Optional Protocol to the International Covenant on Civil and Political Rights, this explaining why a violation of Article 24.1 of the Covenant is not alleged in respect to them);

to request BiH to order independent investigations as a matter of urgency with a view to locate Salih Čekić and, if necessary, to exhume, identify, respect and return his mortal remains;

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

to request BiH to ensure that Ema Čekić, Sanela Bašić, Sead Čekić and Samir Čekić obtain integral reparation and prompt, fair and adequate compensation for the harm suffered.

The General Context

According to sources, 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 Salih Čekić 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 evidence about the identity of those responsible for the enforced disappearance of Mr. Salih Čekić 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 Vogošća 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 authors and their disappeared relative. The Committee also found a violation of Article 24 of the Covenant with regard to Samir Čekić.

The Committee requested Bosnia-Herzegovina to continue the efforts to establish the fate and whereabouts of Salih Čekić 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.

 

In November 2009, TRIAL submitted a communication to the Human Rights Committee concerning the enforced disappearance of Safet Kozica that occurred in June 1992. TRIAL acts on behalf of  Mirha Kozica, Bajazit Kozica and Selima Kozica, who are respectively mother, brother and sister of Mr. Safet Kozica.

On 4 May 1992, Safet Kozica was arrested in Svrake (BiH) by the Serb army together with Mirha Kozica and her husband Aziz Kozica and most of the inhabitants of the same village. They were all taken to the concentration camp known as Kasarna JNA in Semizovac. A few days later, Mirha Kozica, together with her husband Aziz Kozica and other women, elderly men and children, were freed. Safet Kozica was kept prisoner and transferred to different concentration camps, where he was subjected to torture and forced labour. Safet Kozica was last seen on 16 June 1992 in the concentration camp known as “Planjina kuca”, located in the municipality of Vogošća. His fate and whereabouts remain unknown since then.

More than 17 years after the events, no ex officio, prompt, impartial, thorough and independent investigation has been undertaken by BiH authorities in order to locate Safet Kozica or his mortal remains or to identify, prosecute and sanction those responsible. Mirha Kozica, Bajazit Kozica and Selima Kozica have taken numerous steps to obtain information about their loved one, through the police of Visoko and Vogošća, the State Commission for Tracing Missing Persons, the Sarajevo Cantonal Prosecutor’s Office, and the Red Cross Society of BiH. To date, these initiatives have proved vain. Mirha Kozica, Bajazit Kozica and Selima Kozica are active members of the Association of Families of Missing People from Vogošća.

In particular, Mirha Kozica is now 80 years old and she fears that she may die without having established the truth about what has happened to her son and having obtained justice and redress.

On 23 February 2006, the Constitutional Court of BiH, seized by several families of victims of enforced disappearance from Vogošća, 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, including Safet Kozica. On 16 November 2006, the Constitutional Court adopted another ruling, whereby 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 BiH failed to enforce its previous decision. Nevertheless, Mirha Kozica, Bajazit Kozica and Selima Kozica have not received any information about their loved one from the mentioned institutions.

Consequently, Mirha Kozica, Bajazit Kozica and Selima Kozica request the Human Rights Committee:

to find that Safet Kozica 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 the International Covenant on Civil and Political Rights, due to the ongoing failure of BiH authorities to conduct a prompt, impartial, independent and thorough investigation on his arbitrary detention, ill-treatment and enforced disappearance, in order to establish his fate and whereabouts, as well as to identify those responsible for these crimes and to prosecute, judge and sanction them;

to find that they 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 Safet Kozica and the ongoing lack of information about the cause and circumstances of their loved one’s disappearance as well as on the progress and results of the investigations carried out by BiH authorities;

to request BiH to order independent investigations as a matter of urgency with a view to locate Safet Kozica and, if necessary, to exhume, identify, respect and return his mortal remains;

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

to request BiH to ensure that Mirha Kozica, Bajazit Kozica and Selima Kozica 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 Safet Kozica 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 Safet Kozica 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 Vogošća 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 authors and their disappeared relative.

The Committee requested Bosnia-Herzegovina to continue the efforts to establish the fate and whereabouts of Safet Kozica 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.

 

August 2009, TRIAL submitted a communication to the United Nations Human Rights Committee concerning the enforced disappearance of Huso Zlatarac and Nedžad Zlatarac occurred in June 1992. TRIAL acts on behalf of Hasiba Zlatarac and Alma Čardaković, wife and daughter respectively of Huso Zlatarac and mother and sister respectively of Nedžad Zlatarac.

The case

On 4 May 1992, Huso Zlatarac was arrested in Svrake (BiH) by the Serb army together with Hasiba Zlatarac and their sons Nedžad and Alma (then 14 years old) and most of the inhabitants of the same village. They were all taken to the concentration camp known as Kasarna JNA in Semizovac. A few days later, Hasiba Zlatarac, together with her daughter Alma and other women and children, were freed. Huso Zlatarac and his son Nedžad were kept prisoners and transferred to different concentration camps, where they were subjected to torture and forced labour. Huso and Nedžad Zlatarac were last seen on 16 June 1992 in the concentration camp known as “Planjina kuca”, located in the municipality of Vogosca. Their fate and whereabouts remain unknown since then.

More than 17 years after the events, no ex officio, prompt, impartial, thorough and independent investigation has been undertaken by BiH authorities in order to locate Huso and Nedžad Zlatarac or their remains or to identify, prosecute and sanction those responsible. Mrs. Zlatarac has taken several steps to obtain information about her husband and son, 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. Mrs. Čardaković has constantly supported her mother in the filing of complaints and in the searching activities in order to locate her father and brother. Both Hasiba Zlatarac and Alma Čardaković are active members of the Association of Families of Missing People from Vogosca.

On 23 February 2006, the Constitutional Court of BiH, seized by several families of victims of enforced disappearance from 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, including Huso Zlatarac and Nedžad Zlatarac. 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 BiH failed to enforce its previous decision. Nevertheless, Hasiba Zlatarac and Alma Čardaković have not received any information about their loved ones from the mentioned institutions.

Consequently, Hasiba Zlatarac and Alma Čardaković request the Human Rights Committee:

to find that Huso Zlatarac and Nedžad Zlatarac are victims 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 the International Covenant on Civil and Political Rights, due to the ongoing failure of BiH authorities to conduct a prompt, impartial, independent and thorough investigation on their arbitrary detention, ill-treatment and enforced disappearance, in order to establish their fate and whereabouts, as well as to identify those responsible for these crimes and to prosecute, judge and sanction them;

to find that they 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 their loved ones’ enforced disappearance and the ongoing lack of information about the cause and circumstances of their loved ones’ disappearance as well as on the progress and results of the investigations carried out by BiH authorities;

to find that, in the case of Alma Čardaković, until 4 March 1996 (when she attained the majority), she is also victim of a violation by BiH of Article 24.1 (rights of the child) in conjunction with Articles 2.3 and 7 of the Covenant, because she was a minor when the events took place and, as such, she was entitled to the adoption of special measures of protection by the State that BiH failed to undertake;

to request BiH to order independent investigations as a matter of urgency with a view to locate Huso and Nedžad Zlatarac and, if necessary, exhume, identify, respect and return their mortal remains;

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

to request BiH to ensure that Hasiba Zlatarac and Alma Čardaković 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 Huso Zlatarac and Nedžad Zlatarac 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 Huso and Nedžad Zlatarac 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 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 all of the authors and their disappeared relatives. The Committee also found a violation of Article 24 of the Covenant with regard to Alma Čardaković.

The Committee requested Bosnia-Herzegovina to continue the efforts to establish the fate and whereabouts of Huso and Nedžad Zlatarac as required by the Missing Persons Act of 2004, to continue the efforts to bring to justice those responsible for their 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.

 

The case

In July 2011, TRIAL submitted an individual communication to the United Nations Human Rights Committee regarding the arbitrary deprivation of liberty and torture of Mr. Ang Dorje Sherpa in July 2007.

RTEmagicC_AND_DORJE_CIVICT_PIC_2_001_02.jpgMr. Sherpa was a porter and cook during trekking expeditions in the Nepalese mountains. On 18 July 2007 as he was walking back home, Mr. Sherpa was assaulted by a group of police officers who arrested him without producing a warrant or informing him of the grounds for his arrest. Mr. Sherpa was then beaten and dragged by his arms and hair to the Jorpati Police Bit where he was again severely beaten by the police officers with a bamboo stick until he fell unconscious. Mr. Sherpa was neither informed of his rights nor given the opportunity to contact his family, legal counsellor or friends. Subsequently, Mr. Sherpa was transferred in a state of semi-consciousness to the Metropolitan Police Circle Boudha where he was kept in inhuman conditions of detention. Namely, he was placed in an overcrowded room, endowed with no mattresses and no toilet facilities. Neither food nor water was provided to him. Despite a report by the visiting doctor clearly pointing out the need for Mr. Sherpa to receive medical attention for the grave injuries he presented as a result of the beatings he had suffered, he was not afforded any medical care. Mr. Sherpa was finally released the following day, 19 July 2007 at 18h00. He was never accused or charged of anything. Upon release Mr. Sherpa was threatened not to seek redress before the justice system as otherwise he would be “punished”.

Despite the threats, Mr. Sherpa filed a complaint before the Kathmandu District Court, which on 7 July 2008 rendered a decision recognising that torture had been inflicted by Officer Min Bahadur Khadkha on Mr. Sherpa and providing for compensation of 280 USD from the Nepalese Government, but deeming that further action against the perpetrator was not necessary. Mr. Sherpa then filed an appeal claiming that no effective disciplinary action had been taken against his perpetrator and that the compensation was not proportionate to the seriousness of acts committed. On 19 June 2009, the appeal court upheld the Kathmandu District Court’s decision. Similarly, on 12 October 2009 the Supreme Court upheld the decision of the previous courts and refused to review the case. Meanwhile, Min Bahadur Khadkha was awarded a promotion and Mr. Sherpa and his family have been subjected to multiple threats and harassment by both police and private agents.

In July 2011, TRIAL submitted an individual communication to the United Nations Human Rights Committee asking it to recognise that Nepal violated numerous articles of the International Covenant on Civil and Political Rights due to Mr. Sherpa’s arbitrary deprivation of liberty, torture, inhumane conditions in custody and to the consequent interference with his family life that such acts have represented. TRIAL also asked the Committee to request Nepal to inter alia:

adopt interim measures to investigate alleged instances of threats or harassment directed against Mr. Sherpa or his family and to guarantee their safety;

bring Mr. Sherpa’s perpetrators before the competent ordinary authorities for criminal prosecution, judgment and sanction;

ensure that Mr. Sherpa obtains integral reparation and prompt, fair and adequate compensation.

On 4 August 2011, the Human Rights Committee accepted the request for interim measures and requested the Government of Nepal to adopt all necessary measures to protect the life, safety and personal integrity of the author.

 

General context

During the decade-long conflict between the Communist party of Nepal (Maoist) and the Royal Nepalese Army human rights violations were committed both by State agents and Maoists. The end of the conflict in 2006 with the signature of the Comprehensive Peace Agreement opened a period of transitional justice, providing for the commitment towards the implementation and protection of human rights in line with the international standards. However, most of the clauses of the agreement have not been implemented. Neither has a definitive Constitution been adopted. Although the interim Constitution prohibits the use of torture, it is neither criminalized nor sanctioned under Nepalese legislation. In April 2007 the United Nations Committee against Torture expressed grave concern about “the widespread use of torture and ill-treatment by law-enforcement personnel, and in particular the Royal Nepalese Army (RNA), the Armed Police Force and the Police”. In 2010, the Special Rapporteur on Torture pointed out that in Nepal “impunity for acts of torture is the rule, and consequently victims of torture and their families are left without recourse to adequate justice, compensation and rehabilitation”. In this sense, Mr. Sherpa’s arbitrary detention and torture occurs not as an isolated event, but rather within the general framework of impunity, in particular with regard to torture in Nepal.

 

The Decision

On 6 November 2015 the UN Human Rights Committee issued a decision  on the case, finding Nepal responsible for the violation of several provisions of theInternational Covenant on Civil and Political Rights, including the prohibition of torture, the right to liberty and security, the right of all persons deprived of their liberty to be treated with dignity, and the right to family life with regard to Mr. Ang Dorje Sherpa. The Committee declared that the State is responsible for Mr. Sherpa’s arbitrary arrest and detention and the subsequent torture and the inhumane conditions of detention to which he has been subjected, as well as for unlawful interferences in Mr. Sherpa’s privacy, family life and home. Moreover, the Committee considered that Nepal failed to conduct a thorough and effective investigation into the crimes committed against Mr. Sherpa and to identify, prosecute and sanction those responsible.

 

The Committee requested Nepal to:

  • Conduct a thorough and effective investigation into the crimes committed against Mr.
  • Bring to justice without unnecessary delay those responsible for the crimes committed against Mr.
  • Provide Mr. Sherpa with adequate compensation and measures of
  • Provide Mr. Sherpa with the necessary psychological rehabilitation and medical
  • Prevent similar violations in the future and ensure that Nepalese legislation on torture is brought in line with international standards.
  • Nepal has now 180 days to inform the Committee about the measures taken to implement this decision.

 

Facts

In October 2013, TRIAL and the NGO Stichting Russian Justice Initiative, submitted a communication to the UN Human Rights Committee on behalf of Mr. Tamerlan Yashuyev, Mr. Khamit Barakhayev, Mr. Rizvan Taysumov, Mr. Salman Temirbulatov, Mr. Arzu Yusupov, and Mr. Magamed Alarkanov.

The six men were arrested in different cities of Chechnya and Dagestan, between September 2004 and February 2005, by security agents respectively members of:

– the Kadyrovtsy pro-Moscow Chechen forces under the effective command of Ramzan Kadyrov, Prime Minister of the Chechen Republic at that time;

– the Operational Investigative Bureau (ORB);

– the city police of Khasavyurt.

They were kept in unacknowledged and incommunicado detention for periods varying between three and 25 days, during which they had no contact with the outside world and were placed outside the protection of the law. All the six men were subjected to torture and severe ill-treatment by State agents to extract confessions of their involvement in terrorist activities.

Later on, the six men were prosecuted and found guilty of several counts related to terrorist attacks. Their confessions obtained through torture were invoked and considered as valid evidence during the proceedings.

Despite the complaints filed by the six men, Russian authorities did not carry out a prompt, independent, impartial, effective and thorough investigation.

To date, no one has been sanctioned for the torture inflicted to the six authors of the complaint, who are currently held in different high security prisons in the Russian Federation.

The six authors of the complaint request the Human Rights Committee:

– to find that they are victims of a violation of Art. 7 (prohibition of torture), read alone and in conjunction with Art. 2, para. 3 (right to an effective remedy), of theInternational Covenant on Civil and Political Rights, because of the torture and ill-treatment they have been subjected to and the failure of Russian authorities to carry out an independent, impartial, thorough and effective investigation on their allegations and to judge and sanction those responsible;

– to find that they are victims of a violation of Art. 9, paras. 1, 2, 3 and 4 (right to personal liberty and security) of the Covenant, because they were subjected to arbitrary arrest and detention; they were not informed, at the time of arrest, of the reasons for their respective arrest nor were they promptly informed of the charges against them; and they were not brought promptly before a judge or other officer authorized by law to exercise judicial power;

– to find that they are also victims of a violation of Art. 14, paras. 2, 3 (a), 3 (b) and 3 (g), of the Covenant (right to fair trial), because they were not presumed innocent until proved guilty according to law; they were not informed promptly and in detail in a language which they understand of the nature and cause of the charges against them; and they did not have adequate time and facilities for the preparation of their defence and to communicate with their respective counsels. Moreover, they were all compelled to testify against themselves and to confess guilt;

– to request the Russian Federation to promptly and effectively investigate and prosecute and sanction those responsible for their torture; to carry out without delay a new trial, ensuring that they can fully enjoy their right to a fair trial; and to ensure that they receive adequate compensation for the harm suffered and integral reparation, including restitution, rehabilitation, satisfaction and guarantees of non-repetition.

On 11 May 2020, the Human Rights Committee gave a positive decision in the case. Russian authorities must now provide the victims with an effective remedy, including the conduct of an investigation, full redress and taking all steps necessary to prevent similar violations from occurring in the future.

The General Context

In Chechnya and North Caucasus, unlawful detentions and torture are widespread practices mainly aimed at coercing confessions from persons deprived of liberty, and leading to court convictions. Members of the Kadyrovtsy and of the former Second Operational Investigative Bureau (ORB-2) are responsible for the abuses in many of these cases. But to date, perpetrators of these crimes enjoy almost complete impunity.

 

The case

In January 2012, TRIAL submitted an individual communication to the United Nations Human Rights Committee regarding the enforced disappearance of Mr. Padman Narayan Nakarmi in September 2003. In this case TRIAL also represents the victim’s wife, Mrs. Ram Maya Nakarmi and the interests of their daughter, Ms. Luman Nakarmi, who was three years old at the time of Mr. Nakarmi’s enforced disappearance.

At the time of his arrest and subsequent enforced disappearance, Mr. Nakarmi worked as an iron monger in a small iron grill enterprise in Bungmati, Lalitpur. He had never been arrested previously. On 23 September 2003, Mr. Nakarmi was arrested and taken from his home by approximately half a dozen plain-clothed security personnel who identified themselves by way of their official identity cards as members of the Royal Nepal Army deployed from Bhairab Nath Barracks, Kathmandu. Several people witnessed his arrest, namely his wife, his mother and his brother. As stated in the First Information Report (FIR) submitted to the Kathmandu District Police Office in June 2006, the security personnel informed Mrs. Ram Maya Nakarmi that her husband had been arrested and taken away for interrogation, albeit without giving any further details. This was the last time that Mrs. Nakarmi had any contact with her husband.

His relatives took numerous steps in order to find him. Mrs. Ram Maya Nakarmi visited Bhairab Nath Barracks in Maharajgunj, Lagankhel Barracks in Lalitpur, the Nepal Police Headquarters in Naxal, Kathmandu and the District Police Office (DPO) in Hannumandhoka, Kathmandu on a regular basis for two years following the arbitrary arrest of Mr. Padam Narayan Nakarmi but she was never able to receive further information.

A few days after Mr. Nakarmi’s arrest, Mrs. Nakarmi also attempted to register a First Information Report (FIR) with the DPO in Patan. The DPO refused to register the FIR on the grounds that it was impossible in the current case as enforced disappearance was not a listed crime under national legislation. It was only three years later, in 2006, that Mrs. Nakarmi was allowed to file a FIR with the DPO Hanumandhoka, Kathmandu. But no action whatsoever was undertaken by the authorities on its basis.

In response to the lack of investigation and prosecution, on 4 January 2007, Mrs. Nakarmi filed a writ of mandamus before the Supreme Court of Nepal against different offices of the government and several specific individuals from the then RNA.

In the same year, on 1 June 2007, the Supreme Court ruled on the habeas corpus petition of 83 disappeared persons. While a habeas corpus petition was never filed on behalf of Mr. Nakarmi, his death due to torture under RNA custody in Bhairav Nath Barracks is mentioned in one of the 83 writs examined by the court. The same Supreme Court decision ordered the Government to enact domestic legislative measures defining and criminalising enforced disappearances, prosecute the officials found responsible for these crimes and provides a substantial compensation to victims and their families.

Apart from a minimal interim compensation of 100,000 NRs (approximately 1.000 euros) received in June 2009 by Mrs. Ram Maya Nakamri, the above decision by the Supreme Court has fallen on deaf ears as it has not been acted upon or implemented in any meaningful way to date by the national authorities.

On 26 August 2010, the Supreme Court of Nepal quashed the mandamus writ filed by Mrs. Nakarmi in January 2007. The rationale given by the court was that the applicant had to wait until the government formed a Truth and Reconciliation Commission (TRC) to address the problem of disappearances in Nepal. But in spite of various public commitments by the newly-formed (in April 2008) Constituent Assembly, the continued lack of political will by the main Nepalese parties has meant the impossibility of setting up any sort of accountability system.

In January 2012, TRIAL submitted an individual communication to the United Nations Human Rights Committee asking it

  • to recognize that Nepal violated numerous articles of the International Covenant on Civil and Political Rights due to Mr. Nakarmi’s enforced disappearance, the ongoing failure of Nepalese authorities to conduct an effective investigation and prosecution of the crime and the ensuing suffering endured by Mr. Nakarmi’s spouse and daughter owing to the disappearance of their loved one;
  • to require a thorough and independent investigation into the arbitrary deprivation of liberty and enforced disappearance of Mr. Padam Narayan Nakarmi and, in the event of his death, the localization, exhumation, identification and restitution of his mortal remains to the family;
  • to request Nepal to prosecute the people responsible for Mr. Nakarmi’s disappearance;
  • to require Nepal to immediately suspend from office all army officials against whom there is prima facie evidence that they were involved in the enforced disappearance of Mr. Padam Narayan Nakarmi pending the outcome of investigations against them;
  • to request Nepal to ensure that the author obtain prompt, fair and adequate compensation covering both material and moral damages and that measures of reparation adopted in their favor incorporate measures aiming at providing restitution, rehabilitation, satisfaction (including restoration of dignity and reputation) and guarantees of non-repetition.

 

General context

The enforced disappearance of Mr. Padam Narayan Nakarmi is part of the context of internal armed conflict which Nepal has experienced between February 1996, when the Communist Party of Nepal (Maoist) overtly declared war against the official governmental authorities of Nepal, and November 2006, when the different parties to the conflict signed the Comprehensive Peace Agreement sanctioning a formal end to hostilities.

The conflict rapidly spread all over the country. In 2001, when violence truly escalated into a civil war, a state of emergency was declared.  The conflict caused not only severe economic and social damages in Nepal but also put the country’s name in the list of the top human rights violators worldwide. The recourse to enforced disappearances, torture, summary executions and arbitrary detentions by State agents and Maoists was generalized during this period. Reportedly thousands of enforced disappearances occurred through the practice of unofficial detention by the security forces.

 

The decision

On 10 March 2017 the UN Human Rights Committee issued a decision on the case, finding Nepal responsible for the violation of several provisions of the International Covenant on Civil and Political Rights, including the right to life, the prohibition of torture, the right to personal liberty and the right to recognition as a person before the law in respect of Mr. Nakarmi. The Committee also found the that wife and the minor daughter of Mr. Nayram Nakarmi are victims of inhuman and degrading treatment because of the lack of information on the fate and whereabouts of their loved one and the ensuing anguish and suffering.

The Committee requested Nepal to:

  • Conduct a thorough investigation into the disappearance of Mr. Nakarmi and, in the case of his death, locate his remains and hand them over to his family;
  • Prosecute, try and punish those responsible for the crimes committed against Mr. Nakarmi;
  • Provide the wife and the minor daughter of Mr. Nakarmi with adequate compensation and measures of satisfaction;
  • Provide the wife and the minor daughter of Mr. Nakarmi with the necessary psychological rehabilitation and medical care;
  • Prevent similar violations in the future and ensure that domestic legislation allows for the criminal prosecution of those responsible for torture and enforced disappearance; and any enforced disappearance gives rise to a prompt and thorough investigation.

Nepal has now 180 days to inform the Committee about the measures taken to implement this decision.

 

The Case

In May 2012, TRIAL submitted an individual communication to the United Nations Human Rights Committee regarding the enforced disappearance of Danda Pani Neupane in May 1999. In this communication, TRIAL also represents the victim’s wife, Mrs. Shanta Neupane and his daughter, Ms. Nisha Neupane.

Mr. Neupane had been an active member of the then Communist Party of Nepal – Maoist (UCPN-M) since the party’s inception in 1985. He was imprisoned three times in the 1970’s during the Panchayat period (from 1962 to 1990) for involvement in political activities, which were illegal at the time. He was arrested first in 1972 for five days, in 1973 for 10 days and finally in 1975 for eight months. At the time of his arbitrary arrest and subsequent disappearance, Mr. Danda Pani Neupane was a Central Committe member of the CPN-M and head of the party’s publication department. As a high-level member of the CPN-M, Mr. Neupane went underground following the onset of the “people’s war” in 1996 in order to avoid arrest by the police.

Two eye-witnesses reported that Mr. Neupane was stopped by four uniformed policemen in Sundhara, near Tebahal, Kathmandu at approximately 17:30 hrs on 21 May 1999. He was reportedly put into a van with five or six other uniformed policemen before being driven to an unknown destination. In June 1999, a policeman from the same Village Development Committee (VDC) as Mr. Neupane who was temporarily stationed at the Nepal Police training centre in Maharajgunj, Kathmandu, reportedly witnessed Mr. Neupane being held in police custody inside the training centre for a period of approximately one month. This was the last time that Mr. Neupane was reportedly seen, alive or dead. Mrs. Neupane has had no contact with her husband for thirteen years.

The family of Mr. Danda Pani Neupane took a number of steps to try and locate him. Mrs. Neupane visited the Kathmandu District Police Office (DPO), Hanumandhoka on 25 May 1999 in an attempt to locate her husband, although police personnel at the DPO refused to hand over clean clothes and medicine to Mr. Neupane on the ground that he had never been arrested nor held in police custody there. Between 26 and 30 May 1999, Mrs. Neupane visited the three main jails in Kathmandu: the Central Jail, Nakhu Jail and Charkhal Jail, but she was similarly told by the prison authorities that Mr. Neupane had never been arrested or detained.

Having failed to locate her husband, Mrs. Neupane filed a habeas corpus writ before the Supreme Court on 26 May 1999. The Supreme Court quashed the habeas corpus writ on 12 July 1999, reasoning that as the defendants (the Home Ministry; the Nepal Police headquarters, Naxal, Kathmandu; the District Administration Office, Kathmandu; and the District Police Office, Hannumandhoka, Kathmandu) denied holding Mr. Neupane, his status could not be determined, thereby rendering the habeas corpus writ inapplicable. Mrs. Neupane filed a second habeas corpus writ before the Supreme Court on 17 August 1999. The writ was quashed by the Supreme Court on 5 July 2000 with a similar reasoning.

The family of Mr. Neupane also took a number of non-legal measures in an attempt to uncover information about his fate and whereabouts. On 14 June 1999, the family of Mr. Neupane and six other victims of enforced disappeared 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. Neupane. On 20 June 1999, the family of Mr. Neupane submitted a written appeal to the Parliament requesting that the whereabouts of Mr. Neupane and fifteen other disappeared individuals be made public and that they be immediately released from police custody. Mrs. Neupane also contacted Amnesty International (AI) in July 1999 and informed the organisation about her husband’s disappearance. AI issued two urgent action appeals in response to Mrs. Neupane’s request for assistance: the first on 13 August 1999 and the second in February 2000. On 20 September 1999, the Families of Victims of State Disappearance Association (FVSDA), co-founded by Mrs. Neupane, handed over a written appeal to the Prime Minister. On the same date, the FVSDA released a press statement requesting again that Mr. Neupane and other disappeared individuals’ whereabouts be made public and that they immediately be released from police custody.

Apart from minimal interim compensation of NRs. 100,000 (890 Euros) received in 2008, the family of Mr. Neupane has received neither truth nor justice nor adequate reparations from the Government of Nepal for the tragic loss of their loved one.

In May 2012, TRIAL submitted an individual communication to the United Nations Human Rights Committee requesting it to:

  • recognise that the State of Nepal has violated numerous articles of theInternational Covenant on Civil and Political Rights due to Mr. Neupane’s enforced disappearance, the ongoing failure of Nepalese authorities to conduct an effective investigation and prosecution of the crime and the ensuing suffering endured by Mr. Neupane’s spouse and daughter owing to the disappearance of their loved one;
  • request that the State of Nepal initiate a thorough and independent investigation into the arbitrary deprivation of liberty and enforced disappearance of Mr. Danda Pani Neupane and, in the event of his death, the localization, exhumation, identification and restitution of his mortal remains to the family;
  • request that the State of Nepal investigate, prosecute and punish those responsible for Mr. Neupane’s disappearance;
  • request that the State of Nepal immediately suspend from office all Nepal Police personnel against whom there is prima facie evidence that they were involved in the enforced disappearance of Mr. Danda Pani Neupane pending the outcome of investigations against them;
  • request that the State of Nepal ensure that the authors obtain prompt, fair and adequate compensation covering both material and moral damages and that measures of reparation adopted in their favour incorporate measures aiming at providing restitution, rehabilitation, satisfaction (including restoration of dignity and reputation) and guarantees of non-repetition.

 

The Decision

On 21 July 2017 the UN Human Rights Committee issued a decision on the case, finding Nepal responsible for the violation of several provisions of the International Covenant on Civil and Political Rights, including the right to life, the prohibition of torture, the right to personal liberty and the right to recognition as a person before the law in respect of Mr. Danda Neupane. The Committee also found that the wife and the minor daughter of Mr. Neupane are victims of inhuman and degrading treatment because of the lack of information on the fate and whereabouts of their loved one and the ensuing anguish and suffering.

The Committee requested Nepal to:

  • Conduct a thorough investigation into the disappearance of Mr. Neupane and, in the case of his death, locate his remains and hand them over to his family;
  • Prosecute, try and punish those responsible for the crimes committed against Mr. Neupane;
  • Provide the wife and the minor daughter of Mr. Neupane with adequate compensation and measures of satisfaction;
  • Provide the wife and the minor daughter of Mr. Neupane with the necessary psychological rehabilitation and medical care;
  • Prevent similar violations in the future and ensure that domestic legislation allows for the criminal prosecution of those responsible for torture and enforced disappearance; and any enforced disappearance gives rise to a prompt and thorough investigation.

Nepal has now 180 days to inform the Committee about the measures taken to implement this decision.

 

General context

The enforced disappearance of Mr. Neupane is part of the context of internal armed conflict which Nepal has experienced between February 1996, when the Communist Party of Nepal (Maoist) overtly declared war against the official governmental authorities of Nepal, and November 2006, when the different parties to the conflict signed the Comprehensive Peace Agreement sanctioning a formal end to hostilities. The decade long armed conflict from 1996-2006 caused not only severe economic and social damages in Nepal but also put the country’s name in the list of the top human rights violators worldwide. The recourse to enforced disappearances, torture, summary executions and arbitrary detentions by State agents and Maoists was generalized during this period.

Despite the signature of a peace agreement between the Maoists and the government in November 2006, the authorities have failed to initiate any serious investigations into the crimes perpetrated during the war and not a single perpetrator has been convicted to date. As a result, over five years after the conclusion of the conflict, perpetrators still enjoy absolute immunity from prosecution, while victims continue to be denied their fundamental rights to truth, justice and reparations.

 

The Case

In May 2012, TRIAL submitted an individual communication to the United Nations Human Rights Committee regarding the enforced disappearance of Mr. Milan Nepali in May 1999. In this communication, TRIAL also represents the victim’s wife, Mrs. Sabita Basnet.

At the time of his arbitrary arrest and subsequent disappearance, Mr. Nepali was working as a journalist for a left-wing (Maoist) daily newspaper, Janadesh in Kathmandu, Nepal. Mr. Nepali was an active member of the Communist Party of Nepal – Maoist (CPN-M) and participated regularly in party activities.

At approximately 13h on 21 May 1999, Mrs. Basnet witnessed six or seven unarmed policemen – half of them in uniform, half in civilian dress – approach her husband, Mr. Nepali in Sundhara, near Telbahal, Kathmandu and inform him that he had to come with them for questioning. Mr. Nepali was not accused of any offence at the time of his arrest. He was not handcuffed, and walked without resistance with the policemen to a nearby civilian mini-van. Mr. Nepali was then told by the policemen to get in the mini-van and driven away to an unknown destination.

The family of Mr. Milan Nepali took a number of steps to try and locate him following his arrest. On 22 May 1999, Mrs. Basnet went to every police station and sub-station in Kathmandu in search for her husband. She continued to do this until 4 June 1999, when she received an anonymous phone call informing her that Mr. Nepali was being held in the Police headquarters, Naxal, Kathmandu.

The following day, on 5 June 1999, Mrs. Basnet went to the Police headquarters in Naxal and asked to see her husband. The police refused her request but allowed Mrs. Basnet to hand over some clean clothes for Mr. Nepali. On 10 June 1999, Mrs. Basnet and her friend visited the Police headquarters again in order to hand over some more clean clothes for Mr. Nepali. After the exchange of clothes had taken place, Mrs. Basnet and her friend walked to a nearby raised piece of land as its increased elevation enabled them to see into the inner compound of the Police headquarters. It was from this raised piece of land, at approximately 0800 hrs, that both Mrs. Basnet and her friend saw Mr. Nepali for approximately two minutes as he was taken to and from the toilet by a single policeman. Mr. Nepali was reportedly handcuffed, but looked in fairly good physical condition. Mrs. Basnet shouted out to try and get her husband’s attention, but she was too far away and he did not hear. The above sighting of Mr. Nepali inside the Police headquarters in Naxal, Kathmandu on 10 June 1999 was the last time that Mr. Nepali was reportedly seen, alive or dead, following his arrest from Sundhara, near Telbahal, Kathmandu on 21 May 1999.

On 26 May 1999, a friend of Mr. Nepali, Mr. Ashok Maharjan, filed a habeas corpus writ before the Supreme Court. The Supreme Court quashed the writ on 12 July 1999 on the grounds that the whereabouts of Mr. Nepali could not be established thereby rendering the habeas corpus writ inapplicable. On 17 August 1999, Mrs. Basnet filed a habeas corpus writ herself before the Supreme Court. The Supreme Court quashed this writ on 5 July 2000 similarly reasoning that since Mr. Nepali’s whereabouts could not be established, the habeas corpus writ was once again inapplicable.

The family of Mr. Nepali also took a number of non-legal measures in an attempt to uncover information about his fate and whereabouts. On 14 June 1999, the family of Mr. Nepali and six other victims of enforced disappeared 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. On 20 June 1999, the family of Mr. Nepali submitted a written appeal to the Parliament requesting that the whereabouts of Mr. Nepali and fifteen other disappeared individuals be made public and that they be immediately released from police custody. On 20 September 1999, the Families of Victims of State Disappearance Association (FVSDA), co-founded by Mrs. Nepali, handed over a written appeal to the Prime Minister. On the same date, the FVSDA released a press statement requesting again that Mr. Nepali and other disappeared individuals’ whereabouts be made public and that they immediately be released from police custody.

Mrs. Nepali also contacted Amnesty International (AI) in July 1999 and informed the organisation about her husband’s disappearance. AI issued two urgent action appeals in response to Mrs. Nepali’s request for assistance: the first urgent action appeal was released by AI on 13 August 1999 and the second in February 2000.

Apart from minimal interim compensation of NRs. 100,000 (890 Euros) received in 2008, the family of Mr. Nepali has received neither truth and justice nor adequate reparations from the Government of Nepal for the tragic loss of their loved one.

In May 2012, TRIAL submitted an individual communication to the United Nations Human Rights Committee requesting it to:

  • recognise that the State of Nepal has violated numerous articles of theInternational Covenant on Civil and Political Rights due to Mr. Nepali’s enforced disappearance, the ongoing failure of Nepalese authorities to conduct an effective investigation and prosecution of the crime and the ensuing suffering endured by Mr. Nepali’s spouse owing to the disappearance of their loved one;
  • request that the State of Nepal initiate a thorough and independent investigation into the arbitrary deprivation of liberty and enforced disappearance of Mr. Milan Nepali and, in the event of his death, the localization, exhumation, identification and restitution of his mortal remains to the family;
  • request that the State of Nepal investigate, prosecute and punish those responsible for Mr. Nepali’s disappearance;
  • request that the State of Nepal immediately suspend from office all Nepal Police personnel against whom there is prima facie evidence that they were involved in the enforced disappearance of Mr. Milan Nepali pending the outcome of investigations against them;
  • request that the State of Nepal ensure that the authors obtain prompt, fair and adequate compensation covering both material and moral damages and that measures of reparation adopted in their favour incorporate measures aiming at providing restitution, rehabilitation, satisfaction (including restoration of dignity and reputation) and guarantees of non-repetition.

 

General context

The enforced disappearance of Mr. Nepali is part of the context of internal armed conflict which Nepal has experienced between February 1996, when the Communist Party of Nepal (Maoist) overtly declared war against the official governmental authorities of Nepal, and November 2006, when the different parties to the conflict signed the Comprehensive Peace Agreement sanctioning a formal end to hostilities. The decade long armed conflict from 1996-2006 caused not only severe economic and social damages in Nepal but also put the country’s name in the list of the top human rights violators worldwide. The recourse to enforced disappearances, torture, summary executions and arbitrary detentions by State agents and Maoists was generalized during this period.

Despite the signature of a peace agreement between the Maoists and the government in November 2006, the authorities have failed to initiate any serious investigations into the crimes perpetrated during the war and not a single perpetrator has been convicted to date. As a result, over five years after the conclusion of the conflict, perpetrators still enjoy absolute immunity from prosecution, while victims continue to be denied their fundamental rights to truth, justice and reparations.

 

The case

In April 2013, TRIAL submitted an individual communication to the United Nations Human Rights Committee concerning multiple human rights violations related to the enforced disappearance, torture and arbitrary detention suffered by Mr. Himal Sharma between 21 October 2003 and 19 December 2005. In this case TRIAL also represents the victim’s wife, Mrs. Devi Sharma.

At the time of his arbitrary arrest in October 2003, Mr. Himal Sharma held the post of Secretary-General of the All Nepal National Independent Student Union Revolutionary, the student wing of the Communist Party of Nepal (Maoist).

On 21 October 2003, Mr. Himal Sharma was arbitrarily arrested in Kathmandu by members of the security forces wearing civilian clothes. Blindfolded, he was taken to the Maharajgunj barracks and forcibly disappeared by members of the Bhairabnath Battalion of the Royal Nepal Army for almost one and a half years. A husband and father to three young children, the disappearance of Mr. Himal Sharma had devastating consequences for the whole family. Throughout his enforced disappearance, Nepali authorities repeatedly denied Mr. Himal Sharma’s detention and failed to reveal his fate and whereabouts to his representatives and his family despite several attempts carried out by his wife, Mrs. Devi Sharma, to locate him.

In February 2005, he was transferred to the Mahendradal Battalion barracks in Gorkha district. Mr. Himal Sharma’s fate and whereabouts remained unknown until 8 March 2005.

During the entire period of his enforced disappearance, Mr. Himal Sharma was subjected to severe mental and physical torture. A report published in May 2006 by the Office of the High Commissioner for Human Rights (OHCHR) following an investigation into the Bhairabnath Battalion barracks, as well as the oral and written testimonies of former co-detainees confirm Mr. Himal Sharma’s account of events.

Following tireless efforts led by Mrs. Devi Sharma and a belated investigation ordered by the Supreme Court of Nepal, Mr. Himal Sharma’s whereabouts were eventually revealed by the Nepali government on 8 March 2005, but he was arbitrarily kept in detention and ill-treated until 19 December 2005 when the Supreme Court declared his detention unlawful and ordered his liberation.

Mr. Himal Sharma took a number of steps to seek the formal recognition of his enforced disappearance and torture at the hands of the Nepali army, to obtain criminal and disciplinary sanctions for those responsible for the crimes concerned and fair compensation and redress for the harm suffered.

On 1 June 2007 the Supreme Court ordered the Nepali government to promulgate a statute of law criminalising enforced disappearance in accordance with international standards; form an independent commission to investigate on the status of disappeared persons and the causes of their disappearance and submit the findings to competent authorities for prosecution; and provide victims of enforced disappearance with effective remedies and reparations.

Apart from an interim compensation of 100,000 NRs received (approximately 1,130 US dollars) received in 2011, the final decision by the Supreme Court has fallen on deaf ears and no ex officio, prompt, impartial, thorough and independent investigation has been carried out, no one has been subjected to criminal nor disciplinary sanctions and no effective reparation has been granted for the arbitrary detention, enforced disappearance and torture of Mr. Himal Sharma.

In April 2013, TRIAL submitted an individual communication to the United Nations Human Rights Committee asking it:

  • to recognize that Nepal violated numerous articles of the International Covenant on Civil and Political Rights due to Mr. Sharma’s enforced disappearance, the ongoing failure of Nepali authorities to conduct an effective investigation and prosecution of the crime and the ensuing suffering endured by Mrs. Devi Sharma owing to the disappearance of her husband and the attitude of official indifference maintained by Nepali authorities in the face of her serious concerns;
  • to require a thorough and independent investigation into the arbitrary deprivation of liberty, torture and enforced disappearance of Mr. Himal Sharma and the prosecution and sanction of the perpetrators;
  • to require the amendment of the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Ordinance adopted on 14 March 2013 in order to make sure that no person accused of gross human rights violations, including torture and enforced disappearance, may benefit from any amnesty provision exempting him or her from criminal responsibility
  • to request Nepal to ensure that the authors obtain prompt, fair and adequate reparation covering both material and moral damages.

 

General context

The enforced disappearance of Mr. Himal Sharma partook place in the the context of internal armed conflict which Nepal experienced between February 1996, when the Communist Party of Nepal (Maoist) overtly declared war against the official governmental authorities of Nepal, and November 2006, when the different parties to the conflict signed the Comprehensive Peace Agreement sanctioning a formal end to hostilities.

The decade-long armed conflict from 1996-2006 caused not only severe economic and social damage in Nepal but also put the country’s name in the list of the top human rights violators worldwide. Enforced disappearances, torture, summary executions and arbitrary detentions by both State agents and Maoists was widespread during this period. According to the Office of the High Commissioner for Human Rights, some 1,300 alleged enforced disappearances took place during this period that remain unaccounted for.

 

In December 2013, TRIAL submitted an individual communication to the United Nations Human Rights Committee (HCR) regarding the multiple human rights violations related to the enforced disappearance, torture and arbitrary detention suffered by Mrs. Sarita Devi Sharma between 20 October 2003 and 30 June 2005. In 2018, the HRC reached its decision on this complaint: Nepal has a responsibility in this case.

 

The case

On 20 October 2003, Mrs. Sharma was arrested in the neighborhood of Chandol, Kathmandu, by members of the security forces wearing civilian clothes. Together with a friend of hers, she was handcuffed, blindfolded, forced into a military van and taken to the Maharajgunj barracks, at that time headquarters of the Bhairabnath Battalion of the Royal Nepal Army. There, she was detained in incommunicado and her detention was unacknowledged until August 2004. Nepalese authorities denied any involvement in her disappearance while actively concealing her fate and whereabouts.

In July 2004, due to her critical health conditions, Mrs. Sharma was brought to the army hospital of Chaauni where she remained for around two months. It was in the hospital that, on 25 August 2004, she fortuitously walked into an old friend of hers. Thanks to the latter’s complicity, Mrs. Sharma could sneak a letter out of the hospital and make her whereabouts public.

While her disappearance came to an end, her arbitrary detention was further prolonged. In the month of September 2004 the Army brought Mrs. Sharma back to Maharajgunj, where she was held until 30 June 2005.

During the entire period of her enforced disappearance and subsequent arbitrary detention Mrs. Sharma was subjected to severe mental and physical torture. Her detention conditions were inhuman. Mrs. Sharma’s disappearance and her subsequent arbitrary detention severely impacted on her family life.

Mrs. Sharma was finally released only after repeated attempts undertaken by her husband to find her. After a first petition of habeas corpus was quashed by the Supreme Court in 2004 due to State authorities’ denial of its involvement in Mrs. Sharma’s disappearance, a second petition of habeas corpus led the Supreme Court to declare Mrs. Sharma’s detention unlawful and order her liberation on 28 June 2005.

In despite of numerous efforts undertaken by Mrs. Sarita Sharma, more than 8 years after her release no ex officio, prompt, impartial, thorough and independent investigation has been carried out by Nepal authorities and no one has been prosecuted, judged and sanctioned for her enforced disappearance and for the torture she endured.

 

Procedure

In December 2013, TRIAL International, representing Mrs. Sharma’s husband, Mr. Bijaya Sharma Paudel, and her eldest son, Mr. Basanta Sharma Paudel, submitted the case to the HRC.

On 6 April 2018 the UN Human Rights Committee reached its decision on the communication submitted in 2013.

The UN Human Rights Committee found Nepal responsible for the violations of the rights to life, the prohibition of torture and the right to liberty and security of person and the right to recognition as a person before the law. Therefore, the Human Rights Committee request Nepal to:

  • Carry out a thorough and effective investigation into the detention of Mrs Sharma.
  • Prosecute, try and punish the perpetrators
  • Provide Mrs Sharma with information regarding the investigation
  • Ensure Mrs Sharma with adequate and necessary psychological rehabilitation and medical treatment.
  • Provide Mrs Sharma with adequate measures of reparations including adequate measures of compensation and satisfaction.
  • Prevent similar violations in the future by criminalizing torture and enforced disappearance and provide for appropriate sanctions and remedies commensurate with the gravity of the crimes.

 

General context

The enforced disappearance of Mrs. Sarita Sharma took place in the context of the internal armed conflict affecting Nepal between February 1996, when the Communist Party of Nepal (Maoist) declared war against the official governmental authorities of Nepal, and November 2006, when the different parties to the conflict signed the Comprehensive Peace Agreement.

The decade-long armed conflict (1996 – 2006) caused not only severe economic and social damage in Nepal but also put the country’s name in the list of the top human rights violators worldwide. Enforced disappearances, torture, summary executions and arbitrary detentions by both State agents and Maoists were widespread during this period. According to the Office of the High Commissioner for Human Rights, some 1,300 alleged enforced disappearances that still remain unaccounted for took place during this period.

 

In January 2012 TRIAL submitted an individual communication to the United Nations Human Rights Committee on behalf of Mrs Kamela Allioua and Mrs. Fatima Zohra Kerouane. They are acting for their grand-children and brothers Mr. Adel, Tarek and Mohamed Kerouane, who were arrested respectively on 12 April 1994, on 20 May 1994 and on 22 February 1996 in Constantine by Algerian security forces and have been reported missing ever since. These incidents have occurred within the general context of the enforced disappearance of thousands of Algerian citizens at the hands of the army or security forces of the State between 1992 and 1998.

Mr. Adel Kerouane was arrested on 12 April 1994 by members of the Algerian security service in Constantine. He disappeared after having spent 15 days in the hospital to heal from a bullet wound in his leg. His family has received no information whatsoever since his transfer from the hospital to an unknown detention centre. 16 years-old Mr. Tarek Keroune was summoned on 20 May 1994 by agents of the criminal investigation department in Constantine. Last seen by his uncle at the moment of the house search manned by local policemen, Mr. Tarek Kerouane has been reported missing ever since. Finally Mr. Mohamed Kerouane, 15 years-old at that time, was arrested on 22 February 1996 by officers belonging to the police unit of Hamma, where according to a witness’ report, he was detained for a month before being transferred to an unknown detention center. His family has not been able to communicate with him any longer and his fate and whereabouts remain unknown since.

Plunged into a situation of distressful uncertainty, the Kerouane family, notably Mrs. Kamela Allioua and Mrs. Fatima Zohra Kerouane, relentlessly took steps to find out their beloved ones since the day of their arrest. Despite the countless requests to several local army barracks, police stations, as well as to the Office of the Prosecutor in Constantine, no investigation whatsoever has been opened on their disappearences. The administrative and governmental authorities have been similarly seized by the applicants, but to no avail.

Despite the numerous steps taken and the steady hope of the family members to be able to find out about their fate, so far no light has been shed concerning the disappearances of Mr. Adel, Tarek and Mohamed Kerouane.

The authors of the communication, Mrs. Kamela Allioua and Mrs. Fatime Zohra Kerouane, asks the Human Rights Committee to recognise that Algeria violated articles 2, 6, 7, 9, 10, 16 and 23 of the International Covenant on Civil and Political Rightsagainst Mr. Adel, Tarek and Mohamed Kerouane as well as article 24 against Mr. Tarek and Mohamed Kerouane. It is furthermore submitted that the situation gives rise to a violation of articles 2, 7 and 23 of the ICCPR against the authors of the communication as a result of the psychological suffering endured over the many years of uncertainty concerning the fate of their grand-sons and brothers.

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

General Context

The enforced disappearances of Mr. Adel, Tarek and Mohamed Kerouane took place within the context of the Algerian civil war. Coming out of a bloody national liberation war, Algeria was plunged into a fratricidal conflict leading to a disproportionate use of violence and massive violations of human rights. According to different information sources, 7,000 to 20,000 persons were arrested or abducted by all corps of Algerian security services and the militia armed by the government between 1992 and 1998, and are still missing.

To date, none of the victims’ families have received information about their relatives, no investigation has ever been opened as a result of the criminal complaint and the procedure they have completed, and, thought the persons who committed the crimes and the backers are known, none of them have ever been prosecuted or troubled. Furthermore, since the promulgation in February 2006 of the Charter for Peace and National Reconciliation, the victims’ families are confronted with the legal prohibition of bringing their cases, such as that of Mr. Adel, Tarek and Mohamed Kerouane, before courts at the risk of being sanctioned by the Algerian criminal system because Algeria considers that taking these steps would be tantamount to “exploit and take advantage of the wounds of the national tragedy” and undermine the on-going national reconciliation process.

 

The decision

In October 2014, the Human Rights Committee communicated its decision (called “views” in the UN language).

The Committee held that Algeria violated Articles 6 § 1, 7, 9, 10 § 1, 16 of the International Covenant on Civil and Political Rights, taken in conjunction with Article 2 § 3 of the Covenant with regards to the victims.

The Committee also held that Algeria violated Article 7 of the ICCPR, taken in conjunction with Article 2 § 3, with regards to the victim’s sister and grandmother.

Moreover, the Committee held that Algeria violated Article 24 § 1 of the ICCPR with regards to the victims who as minors should have been given special protection.

The Committee requested Algeria “to conduct a deep and rigorous investigation into the disappearance of Adel, Trarek and Mohamed Kerouane”. Algeria is also requested to “provide the authors with detailed information concerning the results of its investigation”, “to free the victim immediately if they are still being secretly detained” or, “if they are deceased, to return their mortal remains to their family”. Moreover, the Committee insisted on Algeria’s obligation to “indict, try and punish those responsible for the violations committed” and to pay an appropriate compensation to the family of the victims for the violations committed.

Algeria is further requested to guarantee the effectiveness of the domestic justice system, especially with respect to victims of torture, extrajudicial killings and enforced disappearance and to take steps to avoid the recurrence of similar violations.

 

In September 2011, TRIAL submitted an individual communication to the United Nations Human Rights Committee on behalf of Mrs. Halima Louddi. Mrs. Halima Louddi is acting on behalf of her son, Mr. Hacen Louddi, who was abducted on 9 April 1995 in Algiers and has been reported missing ever since. This incident has occurred within the general context of the enforced disappearance of thousands of Algerian citizens at the hands of the army or security forces of the State between 1992 and 1998.

Mr. Hacen Louddi was arrested on 9 April at 14h15 at his workplace by policemen belonging to the Châteauneuf police station. His family and his neighbours have never seen him since. Several detainees at Châteauneuf police station confirmed that Mr. Hacen Louddi had been detained in that place. Mr. Khoursi Nasr El-Din, the last person who has seen Mr. Louddi alive, claimed that Mr. Hacen Louddi was taken out of his cell in the night of 18 November 1995.

Plunged into a situation of distressful uncertainty, the family of the disappeared person, notably Mrs. Halima Louddi, author of the communication, relentlessly took steps to find out her beloved son since the day of his arrest. She repeatedly approached the judicial authorities through the submission of complaints that were never meaningfully processed. A criminal complaint charging abduction was deposed on 29 October 1998. Facing a negligent and ineffective investigating procedure, the victim’s family persisted in its efforts by seizing the Criminal Chamber of the Court of Appeal in Algiers. The latter trasmitted back the file to the investigating judge several times but to no avail. Eventually on 29 September 2009 the Supreme Court rendered a judgment confirming the dismissal of the case by the investigating judge despite the fact that no effective investigations had been carried out and despite the presence of an array of evidence pointing to the involvement of governmental agents in the disappearance of Mr. Hacen Louddi.

The family of the victim has also approached the Minister of Justice and several other Algerian institutions having a human rights protection mandate, among which the National Observatory of Human Rights (ONDH) and the National Consultive Commission for the Promotion and Protection of Human Rights (CNCPPDH). Mr. Louddi’s family has also seized the UN Working Group on Enforced and Involuntary Disappearances, yet no information on the victim’s fate and whereabouts could be obtained.

Despite the countless steps taken and the steady hope of the family members to be able to find out about his fate, so far no light has been shed concerning the disappearance of Mr. Hacen Louddi.

The author of the communication, Mrs. Halima Louddi, asks the Human Rights Committee to recognise that Algeria violated articles 2, 6, 7, 9, 10, 16 and 23 of theInternational Covenant on Civil and Political Rights against Mr. Hacen Louddi. It is furthermore submitted that the situation gives rise to a violation of articles 2, 7 and 23 of the ICCPR against the author of the communication, Mrs. Halima Louddi, as a result of the psychological suffering endured over the many years of uncertainty concerning the fate of her son.

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

General Context

The enforced disappearance of Mr. Hacen Louddi took place within the context of the Algerian civil war. Coming out of a bloody national liberation war, Algeria was plunged into a fratricidal conflict leading to a disproportionate use of violence and massive violations of human rights. According to different information sources, 7,000 to 20,000 persons were arrested or abducted by all corps of Algerian security services and the militia armed by the government between 1992 and 1998, and are still missing.

To date, none of the victims’ families have received information about their relatives, no investigation has ever been opened as a result of the criminal complaint and the procedure they have completed, and, thought the persons who committed the crimes and the backers are known, none of them have ever been prosecuted or troubled.

Furthermore, since the promulgation in February 2006 of the Charter for Peace and National Reconciliation, the victims’ families are confronted with the legal prohibition of bringing their cases, such as that of Mr. Hacen Louddi, before courts at the risk of being sanctioned by the Algerian criminal system because Algeria considers that taking these steps would be tantamount to “exploit and take advantage of the wounds of the national tragedy” and undermine the on-going national reconciliation process.

 

The decision

In October 2014, the Human Rights Committee communicated its decision (called “views” in the UN language).

The Committee held that Algeria violated Articles 6 § 1, 7, 9, 10 § 1, 16 and 23 of the International Covenant on Civil and Political Rights, taken alone and in conjunction with Article 2 § 3 of the Covenant with regards to the victim.

The Committee also held that Algeria violated Article 7 of the ICCPR, taken alone and in conjunction with Article 2 § 3, with regards to the family of the victim.

The Committee requested Algeria “to conduct a deep and rigorous investigation into the disappearance of Mr. Hacen Louddi”. Algeria is also requested to “provide the authors with detailed information concerning the results of its investigation”, “to free the victim immediately if he is still being secretly detained” or, “if he is deceased, to return his mortal remains to his family”. Moreover, the Committee insisted on Algeria’s obligation to “indict, try and punish those responsible for the violations committed” and to pay an appropriate compensation to the family of the victim for the violations committed.

Algeria is further requested to guarantee the effectiveness of the domestic justice system, especially with respect to victims of torture, extrajudicial killings and enforced disappearance and to take steps to avoid the recurrence of similar violations.

 

The case

Arrest, enforced disappearance and torture in April 2011

Mr. Pandey, a Nepalese citizen from Teraï, was arbitrarily arrested on 7 April 2011 by three police officers from the Ruphandehi District Police Office without being informed of the reasons oh his arrest nor with any arrest warrant. He was brought to Lumbini Zonal Police Office and subjected to repeated interrogations, torture and severe ill-treatment, in order to extract from him a confession on his alleged involvement in the planning and execution of a bomb-explosion perpetrated on 27 March 2011, in which he always denied having any implication.

Prashanta Pandey was repeatedly beaten, kept constantly blindfolded and handcuffed, insulted and threatened. He was even forced to urinate on an electric heater, that made him bleeding and fainting, but never received any medical treatment or attention. Exhausted and prostrated Mr. Pandey signed a confession extorted through torture on 13 April 2011. Today, as a consequence of the many torture endured, Mr. Pandey still suffers of a grave form of depression and sexual dysfunctions.

Between 7 and 11 April 2011, he was held incommunicado. While his mother was struggling to determine his fate and whereabouts, Nepalese authorities denied having knowledge of his deprivation of liberty and deliberately concealed his whereabouts. It is only after Mr. Pandey signed this confession that he was allowed to communicate to the outside world. Newspaper articles were published and he was labeled as a terrorist and a murderer.

The denunciation of acts of torture and the impunity of their authors

As soon as he was brought before a judicial authority, he denounced having been subjected to torture. However, these allegations were never investigated and, although he disclosed the identity of the officers responsible, they were never prosecuted and sanctioned.

Mr. Pandey was kept in jail whilst the trial against him took place and he endured inhumane conditions of detention.

On 13 June 2012, the Rupandehi District Court held that there was no evidence of Mr. Pandey’s involvement in the placement of the bomb. He was however declared responsible for the preparation of the attack and sentenced to one year’s imprisonment, which he had already spent during the trial and was thus released. The confession obtained through torture was considered as valid evidence.

His attempts to obtain justice and redress for the harm suffered were frustrated, as Nepalese authorities refused to register his claims because he did not report the torture within 35 days from having suffered such treatment (which would have been concretely impossible for him).

He ultimately submitted a complaint to the Supreme Court on 23 January 2013, seeking relief and requesting the latter to order that the 35-day statute of limitations is not applied to his case. The claim is still pending before the Supreme Court of Nepal, but he has no real prospect of success, considering that the Court never disregarded the statute of limitations established under domestic legislation.

The victim seized the UN Human Rights Committee (HRC)

In February 2014 TRIAL submitted a communication to the Human Rights Committeeon behalf of Mr. Prashanta Pandey.

The HRC has therefore been asked in the present complaint, to make a finding concerning the serious human rights violations suffered by the victim and to open a prompt, thorough and independent investigation into these alleged crimes, as well as to prosecute and sanction the perpetrators.

Mr. Prashanta Pandey requests the HRC:

  • to find that he is a victim of a violation of Arts. 7 (prohibition of torture) and 10, para. 1 (right to humane treatment in detention), 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 the torture and ill-treatment as well as the inhumane conditions of detention he has been subjected to and the subsequent failure by Nepalese authorities to carry out an ex officio, prompt, effective, independent, impartial and thorough investigation on his allegations, and to judge and sanction those responsible
  • to find that he is a victim of a violation of Art. 9, paras. 1, 2 and 3 (right to personal liberty and security) of the Covenant, because he was subjected to arbitrary arrest and detention; he was not informed, at the time of arrest, of the reasons for his arrest nor was he promptly informed of the charges against him; and he was not brought promptly before a judge or other officer authorized by law to exercise judicial power
  • to find that he is also a victim of a violation of Art. 14, paras. 2, 3 (b) and 3 (g), of the Covenant (right to fair trial), because he was not presumed innocent until proved guilty according to law; and he did not have adequate time and facilities for the preparation of his defense and to communicate with a counsel of his own choosing. Moreover, he was compelled to testify against himself and to confess guilt
  • to request Nepal to promptly and effectively investigate and prosecute and sanction those responsible for his torture; to ensure that he receives adequate compensation for the harm suffered and integral reparation, including restitution, rehabilitation, satisfaction and guarantees of non-repetition

On 30 October 2018, the Human Rights Committee issued its conclusions following the complaint submitted by TRIAL International on behalf of Mr. Prashanta Kumar Pandey. The Human Rights Committee considers Nepal responsible for the violation of Mr. Pandey’s right to liberty and security, as well as his right to a fair trial. In addition, Nepal is held responsible for his detention in inhuman conditions. The UN body calls on Nepal to investigate the facts and prosecute those responsible for these acts. The Human Rights Committee calls for psychological support, public acknowledgement of the suffering endured (e.g. public apology) and reparation measures.

 

The general context

The Teraï region, in southern Nepal bordering India suffers many human rights abuses, including widespread torture and extra-judicial killings, and the ensuing impunity.

The majority of the victims of the mentioned abuses, such as Mr. Prashanta Pandey, pertains to the Madheshi communities living in the region. They have been claiming for greater autonomy for several years.

In the aftermath of the promulgation of the Interim Constitution in January 2007, the protests in the area became violent and several armed groups emerged. Nepalese authorities adopted special security measures, and authorities charged with the implementation of the security plan have been implicated in human rights violations, including torture and arbitrary executions. To date, impunity remains rampant as those responsible for these violations have not been investigated, prosecuted and sanctioned

 

In July 2011 TRIAL submitted an individual communication to the United Nations Human Rights Committee on behalf of Mr. Bouguera Kroumi, acting for his son Yahia Kroumi. Mr. Yahia Kroumi was arrested on 12 August 1994 in Constantine and he has been reported missing ever since. This incident has occurred within the general context of the enforced disappearance of thousands of Algerian citizens at the hands of the army or security forces of the State between 1992 and 1998.

Mr. Yahia Kroumi was abducted from his home in the morning of 12 August 1992 by the Algerian security service without an arrest warrant and without disclosing any information whatsoever to his father, who was present at the moment of the arrest. His arrest, along with those of some of his neighbours and relatives, followed the killing of two military officer in the region and it is part of a broader repressive policy targeting any opposition to the Algerian government, especially the supporters of the Islamic Salvation Front (FIS), accused of terrorist activities.

Taken to a secret detention centre, Mr. Kroumi had to suffer from terrible conditions of detention being located in a tiny cell of four square metres together with other 17 fellow prisoners. Obliged to stand in unbearably hot conditions, the majority of these inmates died during the first day of detention. It is possible to believe that Mr. Kroumi died there as well. Yet, to date nobody knows what happened to his body.

During the months and years following Mr. Kroumi’s arrest, his family, and his father Mr. Bouguera Kroumi in particular, has turned to all the competent Algerian authorities in order to find out about his fate and demand justice. The family approached both military authorities and the Algerian intelligence services. Furthermore they submitted requests and petitions to national judicial authorities and human rights bodies calling for an independent and impartial investigation.

But all these efforts were of no avail. No satisfactory response has ever been given to Mr. Kroumi’s family concerning the fate and whereabouts of Mr. Yahia Kroumi.

Despite the numerous steps undertaken and the unwavering hope of his family members, no light has been shed on the disappearance of Mr. Yahia Kroumi.

The author of the communication, Mr. Bouguera Kroumi, asks the Human Rights Committee to recognise that Algeria violated articles 2, 6, 7, 9, 10, 16 and 17 of theInternational Covenant on Civil and Political Rights against Mr. Yahia Kroumi. It is furthermore submitted that the situation gives rise to a violation of articles 2 and 7 of the ICCPR against the author of the communication as a result of the psychological suffering endured over the many years of uncertainty concerning the fate of his son.

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

General Context

These events took place within the context of the Algerian civil war during which thousands of persons, among which Mr. Yahia Kroumi, disappeared. Coming out of a bloody national liberation war, Algeria was plunged into a fratricidal conflict leading to a disproportionate use of violence and massive violations of human rights. According to different information sources, 7,000 to 20,000 persons were arrested or abducted by all corps of Algerian security services and the militia armed by the government between 1992 and 1998, and are still missing.

To date, none of the victims’ families have received information about their relatives, no investigation has ever been opened as a result of the criminal complaint and the procedure they have completed, and, thought the persons who committed the crimes and the backers are known, none of them have ever been prosecuted or troubled.

Furthermore, since the promulgation in February 2006 of the Charter for Peace and National Reconciliation, the victims’ families are confronted with the legal prohibition of bringing their cases, such as that of Mr. Yahia Kroumi, before courts at the risk of being sanctioned by the Algerian criminal system because Algeria considers that taking these steps would be tantamount to “exploit and take advantage of the wounds of the national tragedy” and undermine the on-going national reconciliation process.

 

The decision

In October 2014, the Human Rights Committee communicated its decision (called “views” in the UN language).

The Committee held that Algeria violated Articles 6 § 1, 7, 9, 10 § 1, 16 and 23 of the International Covenant on Civil and Political Rights, taken alone and in conjunction with Article 2 § 3 of the Covenant with regards to the victim.

The Committee also held that Algeria violated Article 7 of the ICCPR, taken alone and in conjunction with Article 2 § 3, with regards to the victim’s son.

The Committee requested Algeria “to conduct a deep and rigorous investigation into the disappearance of Mr. Yahia Kroumi”. Algeria is also requested to “provide the authors with detailed information concerning the results of its investigation”, “to free the victim immediately if he is still being secretly detained” or, “if he is deceased, to return his mortal remains to his family”. Moreover, the Committee insisted on Algeria’s obligation to “indict, try and punish those responsible for the violations committed” and to pay an appropriate compensation to the family of the victim for the violations committed.

Algeria is further requested to guarantee the effectiveness of the domestic justice system, especially with respect to victims of torture, extrajudicial killings and enforced disappearance and to take steps to avoid the recurrence of similar violations.

 

In June 2011, TRIAL lodged an individual complaint before the United Nations Human Rights Committee on behalf of Ms Aïcha Dehimi and Miss Nouara Ayache. These women were acting in the name of their son and brother, M. Sahraoui Ayache, kidnapped on 12 August 1994 in Constantine and who has been missing ever since. His disappearance occurred during a widespread campaign of forced disappearances in Algeria between 1992 and 1996.

M. Sahraoui Ayache was arrested at his home on the morning of 12 August 1994 by the Algerian Security Services for no valid reason and without an arrest warrant. His arrest as well as that of his parents and neighbours, followed the assassination of two military personnel in the region and was part of a policy of repression of the opposition aimed mainly at the members of the Islamic Salvation Front, who had been accused of terrorist acts.

After being taken to an unknown place, M. SAHRAOUI Ayache and his fellow prisoners underwent dreadful detention conditions. Packed into a cell measuring only four square metres, the men were forced to remain standing upright in the insupportable heat of the month of August. In the space of one day only, several died. It is a possibility that M. Sahraoui Ayache himself died during this period.

Even though they were living in painful uncertainty, the relatives of the missing man however never gave up on their insistence that justice be done, doing so by contacting a multitude of national authorities. However, despite these contacts made with the military authorities, the Algerian security services and the requests submitted also to national judicial and human rights authorities demanding that enquiries be opened up, no valid reply has ever been given to the family of the victim.

Despite these numerous bureaucratic contacts and the ongoing desire of the family members to determine the whereabouts of their relative, until this day no light whatsoever has been shone on the disappearance of M. Sahraoui Ayache.

In lodging their complaint before the UN Human Rights Committee, Ms Aïcha Dehimi and Miss Nouara Ayache request that Algeria be found in violation of articles 2, 6, 7, 9, 16 and 17 of the International Covenant on Civil and Political Rights, with respect to the disappeared person. In addition they submit that the Algerian authorities are also in violation of articles 2 and 7 of the same covenant with respect to them since the disappearance of their son and brother has been for both of them a source of anguish and sufferance.

General Context

The enforced or involuntary disappearances, of which M. Sahraoui Ayache is one of the countless victims, had its roots in the Algerian Civil War. After the end of a bloody war of national liberation, Algeria, then proud of its new found independence, nevertheless shortly afterwards descended into a fratricidal conflict which led to brutal excesses and massive violations of human rights.

According to different information sources between 7,000 to 20,000 persons were arrested or abducted by all corps of Algerian security services and the militia armed by the government between 1992 and 1998, and are still missing.

To date, the families of the victims of enforced or involuntary disappearances have received no information whatsoever concerning the fate of their disappeared relatives. The Algerian authorities have never seen fit to open up enquiries as a result of complaints or enquiries addressed to them. Although the identity of the authors and instigators of these crimes is known, none of them has ever been prosecuted or troubled. Furthermore, since the adoption of the Charter for Peace and National Reconciliation in 2006, the latter benefit from a thinly disguised amnesty since it is no longer allowed to bring a complaint for exactions similar to those endured by M. Sahraoui Ayache Algeria seeing these as being attempts to “exploit the wounds of the national tragedy”, and an attempt to retard the process of national reconciliation underway. 

 

The decision

In October 2014, the Human Rights Committee communicated its decision (called “views” in the UN language).

The Committee held that Algeria violated Articles 6 § 1, 7, 9, 10 § 1 and 16 of the International Covenant on Civil and Political Rights, taken alone and in conjunction with Article 2 § 3 of the Covenant with regards to the victim.

The Committee also held that Algeria violated Article 7 of the ICCPR, taken alone and in conjunction with Article 2 § 3, with regards to the victim’s mother and sister.

The Committee requested Algeria “to conduct a deep and rigorous investigation into the disappearance of Mr. Sahraoui Ayache”. Algeria is also requested to “provide the authors with detailed information concerning the results of its investigation”, “to free the victim immediately if he is still being secretly detained” or, “if he is deceased, to return his mortal remains to his family”. Moreover, the Committee insisted on Algeria’s obligation to “indict, try and punish those responsible for the violations committed” and to pay an appropriate compensation to the family of the victim for the violations committed.

Algeria is further requested to guarantee the effectiveness of the domestic justice system, especially with respect to victims of torture, extrajudicial killings and enforced disappearance and to take steps to avoid the recurrence of similar violations.

 

The case

Arrest, rape and other forms of torture

In April 2002 Fulmati Nyaya (pseudonym) was a 14 years old girl, member of an indigenous community living in the southern region of the Terai. She was arbitrarily arrested by members of the Royal Nepalese Army (RNA) and of the Armed Police Forces (APF) on 2 April 2002 and taken to the army barracks where she was kept incommunicado for over one month and a half. During this period, she was subjected to repeated rape and other forms of sexual violence. She also suffered other forms of torture, including beatings, prolonged blindfolding, handcuffing and death threats. Moreover, while being held captive, she was subjected to forced labour. Fulmati Nyaya was eventually forced to sign a confession admitting her involvement in terrorist activities and obliged to become an informant and periodically report to the army barracks for almost a year after her release.

Adverse long-term consequences

During her detention, Fulmati Nyaya never received any medical attention. Today, as a consequence of the torture endured, she suffers from post-traumatic stress disorder and severe physical impairments. Upon returning to her home village, she became a social outcast as she was perceived as “impure”. She had to leave school for over two years to avoid future shame. After her marriage, Fulmati Nyaya’s husband heard rumours about her mistreatment in detention and he repudiated her sending her back to her home village cutting all contacts for more than two years.

Unsuccessful attempts to obtain justice redress

Nepalese authorities refused to register her claims because she did not report the rape within the 35 days terms of limitation after the crime as requested by Nepalese laws. On 11 April 2014 Fulmati Nyaya submitted a complaint to the Supreme Court of Nepal. The claim is currently pending, but she has no real prospect of success, considering that the Court has never decided in favor of victims of sexual violence in previous individual cases.

The victim seized the HRC

In June 2014 TRIAL International (then called TRIAL) submitted a communication to the Human Rights Committee (HRC) on behalf of Fulmati Nyaya, alleging several violations of the International Covenant on Civil and Political Rights. In particular, she requested the HRC to acknowledge that:

  • she is a victim of torture (Art. 7), forced labour (Art. 8.3.a) and inhuman treatment in detention (Art. 10.1);
  • she is a victim of a violation of her right to personal liberty and security (Art. 9.1, 9.2, 9.3), as she was subjected to arbitrary arrest and she was not promptly informed of the reasons for her arrest nor the charges against her.
  • she is a victim of a violation of her right to privacy (Art. 17) and right to family life (Art. 23.1) because of the arbitrary interference with her privacy, the disruption of her family life and the failure of Nepalese authorities to adopt measures to protect her from stigma and marginalization.
  • Nepalese authorities failed to carry out an ex officio, prompt, effective, independent, impartial and thorough investigation on her allegations, and to prosecute and sanction those responsible (aforementioned articles in conjunction with Art. 2.1, 2.2 and 2.3).
  • these violations were aggravated by the fact that at the time of the events she was a minor and, as such, she was entitled to a special degree of protection (Art. 24.1).
  • these violations had discriminatory grounds based both on her gender and on her ethnicity. Moreover, the violent acts amounted to a discriminatory act as such (Art. 3 and 26).
  • and to request Nepal to investigate, prosecute and sanction those responsible for her rape and torture; as well as to ensure that she receives compensation and integral reparation for the harm suffered.

On 20 May 2019, the HRC issued a positive decision, recognizing for the first time the existence of forced labor in Nepal and  proposing a holistic approach to sexual violence.

Read more about the decision

 

General Context

The facts of this case must be read in the context of the human rights abuses, including widespread torture and sexual violence, perpetrated during the 10-year internal armed conflict. In particular, rape was perpetrated in a systematic manner and many women were silenced by the stigma attached to sexual violence both in war and peacetime. At the time of writing, not a single perpetrator has been convicted for rape committed during the conflict and this climate of absolute impunity has been fostered by flawed legislation.

 

In January 2021, TRIAL International and the Human Rights and Justice Centre (HRJC) sent a report to Nepali institutions, including the National Human Rights Commission, on the the issues related to Conflict Related Sexual Violence (CRSV) survivors in Nepal. The report took the example of the Fulmati case to sheds light on various obstacles for the survivors of the CRSV in access to justice, and emit recommendations to align Nepali law to international standards.