Enforced Disappearance of Padman Narayan Nakarmi in September 2003
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
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.
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.