Tag: Lakpa Tamang

For the first time in Nepal, torturers have been ordered to pay compensation to their victim. Unfortunately, they also still roam free.

Mr. Tamang was tortured by policemen when he was just 11. He was beaten, electrocuted and forced to “confess” to stealing jewels. When he left the police station, he bore physical and mental scars that would haunt him for the rest of his life. His education prospects, in particular, have been thwarted.

 

An encouraging precedent

Since Mr. Tamang was underage when he was tortured, his case was examined in the light of the Children’s Act, instead of the Compensation Relating to Torture Act. What first seemed like a legal technicality proved instrumental in setting an interesting precedent in the country.

The Court ruled that Mr. Tamang should be compensated by the responsible policemen, and not from State funds. The decision was made possible by the Children’s Act, whose formulation allows the direct payment of compensation by the perpetrators. The Compensation Relating to Torture Act, on the other hand, requires the State – not the accused – to redress the victim.

It is the first time a Nepalese court takes such a stand in a torture case, setting an exciting precedent for victims countrywide. Fundamentally, it sends the message that the State should not protect offenders for their violations.

 

Torture remains rampant and under-punished

Unfortunately, the Nepalese court have not gone all the way in their condemnation of the crime. Rather than ordering a prison sentence, the judges simply fined the two policemen. This is allowed under Nepalese law because torture is not a criminal offense.

This leaves the victim, understandably, with mixed feelings. What is the meaning of compensation if those who tortured him remain unpunished?

The amount Mr. Tamang was offered seems to point in that direction: it does not nearly cover the prejudice he has suffered, in terms of health and education perspectives. Other, non-pecuniary forms of reparations, such as medical and psychological assistance, or guarantees that the crime will not occur again, are notably absent.

“The Nepalese courts have missed a great opportunity to take a strong stand against torture. There are encouraging steps forward, but it is far from being deterrent enough to prevent future crimes”, says Head of Nepal program Helena Rodríguez-Bronchú Carceller. “Only when victims are comprehensively redressed and perpetrators adequately punished will the use of torture recede in the country.”

An Anti-Torture Bill is currently under examination before the Nepalese parliament.

Read more about the Anti-Torture Draft Bill in Nepal.

Read more about Lakpa Tamang’s case.

 

Introduction

Lakpa Tamang v. Nepal

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

 

The Case

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

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

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

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

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

 

The Quest for Justice

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

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

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

 

Alleged Violations

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

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

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

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

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

The case is currently pending before the Human Rights Committee.

 

Context

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