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UPDATE (Nepal): Father and son die in custody due to police torture in Panchthar district

March 15, 2010

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-011-2010



15 March 2010

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UPDATE (Nepal): Father and son die in custody due to police torture in Panchthar district

ISSUES: Torture; custodial deaths; impunity; rule of law 
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from a partner organization, The Advocacy Forum, (AF) that two civilians, Dal Bahadur and his son Bikram Gyanmi Magar, have died following brutal torture in police custody at Prangbung Police Post of Panchthar District on February 13, 2010 and February 21, 2010 respectively. We are informed that the victim’s family prepared an FIR (First Investigation Report) with regard to these deaths but under pressure from police authorities and the public, the names of three police officers who were allegedly involved in the incidents of torture, were removed. It is urgent that the cases of both men be thoroughly and impartially investigated, and that those responsible for the two deaths be held accountable in a civilian court. The two men were arrested at the same time as Sanjaya Pulami Magar, whose torture case was denounced by the AHRC last week (For further details, please see: AHRC-UAC-025-2010).
 
CASE DETAILS:

Victim-1: Mr. Bikram Gyanmi Magar
Bikram Gyanmi Magar, 19 years old, from Pranbung VDC-04, Jyamire village, Panchthar District, was forcibly caught by villagers at around 9 am on February 12, 2010. The villagers also seized his brother Dil Kumar Gyanmi, 16, and neighbours Sanjaya Pulami Magar, 30, and Dipendra Magar, 17 and accused them of stealing water pipes belonging to a project that was to be implemented in the village. The villagers called the police, and the accused were handed over to a team of police officials, including ASI Firal Mahato; the Head Constable Indra Narayan Shah and Constable Yubraj Shrestha.

The police officials took the four accused to the Prangbung Police Post where they were subjected to torture for three hours. While they were being interrogated, the police beat them on their backs, feet and legs as well as on other parts of their bodies. Following this, the accused confessed to the charges that were had been leveled against them. Police then took them out onto the premises where local villagers were lingering, and joined forces with the villagers to indiscriminately beat the accused for half an hour, until they confessed to the thefts in front of the crowd of villagers.

Following the confession, the villagers accused the detainees of yet another theft which took place on Feb 8, 2010 in the home of Ait Singh Tamang, which involved 50.000 NRS and some gold. The police then took them back into the police office and beat them further. When the torture became unbearable, Bikram Gyanmi Magar confessed to the crime, and told the police that he had hidden the gold and the money in a barn in the Chitre area. The police informed the villagers about this, and at around 5pm that day, Head Constable Indra Narayan Sha and Constable Yubraj Shrestha took the accused to the area in order to collect the stolen gold and money. Some ten to fifteen villagers also joined in on the excursion. When arriving at the barn in which Bikram had claimed the gold and money was hidden, the police could not find it, and so they accused him of lying and began beating him.

In order to avoid further abuse, Bikram then claimed that the money and gold was actually hidden in Devisthan, Khotang, near his home village. The police and the villagers began the long walk back, but when finally arriving there they could not find the stolen goods. Again, they started beating Bikram who, in order to save himself, claimed that he had given the money and the gold to his father Dal Bahadur Gyanmi Magar. When the group reached Dal's house on the morning of February 13 to enquire about the stolen goods, he denied the allegations, and scolded his son for telling lies. 

At around 10.30 am on Feb 13, 2010 the police arrested Dal and took him to the Prangbung Police Post. Bikram was also brought along and was detained there for a short while, before being transferred to the District Police Office (DPO) in Panchthar, on the evening of February 13, 2010.

By February 16, Bikram's health had radically deteriorated and he was taken to the district hospital in Fidim where he received general treatment. After treatment, he was returned to the DPO where he was being detained. However, despite treatment at the district hospital, Bikram's health continued to deteriorate, and on February 21 he was again taken to the district hospital in Fidim where they were unable to treat him, and hence he was transferred to the BPKIHS hospital in Dharan. Bikram died at the BPKIHS hospital at around 8pm on February 21, 2010.

Victim-2 Mr. Dal Bahadur Gyanmi Magar
At around 10.30 am on February 13, 2010 the 42 year old Dal Bahadur Gyanmi Magar, resident of Pranbung VDC-04, Jyamire of Panchthar District, was arrested by police officers of Prangbung Police Station on the charge of theft. Dal was accused of having stolen gold and money from a villager named Ait Singh Tamang; a crime which Dal insisted he was innocent of.

Following the arrest, the police officers brought Dal Bahadur back to the premises of the Prangbung Police Post, where he was allegedly severely tortured. The police officers first made Dal take his jacket off, and then began beating him with bamboo sticks. He was also continuously punched and kicked by the police officers, but he refused to confess to the charges laid upon him.

As the torture did not result in a confession, Head Constable Indra Narayan Sha invited local villagers into the police office premises to beat the accused. The villagers began hitting him indiscriminately with the same bamboo sticks as the police officers had used, which led Dal to become semi- unconscious.

Dal was then taken into the Prangbung Police Post where he was severely tortured for another three hours. The police officers beat him with bamboo sticks, and then hung him upside down and kept beating him until he was completely unconscious. Dal was then taken outside again, where water was poured onto his body in an attempt to revive him. When he did not respond, Policewoman Constable Ganga Maya Tamang assumed he was pretending to be unconscious to save himself from further beatings, so she kicked him on the head and the mouth. This was what caused Dal Bahadur's death, which happened at around 4pm on February 13, 2010.         

Policemen subsequently dragged Dal's body to a health post, where he was soon declared dead. Along with some of the villagers, the police officers then prepared a report of the incident stating that Dal was epileptic and died due to seizures caused by the stress of the interrogation.

At 8pm on February 13, 2010 Dal's body was taken to the DPO in Panchthar, Fidim, where Dal's eldest son Indra Bahadur Gyanmi had to receive the dead body. A three point agreement was then made at the DPO between the police, the public and the victim's family, establishing that the victim's family will receive compensation; the two sons of the deceased will be provided with government jobs and legal action will be taken against the perpetrators. Additionally, the DPO provided the victim's family with 50.000 NRS in order to cover the funeral charges.

The agreement that was made at the DPO between the police, the public and the victim's family following Dal's death was not a mutual agreement, as the victim's family was forced by the police and the public to sign it. The agreement is very vague as it does not clearly specify the nature of the compensation that the victim's family will enjoy, nor does it detail the legal action that will be taken against the perpetrators. The agreement must not be mistaken for a formal legally binding agreement which could replace an actual prosecution of the perpetrators.

The implicated police officers are denying any involvement in Dal's and Bikram's deaths. However, a police committee led by Inspector Sunil Dahal from the DPO has been formed to investigate the cases, but the outcome of the post mortems and the investigations is yet to be revealed. The National Human Rights Commission (NHRC) also visited the place of the incidents, but its investigation was obstructed by locals. Only following reassurances that no local villager was on the list of alleged perpetrators was the NHRC allowed to enter. The police also tried to influence the Advocacy Forum’s fact finding team into not publicizing these cases.

An FIR (First Information Report) has been prepared with regards to the two custodial deaths by the victims’ family, but after pressure from the police authorities and the public, only ASI Firal Prasad Mahato and Head Constable Indra Narayan Shah have been mentioned as perpetrators in this report. Constables Yuv Raj Shrestha, Raj Kiran Chaudhary and Ganga Maya Tamang were removed from the report altogether.

(Please see the pictures: injuries on Dal's feet, injuries on Dal's legs, bruises on Dal's back, injuries on Dal's leg)

BACKGROUND INFORMATION:

The AHRC reported last week about the severe beating inflicted upon Sanjaya Pulami Magar who was arrested along with Bikram and Dal Bahadur Gyanmi Magar. He was kept in illegal detention from February 13 to February 21 and was provided only with common medicines insufficient for his health condition. He was eventually released on ordinary bail by the District Court, Panchthar after no sufficient evidence was gathered against him. For more details, please see: AHRC-UAC-25-2010.

The AHRC has, on numerous occasions, denounced the use of torture by police forces in Nepal, and the prevalence of impunity which protects the perpetrators.

As party to the International Convention Against Torture, Nepal is mandated to ensure that victims of an act of torture obtain redress and has an enforceable right to adequate and fair compensation. In reality, the victims seeking redress have to overcome often insurmountable obstacles to obtain justice, such as police obstructions and judicial negligence. The AHRC has already reported several allegations of police officers threatening torture victims into withdrawing their complaint (please refer to AHRC-UAU-056-2008 and AHRC-UAC-195-2008) or cases in which allegations of torture were investigated by police officers belonging to the same police station as the alleged perpetrators (please refer to AHRC-UAU-028-2008 and AHRC-UAU-010-2008). The lack of accountability of the police system clearly results in ensuring the protection of the perpetrators of torture and leaving the victims without any legal remedies to it.

As there is currently no law criminalizing torture in Nepal, the emphasis is put on compensation for acts of torture in order to elude the need for criminal sanctions against the perpetrators. This further adds to the difficulties faced by the victims and their families fighting to obtain justice and accountability in an impaired criminal justice system. The fact that local villagers were involved in the coercion of the victims’ family to sign the agreement speaks to the fact that torture at the hands of state agents is common and acceptable.

The death of two persons following excessive police torture must force the Nepalese authorities to face their responsibilities to bring accountability and transparency to the interrogation process and the policing system. This case clearly reveals the most dramatic consequences to which the trivialization of the practice of torture and general neglect and disinterest from the competent authorities can lead. It is now time to take strong and concrete measures to make sure this will be the last time Nepalese citizens die of torture at the hands of state agents.

SUGGESTED ACTION:

Please join us in writing to the competent authorities urging for the proper investigation of this case and asking for the accountability of the perpetrators of torture.

Please be informed that the AHRC is writing separate letters to the UN Special Rapporteurs on Question of Torture, Extrajudicial and Summery or Arbitrary Executions and the Field Office of the High Commissioner for Human Rights in Nepal.

To support this appeal, please click here:

SAMPLE LETTER:


Dear __________,

NEPAL: Father and son die in custody due to police torture in Panchthar district

Name of the victims:
1. Mr. Dal Bahadur Gyanmi Magar, 42, resident of Pranbung VDC-04, Jyamire of Panchthar District, died on February 13, 2010 in the aftermath of severe police torture and beating.
2. Mr. Bikram Gyanmi Magar, 19, resident of Pranbung VDC-04, Jyamire village, Panchthar District, died on February 21, 2010, in the aftermath of severe police torture and beating

Name of alleged perpetrators:
1. ASI Filar Mohato from Prangbung Police post
2. Head constable Indra Narayan Shah
3. Constable Yuv Raj Shrestha
4. Constable Raj Kiran Chaudhary 
5. Constable Ganga Maya Tamang

Date of arrest: February 12, 2010

Place of the arrest: Prungbung VDC, Panchthar district

I am writing to draw your attention on a case of police beating and torture which lead to the death of a father and his son in Prungbung VDC, Panchthar district.

According to the information I have received, Bikram Gyanmi Magar, was forcibly caught by villagers at around 9 am on February 12, 2010 along with his brother Dil Kumar Gyanmi, 16, and his neighbours Sanjaya Pulami Magar, 30, and Dipendra Magar, 17. They accused them of stealing water pipes belonging to a project to be implemented in the village. The villagers called the police, and they were handed over to a team of police officials, including ASI Firal Mahato; the Head Constable Indra Narayan Shah and Constable Yubraj Shrestha. They were taken to the Prangbung Police Post.

There, they were severely beaten for three hours until they eventually confessed the charges lead upon them. The police then took them in front of the villagers and joined forces with them to beat the accused for half an hour, until they confessed to the thefts again in front of the crowd.

Thereupon, the villagers accused the detainees of another theft. The police took them back into the police office and beat them further until the torture became unbearable, leading Bikram Gyanmi Magar to confess to the crime and to tell the police that he had hidden the haul in a certain place. When taken to the place he had indicated by Head Constable Indra Narayan Sha, Constable Yubraj Shrestha and numerous villagers, the haul could not be found there and he was accused of lying and beaten up again. In order to avoid further abuse, Bikram then indicated another place, where the haul could not be found either. He underwent further beatings and eventually claimed that he had given the haul to his father Dal Bahadur Gyanmi Magar. When the group reached Dal's house on the morning of February 13 to enquire about the stolen goods, he denied the allegations, and scolded his son for telling lies. 

At around 10.30 am on Feb 13, 2010 the police arrested Dal and took him to the Prangbung Police Post. Bikram was also brought along and was detained there for a short while, before being transferred to the District Police Office (DPO) in Panchthar, on the evening of February 13, 2010.

Following his arrest, Dal Bahadur was kicked, punched and severely beaten with bamboo sticks by the police officers. Since he refused to confess the charges laid upon him, Head Constable Indra Narayan Sha invited local villagers into the police office premises to beat the accused. In the aftermath of severe beatings with bamboo sticks by the villagers, he became semi-unconscious. The police then beat him again for another 3 hours with bamboo sticks and hung him upside down and beat him until he was completely unconscious. Assuming that he was only pretending to be unconscious, Constable Ganga Maya Tamang kicked him repeatedly in the head and the mouth. This caused his death.

The policemen then prepared a report of the incident stating that Dal was epileptic and died of seizures caused by the stress of the interrogation.

While in detention, Bikram's health deteriorated radically. He died at BPKIHS hospital in Dharan on February 21, 2010 after having been taken twice to the District Hospital.

I am concerned to hear that the victim's family was forced by the police to accept an agreement made on February 13, 2010 between the police, the public and the victim's family guaranteeing in vague terms compensation to the victims and prosecutions against the perpetrators. I consider that this agreement cannot, under any circumstances, stand for an official and independent investigation.

I am therefore urging you to immediately launch the proper investigation of those cases, led by a body independent from pressures by the Prungbung Police Post. In order for this to happen, a fully impartial, independent and competent committee should be formed for the investigation into the deaths. The post-mortem report must be produced in an impartial and professional manner, and then be made public, allowing the victims' family access to it.  

I am concerned to hear about obstruction from the villagers and the police to the field investigations of the National Human Rights Commissions and the Advocacy Forum. I am told that the police pressured the victim's family into withdrawing the names of constables Yuv Raj Shrestha, Raj Kiran Chaudhary and Ganga Maya Tamang from a First Information Report they filed. I am therefore requesting the concerned authorities to show that a proper FIR will be filed, listing all the alleged perpetrators.

I am also asking for the proper protection of the victim's family and of the witnesses during the course of the investigation and the court process. They should further be provided with interim relief until the case is concluded.

The impunity of the police officers who routinely torture accused or detainees has been seriously denounced by the civil society and the international community. After two deaths occurred because of this practice, it is now time to take broad and concrete measures to put a definitive end to it.

Yours faithfully,

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PLEASE SEND YOUR LETTERS TO:

1. Mr. Ramesh Chand Thakuri 
Inspector General of Police 
Police Head Quarters, Naxal 
Kathmandu 
NEPAL 
Fax: +977 1 4415593 
Tel: +977 1 4412432 (Secretary to IGP) 
E-mail: info@nepalpolice.gov.np, phqigs@nepalpolice.gov.np 

2. Dr. Bharat Bahadur Karki 
Attorney General 
Office of Attorney General 
Ramshahpath, Kathmandu 
NEPAL 
Fax: +977 1 4262582 
Tel: +977 1 4262506 
Email: attorney@mos.com.np 

3. Mr. Kedar Nath Upadhaya 
Chairperson 
National Human Rights Commission 
Pulchowk, Lalitpur 
NEPAL 
Fax: +977 1 55 47973 
Tel: +977 1 5010015 
E-mail: complaints@nhrcnepal.org or nhrc@nhrcnepal.org 

4. Mr. Sarbendra Khanal 
Superintendent of Police 
Police HR Cell 
Nepal Police, Kathmandu 
NEPAL 
Fax: +977 1 4415593 
Tel: +977 1 4411618 
E-mail: hrcell@nepalpolice.gov.np

5. Mr. Bhim Rawal,
Home Minister,
Ministry of Home Affairs,
Singha Darbar,
Kathmandu,
NEPAL
Fax: +977 1 42 11 232
Tel: +977 1 4211211 / 4211264


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

Document Type :
Urgent Appeal Update
Document ID :
AHRC-UAU-011-2010
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.