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UPDATE (Nepal): Umesh Lama withdrew his case due to alleged serious threats by police

May 5, 2008

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-028-2008

5 May 2008

[RE: AHRC-UAU-027-2008: NEPAL: Torture victim under pressure to withdraw the case]
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NEPAL: Umesh Lama withdrew his case due to alleged serious threats by police

ISSUES: Threats; custodial torture; urgent need for an independent investigation; lack of domestic remedies
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Dear friends,

The Asian Human Rights Commission (AHRC) calls for your immediate intervention into the case of Umesh Lama. On 30 April 2008, Umesh's sister, who had filed a case under the Torture Compensation Act, was compelled to withdraw her case due to constant pressure from the police, including the Deputy Superintendent of Police (DSP) who was heading an investigation into Umesh's torture incident. Please urge the Government of Nepal that it should immediately form an independent inquiry team into the victim's alleged torture as well as the serious police threats to him and his family. The AHRC also strongly urges the Attorney General (AG) to inquire about Umesh's case and take appropriate action against the responsible police officers, as the Interim Constitution gives an authority to the AG to do so in case of serious human rights violation. Please also urge the concerned local authorities to immediately suspend all the police officers allegedly involved in pressuring the victim to withdraw his case. The AHRC had earlier raised our concerns regarding the alleged constant and serious police threats to the victim and his family as well as the accountability of the police investigation into Umesh's torture incident (AHRC-UAU-027-2008). For more details about the victim's original torture incident, please see AHRC-UAC-078-2008. 

UPDATED INFORMATION:

With help of lawyers, Umesh Lama's elder sister Ms. Lalumaya Jimba Bal filed a case under the Torture Compensation Act (TCA) on 28 April 2008 at the Kathmandu District Court on behalf of her brother asking for compensation as well as an investigation into Umesh's torture case. The case was then registered in the court on the same day.

According to the victim and his family members, soon after filing the case in the court, the police of the Hanumandhoka Metropolitan Police Range (MPR) in Kathmandu district again began pressurizing them to withdraw the case.

According to the family, in the evening of April 28, the Deputy Superintendent of Police (DSP) Kanchan Thapa, who was heading the police committee investigating Umesh's alleged torture case, called the victim's wife on her mobile phone. The DSP told her to give the phone to Umesh and told him, "Why did your sister lodge a case against the police? As your sister has filed the case, you are not going to be released!"

On April 29,  inspector Laxman Giri of the Hanumandhoka MPR also called to Umesh, who was hospitalized at the Bir Hospital and told him that the police would not 'help' him because his sister had lodged the case against the police to the court. He also told Umesh, "We (the police) could withdraw charges against you, as you compromised (with us). But your elder sister did not listen (to us). You have to go to prison now!"

Fearing that the police would send Umesh, who was still receiving medical treatment at the hospital due to his bad health condition, to prison soon, Umesh's sister came to the office of human rights organisation on the same day afternoon and asked the lawyers to withdraw her case from the court. She said, "My brother Umesh says he will die if he has to go back to the police (cell) again. He is having a nightmare (for days). He suddenly wakes up at night and screams, 'police! police!'"

When the victim's sister was having a meeting with the lawyers, she again received a phone call from the DSP Kanchan Thapa, who again asked her to withdraw the case if she wanted her brother to be released. The sister said that the DSP was apologetic this time saying that his people did something wrong to Umesh so that he had to suffer.

On the morning of April 30, the police inspector Laxman Giri visited Umesh and his family members at Bir Hospital and again pressurized them to withdraw the case in the court. After the inspector left the hospital, Umesh called his elder sister to the hospital and begged her to withdraw the case.

On the same day afternoon, Umesh's elder sister called inspector Laxman Giri and asked him to come to the hospital. The inspector Laxman soon arrived at the hospital along with two other policemen with the police files of the cases charged against Umesh. The inspector told the elder sister, "We will go to the court with Umesh (and make him released) but you should withdraw the case that you filed at the Kathmandu District Court."

The victim's elder sister then called to her lawyers and asked them to come to the court to withdraw her case. She also said that she was about to leave for the court along with two policemen in order to withdraw her case in the court. When the lawyers met her in the Kathmandu district court, she said, "My brother wants to withdraw the case because he had already faced many problems (caused) by the police. The police constantly threat him to withdraw the case. The police also threatened him that they would charge him with other many false cases. We are compelled to withdraw the case..."

In the court, the police released Umesh on bail by the order of Kathmandu District Court, relating to the charges against him.

In the meantime, the AHRC was informed that one Assistant Sub Inspector of Police (ASI) Ashwin Sinkhada of Hanumandhoka MPR, contacted the lawyers' office on April 30 and inquired about the names of the lawyers who were presented there when he and his two colleagues including Inspector Laxman Giri were taking Umesh's statement on April 27. Similarly, Inspector Laxman Giri also contacted the lawyers' office and inquired about details of its lawyers who had visited the victim at Bir Hospital.

According to Umesh's family, the police gave him 100,000 Nepali rupees (about USD 1,600) and his mobile phone which was seized by the police at the time of his arrest. Umesh is currently at his rented room in Kathmandu and is still undergoing medical treatment.

ATTORNEY GENERAL SHOULD IMMIEDIATELY TAKE UP THIS CASE:

Umesh Lama's case illustrates how difficult the torture victims or their families pursue their cases against alleged torture perpetrators to get justice in Nepal. It is common practice in Nepal that the police implicate the torture victims into serious false cases to intimidate them, when they file the case under the TCA or file a First Information Report (FIR) against those responsible police officers. Under these circumstances, the torture victims have no choice but to withdraw their cases and compromise with the alleged perpetrators.

Another problem is that there is no independent avenue that torture victims can access to lodge a complaint against police officers in Nepal. An investigation into an alleged torture incident is mostly done by the police officers from the same police office where the victim was tortured or from the next level superior police authority who has good relationship with alleged torture perpetrators. Therefore there is little transparency to ensure accountability and impartiality of the investigation into such cases and the torture victims are often further victimized during the investigation process.  

For example, Umesh Lama was tortured by police officers of the Hanumandhoka MPR, which is responsible for investigating all the criminal cases that took place in Kathmnandu district. This MPR was the former District Police Office (DPO) of Kathmandu district. When his case gained a huge attention from the media and local human rights groups, an inquiry committee was formed within the same MPR but what the investigating officers did was intimidating Umesh and his family to withdraw the case against the police rather than to conducting a proper investigation into this torture incident. As high ranking police officers are allegedly involved in Umesh's torture and intimidation to him and his family, the AHRC is deeply concerned that there is no way to guarantee its impartiality if another inquiry committee is formed under the Department of the Inspector General of Police (IGP). 

Sub-clause 3(C) of Section 135 of the Interim Constitution of Nepal gives an authority to Attorney General (AG) to inquire about the case and take proper action against the guilty persons with regards to serious human rights violation cases. The AHRC strongly urges the AG to immediately take up this case, order an independent inquiry into Umesh's alleged torture incident as well as intimidation to him and his family from the investigating police officers and take proper action against those responsible officers without delay.   
 
We also urge the Government of Nepal that it should take genuine steps to set up an independent avenue where torture victims feely access to complain against the police without fearing further harassment or intimidation from the police.

URGENT REQUEST FOR INTERVENTION FROM OTHER CONCERNED AUTHORITIES:

The AHRC also urges the National Human Rights Commission (NHRC) of Nepal to immediately inquire into Umesh Lama's case. To ensure its accountability, we suggest the NHRC to include representatives from the civil society into its inquiry team.  

Furthermore, the AHRC requests the IGP and the Minster of Home Affairs to inquire the alleged intimidation to Umesh and his family members and to suspend all those who are found to be involved in it. This will be the only effective way to ensure Umesh's security and prevent further harassment to him in future.

URGENT NEED FOR CRIMINALIZING TORTURE AND OTHER CUSTODIAL CRIMES:

Nepal has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1991. However, its legal system does not provide effective redress to torture victims.

Although the 2007 Interim Constitution made torture as a crime, the TCA neither criminalizes torture nor obligates the government to take action against a perpetrator of torture. In the TCA, compensation may be awarded to victims of Torture, but the perpetrators of the Torture itself are not punishable because, as stated, in law, they have not committed a crime. According to the TCA, torture perpetrators may be subject to only "departmental action". The Act is also only recognizes claims filed by torture victims within 35 days of the alleged act of torture, or within 35 days of the victim's release from detention. Besides, according to the legal system in Nepal, the burden of proof is heavily put on the complainant (the victim), who is often incapable of doing so.

Moreover, Nepal has no other specific law that defines torture as a crime. The only recourse is to the "assault" section of the Civil Code of Nepal where physical assault is defined as a crime. However, the Civil Code only gives very light fines/punishment according to the nature of the 'physical' wound. Furthermore, the Civil Code does not make any provision for the psychological effects of torture. Torture is defined very narrowly in Nepal, and torture by state officers outside custody seems to be totally exempt.

Even more important is the fact that the Civil Code does not provide any specific provision for assault, ill-treatment or other crimes which has taken place whilst the victim is in custody, that is, with State involvement. Consequently, very few lawyers use this clause in court and torture victims is deprived of their rights to seek effective legal remedies. As a result, torture perpetrators enjoy continuous impunity and victims are routinely denied justice.

Therefore, the AHRC again strongly urges the Government of Nepal to adopt domestic legislation without further delay, which ensures that acts of torture are criminal offences punishable in a manner proportionate to the gravity of the crimes committed. The Government also should seriously consider amending the TCA to bring it into compliance with all the elements of the definition of torture provided in the CAT. Without such reform, it is impossible for the Government to combat the widespread practice of torture in the country. 

SUGGESTED ACTION:
Please immediately write to the concerned authorities list below and urge them to immediately conduct an independent inquiry into Umesh's alleged torture incident as well as serious intimidation to him and his family by the police. Please particularly urge the AG and NHRC of Nepal to urgently inquire into this matter and take strong action against those responsible. Please also urge the IGP and the Home Minister to suspend the police officers who are involved in the case of Umesh's torture and intimidation to him and his family as well as to take strong departmental action against them.

The AHRC will separately report this matter to the United Nations Special Rapporteur on Question of Torture.

To support this appeal, please click here:

SAMPLE LETTER:

Dear ___________,

NEPAL: A torture victim withdrew his case due to serious threats by police

Name of victim: Mr. Umesh lama, aged 28, agent of one recruitment consultant office by profession, the permanent resident of ward no. 1, Parvanipur Village Development Committee (VDC), Sarlahi District, Nepal; is temporarily residing at new Baneshwor in Kathmandu district
Alleged torture perpetrators:
1) Police inspector Sudhir Raj Shahi, 2) Police sub inspector Sanjaya Timilsina, 3) the assistant sub inspector Raju and 2 other policemen attached to the Hanumandhoka Metropolitan Police Range [MPR] in Kathmandu district, Nepal
Date of alleged torture incident: Allegedly arrested and severely tortured on 1 April 2008 and was released on bail on 30 April 2008 
Place of alleged torture incident: Hanumandhoka Police Range, Kathmandu district, Nepal

Alleged police officers involving in threats to victim and his family:
1) Deputy Superintendent of Police (DSP) Kanchan Thapa of the Hanumandhoka MPR, who is heading an inquiry committee into the victim's alleged torture incident
2) Inspector Laxman Giri of the Hanumandhoka MPR
Date of alleged police threats: From 24 to 30 April 2008

I am writing to bring your urgent attention to the case of Umesh Lama who was illegally arrested and allegedly tortured by the Hanumandhoka Metropolitan Police Range in Kathmandu district on 1 April 2008.

I am deeply concerned by the lasted information about his case that on April 30 the victim's elder sister withdrew her case filed under the Torture Compensation Act (TCA) at Kathmandu District Court due to alleged constant and serious threats from the police from the said MPR. Even more important is the fact that the DSP Kanchan Thapa, who was heading the inquiry committee into Umesh's torture case, is the prime suspect of these threats and intimidation to the victim and his family. 

According to the information I have received, the victim and his family has received intimidation from the said DSP and other policemen since April 24. However, the intimidation on them was intensified when Umesh's elder sister filed a case under the TCA in the court on 28 April 2008 on behalf of her brother.

The victim's family reported that in the evening of April 28, the DSP Kanchan Thapa made a threat phone call to the victim that he would not be released because his sister filed the case against police. On April 29, one inspector Laxman Giri from the same MPR also made a threat phone call to Umesh that they would send him to prison soon as his sister filed the case in the court. The victim's sister said that the DSP Kanchan Thapa again called to her on April 29 and threatened to withdraw the case if she wanted her brother to be released. On the morning of April 30, the inspector Laxman Giri visited Umesh at Bir Hospital and again pressurized him to withdraw the case in the court. 

Fearing further harassment to her brother, Umesh's elder sister finally went to the district court, escorted by two police officers and withdrew her case against police on the afternoon of April 30. The sister reported, "My brother Umesh says he will die if he has to go back to the police (cell) again. He is having a nightmare (for days). He suddenly wakes up at night and screams, 'police! police!'" She further reported, "The police also threatened him that they would charge him with other many false cases. We are compelled to withdraw the case."

With exchange of withdrawing the case against them, the police from Hanumandhoka made Umesh released on bail with regards to the charges against him at Kathmandu District Court. The family also reported that the police gave him 100,000 Nepali rupees (about USD 1,600) to cover his medical treatment cost. Umesh is currently at his rented room in Kathmandu and is still undergoing medical treatment.

I am deeply concerned that there was no impartial investigation at all into the victim's torture incident. An inquiry committee was formed within the same MPR but those investigating officers constantly intimidated the victim and his family rather than to conducting a proper investigation into this torture incident.

Umesh's case indicates an urgent need for an independent avenue where torture victims can access freely to lodge a complaint against police without fearing further harassment or intimidation in the country. I therefore strongly urge the Government of Nepal to take a genuine step to set up such avenue as soon as possible.

In the meantime, I suggest the Attorney General to order an independent inquiry into Umesh's alleged torture incident as well as intimidation to him and his family by the investigating police officers and take proper action against those responsible officers without delay, in accordance with an authority given to him under Sub-clause 3(C) of Section 135 of the Interim Constitution of Nepal.

I also request the National Human Rights Commission (NHRC) of Nepal to immediately inquire into Umesh Lama's case and include representatives from the civil society into its inquiry team to ensure accountability of an inquiry.

I further request the Inspector General of Police and the Minster of Home Affairs to inquire this matter and suspend all those who are found to be involved in the act of the victim's torture and threats to him and his family. 

Lastly, I again strongly urge the Government of Nepal to adopt domestic legislation without further delay, which ensures that acts of torture are criminal offences punishable in a manner proportionate to the gravity of the crimes committed. The Government also should seriously consider amending the TCA to bring it into compliance with all the elements of the definition of torture provided in the CAT. Without such reform, it is impossible for the Government to combat the widespread practice of torture in the country. 

Yours sincerely,


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PLEASE SEND YOUR LETTERS TO:

1. Mr. Yagya Murti Banjade
Attorney General
Office of Attorney General
Ramshahpath
Kathmandu
NEPAL
Fax: +977 1 4262582
E-mail: attorney@mos.com.np 

2. Mr. Om Bikram Rana
Inspector General of Police
Police Head Quarters, Naxal
Kathmandu
NEPAL
Tel: (977) 1 4412432 (Secretary to IGP)
Fax: +977 1 4415593
E-mail: ranaob@nepalpolice.gov.np or info@nepalpolice.gov.np 

3. Mr. Krishna Sitaula
Home Minister
Ministry of Home Affairs
Singha Darbar, Kathmandu
NEPAL
Fax: +977 1 4211232

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

5. SSP Mr. Binod Singh
Police HR Cell
Human Rights Cell
Nepal Police
Kathmandu
NEPAL
Fax: +977 1 4415593
E-mail: hrcell@nepalpolice.gov.np 

6. Chairperson Puspakamal Dahal (Prachanda)
CPN- Maoist Party
Kathmandu, Nepal
Tel: (977) 1 4784045
E-mail: maobadi_soochanaburo@yahoo.com
 
7. Mr. Krishna Bahadur Mahara
Minister for Information and Communication
Singh Durbar, Kathmandu
Nepal
Tel: (977) 1 4228333
Fax: (977) 1 4266400
E-mail: moichmg@ntc.net.np 
 
Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrchk.org)

Document Type :
Urgent Appeal Update
Document ID :
AHRC-UAU-028-2008
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.