Home / News / Urgent Appeals / UPDATE (Nepal): Allegations of torture to death of a minor in Rupendehi District must be independently investigated
 

UPDATE (Nepal): Allegations of torture to death of a minor in Rupendehi District must be independently investigated

August 27, 2010

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-034-2010

 

27 August 2010

[RE: AHRC-UAC-110-2010 : NEPAL: A teenage boy dies in police custody; foul play is suspected]
---------------------------------------------------------------------
NEPAL: Allegations of torture to death of a minor in Rupendehi District must be independently investigated

ISSUES: Death in custody; torture; child rights
---------------------------------------------------------------------

Dear friends,

The Asian Human Rights Commission (AHRC) has received updated information regarding the custodial death of 16-year-old Dharmendra Barai on 4 July, which is suspected to have been caused by police torture. An investigation team set up by the District Administration Office has concluded that they could not establish that torture was the cause of death, but strong doubts have arisen regarding its impartiality. On 22 August, the District Police Office and the District Administration Office of Rupendehi both refused to file an FIR in relation to the case.

UPDATED INFORMATION:

In a previous Urgent Appeal, the Asian Human Rights Commission expressed its concern following the death in questionable circumstances of Dharmendra Barai while in custody of the Khajuriya Police Post, in Rupendehi District, on 4 July 2010. The boy was arrested on 3 July because the police suspected his involvement in a lethal bicycle accident and, although he was a minor, he was kept in detention in the same conditions as adults. In the afternoon following his arrest, around 20 persons came to the police station to ask for his release and the boy complained that the police had threatened to shoot him. At 4 am on 4 July, the victim's body was brought to the Bhim Hospital. There were several injuries on his body. The victim's family and relatives suspect that the boy was tortured which led to his death. The AHRC had called for a thorough and impartial investigation to determine the circumstances of the death of the teenage boy death in police custody.

According to the updated information we have received, witnesses have reported that the police may have applied electric shocks to the boy during the 45-minute period in which they interrogated him before he died.

An investigation team, which was set up by the District Administration Office to probe the circumstances of the death, published its report on 3 August 2010. The report concludes that "there is no sufficient proof to establish the torture is the cause of death". This conclusion is based on the postmortem report, which mentions the cause of death as "unknown" but does not take into account the details of the injury records, which mentions "a small contusion over left front head and right shoulder, an abrasion in the central part of his left palm and some redness over the right sole". Neither did the investigation team consider pictures of the deceased's body showing that he had sustained different injuries that were provided by the victim's side. (The photos can be seen here, here and here.)

Moreover, although the investigation team acknowledges that the death occurred while the victim was in police custody, it is reported that it did not properly interrogate the police officers on duty in the police station at the time of the death and limited itself to asking general questions.

Further, the investigation report points to several weaknesses in the behaviour of the police which include not informing the higher office about the detention or not taking the victim for a medical check-up before keeping him in detention and. The report goes on to "suggests the necessary departmental actions against the policemen". Nevertheless, the report is not specific regarding the nature of the sanctions which should be taken against which police officer. It further does not mention other serious faults committed by the police officers like arresting the boy without an arrest warrant, not providing him with a detention letter and keeping a juvenile in the same detention conditions as adults.

Strong concerns have arisen regarding the impartiality of the investigation team as it is composed exclusively of three policemen (DSP Mr. Umal Prasad Chaturvedi from Rupendehi District Police Office (DPO), DSP (Deputy Superintendent of Police) Mr. Kushal Prasad Gadtoula from Lumbini Zonal Police Office and Investigation Officer Mr. Thakur Chandra K.C. from the District Office of National Investigation Department) under the leadership of a government official Mr. Pitamber Ghimire, Deputy Chief District Officer in Rupendehi District Administration Office (DAO), without including any representative of the deceased's family or the civil society, casting doubts over the ability of the investigation team to impartially investigate a case involving police officers.

Moreover, the neutrality of the forensic testing of the victim's viscera is also questioned as it was done by the Central Forensic Lab of Nepal Police rather than by the National Forensic Lab.

On 5 August 2010, local political parties and civil society jointly issued a press release in which they questioned the impartiality of the investigation team and asked for a fully independent and transparent investigation to be launched.

We are also informed that the Home Ministry set up a 3-member investigation team on 18 July but that its report has not been made public yet.

On 22 August, Hariram Barai-the victim's father, and Lal Bahadur Barai, a relative, visited the Rupendehi District Police Office to file an FIR (First Information Report) against the policemen allegedly involved in Dharmendra's death. Nevertheless, Superintendent of Police Sher Bahadur Basnet refused to file the case under the fallacious pretext that Hariram had already filed an FIR in that DPO regarding the same case. According to the information we have received, Hariram had only sent a written application in the name of the DPO to receive the dead body of his son after the postmortem. Moreover, the police officer reportedly threatened Lal Bahadur Barai.

Sub Inspector (SI) of Police Shambhu Upadhaya upon reading the complaint, which was prepared by Hariram Barai, noticed that it mentioned that the deceased alleged before his death that the police pointed their rifles and threatened to shoot him. SI Shambhu, therefore, reportedly said to Hariram that the police had already promised that they would recruit Hariram's elder brother in the police force but on the condition that the case of Dharmendra's custodial death should not be reported anywhere.

Hariram and his relatives then turned to the Rupendehi District Administration Office and met with Deputy CDO (Chief District Officer) Pitamber Ghimire, the chairman of the investigation team formed by the DAO. They asked him to issue an order in the name of DPO, Rupendehi to register the FIR but the Deputy CDO allegedly refused saying that "writing on God's name and praying to another God? The FIR was addressed to the DPO, it could not be registered in the District Administration Office".

The same day, Hariram Barai then sent the FIR by post in the name of both concerned authorities.

ADDITIONAL COMMENTS:

Following its visit to Nepal in 2005, the Special Rapporteur on Torture Manfred Nowak had specifically recommended

that "All allegations of torture and ill-treatments be promptly and thoroughly investigated by an independent authority with no connection to that investigating or prosecuting the case against the alleged victim".

In cases of police torture ensuring the impartiality of the investigation is crucial to guarantee the right to redress of the victim. Indeed, when the alleged perpetrators of a violation are police officers they are in a position of strength to influence the outcomes of the investigation or to compel the victims or the witnesses to keep silent. Nevertheless, most often in cases where torture is alleged in Nepal, the investigation is entrusted to police officers sometimes even belonging to the same station as the alleged perpetrators and those against whom torture is alleged are rarely suspended from their duties during the investigation, opening the door for collusion between the perpetrators and the investigators. The absence of any mechanism protecting the victim or their family further aggravates this situation.

SUGGESTED ACTION:

Please join us in writing to the authorities listing below to demand that an impartial inquiry should be launched to cast light upon the exact circumstances of Dharmandra Barai's death and that justice should be given to his family.

Please be informed that the AHRC will write a separate letter to the UN Special Rapporteurs on the Question of Torture and Extrajudicial, Summery or Arbitrary Execution and to the Nepal representative of the Office of the High Commission for Human Rights calling for their intervention into this matter.

To support this appeal, please click here:

SAMPLE LETTER:

Dear ___________,

NEPAL: Allegations of torture to death of a minor in Rupendehi District must be independently investigated

Name of victim: Dharmendra Barai, 16 (DoB: 4 Dec 1994), son of Hariram Barai and Vidhyawati Barai, a permanent resident of Gonaha VDC-2, Puraini, Rupendehi district.

Names of alleged perpetrators:
1. Assistant Sub-Inspector Nar Bahadur Khatri, in charge of Khajuriya Police Post, Rupendehi district
2. Other policemen from Khajuriya Police Post, Rupendehi district
3. SuperIntendent of Police Sher Bahadur Basnet and SubInspector Shambhu Upadhaya from Rupendehi District Police Office (reported refusal to file an FIR into the case and request to the victim's father not to report the case)
4. Deputy Chief District Officer Pitamber Ghimire, Rupendehi District Administration Office(reported refusal to file an FIR into the case)

Date of incident: 3-4 July 2010
Place of incident: Khajuriya Police Office, Rupendehi district

I am writing to voice my deep concern regarding the lack of independent investigation to probe into the circumstances of the death of 16-year-old Dharmendra Barai while he was in custody of Khajuriya Police Post, in Rupendehi District, on 4 July. I am informed that there are strong suspicions that his death may be due to police torture, specifically that police may have applied electric shocks to the boy as there are pictorial evidence of injuries.

According to the information I have received from the Asian Human Rights Commission, the boy was arrested on 3 July because the police suspected his involvement in a lethal bicycle accident and, although he was a minor, he was kept in detention in the same conditions as adults. In the afternoon following his arrest, around 20 persons came to the police station to ask for his release and the boy reportedly complained that the police had aimed their rifles at him and threatened to shoot him. I am informed that at 4 am on 4 July, the victim was brought dead to the Bhim Hospital with several injuries on his body.

I know that an investigation team was set up by the District Administration Office, Rupendehi, to probe into the circumstances of the death which published its report on 3 August 2010. I am informed that the report concludes that "there is no sufficient proof to establish the torture is the cause of death" and limit itself to recommend compensation for the victim's family and departmental sanctions for the police officers but I am wary that the investigation may not have been completely independent and professional.

Indeed I am told that the investigation team was composed exclusively of three policemen (DSP Mr. Umal Prasad Chaturvedi from Rupendehi District Police Office, DSP Mr. Kushal Prasad Gadtoula from Lumbini Zonal Police Office and Investigation Officer Mr. Thakur Chandra K.C. from the District Office of National Investigation Department) under the leadership of a government official Mr. Pitamber Ghimire, Deputy Chief District Officer in Rupendehi District Administration Office and did not include any representative of the deceased's family or the civil society. I know that to protect the individuals from police torture, the impartiality of the investigations into all the allegations of torture is essential and that it implies that the investigation must be conducted by an independent authority with no connection to the alleged perpetrators. I am therefore very much concerned that having a team of police officers probing into the actions of their colleagues may not abide by the definition of independent investigations.

I am further informed that the forensic testing of the victim's viscera was done by the Central Forensic Lab of Nepal Police rather than by the National Forensic Lab, raising further questions regarding the credibility of its findings.

I am concerned that the conclusion that it could not be established that torture was the cause of death seems to be based on the postmortem report which mentions the cause of death as "unknown" but does not take into account the details of the injury records which mentions "a small contusion over left front head and right shoulder, an abrasion in the central part of his left palm and some redness over the right sole". I am also told that the investigation team did not consider pictures of the deceased's body showing that he had sustained different injuries that were provided by the victim's side and which could be signs of torture.

Moreover, although the authorities acknowledge that the death occurred while the victim was in police custody, it is reported that the investigation team did not properly interrogate the police officers on duty in the police station at the time of the death and limited themselves to asking general questions. The police officers, who interrogated Dharmendra while in detention, are to be held responsible for the death of the victim and should prove that they did not kill the boy.

I therefore consider that the investigation was not conducted in a truly impartial and professional manner and that doubts can be casted upon its findings.

The Home Ministry set up a 3-member investigation team on 18 July but that its report has not been made public yet.

I know that on 22 August, Hariram Barai-the victim's father, and Lal Bahadur Barai visited the Rupendehi District Police Office to file an FIR against the policemen allegedly involved in Dharmendra's death. I am concerned to hear that Superintendent of Police Mr. Sher Bahadur Basnet refused to file a complaint regarding the custodial death under the fallacious pretext that Hariram had already filed an FIR in that DPO regarding the same case. According to the information I have received, Hariram had only sent a written application in the name of the DPO to receive the dead body of his son after the postmortem.

SI Shambhu Upadhaya from the same police station upon reading the FIR that Hariram Barai wanted to file noticed that it mentioned the deceased's complaint that the police had threatened him with their rifles. I am appalled to hear that Hariram allegedly threatened Hariram that the police had already promised that they would recruit his (Hariram's) elder brother in the police force, on the condition that he should not report the case anywhere.

I know that Hariram and his relatives then turned to the Rupendehi District Administration Office and met with Deputy CDO Pitamber Ghimire, the chairman of the investigation team formed by the DAO. They asked him to issue an order in the name of DPO, Rupendehi to register the FIR but the Deputy CDO allegedly refused saying that as the FIR was addressed to the DPO, it could not be registered in the District Administration Office.

I am eventually told that the same day, Hariram Barai then sent the FIR by post in the name of both concerned authorities.

I consider that the victim's family has a right to justice and a right to know the truth about the circumstances of the death of their child, which imply that the independence of the investigation must be guaranteed, that they must be protected against attempts to intimidate them and that the police should accept to file an FIR in the case. I therefore urge you to:

1- ensure that a fully impartial and independent investigation will be conducted to probe into the circumstances of Dharmendra Barai's death. The investigation must be conducted by a truly impartial team and must include representatives of the victim's side and of the civil society and the alleged perpetrators must be suspended from duty for the length of the investigation.

2- grant adequate protection to the victim's family, the witnesses and their lawyers.

3- if the allegations of torture are believed to be well-founded, those found to have inflicted torture on the boy must be properly prosecuted and relieved from duty. Further, adequate compensation must be granted to the victim's family

4- ensure that the victim's father is allowed to file an FIR in this case

5- probe into the allegations that the DPO and the DAO refused to file the FIR and that police officers at the DPO tried to intimidate the victim's father into not reporting his case and if proven, take sanction against the wrongdoers.

Yours sincerely,

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

6. Minister for Women, Children and Social Welfare
Singha Durbar, Kathmandu
NEPAL
Fax: +977 1 4241516
Tel: +977 1 4241728/4241551
E-mail: info@mowcsw.gov.np

Thank you.

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

Document Type :
Urgent Appeal Update
Document ID :
AHRC-UAU-034-2010
Countries :
Issues :
Document Actions
Share |
Subscribe to our Mailing List
Follow AHRC
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.