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NEPAL: Legal aid NGO is denied access to detainees for their attempt to file a murder case against state security forces

March 2, 2007

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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal

2 March 2007
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UA-070-2007: NEPAL: Legal aid NGO is denied access to detainees for their attempt to file a murder case against state security forces

NEPAL: Denial of justice; persecution against human rights defenders; torture; extra-judicial killings; rape
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Dear friends,

The Asian Human Rights Commission (AHRC) has learned that Advocacy Forum, one of the leading human rights organizations in Nepal providing legal aid services to detainees, has been refused access to prisoners at the Kanchanpur detention centre since 7 February 2007.  The organisation has been allegedly accused of meddling with police matters for demanding that their clients be granted access to food. However, Advocacy Forum has been investigating an alleged murder/rape case involving state security forces and believes that they have been denied access to prisoners as punishment for pursuing the case. 

CASE DETAILS:

Since 7 February 2007, Superintendent of Police (SP) Mr. Chabi Lal Banjade has allegedly denied the Advocacy Forum lawyers' access to detainees in district police office Kanchanpur. The SP began demanding that the lawyers provide a permission slip by saying 'do you have any written order to visit the detention centres?' When the Advocacy Forum lawyers pleaded with the SP and said that their organisation has been visiting detention centres for over 3 years, he replied "Advocacy Forum regularly visited detainees in custody for 3 years presenting its own power but now I can't allow you to visit." At which point on February 15, the Advocacy Forum lodged a complaint against the SP at Kanchanpur, Police Headquarter and with the Human Rights Cell of the Police.

On February 18, Ram Chandra Giri, Advocacy Forum advocate and coordinator of the custody visit programme, spoke with SP Chabi Lal Banjade. The SP allegedly reported that 'when lawyers started demanding food for the detainees who were not taken to the court, the problem aroused. We can not provide food for detainees who are not taken to the court, as we do not have the budget for that, Advocacy Forum lawyers keeps making unnecessary scrutiny on us in many aspects which hampers our investigation'.

The Advocacy Forum voiced its concern over food since many detainees in police detention centres complain that they do not receive any for many days. Generally, the prison authority does not provide food for detainees before they are taken to court. Legally, the detainees are supposed to be taken to court within 24 hours of the arrest, but in practice the period may be exceed by many days. Thus, in many situations, detainees have to depend on others' leftover food or will remain hungry for days.

Then on February 20, Advocacy Forum lawyers Tirtha Pant and Sumitra Karki went to District Police Office (DPO), Kanchanpur, the SP allegedly told them 'you can meet the detainees today, on 20 Feb., but not from tomorrow, I will talk to you tomorrow' in the meantime, inspector Deepak Regmi and DSP of the same DPO said, "you want to meet detainees separately but it is difficult as there are some serious cases". This was said despite the fact that Nepal's constitution demands that legal counselling with a detainee is conducted in confidence.

On February 23, Advocacy Forum lawyers persistently reported their case again to the Human Rights Cell of Police. Ram Chandra Giri spoke with the Police Inspector of HR Cell Mr. Manoj K. C. regarding the obstacles. Advocacy Forum lawyer was left assured that the HR Cell would try to solve the problem and send a letter to the DPO Kanchanpur by February 25 and again on February 27. Regrettably, the problem remains unsolved.

BACKGROUND:

Advocacy Forum is an organisation providing legal aid to prisoners in police detention centres.  Since there is no state mechanisms that ensure detainees have access to lawyers as promised by the constitution of Nepal, the Advocacy Forum has had to take a proactive approach in providing legal aid. This involves Advocacy Forum lawyers visiting different detention centres regularly in order to provide pro bono legal services. Advocacy Forum's important work has a direct impact on curbing the human rights violations such as torture, illegal detention and extrajudicial killings by documenting how prisoners are being treated.  Over the past 3 years, the Advocacy Forum has been visiting 35 detention centres throughout the country after an agreement was reached between the police authority (Police Human Rights Cell) and Advocacy Forum. The police authority gave permission for the Advocacy Forum to monitor human rights and provide legal aid. Advocacy Forum is the only NGO in country that has been given this authority and Kanchanpur DPO is the only detention centre that the group has been refused entry. 

On 7 February 2007, the Kanchanpur DPO allegedly denied Advocacy Forum the right to file a first information report (FIR) in a case that is against the states security forces.  Advocacy Forum had been providing legal assistance to two victim's family who were killed by security forces on 17 August 2004.  Early that morning, security forces allegedly cordoned of the house of two brothers named Nar Bahadur Budamagar (aged 40) and Ratan Bahadur Budamagar (aged 32).  It is alleged that the officers beat their eyes and legs while in custody. When the two men's wives came to their aid, one was kicked on the chest and pushed inside the house, while the other was taken to a nearby cowshed and reportedly raped. The two brothers were then allegedly marched around the village for three hours and finally shot dead in the nearby jungle at Paltekhani of Satya Chautari at around 2:30 p.m. The father and youngest brother of the deceased were also tortured, while the security forces looted 90,000 rupees (USD 1,335) from the mother's house. The two brothers were residents of Jogbudha VDC-4, Gajaligada Dadeldhura district.

Since there was no investigation in this case, the family members requested legal aid from Advocacy Forum to help them file a First Information Report (FIR) demanding that a criminal investigation be launched.  According to the State Cases Act of Nepal, the nearest police office to the scene of the crime is responsible for filing the case report.  In this case, it was the Kanchanpur DPO who were responsible and who also refused to register the complaint without providing any reason.  The Advocacy Forum then complained to the Chief District Officer (CDO) who also refused to register the case allegedly because security officers were the accused. 

Then on February 22, Advocacy Forum Lawyers went to the Appellate Court asking for a court order demanding that the police observe their legal obligations. At the time, Advocacy Forum lawyers were told by several sources that 'you have to be careful' implying that the lawyers security was at risk for their support of the victims challenging the states security forces. On February 25, the Appellate Court issued a show cause order to the District Police Office and District Administration Office of Kanchanpur regarding the case; however, no replies have yet to be scene. 

SUGGESTED ACTION:
Please write the relevant Nepalese authorities and demand the ADVOCACY FORUM be allowed to continue their legal aid programme in Kanchanpur, Nepal. Please ask them investigate SP Mr. Chabi Lal Banjade for his role in this denial of justice.  Also urge authorities to immediately grant permission for the ADVOCACY FORUM to pursue their case against the state security forces. 

To support this appeal, please click:

Sample letter:

Dear __________,

NEPAL: Legal aid NGO is denied access to detainees for their attempt to file a murder case against state security forces

Victims:
1) Advocacy Forum, Local NGO offering legal aid to detainees
2) Two brothers namely Nar Bahadur Budamagar (aged 40) and Ratan Bahadur Budamagar (aged 32); residents of Jogbudha VDC-4, Gajaligada Dadeldhura district (killed) 
Those responsible: 
1) Superintendent of Police (SP) Mr. Chabi Lal Banjade of the District Police Office (DPO), Kanchanpur
2) Inspector Deepak Regmi of the DPO, Kanchanpur
3) Chief District Officer (CDO) of Kanchanpur
Place of incident: Kanchanpur Police District Office, Nepal
Date of incident: Since 7 February 2007 to date

I am writing to voice my deep concern over the Superintendent of Police (SP) Mr. Chabi Lal Banjade decision to deny local NGO Advocacy Forum (AF) access to detainees on 7 February 2007. I am also concerned that Advocacy Forum has been refused the right to file its case against the states security forces for allegedly extra-judicially murdering two brothers named Nar Bahadur Budamagar and Ratan Bahadur Budamagar.      

According to the information I have received, since 7 February 2007, SP Mr. Chabi Lal Banjade has denied the Advocacy Forum lawyers' access to detainees in district police office Kanchanpur. The SP allegedly told the lawyers, "Advocacy Forum regularly visited detainees in custody for 3 years presenting its own power but now I can't allow you to visit." At which point on February 15, the Advocacy Forum lodged a complaint against the SP at Kanchanpur, Police Headquarter and with the Human Rights Cell of the Police.

In fact, over the past 3 years, the Advocacy Forum has been visiting 35 detention centres throughout the country after an agreement was reached between the police authority (Police Human Rights Cell) and Advocacy Forum. The Kanchanpur DPO is the only detention centre that the group has been refused entry.

I have also learned that when Ram Chandra Giri, Advocacy Forum advocate and coordinator of the custody visit programme, spoke with SP Chabi Lal Banjade on February 18, the SP allegedly said that ‘when lawyers started demanding food for the detainees who were not taken to the court, the problem aroused. We can not provide food for detainees who are not taken to the court, as we do not have the budget for that, Advocacy Forum lawyers keeps making unnecessary scrutiny on us in many aspects which hampers our investigation'.

I am informed that legally, the detainees are supposed to be taken to court within 24 hours of the arrest in Nepal, but in practice the period may be exceed by many days. Thus, in many situations, detainees have to depend on others' leftover food or will remain hungry for days.

On February 20, Advocacy Forum lawyers Tirtha Pant and Sumitra Karki went to District Police Office (DPO), Kanchanpur, the SP told them 'you can meet the detainees today, on 20 Feb., but not from tomorrow, I will talk to you tomorrow' in the meantime, inspector Deepak Regmi and DSP of the same DPO said, "you want to meet detainees separately but it is difficult as there are some serious cases". This was said despite the fact that Nepal's constitution demands that legal counselling with a detainee is conducted in confidence.

Then on February 23, Advocacy Forum lawyers persistently reported their obstacles again to the Human Rights Cell of Police. Ram Chandra Giri spoke with the Police Inspector of HR Cell Mr. Manoj K. C. regarding the obstacles. However, I understand that the problem remains unsolved.

This situation deeply upsets me because I know that on 7 February 2007, the Kanchanpur DPO denied Advocacy Forum the right to file a first information report (FIR) in a case that is against the states security forces. Advocacy Forum had been providing legal assistance to two victims' family who were killed by security forces on 17 August 2004.  Early that morning, security forces allegedly cordoned of the house of two brothers named Nar Bahadur Budamagar and Ratan Bahadur Budamagar, severely beat them and raped one of their wives. The brothers were then allegedly shot dead in the nearby jungle at Paltekhani of Satya Chautari at around 2:30 p.m. The father and youngest brother of the deceased were also allegedly tortured, while the security forces looted 90,000 rupees (USD 1335) from the mother's house.

I am informed that the family members contacted Advocacy Forum to help them file an FIR demanding that a criminal investigation be launched.  According to the State Cases Act of Nepal, the nearest police office to the scene of the crime is responsible for filing the case report.  In this case, it was the Kanchanpur DPO but they refused to register the complaint without providing any reason.  The Advocacy Forum complained to the Chief District Officer (CDO) who also refused to register the case allegedly because security officers were the accused. 

Although the Advocacy Forum has submitted their complaint to the Appellate court regarding this case, no action has been taken on the part of the DPO despite the court issuing a show cause order.  I am highly suspicious that the police are engage in corrupt practices that may put the lives of the Advocacy Forum lawyers in jeopardy. I know that Advocacy Forum lawyers were told by several sources that 'you have to be careful' implying that the lawyers security was at risk for their support of the victims challenging the states security forces.

I ask that you please allowed the Advocacy Forum to continue their legal aid programme in Kanchanpur.  I also ask that you launch an immediate and independent investigation into SP Mr. Chabi Lal Banjade for his role in this denial of justice.  I also urge you to use all your power to bring about an investigation headed by the Advocacy Forum in pursuing their case against the state security forces. 

I look forward to hearing about the positive steps that your department is making to end this injustice.  

Yours sincerely,


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PLEASE SEND YOUR LETTERS TO:

1. Mr. Krishna Sitaula
Home Minister
Singha Darbar
Kathmandu
NEPAL
Fax: +977 1 4211286
Email: homehmg@wlink.com.np 

2. Mr. Yagya Murti Banjade
Attorney General
Office of Attorney General
Ramshahpath, Kathmandu
NEPAL
Fax: +977 1 4262582
Email: rewtrp@hotmail.com 

3. Chairperson
National Human Rights Commission
Pulchowck, Lalitpur
NEPAL
Fax: +977 1 55 47973
Email: complaints@nhrcnepal.org/ nhrc@nhrcnepal.org 

4. Mr. Om Bikram Rana
Inspector General of Police
Police Head Quarters, Naxal
Kathmandu
NEPAL
Fax: +977 1 4415593
Email: info@nepalpolice.gov.np  

5. Police HR Cell
Human Rights Cell
Nepal Police
Kathmandu
NEPAL
Email: hrcell@nepalpolice.gov.np 
 
6. Ms. Hina Jilani
Special Representative of the Secretary General for human rights defenders
Att: Melinda Ching Simon
Room 1-040
C/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 93 88
Fax: +41 22 917 9006 (ATTN: SPECIAL REPRESENTATIVE HUMAN RIGHTS DEFENDERS)

7. Mr. Philip Alston
Special Rapporteur on Extra-judicial, Summary, or Arbitrary Executions
Attn: Lydie Ventre
Room 3-016
c/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9155
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR EXECUTIONS)


Thank you.

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

Document Type :
Urgent Appeal Case
Document ID :
UA-070-2007
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.