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NEPAL: Authorities refuse to register FIR concerning extra-judicial killings case

May 2, 2007

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ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal

3 May 2007
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UA-145-2007: NEPAL: Authorities refuse to register FIR concerning extra-judicial killings case

NEPAL: Access to justice denied; extra-judicial killing; impunity
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Dear Friends,

The Asian Human Rights Commission (AHRC) has received information from NGO Advocacy Forum Nepal that the District Police Office (DPO) and the District Administration Office (DAO) in Banke district, Nepal, have refused to register a First Information Report (FIR) concerning the extra-judicial killings in September 2002 of Mr. Dal Bahadur Thapa and his wife Parbati Thapa. According to the information received, the DPO refused to register the FIR on 25th April, and the DAO refused to register it on 30th April, 2007. Mr. Dal Bahadur Thapa's 60-year-old mother, Ms. Bhumisara Thapa, has lodged an appeal before the Appellate Court, Nepalgunj with the support of Advocacy Forum Nepal in order for the police to register the case.

CASE DETAILS:

On April 25, 2007, Ms. Bhumisara Thapa went to the District Police Office, Banke district, to file a First Information Report (FIR) concerning the killing of her son, Dal Bahadur Thapa, and daughter-in-law, Parbati Thapa. These two persons were allegedly shot dead by members of the then-Royal Nepal Army's Bhim Kali Battalion, Chisapani, Banke district, on September 10, 2002, at around 8:30 p.m, while they were sleeping at home.

Ms. Bhumi Sara Thapa was accompanied by Advocacy Forum Nepal lawyers and representatives from the Office of United Nations High Commissioner (OHCHR) Midwestern Regional Office, Nepalgunj. At the District Police Office, Banke, she requested the Deputy Superintendent of Police (DSP) to register the FIR. She explained the details of the incident to the DSP, but he refused to register the FIR. The DSP, Mr. Promod Kharel, stated that, "The FIR is against the army. The Superintendent of Police is not here now; I need to have order from above. So I cannot issue an order to file the case". The Superintendent of Police was on leave and had reportedly given his official authority to the DSP. Later the same day the team moved to the District Administration Office to register the FIR, however, the Chief District Officer (CDO) had already left the office.

On April 29, 2007, Ms. Bhumisara Thapa, again accompanied by the same group, visited the District Administration Office in Banke to register the FIR, but CDO Mr. Narendra Raj Sharma refused to register it. He stated that, "The FIR should be registered at the DPO. You need to prove that the police denied registering it but you don't have any such evidence. There are options to appeal against the DPO within the police administration, try that first before visiting here."

According to the State Cases Act of Nepal, the police office nearest  to the scene of a crime is responsible for registering a case report. In this case, it was the District Police Office, Banke district, but this office refused to register the complaint. A complaint was therefore made to the Chief District Officer at the District Administration Office, Banke, but he also refused to register the case.

As the registration of the FIR was denied by both the District Police Office and District Administration Office in Banke district, Ms. Bhumisara was left with no option but to lodge a petition of Mandamus before the Appellate Court, Nepalgunj, Banke district on April 30, 2007, asking for the court to issue an order demanding that the police observe their legal obligations arising under the State Cases Act 1992 and register the FIR.

The FIR concerning the extra-judicial killings in question was against army Major Ajit Kumar Thapa and Captain Mr. Ramesh Swar of the Bhim Kali Battalion, Chisapani, Banke district, who are allegedly responsible for the killings. The other respondents of the FIR include the then-chief of the Armed Police Force in Bageshowori, Banke district, and the commander of a search team from Bhim Kali Battalion, Chisapani. Under the State Cases Act, 1992, the DPO has the authority to entertain such reports and launch investigations into cases. In failing to register the case, this authority is failing to carry out its legal obligations. This is not an isolated case; the refusal to register FIRs is a major barrier to justice in many cases in Nepal and is a key factor that enables impunity for perpetrators. For example, another such case can be seen in UA-070-2007.

Further information concerning the killings:

35 year-old Mr. Dal Bahadur Thapa, and his wife, 30 year-old Parbati Thapa, who were residents of Naubasta Village Development Committee ward no. 6,  Banke district, were shot and killed by a group of 4 to 5 armed and uniformed Royal Nepalese Army personnel at about 8:30 pm, on September 10, 2002. They were reportedly killed in their home while they were sleeping as the result of indiscriminate firing of the soldiers. Their 10 month-old daughter also sustained bullet injuries - to her left flank and index finger of her left hand. Those responsible for the shootings reportedly left the area immediately, but later on a large group of Royal Nepal Army personnel from the Bhim Kali Battalion, Chisapani and the Nepal Armed Police from Bageshori, Nepalgunj arrived and harassed and ill-treated the victims' two children and mother. This search team was under the command of Captain Mr. Ramesh Swar from the Bhim Kali Battalion, Chisaapani, Banke district.

The security forces searched the victim's entire house but found nothing. Mr. Dal Bahadur was still alive and crying with pain, whereas his wife had already died. His mother tried to take him to the hospital, but the security forces took him and his wife's body with them. The security forces even took jewelry and money worth 11, 000 rupees during the search. The injured Dal Bahadur was taken away and it is believed that he also died as the result of his injuries, although the military have to date still not released either his or his wife's bodies.  Before leaving the home, the members of the search team reportedly scattered weapons and documents related to the Maoist insurgents, and the following day the media broadcast the news that two Maoists had been killed in a clash in the area.

SUGGESTED ACTION:

Please write letter to the concerned authorities listed below and urge them to ensure that the First Information Report (FIR) into the September 2002 extra-judicial killings of Mr. Dal Bahadur Thapa and his wife Parbati Thapa. The authorities must also be urged to investigate and punish Deputy Superintendent of Police (DSP) Mr. Promod Kharel of District Police Office, Banke district, and the Chief District Officer (CDO) Mr. Narendra Raj Sharma of District Administration Office, Banke district for any involvement in the refusal to register the FIR, and to put an end to this widespread practice in the country.


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Sample Letter:


Dear.............

NEPAL: Authorities refuse to register FIR concerning extra-judicial killings case

Name of the victims:
1. Mr. Dal Bahaur Thapa (aged 35 - husband)
2. Mrs. Parbati Thapa (aged 30 - wife), residents of Naubasta Village Development Committee ward no. 6,  Banke district, (killed)
Alleged perpetrators:
1. 4 to 5 armed and uniformed Royal Nepalese Army personnel from the Bhim Kali Battalion, Chisapani, Banke district (killings)
2. Deputy Superintendent of Police (DSP) Mr. Promod Kharel of District Police Office, Banke district (refusal to register FIR)
3. Chief District Officer (CDO) Mr. Narendra Raj Sharma of District Administration Office,Banke district (refusal to register FIR)
Place of Incident:
1. Naubasta Village Development Committee ward no. 6,  Banke district (killings)
2. District Police Office, Banke district, Nepal (refusal to register FIR)
3. District Administration Office, Banke district, Nepal (refusal to register FIR)

I am writing to voice my deep concern over the alleged extra-judicial killing of Mr. Dal Bahaur Thapa and his wife Mrs. Parbati Thapa in September 2002, and the continuing refusal by the authorities to register the case and bring justice. Deputy Superintendent of Police (DSP) Mr. Promod Kharel of the District Police Office, Banke district and the Chief District Officer (CDO), Mr. Narendra Raj Sharma, of the District Administration Office, Banke district, have refused to register a First Information Report (FIR) concerning this case. The refusal by the authorities to register cases is widespread in Nepal and leads to the denial of justice for victims and ongoing impunity for perpetrators.

According to the information I have received, on 25th April, the victim's mother, Ms. Bhumisara Thapa visited the District Police Office, Banke district, accompanied by Advocacy Forum Nepal lawyers and representatives from the Office of United Nations High Commissioner (OHCHR) Midwestern Regional Office, Nepalgunj. There she requested the Deputy Superintendent of Police (DSP) to register the FIR. She explained the details of the incident to the DSP, but he refused to register the FIR. The DSP, Mr. Promod Kharel, stated that, "The FIR is against the army. The Superintendent of Police is not here now; I need to have order from above. So I cannot issue an order to file the case". The Superintendent of Police was on leave and had reportedly given his official authority to the DSP. Later the same day the team moved to the District Administration Office to register the FIR, however, the Chief District Officer (CDO) had already left the office.

On April 29, 2007, Ms. Bhumisara Thapa, again accompanied by the same group, visited the District Administration Office in Banke to register the FIR, but CDO Mr. Narendra Raj Sharma refused to register it. He stated that, "The FIR should be registered at the DPO. You need to prove that the police denied registering it but you don't have any such evidence. There are options to appeal against the DPO within the police administration, try that first before visiting here."

As the registration of the FIR was denied by both the District Police Office and District Administration Office in Banke district, Ms. Bhumisara was left with no option but to lodge a petition of Mandamus before the Appellate Court, Nepalgunj, Banke district on April 30, 2007, asking for the court to issue an order demanding that the police observe their legal obligations arising under the State Cases Act 1992 and register the FIR.

The FIR concerning the extra-judicial killings in question was against army Major Ajit Kumar Thapa and Captain Mr. Ramesh Swar of the Bhim Kali Battalion, Chisapani, Banke district, who are allegedly responsible for the killings. The other respondents of the FIR include the then-chief of the Armed Police Force, Bageshowori, Banke district, and the commander of a search team from Bhim Kali Battalion, Chisapani. Under the State Cases Act, 1992, the DPO has the authority to entertain such reports and launch investigations into cases. In failing to register the case, this authority is failing to carry out its legal obligations. This is not an isolated case; the refusal to register FIRs is a major barrier to justice in many cases in Nepal and is a key factor that enables impunity for perpetrators.

I therefore urge you to take immediate action to ensure that the FIR concerning these extra-judicial killings be registered without any further delay and that the case be effectively and impartially investigated. An immediate and impartial investigation must also be launched into DSP Promod Kharel from District Police Office, Banke district, and Chief District Officer Mr. Narendra Raj Sharma from the District Administration Office, Banke district, for their role in the refusal to register the case. 

I thank you for the attention that you give these requests.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. Mr. Krishna Sitaula
Home Minister
Singha Darbar
Kathmandu
NEPAL
Fax: +977 1 4211232
Email: moha@wlink.com.np 

2. Mr. Yagya Murti Banjade
Attorney General
Office of Attorney General
Ramshahpath
Kathmandu
NEPAL
Fax: +977 1 4262582
Email: attnoney@mos.com.np

3. Chairperson
National Human Rights Commission
Pulchowck, Lalitpur
NEPAL
Fax: +977 1 5547973
Email: complaints@nhrcnepal.org or 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. SP Mr. Navaraj Silwal
Police HR Cell
Human Rights Cell
Nepal Police
Kathmandu
NEPAL
Fax: +977 1 4415593
Email: hrcell@nepalpolice.gov.np 


Thank you.

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

Document Type :
Urgent Appeal Case
Document ID :
UA-145-2007
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.