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NEPAL: Two girls and five other detainees are refused adequate access to lawyers and family members by the Udaypur police

December 23, 2005

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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal

23 December 2005
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UA-245-2005: NEPAL: Two girls and five other detainees are refused adequate access to lawyers and family members by the Udaypur police

NEPAL: incommunicado detention; risk of torture; children’s rights
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Dear friends,

The Asian Human Rights Commission has been informed by a reliable source that two girls, aged 12 and 15, and five other detainees were arrested on 26 November 2005 by the Nepalese army on allegations of being involved in ‘terrorist activities.’ They have been detained incommunicado until December 15, 2005, when a human rights lawyer was finally allowed to meet with the two girls and another member of the group, 28 year-old Geeta Khada, albeit briefly and in the presence of police officers.  Both children reportedly requested to be allowed to see their parents at that time.

All seven detainees were previously being refused access to lawyers and their families by the District Police Office in Udaypur. The other four detainees continue to be detained incommunicado and there are serious concerns that they may be being subjected to torture. Torture is systematically practiced in Nepal and those being held incommunicado are at greatest risk of being subjected to such treatment.

Under the Constitutional of Nepal, the police can only hold persons in custody for 24 hours following their arrest before producing them before court, which then decides whether the persons can be detained for a further period of time. It is reported that the District Police Office in Udaypur only registered these persons’ arrests on December 4, 2005, before producing them in court. The practice of falsifying arrest dates is used routinely to bypass the provisions of the Constitution, and is part of the system that enables widespread torture in Nepal.

On December 6, 2005, all seven detainees were reportedly taken to the Appellate Court in Rajbiraj for a decision concerning the extension of their period of remand. The court extended their detention for a further 30 days. Under the Terrorist and Disruptive Activities (Control and Punishment) Ordinance (TADO), they can be detained for a maximum period of two months.

There are serious concerns regarding the personal integrity of the detainees as a result of the police’s refusal to grant access to lawyers and the families of the detained. Furthermore, legal provisions in Nepal provide for children to be held in rehabilitation centers, not in police detention facilities, as is the case here. Children are particularly vulnerable to abuse under such detention conditions, but the authorities have so far taken no action to transfer the two girls to appropriate and legal detention facilities.

We urge your strong intervention in this case. The authorities in Nepal must guarantee the personal integrity of the detainees and ensure that they are all allowed to have adequate access to lawyers and their families. These persons should be released without delay in the absence of valid legal charges against them. Furthermore, if valid legal charges exist, the two children must be immediately transferred to a rehabilitation center, as required by law.

A thorough and impartial inquiry must be initiated concerning the alleged falsification of the date of arrest by the police. If these allegations are found to be true, appropriate sanctions must be laid against the concerned policemen. This is vital if this practice is to be halted in the country. Allegations of torture or other ill-treatment must also be fully investigated and the perpetrators must be identified and prosecuted.


Urgent Appeals Programme
Asian Human Rights Commission
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DETAILED INFORMATION:

Name of the victims: Ms X, 12 years old; Ms Y, 15 years old, Karna Bahadur Rai (known as Krishna), Gopal Rai, Jeeban Rai and Geeta Khadka (known as Ajeeta) and one unidentified person
Date of arrest and place of detention: 26 November 2005 up to present at the District Police Office in Udaypur
Alleged perpetrators: Mr. Madav Basnet, Dy, Superintendent of the Police (SP) of the District Police Office DPO

Case details:

On November 26, 2005, two girls - aged 12 and 15 - were allegedly arbitrarily arrested by the Nepalese army, along with five other persons, namely: Karna Bahadur Rai (known as
Krishna), Gopal Rai, Jeeban Rai and Geeta Khadka (known as Ajeeta). They were accused of involvement in ‘terrorist activities’ and have been detained incommunicado by the police, giving rise to serious concerns that they may be being subjected to torture and/or forced disappearance.

Following their arrest by the army, they were reportedly handed over to the District Police Office in Udaypur, where they are presently detained. However, while in police custody, the detainees have been prevented from having access to lawyers and family members. It is reported that human rights groups who provide legal aid to detainees, have also been denied access to the detainees. Police officer Madav Basnet, the Dy.S.P of the District Police Office had reportedly refused access to a human rights lawyer, saying: “why should we allow you anti-monarch to interview the detainees’?

Under the Constitutional of Nepal, the police can only hold persons in custody for 24 hours following their arrest before producing them before court, which then decides whether the persons can be detained for a further period of time. It is reported that the District Police Office in Udaypur only registered these persons’ arrests on December 4, 2005, before producing them in court. The practice of falsifying arrest dates is used routinely to bypass the provisions of the Constitution, and is part of the system that enables widespread torture in Nepal.

The human rights lawyer was finally able to meet with the two girls and 28 year-old Geeta Khada on December 15, 2005. The meeting between the detainees and lawyer, which was held in the presence of the police, however, did not last long. The lawyer was not allowed to conduct a full interview and record the information. The other detainees were also not allowed to meet with the lawyer. Madav Basnet was quoted as saying: 'it is at my discretion whether to allow you or not and whom to allow or not.'

According to Ms X, sometime in June 2005 some Maoist activists came to their village and recruited her. Ms Y said that in September 2005, she was forcibly taken by the Maoists and could not escape thereafter. They had both been studying in grade 5 at the time. Both of them were allegedly tasked with performing ‘cultural programmes’ and cooking, not carrying out any so-called ‘terrorist activities’ that could be deemed a threat to state security, necessitating their detention.

SUGGESTED ACTION:

Please send letters to the concerned government agencies in Nepal and raise your concerns on this matter. The detainees must be released without delay in the absence of valid legal charges. Furthermore, if valid legal charges exist, the two children must be immediately transferred to a rehabilitation center, as required by law. A thorough and impartial inquiry must be initiated concerning the alleged falsification of the date of arrest by the police. If these allegations are found to be true, appropriate sanctions must be laid against the concerned policemen. This is vital if this practice is to be halted in the country. Allegations of torture or other ill-treatment must also be fully investigated and the perpetrators must be identified and prosecuted.

Suggested letter:


Dear ________,

Re: NEPAL: two girls and five other detainees are refused adequate access to lawyers and family members by the Udaypur police

Name of the victims: Ms X, 12 years old; Ms Y, 15 years old, Karna Bahadur Rai (known as Krishna), Gopal Rai, Jeeban Rai and Geeta Khadka (known as Ajeeta) and one unidentified person
Date of arrest and place of detention: 26 November 2005 up to present at the District Police Office in Udaypur
Alleged perpetrators: Mr. Madav Basnet, Dy, Superintendent of the Police (SP) of the District Police Office DPO

I am writing to draw your attention to the condition of seven detainees, two of whom are children, at the District Police Office in Udaypur following their arrest on 26 November 2005. I have received information that the policemen have refused to allow them adequate access to lawyers and their families.

According to the information I received, the detainees, namely Ms X, 12 years old; Ms Y, 15 years old, Karna Bahadur Rai, Gopal Rai, Jeeban Rai and Geeta Khadka and one other unidentified person, were detained in secret since their arrest, leading to fears that they may be being tortured. A lawyer was able to have a brief meeting with the two girls and    on December 15, 2005. The authorities have failed to transfer the two children to a rehabilitation center, as required by law.

I am deeply concerned by the abuses of power by the police, as exemplified in particular Mr. Madav Basnet, Dy, who is the Superintendent of the Police (SP) of the District Police Office DPO.

I urge your intervention to demand an immediate and impartial investigation into the police’s actions. The detainees’ rights to have access to legal assistance and families must be strictly observed under all circumstances. If allegations against the police are found to be true, appropriate sanctions must be imposed upon them. The police must likewise be investigated regarding allegations that they falsified the detainees’ date of arrest.

Furthermore, I strongly urge your intervention to ensure the immediate release of the detainees in the absence of valid legal charges. The interpretation of ‘terrorist activities’ must not be used as a pretext to violate the rights of persons who do not represent a real threat to the state. In the case that valid legal charges exist, the authorities must immediately transfer the two children to rehabilitation centers, as required by law.

I trust that you will take action in this case without delay.

Yours sincerely,


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PLEASE SEND A LETTER TO:

1. His Majesty King Gyanendra
Narayanhity Royal Palace
Durbar Marg
Kathmandu
NEPAL
Tel: 977 14 413577/227577
Fax: 977 14 227395/ 411955

2. Colonel Pankaj Karki
Officer of Royal Nepal Army Human Rights Cell
Human Rights Cell
Singha Durbar
Kathmandu
NEPAL
Telefax: + 977 14 245 020/226 292

3. Pawan Ojha
Attorney General
Office of the Attorney General
Ramshahpath, Kathmandu
NEPAL
Tel: +977 14 262548 (direct line)/262394 (through Personal Assistant)
Fax: +977 14 262582
Email: fpattorney@most.gov.np

4. Mr. Nain Bahadur Khatri
Chairman of the National Human Rights Commission
Pulchowck, Lalitpur
NEPAL
Tel: +977 1 5 547 974 or 525 659 or 547 975
Fax: +9771 5 547 973
Email: nhrc@ntc.net.np

5. Ms. Yakin Erturk
Special Rapporteur on Elimination of violence against women
c/o Ms Lucinda Ohanlon
Room 3-042
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9615
Fax: +41 22 917 9006
Email: lohanlon@ohchr.org

6. Mr. Ian Martin
Chief of Mission
Office of the United Nations High Commissioner for Human Rights- Nepal Office
UN House, Pulchowk
Kathmandu
NEPAL
Tel: (977) 1 5524 366 or 5523 200
Fax: (977) 1 5523 991 or 5523 986
Email: hrinfounit@undp.org

7. Ms Leila Zerrougui
Chairperson
Working Group on Arbitrary Detention
c/o Miguel de la Lama
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9006 (ATTENTION: Working Group on Arbitrary Detention)
Email: mdelalama@ohchr.org


Thank you.

Urgent Appeals programme
Asian Human Rights Commission (AHRC)

Document Type :
Urgent Appeal Case
Document ID :
UA-245-2005
Countries :
Issues :
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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.