NEPAL: Re-arrest of four people by the police in the court yard in the presence of the lawyers 

Dear friends,

The Asian Human Rights Commission (AHRC) has received information of another re-arrest of four people by security personnel in violation of court orders in Morang, Nepal on 14 July 2004. More seriously, it was reported that the security forces arrested these four persons as soon as they stepped out from the judge’s chamber at the Morang District Court even though four lawyers from the local Bar Association were present. Their whereabouts is currently unknown.

The four persons were initially arrested about nine months ago and held for “preventive detention” under the Public Security Act (PSA), which can hold detainees up to 12 months without charges. According to our source, these four persons were afraid to be released and felt safer in prison because they thought that they would be executed or disappeared once they were released. Since last year, Nepal tops the number of enforced disappearances in the region. Fearing the forced disappearance of people, NGO groups in Nepal are advocating that detainees should not be released without the presence of their family members or civic group members.

AHRC is deeply concerned by the security force’s repeated re-arrest of persons who were released by court orders, which is a systemic attempt to weaken the judiciary and rule of law in the country. Your urgent action is required to pressure the government of Nepal to stop abusing the process of law and re-arresting people released by the courts. In particular, please send a letter to Mr. Dolakha Bahadur Gurung, the Chief District Officer (CDO), Morang to find the whereabouts of the four victims as soon as possible. His contact information is mentioned below.

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
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DETAILED INFORMATION:

Name and address of the re-arrested persons:
1) Yek Raj Basnet, resides in Bahini –9, Morang
2) Khagendra Sambahamfe, resides in Indrapur-7, Morang
3) Ram Bahadur Ingaram, resides in Indrapur –7, Morang, arrested on 27 September 2003
4) Tek Bahadur Bista, resides in Darbesha, Morang
Alleged perpetrators: plain-clothes security force from Morang District (They can be identified by Mr. Dolakha Bahadur Gurung, the Chief District Officer (CDO)- Morang)
Date of incident: 14 July 2004
Place of incident: courtyard of Morang District Court

On 14 July 2004, the four persons mentioned above were arrested by security force personnel as soon as they were released by the Morang District Court. According to the information received, the security force personnel were in plain-clothes but the driver and guards in the vehicle were in uniform. After the government of Nepal unified its security forces including the army, police and armed police under the Terrorist and Disruptive Activities (Control and Punishment) Ordinance 2001 (TADO), it is very difficult to identify the security force personnel because they wear the same uniforms when they arrest people. However, our source informed us that they are from Morang District so the Chief District Officer (CDO), Morang can identify the perpetrators.

The detailed conditions of the arrest and detention of these four persons are not clear at this moment. It is only reported that they were arrested on different days by the security forces about nine months ago, remained disappeared for some months and were later found in prison in Morang. According to the prison records in Morang, the four victims were given detention orders on the same day (15 January 2004) for preventive detention under Public Security Act (PSA) for 90 days. Their detention order was extended again for another 90 days. In Nepal, under PSA, the person can be held for “preventive detention” up to 12 months without charges.

On July 12, the prison authority wrote a letter to the Morang District Court to release these four persons as they had spent the “authorized” term under PSA. When the person who detained under this Act is released, the PSA states that the person should be released in the presence of the judge of the district court or the registrar in his absence. It is also reported that these four persons were very afraid to be released because they thought that they would be executed or disappeared once they get released so they asked the prison authorities to release them only in the presence of persons from independent institutions or bodies. After receiving the request letter, the Morang District Court asked the local bar association to receive these four persons and four lawyers from the Bar Association signed the paper for receiving detainees. (The re-arrest and disappearance of the released detainees has been increased recently and the court itself is very vulnerable).

However, on July 14, as soon as the four persons came out from the judge’s chamber of Morang District Court, all of them were re-arrested by the plain-clothes security personnel even though four lawyers accompanied them. Ignoring the lawyers’ protest, the security forces pulled the victims into the vehicle parked in the courtyard and took them away. The four persons’ whereabouts is now unknown.

This is the third re-arrest case reported by AHRC. AHRC has previously reported that the armed security police attempted to re-arrest seven persons who were released from Banke Prison in Nepalgunuj on 21 June 2004. (Refer to: UA-74-2004: NEPAL: Seven persons facing re-arrest by the police in violation of a court order). After AHRC issued urgent appeal calling for the local authorities to drop their action, the seven people went back home by the intervention of the Deputy Inspector General. AHRC also has reported that Kesham Bahadur Tharu (33) and Man Bahadur Gharti (51) were re-arrested by security personnel of the district office of Banke just five minutes after their release from the Central Jail in Nepalgunj by a court order on May 17. (Refer to: UA-51-2004: NEPAL: Re-arrest of two individuals by district police after court ordered their release)

The systematic re-arrest of individuals indicates the failure of the judicial system in Nepal as the judiciary cannot safeguard the authority of its decision or stop the security forces from abusing the legal process by re-arresting individuals freed by the courts. Therefore, AHRC calls for the government of Nepal to find out the whereabouts of these four victims and release them immediately. Also, the government of Nepal should stop re-arresting people released by court and abusing the process of law.

BACKGROUND INFORMATION:

Now, the human rights groups in Nepal are deeply concerned about the repeated attempts by the security forces in particular the Royal Nepal Army (RNA) to weaken the judiciary by re-arresting released persons according to court orders. Human rights groups in Nepal believe that hundreds of people have been detained incommunicado and tortured severely in different army barracks. Several Nepali local newspapers reported recently that the RNA sent a letter to the Supreme Court and the National Human Rights Commission (NHRC) of Nepal, which stated that RNA would not allow anyone to enter any of its units without permission from ‘above.’ The letter was a response to the NHRC, who had objected to not being given access to army barracks to meet detainees. The letter is also a response to the Supreme Court which had sent a letter to the RNA to respect its orders. According to the Constitution of Nepal, no one can be detained more than 24 hours without the permission of the courts.

However, under PSA, the person can be held for “preventive detention” up to 12 months without charges. Also, King Gyanendra issued TADO which is used as the country’s National Security Law. Many individuals detained under TADO were minors, and many are still missing even months or years after the date of their (often undocumented) arrests. Several individuals who were released due to a successful writ of habeas corpus found that they were re-arrested minutes or hours after their “release.” In its Annual Report 2004, Amnesty International mentioned that following the breakdown of the cease-fire last August, more than 150 people were reported to have “disappeared” after arrest during counter-insurgency operations by the security forces in Kathmandu and other districts.

SUGGESTED ACTION:
Please send a letter to the addresses below and express your concern about this case. Please especially send a letter to Mr. Dolakha Bahadur Gurung, the Chief District Officer (CDO)- Morang to find the whereabouts of the four victims as soon as possible.

Mr. Dolakha Bahadur Gurung
Chief District Officer – Morang
Tel/fax: +977 21 530 372

2. Mr. Raju Nepali
Royal Nepal Army
Human Rights Cell
Tel/fax: +977 1 4245020

3. Shyam Bhakta Thapa
Inspector General of Police
Police Headquarters,
Naxal, Kathmandu,
NEPAL
Fax: + 977 1 4 415 593 / 415 594

4. H. E. Gyan Chandra Acharya
Ambassador
Permanent Mission of the Kingdom of Nepal
81 rue de la Servette,
1201 Geneva,
SWITZERLAND
Fax: +4122 7332722
E-mail: mission.nepal@ties.itu.int

5. 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

6. Ms Manuela Carmema Castrillo
Working group on arbitrary detention
C/o OHCHR-UNOG,
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9006

7. Mr. Theo C. van Boven
Special Rapporteur on the Question of Torture
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9016

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