The Government of Nepal declared a state of emergency in response to a rebellion by the Maoist party and granted powers to the Royal Nepal Army to arrest individuals on suspicion of involvement in terrorist activities through and to keep them in detention for up to 90 days without charge. The first author, Sarita Devi Sharma, is the sister of Himal Sharma, Secretary-General of a Maoist-affiliated political party in Nepal. Ms. Sharma and her friend B.M. were followed and asked about Ms. Sharma’s brother, then they were handcuffed, placed in a van and taken to Army barracks. She was detained and held from October 2003 through 30 June 2005. Once her husband, the second author, became aware of her disappearance, he submitted an application to the National Human Rights Commission denouncing her disappearance and submitted a writ petition to the Supreme Court of Nepal demanding an order of habeas corpus, which the court rejected, claiming lack of evidence proving her illegal detention. He also informed Amnesty International about her disappearance, but they never received a reply from the Government when they inquired about her. During the first four-five months, she was routinely interrogated, beaten, held underwater for long periods of time and threatened with rape. After that, she suffered ill health and was taken to a hospital. In the hospital, she sent a letter secretly to her husband who, after several months of not hearing any further information, shared it with members of All Nepal National Independent Student Union Revolutionary who included information about her condition in a press release. As a result, Ms. Sharma was interrogated harshly and beaten. Ms. Sharma was then moved to a small, dark room and kept in isolation. Her husband filed a new petition for habeas corpus with the Supreme Court, which ordered her release. The Committee determined that Nepal produced no evidence to show that, while Ms. Sharma was held in incommunicado detention, it met its obligations to protect her life, and that this failure resulted in a violation of article 6(1) of the Covenant. In addition, the Committee found that the enforced disappearance and incommunicado detention of Ms. Sharma, and the acts of torture and conditions to which she was exposed constituted violations of article 7 of the Covenant. Further, the Committee concluded that the enforced disappearance and arbitrary detention of Ms. Sharma amounted to a violation of article 9 (1-4) of the Covenant. The enforced disappearance deprived her of the protection of the law and her right to recognition as a person before the law in violation of article 16 of the Covenant. The anguish and distress suffered by Ms. Sharma’s husband and son, the third author, due to her enforced disappearance also were found to constitute a violation of article 7 of the Covenant. The Committee determined that neither Ms. Sharma did not receive an adequate remedy (246,000 Nepalese rupees), in violation of article 2 (3), in conjunction with articles 6, 7, 9 (1-4) and 16, and her husband and son received no interim relief, which constituted a violation of article 2 (3), read in conjunction with article 7 of the Covenant. Moreover, the Committee stated that Nepal was obligated to provide an effective remedy. This remedy should include: (1) conducting a thorough and effective investigation into the facts surrounding the detention and the treatment suffered in detention; (2) prosecuting those responsible for the violations committed and making the results public; (3) providing detailed information about the results of the investigation to Ms. Sharma and her family; (4) ensuring that any necessary and adequate psychological rehabilitation and medical treatment is provided; and (5) providing adequate compensation and appropriate measures of satisfaction for the violations suffered. Further, in order to prevent the occurrence of similar violations in the future, the Committee stated that Nepal should ensure that its legislation: (1) criminalizes torture and enforced disappearance and provides for appropriate sanctions and remedies; (2) guarantees that such cases give rise to a prompt, impartial and effective investigation; (3) allows for the criminal prosecution of those found responsible for such crimes; and (4) amends the 35-day statutory limit for claiming compensation for torture, in accordance with international standards.
Sharma, et al. v. Nepal