Surya Prasad Sharma disappeared after he was arrested by the army in January 2002 from his home in Baglung district. His wife followed the soldiers and saw how they led her husband into the Kalidal Gulm army barracks. She later had a visit from a soldier who told her that her husband was being severely tortured. She was later told that her husband had escaped while being taken to identify a Maoist hide-out. In response to a habeas corpus petition filed in the Supreme Court in February 2003, all government authorities denied his arrest and detention. However, the Baglung Chief District Officer (CDO) informed the court that Mr. Sharma had tried to escape jumping in the river where he got drowned. A government committee set up to investigate disappearances provided the same information. In February 2005, the Supreme Court quashed the petition believing the CDO’s response.
In April 2006, Mrs. Sharma submitted a communication to the HRC under the Optional Protocol to the ICCPR. In October 2008, in its first ever case from Nepal considered under the Optional Protocol, the HRC found violations of Article 2(3) (the right to an effective remedy), Article 7 (the right not to be tortured), 9 (the right to liberty and security of person) and 10 (respect for the inherent dignity of a human person) of the ICCPR. It directed the government to thoroughly investigate the incommunicado detention and subsequent disappearance of Surya Prasad Sharma, to release him immediately if he is still alive, to provide adequate information resulting from its investigation, and adequate compensation for his wife and her family. The decision further affirms the state’s obligation to “not only conduct thorough investigations into alleged violations of human rights, particularly disappearances and acts of torture, but also to prosecute, try and punish those held responsible for such violations.” Amid sustained pressure from Mrs. Sharma, the Government in April 2009 responded to the Committee stating Mrs. Sharma will be provided with “interim relief” and that the disappearance of Mr. Sharma will be investigated by an Independent Disappearance Commission to be established “shortly”. In a further communication to the Committee, Mrs. Sharma contested the proposed follow-up by the government, arguing that the measures proposed did not meet the requirements set out by the Human Rights Committee in its view on the case.
Action taken: Following a meeting with the Secretary to the Council of Ministers on 23 November 2009 and a follow-up letter sent on 8 December 2009, the Government provided Mrs. Sharma with NRs 100,000 (additional to an earlier NRs 100,000 “interim relief” received by many “conflict victims”), bringing the total to NRs 200,000, the amount promised by the Government to the Human Rights Committee. A bill for the establishment of an Independent Disappearances Commission was put before the Parliament in April 2010. AF, together with other organizations, provided comments and worked with individual members of parliament to submit amendments to the bill. As of November 2010, amid a political stalemate in the country, the bill is pending before the Drafting Committee. In parallel, on 11 March 2010, AF sent an update to the Human Rights Committee, informing its members about the steps taken by the government to implement the View of the Committee, but maintaining that the interim relief cannot in any way be a substitute for proper compensation and wide reparation to Mrs Sharma; and continuing to argue that the Independent Disappearances Commission (which, according to the draft bill, will not have powers to prosecute) is not an appropriate mechanism; that instead a proper criminal investigation is warranted. The government provided further clarification to the Committee on its position that in a letter of 28 July 2010. A detailed response to the government’s response was submitted to the Committee on 30 November 2010, reiterating the earlier position that the interim relief cannot in any way be a substitute for proper compensation and reparation to Mrs. Sharma; and that the Commission to Investigate Disappearances and the Truth and Reconciliation Commission are not judicial bodies and therefore not appropriate mechanisms to address the state’s obligation to investigate and prosecute, try and punish those held responsible for grave human rights violations; that instead a proper criminal investigation is warranted. Given these two transitional justice mechanisms have not been established, the letter also argued that the government was failing in its duty to provide a guarantee of “prompt” investigation and prosecution.
Full Text of the HRC Decision Sharma Case.
