संयुक्त राष्ट्र संघीय मानव अधिकाकर समतिले आफ्नो सिफारिश तथा निश्कर्षहरु चैत १२ गते प्रकाशित गरेको छ, जसमा समितिले तराई क्षेत्रमा भएको गैरकानूनी हत्या, हिरासतमा भएको मृत्यु तथा हिरासतमा दिनेगरिएको यातना तथा हिरासतमा गर्नेगरिएको अमर्यादित व्यवहारका सम्बन्धमा चिन्ता व्यक्त गरेको छ । समितिले कानून कार्यान्वयन गर्ने अधिकारीहरुद्वारा हुने अत्यधिक शक्तिको प्रयोग रोक्नका लागि व्यवहारिक कदम चाल्नका लागि पनि सुझाव दिएको छ । उच्च सतरीय आयोग वनाई यस्ता आरोपहरुलाई छानवीन गर्न संसद व्यवस्थापीकामा रहेका सभासदहरुले यो बिषयमा आवाज उठाउन जरुरी छ ।
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Concluding observations of the second
periodic report of Nepal*
1. The
Committee considered the second periodic report submitted by Nepal
(CCPR/C/NPL/2) at its 3050th and 3051st meetings (CCPR/C/SR.3050 and
CCPR/C/SR.3051), held on 18 and 19 March 2014. At its 3061st meeting
(CCPR/C/SR.3061), held on 26 March 2014, it adopted the following concluding
observations.
A. Introduction
2. The
Committee welcomes the submission of the second periodic report of Nepal, which
was due in 1997, and the information presented therein. It expresses
appreciation for the opportunity to engage in a constructive dialogue with the
State party’s delegation on the measures that the State party has taken since
its last review in 1994 to implement the provisions of the Covenant. The
Committee is grateful to the State party for its written replies
(CCPR/C/NPL/Q/2/Add.1) to the list of issues, which were supplemented by the
oral responses provided by the delegation.
B. Positive aspects
3. The
Committee welcomes the following legislative and institutional steps taken by
the State party:
(a) The signing of the Comprehensive
Peace Accord in 2006;
(b) The adoption of the interim
Constitution in 2007;
(c) The introduction of a third gender in
various official documents, including citizenship certificates, pursuant to the
Supreme Court judgment of 21 December 2007; and
(d) The
establishment of the second Constituent Assembly in January 2014 and the
appointment of the Cabinet in February 2014.
4. The
Committee welcomes the ratification by the State party of the following
international instruments:
(a) The Second Optional Protocol to the
Covenant in 1998;
(b) The Optional Protocol to the
Convention on the Rights of the Child on the involvement of children in armed
conflict in 2006;
(c) The Optional Protocol to the
Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography in 2007;
(d) The Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women in
2007;
(e) The United Nations Convention against
Transnational Organized Crime in 2006 and the Protocol to Prevent, Suppress and
Punish Trafficking in Persons, Especially Women and Children, supplementing the
Convention, in 2008; and
(f) The Convention on the Rights of
Persons with Disabilities and its Optional Protocol in 2010.
C. Principal matters of concern and
recommendations
Impunity
for gross violations committed during the conflict
5. The
Committee is concerned at the prevailing culture of impunity for gross
violations of international human rights law and serious violations of
international humanitarian law committed during the ten-year conflict from 1996
to 2006, including extrajudicial killings, enforced disappearances, torture,
sexual violence and arbitrary detention. In particular, it expresses concern
at:
(a) The lack of investigation and
prosecution of perpetrators, exacerbated by political interference in the
criminal justice system, such as the refusal by the police to register First
Information Reports, pressure exerted on law enforcement officials not to
investigate or prosecute certain cases, and extensive withdrawal of charges
against persons accused of human rights violations; noting that not a single conflict
related case has been successfully prosecuted through the criminal justice
system;
(b) The denial of effective remedies to
victims, noting that only limited monetary forms of assistance have been
provided to some victims or their relatives under the Interim Relief Programme
while others have been excluded, including victims of torture, rape and other
forms of sexual violence; and
(c) The lack of a vetting system to
exclude persons accused of serious human rights violations from holding public
office and the practice of promoting such individuals instead (arts. 2, 3, 6,
7, 9, 10 and 16).
The
State party should:
(a) Ensure
that all gross violations of international human rights law, including torture
and enforced disappearances, are explicitly prohibited as criminal offences
under domestic law;
(b) End
all forms of political interference in the criminal justice system and
undertake independent and thorough investigations into alleged conflict-related
cases of human rights violations, and hold the perpetrators accountable without
any further delay. The Committee stresses that transitional justice mechanisms
cannot serve to dispense with the criminal prosecution of serious human rights
violations;
(c) Create,
as a matter of priority and without further delay, a transitional justice
mechanism in accordance with the Supreme Court writ of mandamus of 2 January 2014 and ensure its
effective and independent functioning in accordance with international law and
standards, including by prohibiting amnesties for gross violations of
international human rights law and serious violations of international
humanitarian law;
(d) Ensure
that all victims are provided with an effective remedy, including appropriate
compensation, restitution and rehabilitation, taking into account the Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims
of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law (A/RES/60/147); and
(e) Adopt
guidelines for vetting to prevent those accused of violations of the Covenant
from holding public office and being promoted.
Views
under the Optional Protocol to the Covenant
6. While
welcoming the commitment expressed by the State party delegation to fully
implement the Views of the Committee adopted under the first Optional Protocol,
and noting that “interim relief” has been provided to some victims, the
Committee expresses concern at the failure of the State party to implement the
Views of the
Committee (art. 2).
Committee (art. 2).
The Committee urges the State party to take
concrete steps to give full effect to all Views on individual communications
adopted by the Committee, in particular by conducting prompt, thorough and
independent investigations, prosecuting those responsible, and providing
effective remedies and reparation to victims without any further delay. The
Committee reiterates that transitional justice mechanisms are not sufficient to
dispense with the criminal prosecution of serious human rights violations.
National
Human Rights Commission (NHRC)
7. The
Committee is concerned at the introduction of restrictions to the independent
and effective functioning of the NHRC through the adoption of the National Human
Rights Act in 2012. While noting the Supreme Court decision of 6 March 2013
which declared various provisions of the Act null and void, the Committee
regrets the lack of progress in bringing the Act in line with the Paris
Principles. It also regrets the inadequate implementation of the
recommendations issued by the NHRC, despite the fact that they are binding
under domestic law (art. 2).
The
State party should amend the National Human Rights Act 2068 (2012) to bring it
in line with the Paris Principles (General Assembly resolution 48/134, annex)
and the Supreme Court decision of 6 March 2013 so as to ensure its independent
and effective functioning. It should also amend procedures governing the
appointment of Commissioners to ensure a fair, inclusive and transparent
selection process, and ensure that the recommendations issued by the NHRC are
effectively implemented.
Gender
equality
8. While
noting the steps taken by the State party to promote gender equality, the
Committee expresses concern at the extremely low representation of women,
particularly Dalit and indigenous women, in high-level decision-making
positions. The Committee regrets the persistence of patriarchal attitudes and
deep-rooted stereotypes that perpetrate discrimination against women in all
spheres of life, and the prevalence of harmful traditional practices such as
child marriage, the dowry system, son preference, witchcraft accusations and chaupadi (arts. 2, 3 and 26).
The
State party should take all necessary measures to effectively implement and
enforce the existing legal and policy frameworks on gender equality and
non-discrimination, pursue its efforts to increase the representation of women
in decision-making positions, and develop concrete strategies to eliminate
gender stereotypes on the role of women, including through public awareness
campaigns. It should also take appropriate measures to: (a) explicitly prohibit
all forms of harmful traditional practices in domestic law and ensure their
effective implementation in practice; (b) conduct awareness-raising campaigns
on the prohibition and negative effects of such practices, particularly in
rural areas; and (c) encourage reporting of such offences, investigate
complaints from victims and bring those responsible to justice.
Caste-based
discrimination
9. While
welcoming the adoption of the Caste-based Discrimination and Untouchability
(Offence and Punishment) Act in 2011, the Committee remains concerned at the
lack of its effective implementation and the persistence of de facto discrimination against the
Dalit community. It also regrets the lack of sufficient resources provided to
the National Dalit Commission and the failure to effectively implement its
recommendations (arts. 2 and 26).
The
State party should strengthen its measures to implement the Caste-based
Discrimination and Untouchability (Offence and Punishment) Act and to eliminate
all forms of discrimination against the Dalit community. It should also ensure
that the National Dalit Commission can carry out its mandate effectively with
sufficient resources, and that its recommendations are effectively implemented.
Extrajudicial
killings, torture and ill-treatment
10. The
Committee is concerned at reports of unlawful killings in the Terai region,
deaths in custody, and the official confirmation of the widespread use of
torture and ill-treatment in places of police custody. It is deeply concerned
at the failure of the State party to adopt legislation defining and
criminalizing torture, and at the lack of concrete and comprehensive
information on investigations, prosecutions, convictions, sanctions imposed on
those responsible, and the impunity of law enforcement officials involved in
such human rights violations (arts. 2, 6, 7, 9, 10 and 14).
The
State party should take practical steps to prevent the excessive use of force
by law enforcement officials by ensuring that they comply with the Code of
Conduct of Law Enforcement Officials (General Assembly resolution 34/169) and
the Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials (1990). It should take appropriate measures to eradicate torture and
ill-treatment, including by adopting legislation defining and prohibiting
torture with sanctions and remedies commensurate with the gravity of the crime,
in accordance with international standards. It should also ensure that law
enforcement personnel receive training on the prevention and investigation of
torture and ill-treatment by integrating the Manual on the Effective
Investigation and Documentation of Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment (Istanbul Protocol). The State party should
ensure that allegations of unlawful killings, torture and ill-treatment are
effectively investigated, and that alleged perpetrators are persecuted and, if
convicted, punished with appropriate sanctions, and that the victims and their
families are provided with effective remedies.
Arbitrary
detention
11. While
noting that article 24 of the interim Constitution affords some legal
guarantees to persons deprived of their liberty, such as the right to be
informed of the grounds of their arrest and access to a court within 24 hours,
the Committee expresses concern at the failure to respect such rights in
practice. It also expresses concern at the lack of effective guarantees, in law
and in practice, of the rights of detainees to notify their immediate family
members about their detention and to have access to a doctor from the moment of
arrest, as well as the practice of maintaining false or inadequate custody
records and keeping detainees in unofficial places of detention (arts. 9, 10
and 14).
The
State party should take appropriate measures to ensure that no one under its
jurisdiction is subject to arbitrary arrest or detention and that detained persons
enjoy all legal guarantees, in compliance with articles 9 and 14 of the
Covenant. It should also publish all official places of detention on a regular
basis and explicitly forbid and criminalize the use of unofficial places for
detention.
Conditions
of detention
12. While
welcoming the introduction of the concept of open prisons and a community
prison system, the Committee expresses concern at overcrowding in prisons and
jails, unsanitary conditions of detention, and inadequate provision of basic services
and facilities, including medical care and adequate facilities for confidential
meetings with lawyers (arts. 9 and 10).
The
State party should take urgent measures to establish a system of regular and
independent monitoring of places of detention and to reduce overcrowding and
improve conditions of detention, in line with the Standard Minimum Rules for
the Treatment of Prisoners. In this regard, the State party should consider not
only the construction of new prison facilities but also the application of
alternative measures to pretrial detention, such as bail and home arrest, and
non-custodial sentences, such as suspended sentences, parole and community
service. The State party should also establish a confidential mechanism for
receiving and processing complaints lodged by detainees.
Violence
against women
13. While
noting the adoption of various laws and policies aimed at eliminating violence
against women, the Committee expresses concern at their weak implementation,
lack of a comprehensive system to collect data on cases of different types of
violence against women, and continuing reports of widespread sexual and
domestic violence against women and girls. It is also concerned at the narrow
definition of rape, the lack of progress in abolishing the 35-day limitation
period for filing complaints of rape, and disproportionately low penalties for
marital rape. The Committee further regrets the ongoing failure by the police
to register complaints, investigate and prosecute rape cases, and the trend of
such cases being diverted to settlement through informal justice mechanisms
(arts. 2, 3 and 7).
The
State party should ensure that all forms and manifestations of violence against
women are defined and prohibited under domestic law with sanctions commensurate
with the gravity of the offence, in accordance with international standards. It
should establish a comprehensive national data collection system on cases of
different types of violence against women to enable the State party to adopt
targeted strategies and evaluate their effectiveness. It should also conduct
awareness-raising campaigns on the negative effects of violence against women,
inform women of their rights and existing mechanisms of protection, and
facilitate complaints from victims. The State party should further ensure that
cases of violence against women are thoroughly investigated, perpetrators are
prosecuted and, if convicted, punished with appropriate sanctions, and that
victims have access to effective remedies and means of protection.
Refugees
14. While
commending the State party for hosting a large number of refugees and
asylum-seekers in its territory, the Committee is concerned that identity
documents have not been provided to Tibetan refugees since 1995, which places
the majority of the Tibetan refugee population at risk of financial penalties
under the 1994 Immigration Rules for irregular entry or presence in the State
party, detention, deportation and refoulement. It also expresses concern at the
restrictions imposed on Tibetan refugees’ rights should the State party deem
any activity to undermine the friendly relationship with its neighbour. The
Committee is also concerned about the lack of legislation that would ensure
adequate protection against refoulement (arts. 2, 7, 9, 13, 19, 26 and 27).
The
State party should adopt national refugee legislation in accordance with
international standards, strictly uphold the principle of non-refoulement, and
exempt refugees and asylum-seekers from penalties under the 1994 Immigration
Rules. It should undertake a comprehensive registration exercise of
long-staying Tibetans to ensure that all persons have proper documentation and
ensure, in law and in practice, that all refugees and asylum-seekers are not
subjected to arbitrary restrictions of their rights under the Covenant,
including freedom of expression, assembly and association. It should also
guarantee access to its territory to all Tibetans who may have a valid refugee
claim and refer them to UNHCR.
Corporal
punishment
15. While
noting the adoption of the National Children Policy in 2012, the Committee notes
that corporal punishment remains a concern, especially in the home, where it
traditionally continues to be practiced as a form of discipline by parents and
guardians (arts. 7 and 24).
The State party should take
practical steps, including through legislative measures where
appropriate, to put an end to corporal punishment in all settings. It should
encourage non-violent forms of discipline as alternatives to corporal punishment,
and should conduct public information campaigns to raise awareness about its
harmful effects.
Fair
trial
16. The
Committee is concerned at the failure to respect the right to remain silent in
practice, lack of legal clarity concerning the inadmissibility of evidence
obtained as a result of coercion, and the inadequate provision of legal aid
services. It also reiterates its previous concern regarding the quasi-judicial
authority of Chief District Officers (CDOs), whose dual capacity as members of
the executive and judiciary in criminal cases contravenes article 14 of the
Covenant (art. 14).
The
State party should take effective measures to guarantee the right to a fair
trial, in accordance with article 14 of the Covenant and general comment No. 32
(2007) on the right to equality before courts and tribunals and to a fair
trial. In particular, the State party should effectively ensure the right to
remain silent in practice, amend the Evidence Act to clarify that no defendant
should be compelled to give evidence and ensure that evidence which is the
result of coercion is inadmissible, and ensure that right to legal aid under
domestic law is guaranteed in practice. It should also limit the judicial
authority of CDOs to cases of minor gravity and amend the laws granting CDOs
judicial authority in line with the requirements under article 14 of the
Covenant.
Juvenile
justice
17. The
Committee expresses concern at the low age of criminal responsibility set at
ten years, and the systematic failure to accord children the right to a fair
trial with effective procedural guarantees appropriate to their ages. It also
regrets the failure to fully implement the 1992 Children’s Act which calls for
the establishment of an independent juvenile court (art. 14).
The
State party should raise the minimum age of criminal responsibility to
an acceptable level under international standards, and establish an independent
juvenile court to take into account their age and the desirability of promoting
their rehabilitation.
Trafficking
and bonded labour
18. The
Committee expresses concern at the lack of effective implementation of the
Human Trafficking and Transportation (Control) Act of 2007, and the persistence
of trafficking for purposes of sexual exploitation, forced labour, bonded
labour, domestic servitude and marriage, as well as trafficking in human
organs. It is also concerned at the alleged involvement of State officials in trafficking-related
crimes. The Committee is further concerned that child labour and traditional practices
of bonded labour such as Haliya, Kamaiya and Kamlari are still prevalent in
some regions of the State party (arts. 8 and 24).
The
State party should strengthen its efforts to prevent, suppress and punish
trafficking in persons, trafficking in human organs and bonded labour,
including the establishment of a system of data collection and analysis to
identify trends and implement effective strategies, and adoption of measures
aimed at empowering vulnerable groups to eliminate their risk of exploitation.
It should also ensure the effective implementation of the Human Trafficking and
Transportation (Control) Act of 2007, prosecute and sanction perpetrators,
including State officials complicit in trafficking-related crimes, and provide
victims with adequate protection and assistance.
Freedom
of expression
19. The
Committee expresses concern at vague and overbroad restrictions to the right to
freedom of expression under article 12 of the Interim Constitution, and at
reports that journalists and human rights defenders are subjected to physical
attacks, death threats, harassment and reprisals by security forces, police,
armed groups and youth wings of political parties (art.19).
The
State party should guarantee, in law and in practice, the right to freedom of
expression to all individuals, including non-citizens, and ensure that any
restriction to the right is in compliance with the restrictions as set out in
article 19, paragraph 3 of the Covenant and the Committee’s general comment
No.34 (2011) on freedoms of opinion and expression. It should also investigate
all cases of threats and attacks against journalists and human rights
defenders, hold the perpetrators accountable, and provide effective remedies to
victims.
Birth
registration and nationality
20. The
Committee, while appreciating efforts made thus far, expresses concern at the
low number of birth registrations, particularly in rural areas, and at
difficulties faced by women in the registration process. It also regrets that
the current legislation does not provide for the granting of nationality to
children born in the territory who would otherwise be stateless. Moreover,
while welcoming the launch of national distribution campaigns, the Committee is
concerned that more than four million persons still lack citizenship
certificates, which is essential for the enjoyment of rights guaranteed in the
Covenant, including the right to vote. It is also concerned that women are
denied equal rights as men with respect to acquiring and conferring nationality
(arts. 3, 16, 24, 25 and 26).
The
State party should amend the Birth, Death and Other Personal Incidents
Registration Act to ensure the birth registration of all children born on its
territory, and establish an efficient birth registration system that is free of
charge at all stages. It should also continue to strengthen efforts to remove
barriers, particularly for women and those living in rural areas, to access
citizenship certificates and birth registrations. The State party should ensure
that citizenship provisions of the new Constitution guarantee the equal right
of women to acquire, transfer and retain citizenship.
21. In
accordance with rule 71, paragraph 5, of the Committee’s rules of procedure,
the State party should provide, within one year, relevant information on its implementation of the Committee’s recommendations
made in paragraphs 5, 7 and 10 above.
22. The Committee requests
the State party, in its next periodic report, due to be submitted on 28 March 2018,
to provide, specific, up-to-date information on all its recommendations and on
the Covenant as a whole.
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