Kedar Chaulagain v. Nepal
OHCHR - Human Rights Committee
Communication No. 2018/2010
International Covenant on Civil and Political Rights: articles 6 (Right to life); 7 (Freedom from torture); 9 (Right to liberty and security of persons); 10 (Rights of persons deprived of their liberty); and 26 (Equality before law).
Kedar Chaulagain, a Nepalese national born in 1958, submitted the communication in his own name and on behalf of his deceased daughter, a Nepalese national born in 1986. According to the author’s allegations, the 12th of February 2004, his daughter, who was 17 years of age at this time, was arbitrarily executed by members of the Royal Nepalese Army, after being illegally arrested in the middle of the night, without an arrest warrant, tortured, severely ill-treated and humiliated by a group of soldiers who were looking for persons being Maoists. On the following days, Kedar Chaulagain lodged a complaint with the Chief District Officer; on 29 February 2004, he also made an application before the National Human Rights Commission, and on 8 June 2006, he filed a First Information Report for murder with the District Police Office. As the police did not carry out any investigation, he submitted a written petition to the Supreme Court. He further claimed that, despite the recommendation made by the NHCR on 14 June 2005 and the Supreme Court mandamus order of 14 December 2009, to date, no investigation has been carried out into his daughter’s killing.
In his complaint, Kedar Chaulagain submitted that the lethal force used against his daughter was disproportionate and unnecessary, and violated the article 6 of the Covenant (Right to life). Furthermore, since no effective investigations have been undertaken to date into his daughter’s killing, the State party is also in breach of its obligations under article 6, read in conjunction with article 2, paragraph 3, of the Covenant. Moreover, the author claimed that the criminal justice system of Nepal provides no procedural guarantees for a fair and public hearing by a competent, independent and impartial tribunal, which constitutes an additional violation of article 6, read in conjunction with article 2, paragraph 3, of the Covenant. Kedar Chaulagain also claimed that Nepal violated his daughter’s rights under articles 7 (Freedom from torture), 9 (Liberty and security of persons) and 10 (right of detained persons to humane treatment), all read in conjunction with article 2, paragraph 3 (right to an effective remedy) and also separately under article 26 (Equality before law).
The Committee considers that the killing of the author’s daughter by the Army warranted a speedy and independent investigation. Deprivation of life by State authorities is a matter of utmost gravity; it requires a prompt and adequate investigation, with all the guarantees set forth in the Covenant, and the appropriate punishment of the perpetrators. The Committee considers that the State party failed to conduct a prompt, thorough and effective investigation into the circumstances of the arrest, treatment and killing of the author’s daughter. Accordingly, the Committee concludes that the lack of an effective investigation to establish responsibility for the arrest, treatment and killing of the author’s daughter amounts to a denial of justice and a violation of her rights, under articles 6, paragraph 1, 7, 9 and 10, all read in conjunction with article 2, paragraph 3, of the Covenant.
In a dissenting opinion, some of the Committee’s members explained that they believe the Committee should also have found a direct violation of those same rights independently rather than solely by reason of the lack of an effective investigation. They think that there was a direct violation of the Chaulagain’s daughter’s rights. Furthermore, they emphasised the fact that the author’s daughter was 17 years old when the events occurred, which means the Committee could have sought to determine whether there had been a violation of article 24 of the Covenant (special measures of protection for all children and adolescents).
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