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IV. Complaints Filed, but No Response

The soldiers forced me to go into the other room. Then I heard the shots and I ran out. My son and his wife, both of them were asking for water. I saw them crying out with pain. I was holding my granddaughter, who was also injured. I saw my son and his wife struggling for the last minute of their life, they were dying in front of my eyes.

—Bhumisara Thapa, the mother of Dal Bahadur Thapa, who was killed by security forces in 2002.

I went to the [Chief District Officer] and the District Police Office at least 20 times. Officials in both places took the application from me but did not register a complaint. I met the CPN-M [Communist Party of Nepal -Maoist] leader Prachanda and asked him for the whereabouts of my husband. He asked me to give him two or three days. It’s been two years.

—Purnima Lama, wife of Arjun Lama, abducted by Maoists on April 19, 2005, and still missing.

Failures to Investigate and Prosecute

Complaints of abuses by the security forces and CPN-M are routinely not investigated or prosecuted, thus perpetuating the cycle of impunity. Human Rights Watch and Advocacy Forum examined the progress of investigations and prosecutions in 62 cases of individual human rights abuses. These relate to 34 separate incidents, and 49 FIRs have been filed in relation to these individuals with the Nepal Police. (“Filing” a case means that a written and signed FIR is officially received and registered by the Nepal Police). The cases are spread over 15 out of 75 districts in all five regions of the country. The alleged crimes occurred between January 2002 and June 2006. The majority, 22, happened in 2004; 11 in 2002; 10 in 2003; 11 in 2005; and eight in 2006.³⁵  

Of the 62 victims, 58 were killed, four remain “disappeared,” many were tortured, and at least three were raped. The vast majority of cases, 56, concern extrajudicial executions by the security forces. In two cases, the killings involve members of the CPN-M (see Cases 33 and 61). 

Criminal investigations into these crimes clearly fall within the jurisdiction of the Nepal Police. By law, the Nepal Police, “must register any complaint from any source made by any means,” regarding a crime which has been committed or may be committed.³⁶ Upon registration, it is the duty of the Nepal Police to initiate a criminal investigation and present the preliminary results of the investigation to the relevant district’s public prosecutor.³⁷By law, investigators should visit, take photographs of, and prepare a report about the crime scene, as well as take statements from witnesses.³⁸

In most of the 62 cases examined here, police failed to initiate any investigations. In several of the cases, an FIR was filed only after the family appealed to the chief district officer (CDO), the highest official at the district level to whom the police are legally accountable, and the CDO ordered the police to file the FIR. In more than a dozen cases, the families had to appeal to the courts to get the FIR registered and acted upon. In a few cases, the courts rejected the appeals, agreeing with the police’s argument that the cases would be investigated by a TRC or other transitional justice body, when they are eventually established, and therefore the police were not obliged to proceed with investigations.

In cases involving extrajudicial killings, sometimes the victims were killed at their homes or within hours of being arrested from their home or village by members of the army, police, and/or APF. On other occasions, the killings occurred at some distance from the victims’ homes at a remote location where the perpetrators thought there would be no witnesses. The NA subsequently announced on the radio that, “a Maoist suspect had been killed while attempting to escape,” or, “was killed during a security operation,” or during, “an encounter” with members of the CPN-M. In other cases there was no public broadcast at the time, but the information was conveyed years later via the International Committee of the Red Cross (ICRC) or the NHRC. In at least eight cases, the families of victims or villagers were forced to sign a statement to this effect drawn up by the security forces. Most of these people were not allowed or able to read what the statement said. Officers sometimes took photographs of the bodies with guns, grenades, or other incriminating “evidence” displayed next to them. In all of these 62 cases, security forces lacked any other corroborating evidence of the alleged armed encounter while multiple witnesses allege the victims were extrajudicially executed. Bhumisara Thapa, the mother of Dal Bahadur, who was killed in 2002, told Advocacy Forum:

The soldiers forced me to go into the other room. Then I heard the shots and I ran out. My son and his wife, both of them were asking for water. I saw them crying out with pain. I was holding my granddaughter, who was also injured. I saw my son and his wife struggling for the last minute of their life, they were dying in front of my eyes.³⁹

On September 10, 2002, members of the security forces shot Dal Bahadur and his wife Parbati at their home. Soldiers did not allow the family to take them to hospital, and the couple died as a result. According to witnesses, security personnel then planted bombs in the house, which they collected the next day after an announcement was made on Radio Nepal about the recovery of cash and bombs from “the house of Maoist terrorists” in Banke District.⁴⁰

In many of the 62 cases, people were killed because state officials or agents suspected them to be Maoists or Maoist sympathizers. None of the victims were combatants, but some had sympathies with the CPN-M or a role in the political or other wings of the Maoist party.

Among the 62 victims are five women and seven children, including three girls. In at least three cases, women were reportedly raped before they were killed.

Eight of the killings by the security forces are not directly linked to the armed conflict. They include the killing on April 26, 2006, of six demonstrators in Belbari, Morang District (Cases 48-53), when security force personnel under the command of army captain Prahlad Thapa Magar, deployed to maintain public order, indiscriminately fired live ammunition into a crowd. The demonstration was in response to the army’s rape and killing of a local 22-year-old woman, Sapana Gurung, on the previous day (Case 47).⁴¹

Four of the FIRs concern “disappearances” where there is a likelihood the person has been killed but his or her body have never been located. Authorities in these cases formally acknowledged the victim was killed, months or years later, but failed to provide any evidence or further information about what happened to the remains. In these cases, witnesses testified that the “disappeared” person was arrested, and taken away by uniformed police or army personnel, stating they wished to question the individual. Security forces did not inform families where they were being taken. The families’ inquiries with the District Police Office (DPO) or the army barracks were only met with denials.⁴²

Tek Bahadur B.K., whose son Raju B.K. (Case 1) “disappeared” following his arrest in March 2002 in Baglung District, told Advocacy Forum:

We visited the barracks several times to see Raju shortly after his arrest, but the army authority repeatedly denied our access with different reasons. Every time, they gave different reasons for denying our visits—Raju is sleeping, we require army major's permission; interrogation is going on, he will be released tomorrow—and so on. We never saw him alive again, and we haven’t got justice yet.⁴³

The 62 cases analysed in this report show a pattern of torture and ill-treatment of detainees during interrogation at police stations and army barracks. In around one third of the cases, victims suffered beatings, assault, and humiliation before they were killed. None of these cases have been investigated by police for allegations of torture. As torture is not a criminal offence in Nepal, no FIRs have been filed for torture even though torture may have caused death. At least three women victims were raped before they were killed. In two of these cases, the charge of rape could not be included in the FIR because the limitation period for making a complaint of rape in Nepal is 35 days.

Role of the Nepal Police

Initial Response After the Abuse

The relatives of two girls killed by army personnel, Reena Rasaili and Subhadra Chaulagain (Cases 29 and 30), left the girls’ bodies lying in a field for six days in an attempt to force the police into action but nobody from the Kavre police came to the village to investigate the killings. Similarly the family of Ganga Gauchan, a 32-year-old carpenter from Baglung District, refused to remove his body in an attempt to force the authorities to investigate his killing, but the NA forced them to dispose of the body without a post-mortem (Case 2). Bhan Bahadur Gauchan, brother of Ganga Gauchan, told Advocacy Forum:

The body of my brother was not taken for post-mortem. It was just lying there but the soldiers threatened villagers to dispose of the body if they wanted to stay alive. Then the villagers buried the body of my brother.⁴⁴

In more than half of the cases (36), relatives attempted to file a complaint with police and civilian authorities (the CDO) at the time of the killing. This was invariably refused. Despite having a legal obligation to do so, police have been reluctant to register and initiate investigations into the events alleged in the FIRs, and have only done so years later after the end of the armed conflict and under continuous pressure from families and NGOs. A common reason cited for not filing the case, was that this was a “political issue.” 

Claiming the case was a “political issue” and the police were, “not supposed to look at it,” the Morang police refused to investigate the killing of Jag Prasad Rai alias Narad allegedly by a group of 54 army personnel (Case 41). Jagath Sunuwar, father of Jag Prasad Rai, told Advocacy Forum:

I was told that this case is political and will be dealt by the commission. I do not know which commission that is and what the address is.⁴⁵

The same response was given in the case of Ramadevi (Case 27) who was killed, and possibly raped, by members of the security forces. Her relatives visited the Jhapa DPO and the District Administration Office several times asking them to conduct necessary investigations. However, no action was taken against the perpetrators. The DPO told them that it was a “political” issue and they could not take any action on this case.

Superintendent of Police, Navaraj Silwal, and head of the Human Rights Cell of the Nepal police, told Human Rights Watch, “We have had ministers tell us, ‘don’t take any steps which will become stumbling blocks to the peace process.’ There has to be a commitment by the government to take action against offending officials.”⁴⁶

Until now, no police officer has been held accountable for not registering a complaint or failing to proceed with an investigation.

Beyond a lack of political will, acceptance of impunity runs deep in Nepali society. Historically, victims have seldom received justice; hence they often neither expect nor demand it. Where families of victims did not initially attempt to lodge an FIR with police or local government officials, they feared reprisals by the security forces and were often deeply convinced that no action would be taken to bring the perpetrators to justice. These families only did so after a change in the political environment following the Jana Andolan of April 2006 and due to support from local human rights organisations.

In at least 46 of the cases, the families or witnesses provided the names of the alleged perpetrators in addition to prima facie evidence that a crime had been committed through direct witnesses to the crime, and information on the officers in charge or the unit involved. Despite this evidence, police have failed to gather evidence by taking statements from the suspects or witnesses, visit the scene, or collect material evidence. 

The Nepal Police and the Office of the Public Prosecutor are further disempowered by pressure from the two military powers (the NA and the CPN-M), and their links to networks of political elite. 

Police filed the FIR soon after the incident in only one of the 62 cases documented here, and in that case, police manipulated the content of the report. Manoj Basnet was killed in the custody of the APF in August 2005. Initially police at the Morang DPO refused to file the FIR. The family sent the FIR via registered post. Still, the police refused to file it. After OHCHR investigated the case and put pressure on the police, the police finally called the family and presented them with an FIR the police had prepared. On August 30, 2005, the father signed this FIR without being allowed to read it. Later, in court, when the family had an opportunity to access the file, they realized police had presented the killing as an accident in the FIR drafted by them.

Manoj’s father filed a writ in the Supreme Court asking for the police investigation to be re-opened. Police put pressure on the family to withdraw the writ. Police reportedly offered the widow of Manoj Basnet a job in the police and promised to send her two children to a boarding school. Police also reportedly offered Manoj Basnet’s father NRs250,000 [US$3,900], brought him to Kathmandu, and pressured him to file a petition withdrawing the writ petition stating that he had not intended to do it, but had been coerced by Advocacy Forum. Under pressure, on November 30, 2007, the father applied to the court seeking to withdraw the case. On the same day the Supreme Court decided to put the case on hold. At this writing, the court had not yet ruled on the request to withdraw the case.

Pressure and threats against the families of the victims, witnesses, and villagers is very common. The families of at least six victims in the cases documented here were threatened by security forces or Maoists after they sought justice for the death of their loved ones. In several cases, Advocacy Forum staff were also threatened, both the NA and the CPN-M issuing repeated threats.

There undoubtedly were various reasons why police failed to file FIRs soon after the killings and other acts of violence documented here, but one important reason is that between November 2001 and April 2006 the police were functioning under the unified command of the army. Police officers were often, under the unified command, part of the unit allegedly responsible for the killings and they claim they were powerless to investigate their superiors.⁴⁷

Continued Failure to Act

In 15 of the 62 cases, the police had still failed to register the FIR as of August 2008, when we last updated our research.

This continuing failure to take action is in part due to lack of resources and weak capacity, but, most significantly, it reflects the continuing institutional weakness of the police, a product of lack of independence and lack of accountability. There is little incentive to investigate and prosecute perpetrators of human rights abuses. Police are more focused on political pressures and institutional patterns of reward and punishment linked more to patronage than meritorious public service. Prakash Kumar, deputy inspector general of police (DIG) and head of the Criminal Investigation Department (CID), told Human Rights Watch:

The police lack scientific tools to investigate; their approach is not evidence-oriented but confession-oriented. Further, there always has been political interference in their day to day work.⁴⁸

In nearly all cases where families of victims succeeded in registering complaints, police have failed to take even the most basic first steps in criminal investigation, such as to visit the scene, interview witnesses, and arrest alleged perpetrators. Police too often treat filing the FIRs as a paper exercise and seem to wait for directives from the political leadership.

Police have also failed in their legal responsibility to take action against alleged perpetrators—including against members of the CPN-M—regardless of whether FIRs were filed. On occasion, police have claimed that an FIR must be filed by the victim or on his/her behalf before the police can take any legal action, or that police require authorization from higher police authorities.⁴⁹This violates the State Cases Act which states that police have a duty to investigate if they learn through “any means or medium” that a crime may have been committed.⁵⁰

Disposal of Bodies

In 55 of the 62 cases documented here, the bodies of the victims were recovered. In five cases, police took the bodies to local hospitals where doctors conducted post-mortem examinations—because the killings occurred in close proximity to a hospital or due to the influence of the victim’s family. In six other cases, police claim a post-mortem was carried out but refused to share information with the relatives. In the remaining cases, there was no post-mortem examination.

In nine of the 62 cases, the bodies of victims were disposed of within hours of the killing. Historically there are some cultural and climatic reasons for swift disposal of remains. Bodies are traditionally cremated among members of the majority Hindu community. However, the army has exploited this culture, ordering villagers to dispose of the bodies immediately. A speedy cremation means it is impossible to examine a body at an alleged crime scene, hold a post-mortem examination, or conduct any future exhumation as part of forensic investigations.

In some exceptional cases, relatives were able to obtain the bodies of their loved ones and were not forced to cremate them. For instance, in the case of Ganga Bahadur Nepali and Shyam Sundar Kaini, alias “Bharat,” who were killed in April 2002 in Tanahun District (Case 61 and 62), the army returned the bodies to the families after the intervention of the leader of the CPN-UML who was visiting the district at the time of their killing.

In the killing of Ramadevi Adhikari (Case 27), the family dropped its insistence upon a post-mortem examination in return for being allowed by the army to conduct the funeral according to proper rites.

Where victims’ remains were buried, recovery with a view to forensic examination has proven very difficult. In only one case, that of Maina Sunuwar, police together with OHCHR, investigated and recovered remains from an unmarked grave at the Nepal Army Birendra Peacekeeping Training Centre in March 2007.⁵¹ Fifteen-year-old Maina Sunuwar had “disappeared” after her arrest in February 2004. The Kavre DPO finally allowed the filing of an FIR in November 2005. This was after considerable international pressure from OHCHR, Human Rights Watch, Amnesty International, and others.

Slow action by police in the process of identifying and verifying remains has hampered investigations. In Maina’s case, police did not send the DNA sample recovered from the remains in March 2007 to India for analysis until late November. Officially, the police gave no reasons for the delay, though lack of financial resources may have been one reason. On July 22, 2008, Kavre DPO finally received the results of the DNA tests, which confirmed that the body was Maina’s.  This information was passed on to the public prosecutor and district court, but there have been no further developments since.

In three cases, despite families or witnesses providing information to the police about where bodies are buried, police still have not exhumed the sites. In July 2006, villagers alleged five bodies had been buried in a certain location in Janakpur, Dhanusha District, around the time of the “disappearance” of student Sanjeev Kumar Karna, age 24, and several friends (including Cases 15 - 19). They alleged that on October 8, 2003, Sanjeev Kumar Karna was picnicking with friends when he and 10 others were arrested by a group of 25-30 joint security force personnel. Six were subsequently released, but Sanjeev and four friends remained missing. Sanjeev’s father reported the case to the NHRC.

Two years later in March 2006, Sanjeev’s father received correspondence from the NHRC detailing the findings of their investigation. According to the NHRC letter, the army had denied their involvement in the arrest of Sanjeev and his friends but quoted the NA as having told the NHRC that the five young people had all been killed in “police action” on the day they “disappeared.” However, the police wrote in their letter to the NHRC that they handed over Sanjeev Kumar Karna and his friends to the military after their arrest. Relatives said that the police have not proceeded properly with investigations. The NA informed Amnesty International in late 2006 that an investigation into the five “disappearances” is still ongoing.⁵²

Sanjeev’s father and his friends’ relatives filed FIRs with the Janakpur police on July 9, 2006. On the same day, the families also requested police exhume the site where they suspect the bodies were buried based on some items that were recovered from the site. The Dhanusha police demarcated the site of the alleged illegal burial place but so far have failed to proceed with organizing the exhumation. Said Sanjeev’s father, Jai Kishor Lav:

I am still waiting for answers. If the police killed him then they have to show me evidence that he is dead. If he was killed in army action, then why was his dead body not handed over to the family? I will not believe he is dead till his body is exhumed and identified.⁵³

Role of the Nepal Army

As the institution in charge of the unified command, the army had a major role in nearly all 62 cases documented in this report. In only two cases did the families directly approach the army (Cases 5 and 6), a reflection of how much the public fears the army. Under the Army Act 1959, the army was legally accountable to the King as Commander in Chief rather than civilian authorities. On paper this has changed with the introduction of the Army Act 2006; though in practice the army has remained immune from civilian control.

The wider dynamics on security sector reform are shown clearly through the FIRs. The lack of army cooperation with police investigations reflects its refusal to accept the principle of accountability to civilian authorities. As stated above, staging killings to look like “armed encounters,” threatening villagers to sign statements, and taking staged photographs were common practices for the army. Officials may have taken such measures to avoid even the remote eventuality of legal action by victims’ families.

In exceptional circumstances, when under considerable pressure, the army has held a court of inquiry and a court martial. In relation to Maina Sunuwar’s case (Case 31), after initial denials, following intense international and local pressure, the army established a Court of Inquiry which concluded by March 14, 2005.⁵⁴ OHCHR unofficially obtained a copy of the report of the Court of Inquiry which recounts the horrifying details of Maina Sunuwar’s torture and death in custody, stating that, “it was indeed as a result of torture inflicted during the course of interrogation that the death of Maina Sunuwar occurred.”⁵⁵ The inquiry report also concluded that the officers and soldiers involved in Maina’s torture attempted to cover up the death.

A court martial in September 2005 ruled that Colonel Bobby Khatri, Captain Sunil Adhikari, and Captain Amit Pun—who all three were alleged to have been involved in the torture resulting in her death—were directly responsible for using improper interrogation techniques and not following proper procedures for the disposal of Sunuwar’s body. The three officers received sentences of only six months in jail and temporary suspension of promotion. In fact, they served no term in prison as they were found to have served their sentences by being consigned to the barracks during the investigation. The officers were also ordered to pay fines of between NRs25,000 and 50,000 [US$390 and 780] to the family.

As of August 2008, Maina’s mother Devi Sunuwar had not formally been informed of the outcome of the army’s court of inquiry and court martial, though she learned of the outcome via the media.

The army investigation and court martial was a mere formality. They were not even put in jail and in any case being [sentenced to] jail for six months for the torture and killing of a minor is not just punishment.⁵⁶

The army intimidated several witnesses and human rights activists pursuing justice on behalf of Maina, but in November 2005, her family filed an FIR with Kavre District police naming the four army personnel responsible for her death. Though initially reluctant to register the case, the Kavre District Police finally did so but were repeatedly stalled in their investigations by the NA. The NA failed to respond to six written requests by the Kavre police to Army Headquarters and two letters to the Birendra Peacekeeping Training Centre seeking assistance to locate suspects and produce them for questioning. In a clear example of defiance of the police investigation and use of military proceedings to block initiatives before civilian courts, Brigadier General B.A. Kumar Sharma wrote to the DPO in Kavre District on May 22, 2006 saying that since the court martial had rendered its verdict, “It is not lawful to initiate actions against the four officers.”⁵⁷However, the argument of double jeopardy is weak given the officers were said to have been tried in relation to the offence of improper interrogation techniques and illegally disposing of human remains, rather than murder.

After Devi Sunuwar filed the FIR in November 2005, the investigations failed to make significant progress. Binod Silwal, Investigation Officer with the Kavre Police told Human Rights Watch:

We wrote many letters to army headquarters seeking permission to arrest and interrogate the four named officials, but we had no cooperation from the army. We have to go through the chain of command in the army. There is no legal provision for this, but this is the system which has developed between the two departments.⁵⁸

Only after Devi Sunuwar approached the Supreme Court in September 2007 did the investigation progress (see below).

Role of Public Prosecutors

Only three of the 49 FIRs (32, 45, 57-59 and 28 respectively) have made it to court as of August 2008. It is therefore difficult to analyze the role of the Attorney General’s Office in response to the FIRs, whose role it is to submit cases to court following police investigations submitted in reports.

In many cases, police fail to send preliminary reports of their investigations to the public prosecutor, contrary to requirements in the State Cases Act.⁵⁹ Section 6 states that upon receipt of the report, “the Government Attorney shall give necessary direction to the investigating police officer.” The Act however is silent as to what needs to happen if the police do not provide their preliminary report. Public prosecutors have been very passive in the face of these provisions. To the knowledge of Advocacy Forum and Human Rights Watch, public prosecutors have not actively questioned the police when they do not receive preliminary reports.

By law, if the suspect has not been arrested and an FIR has been filed, a police report must be submitted to the Attorney General’s Office 15 days prior to the expiry of the statute of limitations for the offence concerned.⁶⁰ This lengthy time period explains to some extent why police are not submitting reports of their investigations to the public prosecutors. Since these crimes are continuing offences, the reporting obligation should not be linked to the statute of limitations.

In the case of Manoj Basnet, police passed the file to the public prosecutor and the case was brought to court only after considerable pressure from OHCHR. It seems the public prosecutor did not question the results of the police investigations, or tacitly cooperated with the police’s attempts to present the case in court as an accident. The prosecutor did not scrutinise the evidence and the facts that led to the charges presented in court. In the cases of three boys killed by the army in Palpa District (Cases 57-59), on the other hand, the public prosecutor directed the police to proceed with the investigation as a murder case rather than an accident.

If police delay investigations the only recourse for victim’s families is to file a writ to request the court to order the state authorities to act according to the law. In the Maina Sunuwar case, after a writ was filed in the Supreme Court, the Kavre police in January 2008 finally submitted the file of its investigations to the public prosecutor who filed murder charges in the Kavre District Court in early February.

Role of the Forensic Profession

Despite considerable delays since the alleged offenses occured, in some cases it may be possible, with the help of ballistic and other forensic evidence, to identify the cause of death and thus increase the likelihood of identifying possible perpetrators.

The forensic profession in Nepal has limited capacity. The only case to date where it is clear that scientists have exhumed the body as part of a criminal investigation by police is in the Maina Sunuwar case (Case 31). Progress in that case, as outlined above, has been very slow and relied on sending samples to be tested abroad.

In two other cases, police exhumed the body without any forensic assistance. In six further cases scientists exhumed bodies under the authority of the NHRC apparently only for humanitarian purposes, such as for the body to be returned to the family. For instance, in the case of Sarala Sapkota, a 15-year-old girl from Dhading District who had “disappeared” after arrest in July 2004 (Case 14), the NHRC exhumed her body in January 2006 on the basis of information they obtained during their investigations. The exhumation was carried out without any police presence. The NHRC is awaiting the results of DNA tests on the body; its investigations are continuing.

Bhakta Bahadur Sapkota, father of Sarala Sapkota, told Advocacy Forum:

I visited many places to knock on the door of state authorities for justice, however I haven't got justice yet. The skeleton of my daughter is still kept in the hospital. I am tired yet still visiting the authorities to get justice in my daughter's case but I am not sure when I will get justice…..⁶¹

Role of the Courts

In many countries, the involvement of local magistrates in the investigation of cases of suspicious death is common.⁶² In Nepal, there is no involvement of district courts or other judicial officers at the time an alleged serious crime is discovered. 

The role of the judiciary in relation to human rights abuses has been largely marginal. This is due in part to a lack of specific protection of the right to life in the Nepali Constitution, making it fruitless for relatives to argue in court that alleged extrajudicial executions are violations of their fundamental rights.

The Supreme Court has played a significant role in relation to cases of illegal detention and “disappearances” by ordering the relevant security agencies to produce prisoners in court in cases of habeas corpus. However, the army’s lack of cooperation with the court was and continues to be a major concern. Weak sanctions for perjury and contempt of court exacerbate the problem (see also De Jure Impunity chapter). Despite obvious and repeated lies and misinformation from soldiers and army officials in court, none has ever been prosecuted or otherwise disciplined by the courts for perjury.⁶³ This contributes to the sense among security forces that they are above the law. The court bears considerable responsibility for not setting stricter limits on state behavior during the period of the armed conflict. 

Since the end of the armed conflict, the courts have been more active in defending human rights. On June 1, 2007, Nepal’s Supreme Court ruled on 83 habeas corpus writs, and ordered the government to immediately set up a commission of inquiry to investigate all allegations of enforced disappearances and to provide interim relief to the relatives of the victims. The court ordered that the commission of inquiry must comply with international human rights standards.

More recently, in the absence of any evidence of progress in police investigations, families of 22 victims have sought the assistance of the Supreme Court and Appellate Court in forcing the police to proceed with investigations by way of a writ.⁶⁴ 

As of August 2008, the Supreme Court had given clear orders for murder charges to be brought in only two of six petitions for such writs filed with the court (those of Maina Sunuwar and Arjun Bahadur Lama). The other four cases remained under consideration. In Maina’s case, in September 2007, the Supreme Court ordered the police to provide a report within three months on its investigations into her death, and also ordered the NA to make available the army’s records on the case. The NA first submitted a file marking it confidential. Advocacy Forum, using provisions of the Right to Information Act, obtained a court order for the family of Maina Sunuwar to be given access to the army records. To date, only the judgement in the court martial of the four soldiers has been made available, not the full records. As a result of this court order, the police in February 2008 submitted the case to the public prosecutor and charges of murder were filed against the four suspects.

Arjun Bahadur Lama (Case 32), a member of a royalist organization, Rashtriya Ekta Parishad, living in Kavre District, was abducted by members of the CPN-M in April 2005. According to witnesses, the cadre marched him through various villages in Kavre District. In late June 2005, they took him to Buddhakani Village Development Committee (VDC), where he was allegedly killed. The CPN-M claimed that he was killed on the same day he was taken during a clash with security forces but other sources which subsequently saw Lama believe he was killed after the abduction. Both civilian authorities (the CDO) and the Nepal Police refused to register an FIR, and in a written statement police stated the grounds for refusal as insufficient evidence and that the case would fall under the jurisdiction of the TRC. The CPN-M also pressured the family: more than 100 Maoists came to DPO and threatened both the family and the police not to register the case. In response to a writ filedin the Supreme Court by his wife, the court on March 10, 2008, ordered the DPO and District Administration Office in Kavre to file a murder case against Maoist leader Agni Sapkota and five other Maoists.⁶⁵ After considerable delay, on August 11, 2008, the Kavre police finally registered the FIR. Human Rights Watch and Advocacy Forum are continuing to closely monitor progress in these cases.

The role of the Appellate Court in Biratnagar has been of serious concern. It has quashed petitions in relation to seven killings (Cases 37, 41-44, and 46-47), accepting police arguments that killings during the armed conflict will be the subject of investigations by the yet to be established TRC, and therefore police have no duty to investigate.

So far, in only one case has a district court passed a verdict. The Morang District Court acquitted Nardip Basnet, the APF officer brought to trial in relation to Manoj Basnet’s death. Although the victim’s father Govinda Basnet filed a petition with the Supreme Court to quash the investigation and order a re-investigatation, the family has been under severe pressure to withdraw the petition, as already noted, and the case has been put on hold as a result. 

NHRC

The NHRC has not been able to play a major role in bringing perpetrators to justice. By law, it has a primarily investigative role, it has been weakened by political and executive pressure, and it lacks independent and guaranteed funding. The NHRC has been most seriously hampered in its work by the persistent and systematic refusal of the army to cooperate. The army has denied the NHRC access to its camps and rarely responded to correspondence. When army officers were summoned by the NHRC, they failed to appear. The army even lied in official correspondence with the Commission.⁶⁶ As a result, the NHRC has been unable to conclude many of its investigations.

Gauri Pradhan, a member of the NHRC told Human Rights Watch:

While the NHRC has been upgraded and has powers vested in it by the Constitution, it is institutionally very weak. It lacks resources, training, and coordination.⁶⁷

In all 62 cases documented here, complaints were also filed with the NHRC. In 17 cases, the NHRC completed its investigations and recommended that relevant authorities initiate investigations and prosecutions of alleged perpetrators and provide compensation to the families of the victims (among them Cases 1, 2, 27, 46). In none of the 17 cases did the government implement the NHRC’s recommendations to investigate and prosecute, though in five cases the Home Ministry paid compensation. In all other cases, including the two cases involving killings by members of the CPN-M, the NHRC has not completed its investigations.

Bishwanath Parajuli (case 37), was arrested and killed by security forces in September 2004. It was claimed that he was a Maoist. Parajuli’s family complained to the DPO and CDO in Morang District repeatedly after the incident, but the police did not register an FIR untill September 2006. The NHRC, on May 16, 2005, recommended the government take action against the alleged perpetrators and provide NRs150,000 [US$2,350] as compensation to the victims' family. To date, these recommendations have not been implemented. Rajendra Parajuli, Parajuli’s brother, told Advocacy Forum:

We have been waiting for the day when we can see the perpetrators being punished. I can not even tell you how many times I went to different government bodies including the police. Even the decision of the NHRC is not observed.⁶⁸

Investigation Bodies

Only in a few cases have authorities established a separate investigation process parallel with the police investigation. Existing practices are for the government to either set up an investigative committee within the Home Ministry, a commission of inquiry or a high-level commission of inquiry under the Commission of Inquiry Act. Parliament also has set up parliamentary probe committees under provisions in the Interim Constitution and its rules of procedure. Human Rights Watch and Advocacy Forum have not been able to establish whether there is any legal basis for the establishment of investigative committees within the Home Ministry.

Occasionally, the work of such committees has been helpful to the relatives. The Malego Committee for instance was instrumental in ultimately locating Hari Prasad Bolakhe. On October 12, 2004, the Committee reported that Hari was in police custody. Hari’s father filed a complaint with the NHRC, which investigated the case and obtained information from witnesses that Hari had been killed and that his body was buried in a forest at Ganesthan, Kavre District. On July 6, 2006, the NHRC exhumed Hari’s body together with the clothes and shoes he wore at the time of his arrest. Forensic experts concluded that Hari had died due to a “gunfire injury to the pelvis.” Puspa Prasad Bolakhe, Hari’s father, said he wanted justice:

I looked all over for my son. Both the police and army kept telling me they did not have him. It is clear he was illegally arrested by the police and deliberately shot by the army. But there will be no proper inquiry. All I want is to see his killers punished.⁶⁹

In the rape and killing of Sapana Gurung on April 25, 2006, and killings of demonstrators protesting her murder the next day, a parliamentary Probe Committee was set up. The Committee reported in January 2008 and recommended action against 28 people including the CDO, superintendent of police, and the head of the army division deployed at the time, and for record amounts of compensation—up to NRs1Million (US$15,500)—to be given to the victims or their relatives.⁷⁰ Whether any of the Committee’s or other investigative bodies’ recommendations will be fully implemented remains to be seen.

Compensation

Providing monetary compensation to victims of human rights abuses is a strong feature of the state response to grave abuses in Nepal.⁷¹As noted above, a parliamentary probe committee awarded record amounts of compensation—NRs1Million (US$15,500)—to the relatives of Sapana Gurung and the six killed during the subsequent demonstration against her killing. The NHRC has recommended NRs100,000 or NRs150,000 (US$1,500 or 2,350) in cases where a person’s right to life has been violated. The Home Ministry has a tariff and budget for the payment of compensation, but it appears the parliament is not bound to apply the same tariff. There is no overall policy for the granting of compensation, and the existing system is open to political and other manipulations.

Regardless of amounts recommended, actual payment of compensation is slow. For instance, as noted above, in only five out of 17 cases in which the NHRC had recommended compensation has the Home Ministry actually paid out the money to the families.

Transitional Justice

Most politicians interviewed by Human Rights Watch maintained that achieving justice in relation to past abuses has to be balanced against progress in the peace process. One of them, Khim Lal Devkota, an MP from the CPN-M told Human Rights Watch:

Right now we are in a peace process. We have to be careful not to disrupt this. Any process of accountability has to first target abuses by the old state power based on the security sector.⁷²

The Comprehensive Peace Agreement commits the governing parties to the creation of a TRC. The proposed TRC is sometimes cited by police and politicians as a reason not to proceed with investigations. Police did so in the case of Arjun Bahadur Lama discussed above. Both the Chief District Officer and the Nepal Police had refused to register an FIR, and in a written statement police stated the grounds for refusal as insufficient evidence and that the case would fall under the jurisdiction of the TRC. The CPN-M also pressured the family: more than 100 Maoists came to DPO and threatened both the family and the police not to register the case. The district police in Kavre told Human Rights Watch they had not registered the case because it falls within the mandate of a TRC.⁷³

The wife of Arjun Lama told Human Rights Watch and Advocacy Forum:

I went to the CDO and the district police office at least 20 times. Officials in both places took the application from me but did not register a complaint. I met the CPN-M leader Prachanda and asked him for the whereabouts of my husband. He asked me to give him two to three days. It’s been two years.⁷⁴

As already stated above, the Appellate Court in Biratnagar has endorsed police arguments that cases of killings during the conflict do not need to be investigated by police as they will fall under the jurisdiction of the TRC—without even knowing what the mandate of the TRC will be.

A draft TRC bill circulated in mid-2007 in fact threatens to deny justice to victims and their families since it would grant amnesties even for gross human rights abuses if the acts had a political motivation, the perpetrator makes an application indicating regret, or victims and perpetrators agree to a reconciliation process.

Such a mechanism could mean those named in the 49 FIRs described here could be immune from criminal prosecution for killings, torture, rape, and “disappearances.” As such, the draft bill did not meet international standards on the right to a remedy and reparations for victims of gross violations of international human rights and humanitarian law.⁷⁵

Following extensive criticism from civil society and the international community, the Peace and Reconstruction Ministry initiated a review of the TRC bill in late 2007. Experience with the draft bill shows that some people in Nepal are using the concept of reconciliation to prevent meaningful investigations into abuses committed both by the Maoists and the security forces during and after the 10-year conflict.

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