United Nations CCPR/C/125/D/2556/2015

International Covenant on Distr.: General

22 May 2019
Civil and Political Rights
Original: English
Advance unedited version

Human Rights Committee

Views adopted by the Committee under article 5 (4)

of the Optional Protocol, concerning communication No.
2556/2015 , , * ** ***

Submitted by: Fulmati Nyaya (represented by TRIAL

International)
Alleged victim: The author
State party: Nepal
Date of communication: 20 June 2014
Document references: Decision taken pursuant to rule 97 of the
Committee’s rules of procedure, transmitted to
the State party on 27 January 2015 (not issued in
document form)
Date of adoption of Views: 18 March 2019
Subject matter: Arbitrary arrest, torture and forced labour of
suspected Maoist child supporter by army and
police officers
Procedural issues: Exhaustion of domestic remedies
Substantive issues: Prohibition of torture and cruel, inhuman and
degrading treatment; prohibition of forced
labour; right to liberty and security of a person;
respect for the inherent dignity of the human
person; non-discrimination; recognition as a
person before the law; right not to be subjected
to arbitrary or unlawful interferences with one’s
privacy and family life; right to special

*
* Adopted by the Committee at its 125th session (4-29 March 2019).
**
** The following members of the Committee participated in the examination of
the communication: Tania María Abdo Rocholl, Yadh Ben Achour, Ilze Brands Kehris, Christopher
Arif Bulkan, Ahmed Amin Fathalla, Shuichi Furuya , Christof Heyns, Bamariam Koita, Marcia V.J.
Kran, Duncan Laki Muhumuza, Photini Pazartzis, Hernán Quezada, Vasilka Sancin, José Manuel
Santos Pais, Yuval Shany, Hélène Trigroudja, Andreas Zimmermann and Gentian Zyberi.
***
*** An individual opinion (partly concurring) by Committee member José Manuel
Santos Pais is annexed to the present Views.
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Advance unedited version CCPR/C/125/D/2556/2015

protection as a child; and right to an effective

remedy
Articles of the Covenant: 2, 3, 7, 8 (3) (a), 9, 10 (1), 17, 23 (1), 24 (1) and
26
Articles of the Optional Protocol: 5 (2) (b)

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1.1 The author of the communication is Fulmati Nyaya, 1 a national of Nepal, born in
1987 and a member of the indigenous Tharu community. She claims that the State party has
violated her rights under articles 2, 3, 7, 8 (3) (a), 9, 10 (1), 17, 23 (1), 24 (1) and 26 of the
Covenant. The Optional Protocol entered into force for the State on 14 May 1991.
1.2 On 27 January 2015, the Committee, acting through its Special Rapporteur on new
communications and interim measures, decided to examine the admissibility of the
communication together with the merits, in accordance with rule 97 of the Committee’s
rules of procedure.

The facts as presented by the author

2.1 The author notes that the facts of the present communication must be read in the
context of the decade-long armed conflict in Nepal (1996-2006).
2.2 The author was born in the Kailali District in far-western Nepal. On 2 April 2002,
when the author was 14 years old, 2 300 members of the Royal Nepalese Army (RNA) and
the Armed Police Force (APF)3 entered her village allegedly looking for Maoists. Soldiers
mistook the author for her elder sister -Ms. Kantimati, 4 who had joined the Maoist party the
previous year- and arrested her. She was dragged in a truck, where she was blindfolded,
handcuffed and taken to APF’s Bakimalika Battalion in Banbehda, Kailali. In the truck, the
author was sexually assaulted by a group of six to seven soldiers, who touched various parts
of her body, including her breast, thighs and bottom. On the same day, the security forces
also arrested her friend, Ms. Junkiri.5
2.3 Later that day, the author and other detainees were taken to the Army barracks in
Teghari. The author was detained incommunicado. During the first nine days of her
detention, she lived in a big hall with 80 to 90 other detainees, both men and women in very
poor hygienic conditions. She hardly had anything to eat. The Major asked the soldiers to
bring the detainees to his office one by one for interviews. For four days, she was regularly
taken from the hall for such interviews. The interrogations took place twice or three times a
day, generally in the evenings and she was most of the time blindfolded.
2.4 During her detention, she was raped and subjected to other forms of sexual violence,
including forced nudity, insertion of objects in her vagina and other sexual assaults. She
was also subjected to beatings, kicking, punching, prolonged blindfolding and handcuffing,
threats, insulting and denigrating language and coerced extraction of confessions.
Following the rape, she was not able to urinate and was bleeding profusely. The bleeding
lasted for a week and she did not receive any medical assistance or treatment. The Major
who raped her threatened to kill her if she told anybody about what had happened.
2.5 The author was detained at the Army barracks in Teghari from 2 to 11 April 2002.
Then, she was transferred back to the Bakimalika Battalion of the APF in Banbehda
together with her friend Ms Junkiri. They were detained in a very small dark room without
windows, mattresses, blankets or beds. During that period, she was again raped and
subjected to other forms of sexual violence. The Superintendent of the Police (SP) always
called her for interrogation during the day and after meeting him for three to four days, he
asked for the removal of her blindfold. Moreover, the female detainees, including the
author, were verbally abused and forced to do work in the barracks, such as carrying bricks
and sand, making cement for the construction of a temple and watering the garden.
2.6 Over a month and a half after her detention, the author’s father, Mr. Hira Bahadur6 ,
went to the APF’s barracks and finally found her after having searched for her in many
places of detention. He had to deposit NPR 50,000.00 (approximately 500 Euros) to secure
her release. On 13 or 14 June 2002, the author and her friend Ms. Junkiri were released but
were requested to report back on certain dates about Maoists activities. They reported

1
The author is using a pseudonym for the present communication.
2
By that time, the author was attending school 8th grade.
3
APF was a paramilitary police force established by the Government by way of
Ordinance, under the operational control of the RNA.
4
Pseudonym.
5
Pseudonym.
6
Pseudonym.

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periodically for about nine months, until March 2003. Sometimes, police officers recording
their reports ill-treated them, touching their bodies and using vulgar language. At some
point, the beating stopped but they were sometimes asked to water the garden. The police
threatened to kill them if they missed any reporting day. Afterwards, the reporting dates
happened every 7 days, then every 15 days and, at an unspecified date, they were no longer
requested to report.
2.7 In June 2002, the author returned to her village and found out that she had become a
social outcast. Aware of the behaviour of security forces towards female detainees, the
villagers assumed that she had been raped and thus bore “impurities”. Her friends in the
village avoided her. She was not able to come out of her house for about a month due to the
shame and humiliation and she stopped going to school. Therefore, her formal education
was interrupted for two years. She went back to school in 2004, where she was often
ridiculed as an “impure girl.”
2.8 In February 2009, the author got married. A week after her marriage, her husband
heard about the rumour of her rape. When he asked her about the rape, she told him the
truth. As a result, her husband and in-laws rejected her. The author was deeply humiliated
and had to go back to her maternal home. She stayed there for two years before her husband
finally reconciled with her.
2.9 The trauma provoked by the sexual violence and torture endured and the subsequent
stigmatization and rejection, left the author with severe psychological sequelae. She suffers
from post-traumatic stress disorder and has ongoing anxiety, nightmares and suicidal
thoughts. She also suffers from various grave physical ailments including pains in her chest
and problems with her backbone and ribs. She was examined by a physician in Kathmandu
in March 2013 and the doctor advised her to undertake therapy and be on long term
medication to avoid further damage to her backbone, as she is at risk of paralysis. 7 The
forensic doctor who examined the author on 24 March 2014 found scars over her body and
a nail deformity that are considered to be “consistent with the history provided by the
examinee.”8
2.10 Although many years passed since the author was subjected to rape, torture and
forced labour, she never complained about these crimes to any authority, doctor or even her
own family. Given the social stigma attached to sexual violence in the Nepalese society,
including within the indigenous community she belonged to, it was impossible for her to
seek support in the community as it would have led to further victimization rather than to a
remedy. Moreover, the author was only a 14-year-old girl and she did not understand the
avenues of justice or how to follow them. She would have needed to be represented by her
parents in legal proceedings, but she was too ashamed to ask for their support.
2.11 In 2011, the author learnt about the possibility of applying for interim relief as a
victim of the conflict before the District Administration Office (DAO). In January 2011,
she complained about her arbitrary detention and ill-treatment before the Chief District
Officer (CDO), but she has not received any “interim relief” to date. In fact, the “interim
relief” excludes from its scope victims of rape or other forms of sexual violence. 9
2.12 On 17 February 2014, a lawyer filed a complaint (First Information Report, ‘FIR’)
on behalf of the author. The Deputy SP of the Kailali District Police Office refused to
register the author’s FIR, as it allegedly did not comply with the 35-day statute of limitation
for reporting the crime of rape established pursuant to Section 11 of the Nepalese Criminal
Code. The lawyer also tried to file a claim for compensation before the Kailali District

7
The author provides a medical certificate and medicine prescription from the
Sahid Memorial Hospital, with no specified date.
8
The author provides copies of a medical certificate dated 25 March 2014
attesting the grave physical and psychological harm suffered by her and of a certificate dated 24
March 2014 issued by the Department of Forensic Medicine of the Tribhuvan University attesting the
author suffers from post-traumatic stress disorder and that her physical injuries match her allegations
of physical and sexual assault.
9
The author refers to the Advocacy Forum report, “Discrimination and
Irregularities: The Painful Tale of Interim Relief in Nepal,” 2010, p. 12, 14 and 28 and to the
Concluding Observations of Nepal, CCPR/C/NPL/CO/2, para. 5 b.

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Court, pursuant to the Torture Compensation Act 1996 (‘TCA’), but the Court refused to
register the claim.
2.13 The author notes that Section 3 (5) of the State Cases Act (1992) allows
complainants to further lodge their FIR with the CDO or the Police Officer superior to the
police office that initially refused to file the FIR. Accordingly, on 29 March 2014, the
author requested the Assistant CDO in Dhangadhi, District Headquarter of Kailali, to
register a FIR but he refused to do so alleging that it was not possible for conflict-related
cases to be registered and that the author should wait for the establishment of transitional
justice mechanisms.
2.14 On 11 April 2014, the author filed a writ of mandamus before the Supreme Court of
Nepal, which was registered on the same date, requesting the non-application of the 35-day
statute of limitations. However, the author notes that the Supreme Court has never admitted
requests concerning the non-application of the 35-day statute of limitation in individual
cases so the chances of success of her petition are null. The author notes that the only
exception was made regarding a specific non-conflict related case, in which the Supreme
Court highlighted the need to remove provisions on prescription, noting that they were a
barrier to effective remedy and reparations for victims and directed the government to
amend the relevant legislation to remove the 35-day statutory limitation on rape. However,
this remains unimplemented since 2008.10
2.15 On 17 April 2014, the Supreme Court issued a show cause order, asking the
Ministry of Home Affairs, Nepal Police Headquarters in Naxal, the District Police Office in
Kailali, and the District Administration Office in Kailali to provide a reply within 15 days
(on 2 May 2014). None of the respondents respected this deadline and the Supreme Court
fixed a second deadline for 2 June 2014.
2.16 The Police Headquarters and the Ministry of Home Affairs submitted rejoinders on
5 and 19 May 2014 respectively, challenging the admissibility of the claims on the basis of
the 35-day statute of limitations, which precludes any investigations. 11 In June 2014, the
District Police of Kailali and the District Administration Office of Kailali submitted similar
replies. The case is still pending, while her overall health situation is critical and requires
prompt intervention.
2.17 The author claims that she tried, unsuccessfully, to have a FIR registered and to
submit a complaint for compensation pursuant to the 1996 Torture Compensation Act. She
contends that she had no effective remedies available and cites the Committee’s
jurisprudence, according to which the exhaustion of local remedies can only be required
insofar as such remedies appear to be effective in the given case and are de facto available
to the author;12 and that domestic remedies do not need to be exhausted where the author
has objectively no prospect of success.13
2.18 The author further refers to a case against Nepal where the Committee held that “the
filing of FIRs with the police rarely leads to any investigations” and thus declared the case
admissible.14 The author adds that in other cases the Committee expressly referred to the
35-day statute of limitations as excessively strict; 15 and flagrantly inconsistent with the
gravity of the crime of torture.16
10
The author refers to Supreme Court of Nepal, case Sapana Pardhan Malla v.
the Government of Nepal Case No. 3393/2061, decision of 11 July 2008.
11
The author provides copies of the rejoinders submitted to the Supreme Court
by the Police and by the Ministry of Home Affairs, dated 5 May and 19 May 2014, respectively.
12
The author refers to, inter alia, the views of the Committee in case Zdenek and
Milada Ondracka v. Czech Republic, 14 December 2007, para. 6.3 and case Baboeram et al. v.
Suriname, 4 April 1985, para. 9. 2.
13
The author refers to the views of the Committee in case Ilmari Länsman et al.
v. Finland, 26 October 1994, para. 6.2 and case Pratt and Morgan v. Jamaica, 6 April 1989, para.
12.3.
14
The author refers to the views of the Committee in case Yasoda Sharma v.
Nepal, views of 28 October 2008, para. 6.3.
15
The author refers to the views of the Committee in case Giri v. Nepal, views of
24 March 2011, para. 6.3.
16
The author refers to the views of the Committee in case Maharjan v. Nepal, 19
July 2012, para. 7.4; case Giri, see footnote 22. The author also refers to the Committee’s Concluding

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The complaint
3.1 The author claims that the State party has violated articles 7, 8 (3) (a) and 10 (1),
read alone and in conjunction with articles 2 (1, 2 and 3), 3, 24 (1) and 26 of the Covenant
because of the rape, sexual abuse, torture, ill-treatment, inhumane conditions of detention
and the forced labour that she was subjected to and the subsequent failure by the State party
to provide an effective remedy and to carry out an ex officio, prompt, effective,
independent, impartial and thorough investigation into her allegations, and to prosecute and
sanction those responsible. The author submits that the violations are aggravated by the fact
that, at the time of the events, she was a young indigenous girl and, as such, she was
entitled to special protection from the State party. The author adds that the rape and sexual
abuse that she endured were committed as part of a systematic practice existing during the
conflict in Nepal. Moreover, the author claims that Nepal has failed to adopt effective
legislative measures to give effect to the rights enshrined in the Covenant and has failed to
remove obstacles in the existing legal framework that have disproportionately prejudicial
effects on women. According to Nepalese law, no complaint can be entertained regarding
rape unless filed within 35 days after the commission or occurrence thereof. 17 Filing a
complaint would have been materially impossible for her as she was being held in arbitrary
detention at the time. The author further claims that she was a victim of discrimination
based on her gender and ethnicity because of the attitude shown by domestic authorities.18
3.2 The author further alleges to be victim of a violation of article 9 (1, 2 and 3), read
alone and in conjunction with articles 2 (3) and 24 (1) of the Covenant because she was
subjected to arbitrary arrest and detention; and she was not informed, at the time of arrest,
of the reasons for her arrest, nor was she promptly informed of the charges against her.
Nepalese authorities did not conduct any effective investigation into these violations, and
they did not identify, prosecute and sanction those responsible, or provide her special
protection as a child.
3.3 The author finally alleges a violation of articles 17 and 23 (1), read alone and in
conjunction with articles 2 (1 and 3), 24 (1) and 26 of the Covenant, due to the arbitrary
interference with her privacy and her sexual life as a woman,19 the disruption of her family
life, and the unlawful attacks on her honour and reputation. Moreover, Nepalese authorities
failed to adopt measures of protection of the author’s family, leaving the author to endure
stigma and marginalization. The author claims she was a victim of a three-folded
discrimination: as a child, a woman and an indigenous person.
3.4 With respect to reparation, the author requests that the Committee call on the State
party to adopt the following specific measures: (a) undertake prompt and effective
investigations of the crimes alleged by the author and bring the perpetrators to justice; (b)
provide an official apology to the author on the occasion of a private ceremony,
acknowledging its international responsibility; (c) provide a prompt, fair and adequate
compensation to the author for the material and moral damage caused; and (d) provide free
of charge medical and psychological care for the author. The author also requests that the
Committee call upon the State party to implement the following general measures: (a)
criminalize torture; (b) adapt the definition of rape and other forms of sexual violence in
accordance with international standards and codify rape as a crime against humanity; (c)
amend the 35-day statute of limitations for the crime of rape and make it in line with
international human rights law; (d) amend Nepalese law making mandatory to provide an
arrest warrant at the time of arrest, including the grounds for arrest; (e) ensure all
fundamental legal safeguards for detainees are provided; (f) ensure that investigations and
forensic analyses -mainly with regard to rape and other forms of sexual violence- follow
international standards, in particular the Istanbul Protocol and the World Health
Organization Guidelines for Medico-Legal Care for Victims of Sexual Violence; and (g)
Observations on Nepal of March 2014 and to the Committee’s General Comments (Nos. 35, 31, 28,
20, 18, 17).
17
The author refers to the Nepal Criminal Code (Muluki Ain), Chapter on Rape,
Section 11.
18
The author refers to the views of the Committee in case L.N.P v. Argentina,
18 July 2011, para. 13.3.
19
The author refers to the General Comment No. 28 of the Committee,
HRI/GEN/1/Rev.9 (Vol.I), 29 March 2000, paras. 11 and 20.

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establish capacity building and educational programmes and trainings on diligent

investigations of cases of sexual abuse of women, the Istanbul Protocol, international
human rights law and international humanitarian law, for the judiciary, army, security
forces and all persons that may be involved in dealing with persons deprived of their
liberty.
State party’s observations on admissibility and merits
4.1 In its observations dated 4 September 2015, the State party argues that the author
has failed to exhaust domestic remedies available both in the criminal justice system as well
as the transitional justice mechanism, which is the appropriate avenue for truth-seeking for
crimes committed during the armed conflict.
4.2 As to the ordinary criminal justice system, the State party notes that the author’s writ
of mandamus is still pending before the Supreme Court of Nepal and that, according to
article 107 of the Interim Constitution of Nepal, the Supreme Court can issue an
appropriate order to provide full justice to the writ petitioner. The State party adds that
domestic legislation can provide specific statutes of limitation to file FIR depending on the
nature of the case.
4.3 As to the transitional justice system, the State party notes that the author still has the
possibility to file a complaint before the Truth and Reconciliation Commission, which is
mandated to investigate conflict-related cases, recommend the government to prosecute
alleged offenders and provide reparation to victims. The State party considers that the
regular justice system cannot be enough for truth seeking, prosecution of perpetrators,
reparations or rehabilitation to victims. The State party notes that truth seeking is at the
center of transitional justice mechanisms. The State party claims, therefore, that the author
should go to the Truth and Reconciliation Commission in order to record the violation of
her rights and to be eligible for reparation, restitution and other eventual services and
benefits.
4.4 The State party notes that sexual violence related offences, including rape, violence
against women and torture, are criminalized under domestic law. The State party claims,
therefore, that the government is committed to conducting prompt and impartial
investigations and bringing sexual violence perpetrators to justice. The State party informs
that, to enhance the access to justice for victims of rape, the concerned committees at the
Legislature Parliament approved an amendment Bill to extent the 35-day statute of
limitation on rape to six months. The State party also informs that a new Bill to fully
criminalize all forms of torture and ill-treatment, pursuant to the Convention Against
Torture, is under consideration by the Legislature Parliament.
4.5 The State party finally adds that the Nepal Army, Armed Police Forces and Nepal
Police had no record of the author’s arrest or her subsequent release as claimed in the
present communication.
Author’s comments on the State party’s observations on admissibility and merits
5.1 In her comments of 16 November 2015, the author reiterates her allegations on
admissibility and merits and the requested measures of reparation.
5.2 The author notes that, although her writ of mandamus is still pending before the
Supreme Court: (a) it is unlikely to produce any meaningful result and she does not
consider it to be an effective remedy in her case; and (b) the procedure before the Supreme
Court has been slow and plagued by delays, cancellation of hearings and lack of answers
from some respondents.20
5.3 The author interprets that, when the State party notes that domestic legislation can
provide specific statutes of limitation to file a FIR, it claims that the author failed to comply
with the 35-day statute of limitations to file her complaint. At the same time, the State party
refers to an amendment to extend the 35-day statute of limitations to six months. The author
claims, thus, that Nepal is aware of the overly restrictive nature of the 35-day statute of
limitations as it is trying to modify it. She also notes that this amendment has not yet been
20
The author refers to the admissibility decision of the Committee in case
Katwal v. Nepal, 10 October 2012, para. 6.4 and to the views of the Committee, inter alia, in case
Maharjan v. Nepal, 19 July 2012, para. 7.4.

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signed into bill. Hence, is not yet applicable and, even if it becomes applicable law, it
would not cover her case as she was raped in 2002.
5.4 The author further claims that the registration of her case before the Truth and
Reconciliation Commission, a non-judicial body, cannot be considered as an effective
remedy she should have exhausted before submitting a communication before the
Committee.21
5.5 The author claims that the mere fact that Nepalese authorities failed to record her
arbitrary deprivation of liberty (arrest and detention) amounts per se to a violation of article
9 of the Covenant. She notes that making a record of an arrest is one of the legal safeguards
that must be provided to detainees according to article 9 of the Covenant. 22 The author adds
that, as she was raped while in custody, the burden of the proof to rebut the author’s
allegations falls on the State party and it is not enough to allege that the deprivation of
liberty has not been formally recorded.23 The author claims, therefore, that the State party
failed to provide any evidence to rebut the author’s assertions concerning her arbitrary
deprivation of liberty, rape, other forms of ill-treatment, sexual violence and subsequent
forced labour.
Issues and proceedings before the Committee
Consideration of admissibility
6.1 Before considering any claim contained in a communication, the Committee must,
in accordance with rule 93 of its rules of procedure, decide whether it is admissible under
the Optional Protocol to the Covenant.
6.2 The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under any other procedure of
international investigation or settlement.
6.3 The Committee notes the State party’s claim that domestic remedies have not been
exhausted because, on the one hand, the author’s writ of mandamus is still pending before
the Supreme Court of Nepal and, on the other hand, she still has the possibility to file a
complaint before the Truth and Reconciliation Commission.
6.4 The Committee notes, however, that the author: (a) filed two First Information
Reports (FIR) concerning the crime of rape and other inhumane and degrading acts with the
District Police Office, which were rejected based on the 35-day statute of limitations for the
crime of rape; (b) filed a claim for compensation, pursuant to the Torture Compensation
Act 1996 (‘TCA’), which was also rejected and; (c) filed a writ of mandamus before the
Supreme Court of Nepal requesting the non-application of the 35-day statute of limitations
for conflict-related individual claims, that it is still pending. The Committee notes the
author’s uncontested allegations that she was unable to file a FIR within the legally
established 35- day-period, given that, during that time, she was still arbitrary detained with
no access to legal assistance. The author has also argued that, even after her release, she
was precluded from seeking support in her community and family due to the social stigma
attached to victims of sexual violence. The Committee considers that the proceedings
before the Supreme Court regarding the author’s writ of mandamus filed in April 2014 are
unduly prolonged, particularly considering the gravity of the crimes alleged. It further notes
the author’s statement that such proceedings are unlikely to bring relief given the
longstanding jurisprudence of the Supreme Court on this issue. Therefore, in view of the
legal and practical limitations on filing a complaint for rape in the State party, and the
unduly prolonged and unlikely successful proceedings before the Supreme Court the

21
The author refers to the views of the Committee in case Katwal v. Nepal, 10
October 2012, para. 6.3; case Sedhai v. Nepal, 19 July 2013, para. 7.5; case Tripathi v. Nepal, 28
October 2014, para. 6.3; and case Basnet v. Nepal, 29 October 2014, para. 7.4.
22
The author refers to General Comment No. 28 of the Committee, op. cit., para.
23 and to, inter alia, the views of the Committee in case Kurbonov v. Tajikistan, 6 November 2003,
para. 6.5.
23
The author refers to European Court of Human Rights (ECHR), case Aydin v.
Turkey, judgement of 25 September 1997, para. 73.

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Committee considers that the remedies in the criminal justice system were both ineffective
and unavailable to the author.24
6.5 With regard to the transitional justice system, the Committee notes the author’s
argument that the registration of her case before the Truth and Reconciliation Commission
is not an effective remedy considering the Commission’s non-judicial nature. In this vein,
the Committee recalls its jurisprudence that it is not necessary to exhaust avenues before
non-judicial bodies to fulfil the requirements of article 5 (2) (b) of the Optional Protocol,25
and that transitional justice mechanisms cannot serve to dispense with the criminal
prosecution of serious human rights violations. 26The Committee therefore considers that
resorting to the Truth and Reconciliation Commission would not constitute an effective
remedy for the author.
6.6 In light of the foregoing, the Committee concludes that it is not precluded by article
5 (2) (b) of the Optional Protocol from examining the present communication.
6.7 As all other admissibility criteria have been met, the Committee declares the
communication admissible and proceeds with its consideration of the merits.
Consideration of the merits
7.1 The Committee has considered the communication in the light of all the information
made available to it by the parties, as required under article 5 (1) of the Optional Protocol.
7.2 The Committee notes the author’s uncontested allegations that, since 2 April 2002
and, for a period of over a month and a half, she was subjected to rape and other forms of
sexual violence and torture by members of the Royal Nepalese Army and of the Armed
Police Force, in order to extract information about her alleged support to the Maoists. The
Committee considers that the rape and other acts of sexual violence inflicted by the
Nepalese Army and the Police upon the author, a 14-years-old indigenous girl at the time of
the events, violated the author’s rights under articles 7 and 24 (1) of the Covenant.
7.3 The Committee also notes the author’s uncontested argument that the rape and other
acts of sexual violence to which she was subjected to had a discriminatory effect, as
demonstrated by the fashion in which she was treated, as well as the generalized use of rape
against girls and women during the conflict, owing to the particularly serious
discriminatory consequences for girls and women victims of rape in the Nepalese society.
The Committee recalls that women are particularly vulnerable in times of internal or
international armed conflict and considers that this applies equally to girls. States must take
all measures to protect girls and women from rape, abduction and other forms of gender-
based violence.27 In light of the context surrounding the rape and other forms of sexual
violence to which the author was subjected to (see paras. 2.2 to 2.5), 28 as well as the State
party’s general failure to investigate and establish accountability for such crimes, the
Committee considers that the State party has violated the author’s right not to be subjected
to gender discrimination under articles 2 (1) and 3, read alone in conjunction with articles
7, 24 (1) and 26 of the Covenant.
7.4 The Committee notes the author’s allegations that, while in detention, Armed Police
officers forced her to work in the barracks, carrying bricks and sand, making cement for the
construction of a temple, and watering the garden, while also verbally abusing her. The State
party has not contested these allegations. Therefore, considering the author’s description and
the fact that forced labour has been found as a factor in the cruel treatment of detainees during

24
See communication No. 2245/2013, Purna Maya v. Nepal, Views adopted 23
June 2017, para. 11.5.
25
See communication No. 2000/2010, Katwal v. Nepal, Views adopted on 1
April 2015, para. 6.3.
26
See Concluding Observations on Nepal, CCPR/C/NPL/CO/2, 28 March 2014,
para. 5 (b).
27
See the Committee’s General comment No. 28 (2000) on equality of rights
between men and women, para. 8.
28
See communications No. 1610/2007, L.N.P. v. Argentina, Views adopted on
18 July 2011, para. 13.3; and No. 2234/2013, M.T. v. Uzbekistan, Views adopted on 23 July 2015,
para. 7.6 and communication No. 2245/2013, Purna Maya v. Nepal, Views adopted 23 June 2017,
para. 12.4.

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the internal conflict in Nepal,29 due weight must be given to the author’s allegations in this
regard.
7.5 The Committee has considered that for labour not to be forced or compulsory, it
must, “at a minimum, not be an exceptional measure; it must not possess a punitive purpose
or effect; and it must be provided for by law in order to serve a legitimate purpose under the
Covenant.”30In light of these considerations, the Committee is of the view that forcing the
author to work, exercising authority over her as a child in arbitrary detention, includes a
degrading and discriminatory purpose in that specific context, falls within the scope of the
proscriptions set out in article 8 of the Covenant and, therefore, constitutes a violation of
article 8 (3), read alone and in conjunction with articles 7 and 24 (1) of the Covenant.
7.6 In the light of the foregoing, the Committee decides not to examine separately the
author’s claims under article 10 (1) of the Covenant.
7.7 The Committee notes the author’s claims under article 9 of the Covenant that she
was arrested by a large military and police contingent without a warrant and without being
informed of any charges against her and without being brought under judicial control, that
she was detained in military and police barracks for more than one month and a half, and
that she was never compensated for that detention despite the numerous avenues that she
pursued in that regard. The State party refers to the lack of records of the author’s
detention, however, it has not provided any explanations to the contrary nor conducted the
necessary investigations into the author’s allegations. The Committee is of the view that the
author has presented a credible case as to her detention and requiring victims of arbitrary
and illegal arrest and detention to provide records thereof would amount to a probatio
diabolica.31 It considers that the burden of proof to rebut the author’s evidence clearly lies
with the State party. Therefore, the Committee considers that the author’s arrest and
detention by members of the Royal Nepalese Army and the Armed Police Force in the
context of the internal conflict, constitutes a violation of her rights under article 9 of the
Covenant.
7.8 Regarding the author’s complaint related to article 17 of the Covenant, the
Committee considers that the rape of the author constitutes an arbitrary interference with
her privacy and her sexual autonomy by forcing her to enter into sexual intercourse against
her will as a girl; all the more so because due to her rape she endured stigma and
marginalization, and the State party did not adopt measures to protect the author in any
regard. The Committee considers, moreover, that the stigmatization, marginalization and
shame endured by the author as a victim of sexual violence 32 from her community and
family amounts to a disruption of her family life and marriage. In view of the above, the
Committee finds a violation of articles 17 and 23 (1) of the Covenant.
7.9 The Committee notes the author’s allegations concerning the lack of investigation of
the violations sustained during her arrest and detention, despite the numerous avenues
pursued. The Committee further notes that the grounds alleged by the Nepalese authorities
for refusing to register the author’s complaints were based on the 35-day statute of
limitation applicable to the crime of rape under domestic legislation. The Committee recalls
its jurisprudence according to which such an unreasonably short statutory period for
bringing complaints for rape is flagrantly inconsistent with the gravity and nature of the
crime and that it has a disproportionately negative effect on girls and women, who are
predominantly the victims of rape. 33 In the present case, due to the trauma endured, the
social shame and stigma towards victims of sexual violence in the author’s community and
her lack of access to information on possible available legal avenues, nine years passed

29
See, Nepal Conflict Report (2012), p. 131.
30
See, communication No. 1036/2001, Bernadette Faure v. Australia, Views of
23 November 2005, para. 7.5.
31
See, communication No. 2245/2013, Purna Maya v. Nepal, Views adopted 23
June 2017, para. 12.7.
32
See, for instance, Nepal Conflict Report (2012), p. 165.
33
See, Concluding Observations on Nepal, CCPR/C/NPL/CO/2, para. 13, in
which the Committee expressed concern at the lack of progress in abolishing the 35-day limitation
period for filing complaints of rape; and communications No. 1863/2009, Maharjan v. Nepal, para.
7.6 and No. 2245/2013, Purna Maya v. Nepal, Views adopted 23 June 2017, para. 12.5.

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before the author was able to attempt to seek justice for the violations she was subjected
to.34 The Committee takes note that the State party committed to enhance the access to
justice for victims of rape (see para. 4.4) and takes also note that, in 2018, the State party
amended its Criminal Code extending the statute of limitations for filing complaints for the
crime of rape and other sexual offences from 35 days to one year. 35 The Committee notes,
however, that even this new statute of limitation is not commensurate with the gravity of
such crimes.
7.10 In light of the above, the Committee concludes that the statute of limitation for the
crime of rape under Nepalese law in force at the time of the events prevented the author
from accessing justice and violated her rights under article 2 (3), read alone and in
conjunction with articles 3, 7, 9, 24 and 26 of the Covenant.
8. The Committee, acting under article 5 (4) of the Optional Protocol, is of the view
that the facts before it disclose violations by the State party of articles 7 and 24 (1); articles
2 (1) and 3, read alone in conjunction with articles 7, 24 (1) and 26; article 8 (3), read alone
and in conjunction with articles 7 and 24 (1); article 9; read alone and in conjunction with
articles 2 (3) and 24 (1); articles 17 and 23 (1); and article 2 (3), read alone and in
conjunction with articles 3, 7, 9, 24 and 26.
9. In accordance with article 2 (3) (a) of the Covenant, the State party is under an
obligation to provide the authors with an effective remedy. This requires it to make full
reparation to individuals whose Covenant rights have been violated. Accordingly, the State
party is obligated, inter alia, to: (a) conduct a thorough and effective investigation into the
facts surrounding the arrest, detention and rape of Ms. Nyaya and the treatment she suffered
in detention; (b) prosecute, try and punish those responsible for the violations committed;
(c) provide the author with detailed information about the results of the investigation;
(d) ensure that any necessary and adequate psychological rehabilitation and medical
treatment is provided to the author free of charge; and (e) provide effective reparation,
adequate compensation and appropriate measures of satisfaction to the author for the
violations suffered, including arranging an official apology in a private ceremony . The
State party is also under an obligation to take steps to prevent the occurrence of similar
violations in the future. In particular, the State party should ensure that its legislation (i)
criminalize torture and provide for appropriate sanctions and remedies commensurate with
the gravity of the crime, (ii) adapt the definition of rape and other forms of sexual violence
in accordance with international standards, (iii) guarantee that cases of rape, other forms of
sexual violence and torture give rise to a prompt, impartial and effective investigation; 36 (iv)
allow for criminal prosecution of those responsible for such crimes; and (v) remove
obstacles that hinder the filing of complaints and effective access to justice and
compensation for victims of rape and other forms of sexual violence against women and
girls in the context of the Nepali armed conflict, as forms of torture, including a significant
increase of the statute of limitations commensurate with the gravity of such crimes. 37
10. Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether there has been a
violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has
undertaken to ensure for all individuals within its territory or subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and enforceable remedy when
a violation has been established, the Committee wishes to receive from the State party,
within 180 days, information about the measures taken to give effect to the Committee’s
Views. The State party is also requested to publish the present Views and disseminate them
widely in the official languages of the State party.

34
See paras. 2.9 and 2.10.
35
Chapter 18, Section 229 (2) of the new Nepalese Criminal Code, Act 2074
(2017), entered into force in August 2018.
36
See, Neupane and others v. Nepal (CCPR/C/120/D/2170/2012), para 11.
37
See, Concluding Observations on Nepal, CCPR/C/NPL/CO/2, para. 13. See
also Prosecutor v. Furundzija, Judgment, International Criminal Tribunal for the former Yugoslavia
ICTY-95-17/1 (10 December 1998).

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Annex

Individual opinion of Committee Member Mr. José Santos Pais (partly concurring)

1. I fully concur with the Committee that the State party violated several articles of the
Covenant in the present communication, although not with the conclusion that Nepal is
responsible for a disruption of the author’s family life and marriage (para 8).

2. The author was born in the Kailali District in far-western Nepal. On 2 April 2002,
when the author was 14 years old, members of the Royal Nepalese Army (RNA) and the
Armed Police Force (APF) entered her village and arrested her. She was dragged in a truck
and was sexually assaulted by a group of soldiers, who touched various parts of her body,
including her breast, thighs and bottom (para 2.2). Later that day, the author was taken to
the Army barracks in Teghari (para 2.3).

3. During her detention, she was raped and subjected to other forms of sexual violence.
Following the rape, she was not able to urinate and was bleeding profusely. However, she
did not receive any medical assistance or treatment (para 2.4).

4. In June 2002, the author returned to her village and found out that she had become a
social outcast. Aware of the behaviour of security forces towards female detainees,
villagers assumed that she had been raped and thus bore “impurities”. Her friends in the
village avoided her. She was not able to come out of her house for about a month due to the
shame and humiliation and she stopped going to school (para 2.7).

5. In February 2009, the author got married. A week after her marriage, her husband
heard about the rumour of her rape. When he asked her about the rape, she told him the
truth. As a result, her husband and in-laws rejected her. The author was deeply humiliated
and had to go back to her maternal home. She stayed there for two years before her husband
finally reconciled with her (para 2.8).

6. The trauma provoked by the sexual violence endured and the subsequent
stigmatization and rejection, left the author with severe psychological sequelae. She suffers
from post-traumatic stress disorder and has ongoing anxiety, nightmares and suicidal
thoughts (para 2.9).

7. Notwithstanding, for several years after the author was subjected to rape, she did not
complain about it to any authority, doctor or even her own family. Given the social stigma
attached to sexual violence in the Nepalese society, including within the indigenous
community she belonged to, she found it impossible for her to seek support in the
community as it would have led to further victimization rather than to a remedy and she
was also too ashamed to ask for her parents’ support (para 2.10).

8. The author alleges a violation of articles 17 and 23 (1) of the Covenant, due to the
arbitrary interference with her privacy and her sexual life as a woman, the disruption of her
family life, and the unlawful attacks on her honour and reputation (para 3.3).

9. In this regard, due account should be given to the author’s uncontested allegations
that, since 2 April 2002 and, for a period of over a month and a half, she was subjected to
rape and other forms of sexual violence by members of the Royal Nepalese Army and of
the Armed Police Force. I therefore concur with the Committee, that these crimes, inflicted
upon the author, a 14-years-old indigenous girl at the time of the events, violated the
author’s rights under articles 7 and 24 (1) of the Covenant (para 7.2).

10. Regarding the author’s complaint under article 17 of the Covenant, I also concur
with the Committee, that the rape of the author constitutes an arbitrary interference with her
privacy and her sexual autonomy by forcing her to enter into sexual intercourse against her
 CCPR/C/WG/125/DR/2556/2015

will as a girl; all the more so because due to her rape she endured stigma, shame and
marginalization from her community (para 7.8).

11. However, unlike the Committee, I fail to see how the State party is to be held
accountable for the alleged disruption of the author’s family life or of her future marriage.

12. Regarding family life, the author herself acknowledges she did not complain about
her rape to her own family and that she felt too ashamed to ask for her parents’ support
(supra 7 and para 2.10). Moreover, her family has received her after the events, cared for
her and gave her shelter and understanding. Therefore, the author did not face a situation of
family disruption.

13. As for the author’s marriage, it was celebrated 7 years after the events and the causal
link between the sexual crimes endured and the initial disruption of the marriage
intermingle with several other factors (husband’s and in-laws’ perception of the author as a
victim of sexual violence, perceptions of the community on the same issue, social
prejudices and bias and many others). I therefore fail to see how the State party is to be held
responsible for the author’s disrupted marriage, particularly since the spouses later
reconciled with each other.

14. By concluding with a violation of the author’s rights under articles 17 and 23 (1) of
the Covenant for these reasons, the Committee opens up an avenue for State’s
responsibility that will hardly have any boundaries, both in terms of the number of years to
take into account after the events and as to the extent of such responsibility.
15. I would therefore have concluded that Nepal is not responsible, in the present case,
for a disruption of the author’s family life and marriage and therefore has not violated, on
these grounds, articles 17 and 23 (1) of the Covenant.

13