Practice Relating to Rule 150. Reparation
In 2009, in the Bhandari case, Nepal’s Supreme Court described the facts of the case as follows:
The petitioners who were living in their own ancestral place have been wandering as … landless paupers and internal refugees in different parts of the country due to the conflict that started in the year 1996 following which the Maoists seized their land, house, industry, factory including movable and immovable property allegedly for professing political faith opposed by the Maoists. Since the internally displaced families had played [a] very important role during the movement of 2006/2007 they were confident that following the success of the movement, peace and order would be restored in the country resulting in the onset of New Nepal. Then movable and immovable property seized during the conflict would be easily returned and all the families would be allowed to settle in their respective settlements and make their living. As expected, the movement was successful and the Interim Constitution of Nepal, 2007, was promulgated which guaranteed fundamental rights and also inscribed that the property seized during the armed conflict would be returned. But their fate took a further downturn.
The Government of Nepal, the political parties and the respondents who were signatory to Art 5.1.8 of the Comprehensive Peace Agreement annexed to the Constitution pursuant Article 166(3) did not return the seized movable and immovable property of the petitioners. Complaints were filed a number of times for the return of the property before the political party who were supposedly called the vanguards of the New Nepal, before the Human Rights Commission and the Nepal[ese] Government. However, no initiative was taken [by] them.
The Court held:
At a time following the conclusion of the peace agreement, when the parties who were in conflict have tried to re-establish the[ir] relations in a new way, a question may be raised as to whether … scratching the issue of injustice of the past would not jeopardize the already established new relations. In this, there may also be people who would like to see justice and peace as mutually opposing. True, one cannot always say that every past atrocity should be settled through judicial process and [the] payment of reparation. Several disputes that occur in the course of the conflict may be settled by dialogue and amicable settlement forged between the parties. Inconveniences of the people may be removed by infrastructure development as well. But when incidents causing damage to the life, body and property occur or where violations of humanitarian laws also take place, such matters need to be dealt with by providing rehabilitation and reparation where the nature of [the] case so demands, and in others through the judicial process. Where violations of humanitarian laws result in the destruction of life and property, in such cases if due attention is not paid to such incidents, this may give rise to growth or flourishing of impunity. The impunity in reality is a situation opposed to the rule of law. Whether in peace or war, there are fundamental principles of rule of law that unite the society, and if they are disregarded, then justification of living in such society vanishes.
Therefore, there should be no negligence in the enforcement of human rights and humanitarian laws. Rather every situation of violations of human rights laws and humanitarian laws should be brought within the legal process and taken to the right conclusion. The society should be assured of the protection that could be offered by the law. If the State tries to escape from shouldering responsibility that result from the acts causing damage to [a] person’s body and property or gross violations of humanitarian laws, then the impact caused by such incidents to the person, family or society lingers. They may at any time and in any pretext resurface in the society in the form of reaction. Therefore, until the impacts of the conflicts are satisfactorily resolved, sustainable peace seems to be impossible. For that reason also the proper management of transitional justice appears important.
In its order in the Forced Disappearances case in 2007, the Supreme Court of Nepal stated:
Article 24(2) of the International Convention for the Protection of All Persons from Enforced Disappearances, 2006 imposes an obligation on each State Party to ensure in its legal system measures for reparation, including prompt, fair, and adequate compensation to victims of enforced disappearance. A similar provision is found in Article 19 of the Declaration to Provide Protection to All Disappeared Persons, adopted by the United Nations General Assembly in resolution No. 47/133 in 18 December 1992. The UN Working Group on Enforced or Involuntary Disappearance, in interpreting the Article, has recommended that when providing monetary compensation to victims of enforced disappearance, [factors such as] physical or mental loss, lost opportunities, loss of property, loss of income, effects on prestige or dignity, and expenditure incurred in hiring experts or legal services should be taken into consideration.
Article 7 of resolution No. 71 (A), passed by the 60th Meeting of the United Nations General Assembly, provides that persons who are victims of serious violations of human rights and international humanitarian law should have equal and effective access to justice for the losses they suffered by receiving prompt, effective and adequate reparation; the Working Group has proposed that victims should have access to any available information. As Nepal is a member of the United Nations, there is no reason for her to remain indifferent towards such commitments.
The Human Rights Committee of the United Nations, while interpreting Articles 2 and 9 of the Covenant on Civil and Political Rights, to which Nepal is a party, has articulated that the State should, in addition to providing other remedies, provide compensation in situations of violations of the rights of persons and should adopt interim measures as immediate steps. It has been accepted that an enforced disappearance during a conflict not only affects the disappeared person, but also the families of the disappeared person. Therefore, the Committee argued that the State should provide relief and compensation to the disappeared person and his kin.
Thus, on the basis of the constitutional provisions of Nepal, decisions of foreign courts and regional human rights courts, international instruments concerning human rights to which Nepal is a party, and documents and proposals issued by the United Nations and the international community, it is hereby established that the State has the obligation to provide immediate relief and adequate compensation to the victims of serious violations of civil and human rights. On the grounds deliberated above, it is found that the persons stated in the petitions were disappeared during the time of the conflict and it has been established that the State has a special obligation to such persons. It is now appropriate to provide interim, immediate relief to the victims, in light of the physical and mental torture, as well as economic loss, that the families of the victims have suffered during their search and attempts to obtain justice.
Even as it is not possible to provide specific legal remedies like punishment or compensation in the situation when the true status of a detainee is not known, it is hereby ordered to provide interim relief, even in symbolic form, in light of the situation at the time of deciding this case, with the limited purpose of helping the victims’ families bear the pains suffered by them while seeking justice, on the condition that it will not affect the amount and nature of the remedy to be provided as per the law to be enacted pursuant to section (B) and any subsequent investigations.
The incidents of violations of the right to freedom and security of life are not matters to be merely compensated in monetary and economic terms. However, this court has, in light of the obligation of the State to provide assistance, however small, to victims, the fact that rights would be meaningless in the absence of effective remedies, and the need to respect the rights of victims’ families to seek remedies, orders the provision of immediate relief of an interim nature.
Therefore, this order is hereby issued to the Government of Nepal, as well as the Cabinet Secretariat pursuant to Article 100 and 107 (2) of the Interim Constitution of Nepal, 2007, to provide immediate relief of two hundred thousand rupees to the nearest claimant of Chakra Bahadur Shahi, whose death has been verified by the investigation of the DIT, constituted by the order of this court, and two hundred thousand rupees to the families of those who are declared dead; one hundred fifty thousand rupees each to Rajendra Prashad Dhakal, Bipin Bhandari and Dil Bahadur Rai, in whose cases the investigation of the DIT constituted by this court verified their arrest by the security forces, but whose status subsequently changed to disappeared; and one hundred thousand rupees each to remaining persons stated in the petitions whose status has not been clarified.
In 2004, in a declaration of commitment on the implementation of human rights and international humanitarian law, the Prime Minister of Nepal stated:
The accused held in detention shall not be subject to torture or to cruel, inhuman or degrading treatment or punishment. Any person so treated shall be provided with the compensation stipulated by the law and any person responsible for such treatment shall be prosecuted and punished according to the law.