Nepal: absence of fair trial and life imprisonment of a 14-year-old girl and her mother; discrimination of their family

NPL 210904.CC.VAW Torture/Due process and fair trial/Life imprisonment/ Discrimination/Harassment/Impunity The International Secretariat of OMCT requests your URGENT intervention in the following situation in Nepal. Brief description of the situation The International Secretariat of OMCT has been informed by the Asian Human Rights Commission (AHRC), a member of the OMCT network, of the 20 years’ imprisonment of a 14-year-old Dalit girl, Saraswati Bishwakarma, and her mother, Shirkumari Bishwakarma, 49 years old, for a murder they did not commit. According to the information received, on 7 May 2003, 13-year-old Saraswati Biswakarma and her friend Deepa Gurung went to Deepa's grandmother's house in the village of Kimchi 2, Ghandruk, Kaski, to drink tea during the school lunch break. The grandmother was not at home but Deepa's relative Sunita Gurung called the two girls and took them to the jungle under a fallacious ground according to which the girls should act out a drama in order to counter a curse foretold by an astrologist. Then, according to Sataswati’s evidence, Sunita Gurung said she had to pretend to kill the girls so that the curse disappears. Thus, Sunita Gurung blindfolded Deepa first and slit her throat with a knife before throwing her body into a hole. Saraswati Biswakarma screamed in terror and Sunita Gurung threatened her saying that she would kill her in the same way if she told anybody about what had happened. Sunita Gurung also reportedly took some jewels off the dead girl and gave it to Saraswati Biswakarma to hide. According to the same source, after this incident, Sunita Gurung left the village. When Saraswati Biswakarma went back home, her parents, 49-year-old Shirkumari Bishwakarma (mother) and 68-year-old Ram Bahadur Bishwakarma (father), asked her why she had come home from school early and Saraswati Biswakarma said she was not feeling well. Then the mother went the school to pick up her daughter's bag. Two days later, on 9 May 2003, some villagers including Deepa's father, Gum Prasad Gurung, and uncle, Dhruba Gurung, allegedly came to Saraswati Biswakarma 's house and dragged the girl outside and beat her while asking if she knew where Deepa was. Saraswati Biswakarma denied she knew anything about it. The next night, the villagers came to Biswakarma family's house and dragged Saraswati away once again. This time the girl told them that Sunita Gurung knew where Deepa was. The villagers then handed her to the police officers at the District Police Station, Pokhara, Kashi for the murder of Deepa. Since then, Deepa Gurung's family started to accuse Saraswati's whole family of being involved in the killing of Deepa. Deepa's father Gum Prasad Gurung and her uncle Dhruba Gurung caught Saraswati's brother Bishnu Parsad B.K (16) and allegedly beat him severely. Due to this severe assault, he cannot walk and hear properly and needs medication for the injuries until now. They also put chicken blood on his clothes and said it was Deepa's blood and he was arrested by the police on 12 May 2003. On the same day, Saraswati's parents and another 14-year-old relative Anil BK were arrested for same charges, too. Except Saraswati and her mother, they were all released for lack of evidence after a month in police custody. While they were in police custody, Saraswati and her mother were tortured with pins on her fingertips as well as beaten and kicked by the police officers. Meantime, Sunita Gurung, who is allegedly the actual murderer of Deepa, had also been arrested. Furthermore, all the villagers who belong to the higher Gurung caste reportedly turned against the victims' family and even the other villagers from the Dalit caste (to which the Bishwakarma family belongs) did not support them as they were too scared. The Gurung caste is indeed very strong in the area and whenever something happens to someone from this caste all the other members will come to support him/her. On 10 June 2003, the hearing of the case was started in District Court, Pardi, Pokhara. (Case No. 133/060,061). At the hearing, all the Gurung villagers came and put pressure to convict Saraswati and her mother. The only evidence the police had against the mother was the fact that she went to the school and picked up her daughter's bag after the incident. Evidence against Saraswati included that she had been present during the killing and had hid the jewellery. Even though Sunita Gurung had already confessed that she killed Deepa, the Gurungs forced her to say that Saraswati and her mother were also involved. On 26 February 2004, Judge Shambhu Bahadur Khadka convicted Saraswati, her mother and Sunita and sentenced them for life imprisonment, i.e. 20 years’ imprisonment under Nepalese law. In particular, according to the same information, while the case was ongoing in court, the Gurung villagers including Deepa's father Gum Prasad Gurung and her uncle Dhruba Gurung had tampered with school certificates and tried to prove that Saraswati was 17, despite her birth certificate and a medical examination showing that she was under 16 years. As a result, Saraswati was sentenced as an adult. No inquiry or action has been taken by the police about the falsehood of the document. After they were sent to the Jail at Kaski Pokhara, Saraswati is getting no formal education inside the jail because the villagers are threatening any teachers who are asked to work in the jail to teach Saraswati. In addition, Saraswati is suffering from Sunita's continuous intimidation on her life. Indeed, in jail, Saraswati and her mother share a room with Sunita who often threatens Saraswati to kill saying that if she had killed her at the same time as Deepa she would not have to be in jail. It is generally agreed by both prisoners and staff at the prison that Saraswati and her mother are completely innocent and Saraswati is underaged. Victims’ family gave an oral complaint to the National Human Rights Commission (NHRC) member Mr. Shushil Pakurel about this case but he did not take any action. Meantime, on 28 June 2003 at around 10 am, Gum Prasad Gurung and Dhruba Gurung burnt down Saraswati's parents' house and killed all their domestic animals. The family has lost all their property and now lives in a small rented hut far from the village. They are still terrified of attacks from the Gurung villagers and have no money for the education of the rest of their children. According to victims’ father and husband, Mr. Ram Bahadur Bishwakarma, the real reason of all these incidents against his family is related to the caste discrimination and jealousy. Even though he belongs to Dalit community, Mr. Ram Bahadur Bishwakarma, who had worked with the Indian army for many years previously, had managed to save some money and built a nice house. The father testified that there was some tension with higher castes because they were jealous about the fact that he had a bigger house than them. The father launched a complaint to the District Police Station, Pokhara, Kashi about this incident but the police refused to go and investigate the incident even after a case was filed and arrest warrants were issued against the perpetrators, raising Maoist problems in the area as an excuse. The International Secretariat of OMCT is gravely concerned by the torture of a minor Saraswati Bishwakarma (13 year old), and her mother, Shirkumari Bishwakarma, by the life imprisonment of these two persons who claimed their innocence, by the continuing harassment and discrimination against their family according to its caste and by the interference into the judicial process by some individuals from a higher caste. OMCT is also worried about the police inaction which leads to perpetrators’ impunity and points out the failure both in the society and the judicial system in Nepal. Action requested Please write to the authorities in Nepal urging them to: i. take all measures necessary to guarantee the physical and psychological integrity of Ms. Saraswati Bishwakarma and Ms.Shirkumari Bishwakarma; ii. order the resumption of the proceedings and take proper action to ensure a fair trial before an impartial and competent tribunal and guarantee their procedural rights at all times; iii. order a thorough and impartial investigation into the circumstances of these events in order to identify those responsible, bring all of them to trial and apply the penal and/or civil sanctions as provided by law; iv. guarantee that adequate reparation and protection are provided to the victims and their family; v. guarantee the respect for human rights and the fundamental freedoms throughout the country in accordance with national laws and international human rights standards. Addresses

• Mahadeo Prasad Yadav, Attorney General, Office of the Attorney General, Ramshahpath, Kathmandu, Nepal, Tel: +977 14 262548 (direct line)/262394 (through Personal Assistant), Fax: +977 14 262582, Email: fpattorney@most.gov.np


• Mr. Sher Bahdur Deuba, Prime Minister , Office of the Prime Minister, Singha Durbar, Kathmandu, NEPAL, Tel: +977 1 4 228555 or 227955, Fax: +977 1 4 227286/227765


• Mr. Nain Bahadur Khatri, Chairman of the National Human Rights Commission, Pulchowck, Lalitpur Nepal, Tel: +977 1 5 547974 or 525659 or 547975, Fax: +9771 5 547973, Email: nhrc@ntc.net.np


• Shyam Bhakta Thapa, Inspector General of Police (IGP), Police Head Quarter, Maharajganj, Kathmandu, NEPAL, Tel: +977 14 412737 (direct)/412432 (O) or 414985 (R), Fax. +977 14 415593


• Deputy Superintendent of Police (DSP), Gairapatan, Pokhara, Kashki, NEPAL, Tel: +977-61-520055/520033, Fax. +977-61-523699


• Krishna Prasad Lamichane, Pokhara, Chief District Officer (CDO), Shahid Chowck, Pardi, Pokhara, Kashki, NEPAL, Tel: +977-61-520075/521176


• Mr. Leandro Despouy, Special Representative on the Independence of judges and lawyers, OHCHR-UNOG, Palais Wilson, Rue des Paquis 52, Geneva, SWITZERLAND, Tel: +41 22 9175727, Fax: +41 22 9179006


• Mr. Doudou Diene, Special Rapporteur on Racism, Racial Discrimination, Xenophobia and Related Intolerance, Room 4-041, OHCHR-UNOG, Palais Wilson,Rue des Paquis 52, Geneva, SWITZERLAND, Tel: +41 22 9179271, Fax: +41 22 9179050

Please also write to the embassies of Nepal in your respective country. Geneva, September 21st, 2004 Kindly inform us of any action undertaken quoting the code of this appeal in your reply.