BHUTAN: ARBITRARY DETENTION OF 3 REFUGEE STUDENTS

The International League Against Arbitrary Detention urges the Government of Bhutan to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 60/2024 concerning Birkha Bahadur Chhetri, Kumar Gautam and Sunman Gurung, asking the Government to immediately and unconditionally release them and to accord them an enforceable right to compensation and other reparations in accordance with international law.

Read the full WGAD Opinion concerning Birkha Bahadur Chhetri, Kumar Gautam and Sunman Gurung: Opinion No. 60/2024.

ARREST OF THREE NEPALI SPEAKERS BORN IN BHUTAN

Birkha Bahadur Chhetri, Kumar Gautam and Sunman Gurung are Nepali speaking refugee students born in Bhutan in 1987, 1983 and 1976. At the time of their arrest, the men resided in refugee camps in Nepal, which are now reportedly closed. The three of them are not recognized as Bhutan nationals and have their identity documents issued by the International Committee of the Red Cross (ICRC).

Mr. Chhetri and Mr. Gautam were searched and arrested on 5 February 2008 by officers from the Royal Bhutan Army near the border between Bhutan and India after having distributed pamphlets alleging discriminatory policies against the Nepali-speaking population in southern Bhutan.

Mr. Gurung was similarly arrested on 15 February 2008 near the border between Bhutan and India after having distributed pamphlets. However, the officers did not find any pamphlets when they searched him. When Mr. Gurung was asked for his address, he gave an address in India that was not later confirmed by Indian authorities. He was therefore arrested.

The three of them were presented to a judge on 29 February 2008 after being handed over to the Royal Bhutan Police and transferred to the Chemgang Central Prison in Thimphu. They remained in custody until the first day of their hearing on 29 May 2008 in front of the Sarpang District Court. They were charged under various articles of the National Security Act for joining the Communist Party of Bhutan, treason and acts against the King among others.

On 9 September 2008, Mr. Chhetri, Mr. Gurung and Mr. Gautam were sentenced to life imprisonment and transferred to block 5 of Chemgang Central Prison in Thimphu. The next day, they appealed their sentence, but their appeal was dismissed eight months later.

The Working Group transmitted the allegations to the Government of Bhutan, which chose not to respond, and which is still not a party to the International Covenant on Civil and Political Rights.

ARRESTED WITHOUT AN ARREST WARRANT AND HELD INCOMMUNICADO

According to the source, Mr. Chhetri, Mr. Gurung and Mr. Gautam were not provided with an arrest warrant or an explanation for their arrest. In absence the of a response from the Government, the Working Group found that Mr. Chhetri, Mr. Gurung and Mr. Gautam’s arrests were in violation of articles 3 and 9 of the Universal Declaration of Human Rights as they were arrested without any legal basis.

Moreover, the source submitted that Mr. Chhetri and Mr. Gautam were held incommunicado for 20 days from the moment of their arrest. Their families were not informed of their arrests or whereabouts, and they were questioned daily without the presence of a lawyer. The Working group recalled that incommunicado detention prevents prompt presentation before a judge and violates the right to challenge the lawfulness of the detention before a court. In light of the evidence regarding their enforced disappearance, it concluded to a violation of article 6 of the Universal Declaration of Human Rights given that there was no possibility for them to challenge the legality of their detention and that they were placed outside the protection of the law.

Hence, the Working Group found that the arrests and detentions of Mr. Chhetri, Mr. Gurung and Mr. Gautam lacked a legal basis, making their deprivation of liberty fall under category I.

DETAINED FOR EXERCISING THEIR RIGHT TO FREEDOM OF MOVEMENT AND TO SEEK ASYLUM FROM PERSECUTION AND FREEDOM OF OPINION, THOUGHT AND EXPRESSION

The source argued that Mr. Chhetri, Mr. Gurung and Mr. Gautam were detained for exercising their right to seek and to enjoy asylum from persecution in other countries. Indeed, the three of them were initially arrested because they had no documentation to prove their citizenship. In that regard, the source claimed that their citizenship papers were indeed revoked by the authorities making them stateless. The Working Group recalled the Committee on the Rights of the Child and the Committee on the Elimination of Racial Discrimination’s concerns regarding the situation of children of Nepalese ethnic origin and discrimination against non-citizens in Bhutan. In light of this and the information provided by the source, it found a violation of article 13 of the Universal Declaration of Human Rights which guarantees the right to freedom of movement and to seek asylum.

Moreover, according to the source, Mr. Chhetri, Mr. Gurung and Mr. Gautam were detained for their exercise of their right to freedom of expression and opinion as protected by articles 18, 19 and 20 of the Covenant due to their public criticism of the government distribution of pamphlets. The Working Group recalled that the right to freedom of expression and opinion of activists includes the right to criticize or openly and publicly evaluate their government without fear of interference or punishment as recognized by the Covenant. While permissible restrictions exist, the Working Group quoted the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms and confirmed the fact that national security should not be used to suppress opposition.

Furthermore, the Working Group showed some concerns regarding the National Security Act under which Mr. Chhetri, Mr. Gurung and Mr. Gautam were arrested. It considered it as violating article 7 of the Universal Declaration of Human Rights guaranteeing equal protection before laws as the source submitted that the Act was designed and used to punish those who advocated for human rights and democracy by accusing them of treason.

The source pointed out that Mr. Chhetri, Mr. Gurung and Mr. Gautam were arrested because they were in possession of pamphlets criticizing the government and not given access to a lawyer after their arrest. Due to the lack of response from the Government of Bhutan and no proof suggesting violent acts by the three men, the Working Group found their situation to be in violation of articles 18, 19 and 20 of the Universal Declaration of Human Rights.

In light of the above, the Working Group concluded that Mr. Chhetri, Mr. Gurung and Mr. Gautam’s detentions were arbitrary within the meaning of Category II.

VIOLATION OF THEIR FAIR TRIAL RIGHTS

The source submitted that Mr. Chhetri, Mr. Gurung and Mr. Gautam were not allowed to have a lawyer during the entire procedure, and that they were charged under the National Security Act which contains arbitrary sentencing because of its broad and vague provisions preventing them from receiving an efficient defence. They were also not allowed any effective translation support during the proceedings. The Working Group expressed its concern regarding the lack of legal representation at crucial stages of their proceedings, especially as the individuals were arrested under national security laws sanctioned by life imprisonment with no possibility of parole in Bhutan. For all these reasons, the Working Group considered the situation in violation of the right to access counsel under article 10 of the UDHR.

Considering all of the above, the Working Group found that the violation of the right to a fair trial and due process of Mr. Chhetri, Mr. Gurung and Mr. Gautam had been of such gravity as to render their deprivation of liberty arbitrary under category III.

DETAINED ON THE BASIS OF ETHNIC, RELIGIOUS AND LANGUAGE GROUNDS AND BECAUSE OF THEIR STATUS AS HUMAN RIGHTS DEFENDERS

In the source’s view, Mr. Chhetri, Mr. Gurung and Mr. Gautam’s political opinions and status as pro-democracy Nepali speakers in Bhutan are at the centre of their cases. Indeed, it submitted that Mr. Chhetri, Mr. Gurung and Mr. Gautam were arrested and sentenced to life imprisonment for being part of the Nepali-speaking community in Bhutan.  In that regard, the Working Group shed light on the pattern of the misuse of the judiciary to justify repercussions against minorities and political opponents in Bhutan. In the absence of a response form the Government regarding those allegations, the Working Group considered that Mr. Chhetri, Mr. Gurung and Mr. Gautam’s deprivation of liberty was based on ethnic, religious and language grounds but also because of their political opinions and activism, which constituted a violation of articles 2 and 7 of the Universal Declaration of Human Rights.

Hence, the Working Group found their deprivation of liberty to be arbitrary under category V.

CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION

In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Birkha Bahadur Chhetri, Kumar Gautam and Sunman Gurung were arbitrary and fell under categories I, II, III and V because their deprivation of liberty was in contravention of articles 2, 3, 6, 7, 9, 10 and 20 of the Universal Declaration of Human Rights.

The Working Group recommended that the Government of Bhutan take the necessary steps to remedy the situation of Birkha Bahadur Chhetri, Kumar Gautam and Sunman Gurung without delay and bring it into conformity with the relevant international norms. The Working Group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release them immediately and accord them an enforceable right to compensation and other reparations, in accordance with international law.

The Working Group also urged the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Birkha Bahadur Chhetri, Kumar Gautam and Sunman Gurung and to take appropriate measures. Lastly, it requested the Government to bring its laws into conformity with the recommendations of the opinion.