Opinion; Subjects: BHUTAN, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.25-02059 (E) 170225 180225
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 101st session, 11–15 November 2024
Opinion No. 60/2024 concerning Birkha Bahadur Chhetri, Kumar
Gautam and Sunman Gurung (Bhutan)*
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 51/8.
2.
In accordance with its methods of work,1 on 23 February 2024 the Working Group
transmitted to the Government of Bhutan a communication concerning Birkha Bahadur
Chhetri, Kumar Gautam and Sunman Gurung. The Government has not replied to the
communication. The State is not a party to the International Covenant on Civil and Political
Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination, based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability
* Mumba Malila did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/60
General Assembly
Distr.: General
18 February 2025
Original: English
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or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1.
Submissions
(a)
Communication from the source
4.
Birkha Bahadur Chhetri is a Nepali speaker born in Bhutan in 1987. The Government
of Bhutan reportedly does not recognize him as a national of Bhutan. According to the source,
Mr. Chhetri has an identity document issued by the International Committee of the Red Cross
(ICRC).
5.
At the time of his arrest, Mr. Chhetri was a refugee student residing in the Bhutanese
refugee camp in Khudunabari, Nepal. The camp is now reportedly closed, following the
resettlement of the refugees in third countries.
6.
Kumar Gautam is a Nepali speaker born in Bhutan in 1983. The Government of
Bhutan reportedly does not recognize him as a national of Bhutan. According to the source,
Mr. Gautam has an identity document issued by ICRC.
7.
At the time of his arrest, Mr. Gautam was a refugee student residing in the Goldhap
refugee camp in eastern Nepal. The camp is now reportedly closed, following the
resettlement of the refugees in third countries.
8.
Sunman Gurung is a Nepali speaker born in Bhutan in 1976. The Government of
Bhutan reportedly does not recognize him as a national of Bhutan. According to the source,
Mr. Gurung has an identity document issued by ICRC.
9.
At the time of his arrest, Mr. Gurung was a refugee student residing in the Bhutanese
refugee camp Beldangi I in Nepal. The camp is now reportedly closed, following the
resettlement of the refugees in third countries.
(i)
Context
10.
The source submits that, in the 1990s, the Nepali-speaking minority population in
Bhutan faced marginalization and discrimination from the authorities. As a response,
pro-democracy demonstrations took place in southern Bhutan. In that context, the National
Security Act of Bhutan of 1992 was adopted. Many demonstrators were arrested and
prosecuted under the Act. These events also resulted in the expulsion from Bhutan of an
estimated 90,000 individuals, mostly Nepali-speaking, including Mr. Chhetri, Mr. Gautam
and Mr. Gurung, together with their families.
(ii)
Arrest and detention
11.
According to the source, on 5 February 2008, Mr. Chhetri and Mr. Gautam were
returning from Senggye, a village located in Sarpang District of Bhutan, having distributed
pamphlets alleging discriminatory policies against the Nepali-speaking population in
southern Bhutan. The security forces of the Royal Bhutan Army stationed along the border
between Bhutan and India stopped them and inspected their bags. After the officers found
the aforementioned pamphlets and books on political subjects, Mr. Chhetri and Mr. Gautam
were arrested.
12.
The source submits that the officers did not produce an arrest warrant or any other
decision by a public authority at the time of the arrest. Arrest warrants are generally not issued
for the arrest of individuals who are suspected of involvement in opposing the Government’s
activities.
13.
According to the source, Mr. Chhetri and Mr. Gautam were taken to a nearby army
barracks, where they were kept for 20 days and interrogated daily without lawyers present.
14.
The source further reports that, on 15 February 2008, 10 days after the arrest of
Mr. Chhetri and Mr. Gautam, Mr. Gurung was returning from Bhutan to India, from the
bordering village of Kalikhola, located in Samdrup Jongkhar District. He had been also
distributing pamphlets alleging discriminatory policies against the Nepali-speaking
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population in southern Bhutan. The security forces of the Royal Bhutan Army stationed along
the border between Bhutan and India stopped and searched him.
15.
Reportedly, during the search, the officers did not find any incriminating objects.
When the officers asked Mr. Gurung to state his address, he gave them an address in India.
He was then taken to a local army camp while army officials contacted the authorities in India
to confirm his address there. However, the Indian authorities could not confirm that
Mr. Gurung was resident in India. Mr. Gurung was then immediately arrested.
16.
The source notes that the officers did not produce an arrest warrant or any other
decision by a public authority at the time of the arrest. Arrest warrants are generally not issued
for the arrest of individuals who are suspected of involvement in opposing the Government’s
activities.
17.
The source specifies that Mr. Chhetri, Mr. Gautam and Mr. Gurung were not allowed
to contact their families to inform them of their whereabouts. Their families first learned of
their relatives’ detention on a radio news programme a few weeks after they had been
arrested.
18.
According to the source, on 26 February 2008, the Royal Bhutan Army handed over
Mr. Chhetri, Mr. Gautam and Mr. Gurung to the Royal Bhutan Police. On the same day, the
three individuals were taken to Chemgang Central Prison in Thimphu and, on
29 February 2008, the police authorities presented them before Sarpang District Court.
19.
As for the reasons given by the authorities for the arrests, the source specifies that,
initially, the authorities stated that Mr. Chhetri, Mr. Gautam and Mr. Gurung had been
arrested for unauthorized entry into Bhutan. An individual must produce a Bhutanese
citizenship document or, in case of a foreigner, a valid entry permit at any time when
requested by patrolling security personnel. Mr. Chhetri, Mr. Gautam and Mr. Gurung had
neither of those documents, as their citizenship had been terminated by the authorities during
their deportation from the country in the early 1990s. Thereafter, as stateless refugees,
Mr. Chhetri, Mr. Gautam and Mr. Gurung had no other foreign passport enabling them to
obtain a permit to enter Bhutan.
20.
The source notes that, once they had been transferred to Chemgang Central Prison,
Mr. Chhetri, Mr. Gautam and Mr. Gurung were informed that they had been arrested under
the National Security Act of Bhutan of 1992. The Act stipulates that whoever engages in
treasonable acts against the King, people and country of Bhutan or attempts to do so, either
within or outside Bhutan, is to be punished with death or imprisonment for life. Whoever
commits any overt act with intent to give aid and comfort to the enemy in order to deliberately
and voluntarily betray the King, people and country of Bhutan and harm the national interest
is to be punished with death or imprisonment for life. The Act applies to all persons,
irrespective of nationality, if the relevant offence was committed in Bhutan or is intended to
be committed in Bhutan or is committed on an aircraft/carrier registered in Bhutan.
21.
The source notes that Mr. Chhetri, Mr. Gautam and Mr. Gurung were remanded in
custody before a hearing at Sarpang District Court on 29 May 2008.
22.
According to the source, it is mentioned in the prosecution and court verdict
documents that security personnel confiscated various weapons, political pamphlets, booklets
and a yoga book from Mr. Chhetri, Mr. Gautam and Mr. Gurung. The same documents state
that Mr. Chhetri, Mr. Gautam and Mr. Gurung were prosecuted for joining and paying fees
to the Communist Party of Bhutan (Marxist-Leninist-Maoist). The organization was
identified by the authorities as a terrorist organization attempting to undermine the King,
people and country of Bhutan.
23.
Mr. Chhetri, Mr. Gautam and Mr. Gurung were reportedly charged under article 6 of
the National Security Act for joining the aforementioned organization. They were also
charged under article 6 of the National Security Act and under section 329 of the Penal Code.
24.
The source submits that the National Security Act was specifically designed to
discourage citizens of Bhutan, in particular Nepali speakers, from challenging the authorities.
25.
Mr. Chhetri, Mr. Gautam and Mr. Gurung were, furthermore, charged under article 4
of the National Security Act and sections 327 (a) and (c), 478, 480 and 482 of the Penal Code
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of Bhutan. Those provisions stipulate, inter alia, that whoever engages in treasonable acts
against the King, people and country of Bhutan, or attempts to do so, either within or outside
Bhutan, is to be punished with death or imprisonment for life and that whoever commits any
overt act with intent to give aid and comfort to the enemy in order to deliberately and
voluntarily betray the King, people and country of Bhutan and harm the national interest is
to be punished with death or imprisonment for life.
26.
The source submits that the terminology used to define “treason” in section 327 (a) of
the Penal Code lends itself to arbitrary sentencing. The National Security Act also contains
overly broad and vague provisions, thus obstructing any possibility for Mr. Chhetri,
Mr. Gautam and Mr. Gurung to effectively defend themselves.
27.
In their defence statement submitted on 20 June 2008, Mr. Chhetri, Mr. Gautam and
Mr. Gurung argued that it was never their intention to carry out physical acts of violence.
None of the three defendants had access to a defence lawyer during the trial or the subsequent
appeal proceedings.
28.
On 9 September 2008, Sarpang District Court sentenced Mr. Chhetri, Mr. Gautam and
Mr. Gurung to life imprisonment. They were placed in block 5 of Chemgang Central Prison
in Thimphu, where they remain to date, with no possibility of parole. They are reportedly
unable to receive any visits.
29.
On 10 September 2008, Mr. Chhetri, Mr. Gautam and Mr. Gurung appealed their life
sentences before the High Court of Bhutan. In letters to the Court dated 27 September 2008
and 20 January 2009, Mr. Chhetri, Mr. Gautam and Mr. Gurung submitted that, although
they had been in possession of weapons, they had not had any intention of overthrowing the
State.
30.
The court proceedings, which reportedly featured no defence lawyers and lacked due
process guarantees, lasted eight months and resulted in the dismissal of the appeal.
(iii)
Legal analysis
31.
The source submits that the detention of Mr. Chhetri, Mr. Gautam and Mr. Gurung is
arbitrary, falling under categories I, II, III and V of the Working Group.
32.
In relation to category I, the source submits that the National Security Act contains
broad and vague definitions of offences relating to opposing the King, people and country of
Bhutan, making it hard for individuals to predict whether a particular act would fall within
the scope of the legislation. Those vague and overly broad offences have been utilized against
individuals who oppose the authorities, including political leaders and law enforcement and
security personnel. Such individuals are considered to be opposing the King, people and
country of Bhutan and are subsequently labelled “anti-nationals” or terrorists by the
authorities.
33.
In relation to category II, the source argues that the deprivation of liberty of the
above-mentioned three individuals is a result of the exercise of their rights guaranteed by
articles 7, 13 and 18 to 20 of the Universal Declaration of Human Rights.
34.
The source submits that the National Security Act was designed specifically to target
Nepali-speaking activists engaged in pro-democracy demonstrations, in violation of article 7
of the Universal Declaration of Human Rights. That provision stipulates that all are equal
before the law and are entitled, without discrimination, to equal protection of the law.
35.
The source notes that Mr. Chhetri, Mr. Gautam and Mr. Gurung were initially arrested
because they had no documentation to prove that they were citizens of Bhutan. The
authorities revoked the citizenship documents of the three individuals, making it impossible
for them to legally return to Bhutan. That has clearly violated article 13 of the Universal
Declaration of Human Rights, which provides for the right to freedom of movement, in
particular the right of persons to leave any country, including their own, and to return to their
country.
36.
Lastly, the source recalls that articles 18 to 20 of the Universal Declaration of Human
Rights guarantee the rights to freedom of thought and freedom of opinion and expression.
Those rights of Mr. Chhetri, Mr. Gautam and Mr. Gurung were violated. When arrested,
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Mr. Chhetri and Mr. Gautam had with them written materials on political subjects and
criticism of the authorities alleging that Nepalese-speaking individuals lacked representation.
Mr. Gurung, too, was involved in the distribution of such materials. As a result, they were
charged with and convicted of undermining the King, people and country of Bhutan, under
the National Security Act.
37.
The source argues that the National Security Act was adopted after pro-democracy
demonstrations against the marginalization of Nepali speakers in Bhutan. The Act was
designed and used as a tool to punish those who advocated for human rights and democracy
by accusing them of treason.
38.
In the context of category III, the source submits that Mr. Chhetri, Mr. Gautam and
Mr. Gurung were arrested without warrants, which were never issued. Moreover, the
prosecution relied on overly broad definitions of offences, and the documentation produced
by the Court included errors. The court proceedings were conducted in the official language
of Bhutan, Dzongkha, which Mr. Chhetri, Mr. Gautam and Mr. Gurung do not understand.
The interpreter provided was not qualified, and it is questionable whether the three defendants
benefited from accurate interpretation throughout the proceedings. Lastly, at the time of the
arrest and during the detention and trial of Mr. Chhetri, Mr. Gautam and Mr. Gurung, defence
lawyers were not available. Mr. Chhetri, Mr. Gautam and Mr. Gurung had to represent
themselves.
39.
The source further recalls the report of the Working Group on Arbitrary Detention on
its visit to Bhutan in 2019, in which the Working Group noted the frequent absence of certain
due process guarantees, such as legal representation for individuals accused of terrorism.2
40.
Lastly, in relation to category V, the source argues that the Nepali-speaking
community of Bhutan is linguistically, ethnically and religiously distinct from the country’s
majority population. Nepali speakers were targeted in the late 1980s and early 1990s in
response to their demands for democratic change. Those members of the Nepali-speaking
community who continued to protest about the discrimination against them have been
subjected to arbitrary arrest and detention. The source concludes that the deprivation of
liberty of Mr. Chhetri, Mr. Gautam and Mr. Gurung is a result of discrimination against them,
based on a combination of ethnic, religious and language grounds.
(b)
Response from the Government
41.
On 23 February 2024, the Working Group transmitted the allegations from the source
to the Government under its regular communications procedure. The Working Group
requested the Government to provide detailed information by 22 April 2024 about the current
situation of Mr. Chhetri, Mr. Gautam and Mr. Gurung. The Working Group also requested
the Government of Bhutan to clarify the legal provisions justifying their detention, as well as
its compatibility with the obligations of the Government under international human rights
law. Moreover, the Working Group called upon the Government to ensure the physical and
mental integrity of Mr. Chhetri, Mr. Gautam and Mr. Gurung.
42.
The Working Group regrets that it did not receive a response from the Government to
that communication. The Government did not request an extension of the time limit for its
reply, as provided for in the Working Group’s methods of work.
2.
Discussion
43.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
44.
In determining whether the detention of Mr. Chhetri, Mr. Gautam and Mr. Gurung is
arbitrary, the Working Group has regard to the principles established in its jurisprudence to
deal with evidentiary issues. If the source has established a prima facie case of breach of
international law constituting arbitrary detention, the burden of proof should be understood
to rest upon the Government if it wishes to refute the allegations.3 In the present case, the
2 A/HRC/42/39/Add.1, para. 59.
3 A/HRC/19/57, para. 68.
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Government has chosen not to challenge the prima facie credible allegations made by the
source.
(a)
Category I
45.
The Working Group will first consider whether there have been violations under
category I, which concerns deprivation of liberty without legal basis.
46.
The source submits that Mr. Chhetri and Mr. Gautam were arrested on
5 February 2008 and Mr. Gurung on 15 February 2008, noting that the arresting officers did
not produce an arrest warrant or any other decision by a public authority at the time of the
arrest of any of the three individuals and that arrest warrants are generally not issued for the
arrest of individuals who are suspected of involvement in opposing the Government’s
activities. The Working Group has previously stated that, for a deprivation of liberty to have
a legal basis, it is not sufficient that there is a law that may authorize the arrest. The authorities
must invoke that legal basis and apply it to the circumstances of the case.4 This is typically
done through an arrest warrant or arrest order (or equivalent document).5
47.
In the absence of a response from the Government, the Working Group finds to be
prima facie credible the source’s allegation that no arrest warrant was presented at the time
of the arrest of Mr. Chhetri, Mr. Gautam and Mr. Gurung. For these reasons, the Working
Group finds that their arrest violates articles 3 and 9 of the Universal Declaration of Human
Rights and principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment.
48.
On 26 February 2008, the Royal Bhutan Army reportedly handed over Mr. Chhetri,
Mr. Gautam and Mr. Gurung to the Royal Bhutan Police. On the same day, they were taken
to Chemgang Central Prison in Thimphu and, on 29 February 2008, the police authorities
presented them before Sarpang District Court.
49.
According to the source, after arrest, Mr. Chhetri and Mr. Gautam were taken to a
nearby army barracks, where they were kept for 20 days and interrogated daily without
lawyers present. According to the source’s submissions, their families first learned of their
relatives’ detention on a radio news programme a few weeks after they had been arrested.
The source submits that all three individuals were presented before Sarpang District Court
on 29 February 2008.
50.
As the Working Group has consistently found, holding persons incommunicado
violates their right to challenge the lawfulness of their detention before a court.6 Considering
the source’s unrefuted submissions, the Working Group finds that Mr. Chhetri and
Mr. Gautam were denied their right to be visited by and to correspond with their families and
to be given adequate opportunity for contact with the outside world, subject to reasonable
conditions and restrictions as specified by law or lawful regulations, in accordance with
principles 15 and 19 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment and rules 43 (3), 58 and 68 of the United Nations
Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
51.
On the basis of the foregoing, the Working Group notes that it would appear that
Mr. Chhetri and Mr. Gautam were forcibly disappeared. Such deprivation of liberty, entailing
a refusal to disclose the fate or whereabouts of the victims or to acknowledge their detention,
lacks any valid legal basis and is inherently arbitrary, as it places the victims outside the
protection of the law. The Working Group recalls that enforced disappearance constitutes a
particularly aggravated form of arbitrary detention, in violation of article 6 of the Universal
Declaration of Human Rights.7 It also recalls that no jurisdiction should allow for individuals
to be deprived of their liberty in secret for potentially indefinite periods, and held outside the
4 Opinion No. 59/2019, para. 46.
5 Opinion No. 30/2018, para. 39. In cases of arrests made in flagrante delicto, the opportunity to obtain
a warrant will typically not be available.
6 See opinions No. 28/2016, No. 79/2017, No. 93/2017, No. 33/2020 and No. 86/2020.
7 See opinions No. 5/2020, No. 6/2020, No. 11/2020, No. 13/2020 and No. 33/2020. See also the
Declaration on the Protection of All Persons from Enforced Disappearance.
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reach of the law, without the possibility of resorting to legal procedures, including habeas
corpus.8
52.
For these reasons, the Working Group considers that the deprivation of liberty of
Mr. Chhetri, Mr. Gautam and Mr. Gurung lacks a legal basis and is thus arbitrary, falling
under category I.
(b)
Category II
53.
In relation to category II, the source argues that the deprivation of liberty of
Mr. Chhetri, Mr. Gautam and Mr. Gurung is a result of the exercise of their rights guaranteed
by articles 7, 13 and 18 to 20 of the Universal Declaration of Human Rights.
54.
Noting the source’s submission that Mr. Chhetri, Mr. Gautam and Mr. Gurung were
initially arrested because they had no documentation to prove that they were citizens of
Bhutan and that it was the authorities that had revoked their citizenship documents, making
it impossible for them to legally return to Bhutan and rendering them stateless, and noting
also the lack of a response from the Government, the Working Group finds a violation of
article 13 of the Universal Declaration of Human Rights.9
55.
In this regard, the Working Group recalls that the Committee on the Rights of the
Child has expressed concern about the situation of children of Nepalese ethnic origin in
Bhutan. The Working Group reiterates the Committee’s call that Bhutan review the
Citizenship Act of 1985 to extend citizenship to children born to at least one Bhutanese
parent; and identify and correct practices that might discriminate against children of ethnic
Nepalese origin lacking adequate documentation.10 The Working Group also recalls the views
of the Committee on the Elimination of Racial Discrimination, as Bhutan is a signatory to
the International Convention on the Elimination of All Forms of Racial Discrimination. In its
general recommendation No. 30 (2004) on discrimination against non-citizens, the
Committee expressed the view that States parties must not discriminate against any particular
nationality and recommended that States parties recognize that deprivation of citizenship on
the basis of race, colour, descent, or national or ethnic origin was a breach of States parties’
obligations to ensure non-discriminatory enjoyment of the right to nationality.11
56.
The source submits that the rights of Mr. Chhetri, Mr. Gautam and Mr. Gurung under
articles 18 to 20 of the Universal Declaration of Human Rights, which guarantee the rights
to freedom of thought and freedom of opinion and expression, were violated. The Working
Group recalls the source’s submission that, when arrested, Mr. Chhetri and Mr. Gautam had
with them written materials on political subjects and criticism of the authorities alleging that
Nepalese-speaking individuals lacked representation. Mr. Gurung, too, had been involved in
the distribution of such materials. As a result, they were charged with and convicted of
undermining the King, people and country of Bhutan under the National Security Act.
57.
In this context, the Working Group recalls that the Special Rapporteur on the
promotion and protection of human rights and fundamental freedoms while countering
terrorism has stressed that: “National security cannot be invoked as a reason for imposing
limitations to prevent merely local or relatively isolated threats to law and order or used as a
pretext for imposing vague or arbitrary limitations and may only be invoked when there exist
adequate safeguards and effective remedies against abuse.” The Special Rapporteur has noted
that a State should not invoke national security as a justification for measures aimed at
suppressing opposition.12
58.
The source argues that the National Security Act was adopted after pro-democracy
demonstrations against the marginalization of Nepali speakers in Bhutan. The Act was
reportedly designed and used as a tool to punish those who advocated for human rights and
democracy by accusing them of treason, in violation of article 7 of the Universal Declaration
of Human Rights, which stipulates that all are equal before the law and are entitled without
8 A/HRC/16/47 and A/HRC/16/47/Corr.1, para. 54.
9 Opinion No. 33/2016, paras. 24 and 25.
10 CRC/C/BTN/CO/3-5, paras. 43 and 44 (a) and (b). See also CEDAW/C/BTN/CO/10, para. 39 (b).
11 General recommendation No. 30 (2004), paras. 1 and 14.
12 A/61/267, paras. 19 and 20.
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discrimination to equal protection before the law. In this regard, although Bhutan is not a
party to the International Covenant on Civil and Political Rights, the Working Group echoes
the view expressed by the Human Rights Committee in its general comment No. 34 (2011)
on the freedoms of opinion and expression that extreme care must be taken by States parties
to ensure that treason laws and similar provisions relating to national security, whether
described as official secrets or sedition laws or otherwise, are crafted and applied in a manner
that conforms to the strict requirements of article 19 (3) of the Covenant.13 The Working
Group considers that charges and convictions under provisions of the law that allow for the
criminalization of peaceful expression enable arbitrary interpretation and make it difficult for
citizens to determine how to act to comply with the law cannot be regarded as consistent with
the Universal Declaration of Human Rights.14
59.
The Working Group notes that article 19 of the Universal Declaration of Human
Rights protects the right to freedom of expression, which includes the freedom to seek,
receive and impart information and includes political discourse, commentary on public
affairs, discussion of human rights and journalism. It protects the holding and expressing of
opinions, including those that are critical of or not in line with government policy. 15
Moreover, article 29 (2) of the Universal Declaration of Human Rights provides that the only
legitimate limitations to the exercise of that right must be for the purposes of securing due
recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic society.16 The
Working Group finds that, with regard to the written materials that were found in their
possession or that they were distributing, the three individuals were exercising their rights
under articles 18 and 19 of the Universal Declaration of Human Rights. In the absence of a
response from the Government, and on the basis of the circumstances leading to the arrest
and detention of Mr. Chhetri, Mr. Gautam and Mr. Gurung, the Working Group finds a
violation of articles 18 and 19 of the Universal Declaration of Human Rights.
60.
The source further submits that Mr. Chhetri, Mr. Gautam and Mr. Gurung are also
accused of paying fees to the Communist Party of Bhutan (Marxist-Leninist-Maoist) and that
the organization was identified by the authorities as a terrorist organization attempting to
undermine the King, people and country of Bhutan. In this regard, although Bhutan is not a
party to the International Covenant on Civil and Political Rights, the Working Group echoes
the view of the Human Rights Committee that imprisonment for membership of an
organization banned for threatening State order and democracy is impermissible without
showing that imprisonment is specifically necessary to avert a real danger to national security
and democratic order.17 The Working Group has not received information indicating that
Mr. Chhetri, Mr. Gautam and Mr. Gurung engaged in violent activities or that their activities
resulted in violence or were a real danger to national security.
61.
In relation to the right to peaceful assembly and association, although Bhutan is not a
party to the International Covenant on Civil and Political Rights, the Working Group echoes
the views of the Human Rights Committee on the right of peaceful assembly, noting that the
right of peaceful assembly is of particular importance to marginalized individuals and groups.
The Committee has recommended that determination of violent conduct be on a case-by-case
basis, “dependent on, among other considerations, domestic regulation on the carrying of
weapons (especially firearms), local cultural practices, whether there is evidence of violent
intent, and the risk of violence presented by the presence of such objects”.18 The Working
Group notes the source’s unrebutted submission that, in their defence statement, Mr. Chhetri,
Mr. Gautam and Mr. Gurung argued that it had never been their intention to carry out physical
acts of violence. The Working Group is also mindful that none of the individuals had access
to a defence lawyer during the trial or the subsequent appeal proceedings. Mr. Chhetri and
13 General comment No. 34 (2011), para. 30.
14 See, among others, opinion No. 26/2023.
15 Opinion No. 8/2019, para. 55.
16 See opinion No. 48/2016.
17 Lee v. Republic of Korea (CCPR/C/84/D/1119/2002), para. 7.3.
18 General comment No. 37 (2020) on the right of peaceful assembly, paras. 2, 17 and 20.
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GE.25-02059
9
Mr. Gautam were also reportedly interrogated daily without a lawyer over a period of
20 days.
62.
In the absence of a response from the Government, and on the basis of the
circumstances leading to the arrest and detention of Mr. Chhetri, Mr. Gautam and
Mr. Gurung, the Working Group finds a violation of article 20 of the Universal Declaration
of Human Rights.
63.
On the basis of the foregoing, the Working Group concludes that the deprivation of
liberty of Mr. Chhetri, Mr. Gautam and Mr. Gurung is arbitrary, falling within category II.
(c)
Category III
64.
Given its finding that the deprivation of liberty of Mr. Chhetri, Mr. Gautam and
Mr. Gurung is arbitrary under category II, the Working Group wishes to emphasize that, in
such circumstances, no trial should have taken place. However, as the trials have taken place,
the Working Group will now consider whether the alleged violations of the right to a fair trial
and due process were grave enough as to give their deprivation of liberty an arbitrary
character under category III.
65.
The source submits that the terminology used to define “treason” under section 327
(a) of the Penal Code lends itself to arbitrary sentencing. It argues that the National Security
Act also contains overly broad and vague provisions, thus preventing Mr. Chhetri,
Mr. Gautam and Mr. Gurung from effectively defending themselves. The source also submits
that none of the three individuals had access to a defence lawyer during the trial or the
subsequent appeal proceedings. Mr. Chhetri and Mr. Gautam were also reportedly
interrogated daily without a lawyer over a period of 20 days.
66.
The allegations relating to denial of the right to access counsel are consistent with the
Working Group’s findings, during its country visits to Bhutan in 1994 and 2019, on the lack
of legal representation for individuals arrested under national security legislation. 19
According to the testimony received, a majority of defendants in criminal matters did not
have access to legal representation at crucial stages of their proceedings: following arrest,
during pretrial detention, and during their trial and appeal.20
67.
The Working Group thus concludes that these violations concerning access to counsel
contravene article 10 of the Universal Declaration of Human Rights, principles 17 and 18 of
the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment and principle 9 of the United Nations Basic Principles and Guidelines on
Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring
Proceedings Before a Court. During its 2019 visit, the Working Group interviewed several
prisoners who had been imprisoned under national security legislation, a number of whom
were serving life sentences, as is the case with Mr. Chhetri, Mr. Gautam and Mr. Gurung. As
there is no possibility of parole for a life sentence in Bhutan, detainees serving life sentences
have no prospect of release, with the exception of amnesty.21
68.
The source makes unrefuted allegations that the proceedings were conducted in
Dzongkha, a language that none of the three individuals understands. The interpreter
provided was reportedly unqualified, leading to concerns that Mr. Chhetri, Mr. Gautam and
Mr. Gurung did not benefit from accurate interpretation throughout the proceedings and due
process concerns relating to article 10 of the Universal Declaration of Human Rights and rule
61 (2) of the Nelson Mandela Rules.
69.
For these reasons, the Working Group concludes that the breaches of the right to a fair
trial and due process rights of Mr. Chhetri, Mr. Gautam and Mr. Gurung are of such gravity
as to give their deprivation of liberty an arbitrary character under category III.
19 E/CN.4/1995/31/Add.3, para. 27; and A/HRC/42/39/Add.1, para. 59.
20 A/HRC/42/39/Add.1, para. 54.
21 Ibid., para. 59.
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(d)
Category V
70.
The source submits that the individuals were targeted on the basis of a combination
of ethnic, religious and language grounds (see para. 40 above). The Working Group recalls
the source’s submissions that the National Security Act was adopted after pro-democracy
demonstrations against the alleged marginalization of Nepali speakers in Bhutan
(see paras. 10, 34 and 37 above). The Act was reportedly designed and used as a tool to
punish those who advocate for human rights and democracy by accusing them of treason and
silencing them, as in the present case.
71.
The Working Group has consistently found there to be discrimination when it is
apparent that persons have been deprived of their liberty specifically on the basis of their own
or perceived distinguishing characteristics or because of their real or suspected membership
of a distinct (and often minority) group.22 In the absence of a response from the Government,
the Working Group finds credible the source’s submission that the arrest and conviction of
Mr. Chhetri, Mr. Gautam and Mr. Gurung and the lengthy sentences imposed on them under
the National Security Act are discriminatory. The Working Group also notes concerns that
have been raised about the treatment by Bhutan of linguistic minorities, especially of ethnic
Nepalese origin, in the context of the universal periodic review,23 indicating a pattern of
discrimination against those of ethnic Nepalese origin.24
72.
The Working Group thus finds that Mr. Chhetri, Mr. Gautam and Mr. Gurung were
deprived of their liberty on discriminatory grounds, because of their political opinion and
status as members of a linguistic minority, which are also related to their statelessness. Their
detention violates articles 2 and 7 of the Universal Declaration of Human Rights and is
arbitrary under category V.
(e)
Concluding remarks
73.
The Working Group remains gravely concerned that Mr. Chhetri, Mr. Gautam and
Mr. Gurung are reportedly not permitted any visitors while serving life sentences without the
possibility of parole. The Working Group reminds the Government of its obligations under
rule 1 of the Nelson Mandela Rules, according to which all persons deprived of their liberty
must be treated with humanity and with respect for their inherent dignity. It further urges the
Government to respect the right of Mr. Chhetri, Mr. Gautam and Mr. Gurung to contact with
the outside world under rules 43 (3) and 58 (1) of the Nelson Mandela Rules and principles
15 and 19 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, and urgently requests that their visitation rights be upheld.
3.
Disposition
74.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Birkha Bahadur Chhetri, Kumar Gautam and Sunman
Gurung, being in contravention of articles 2, 3, 6, 7, 9, 10 and 20 of the Universal
Declaration of Human Rights, is arbitrary and falls within categories I, II, III and V.
75.
The Working Group requests the Government of Bhutan to take the steps necessary
to remedy the situation of Mr. Chhetri, Mr. Gautam and Mr. Gurung without delay and bring
it into conformity with the relevant international norms, including those set out in the
Universal Declaration of Human Rights.
76.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Chhetri, Mr. Gautam and Mr. Gurung
immediately and accord them an enforceable right to compensation and other reparations, in
accordance with international law.
77.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
22 A/HRC/36/37, para. 48; and opinion No. 82/2022, para. 53.
23 A/HRC/WG.6/6/BTN/2, para. 52; A/HRC/13/11, para. 72; A/HRC/WG.6/33/BTN/2, paras. 48 and
52; and A/HRC/42/8, para. 158.50.
24 A/HRC/29/30/Add.1, paras. 52 and 53.
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11
Mr. Chhetri, Mr. Gautam and Mr. Gurung and to take appropriate measures against those
responsible for the violation of their rights.
78.
The Working Group requests the Government to bring its laws, in particular the
National Security Act, into conformity with the recommendations made in the present
opinion and with the commitments made by Bhutan under international human rights law.
79.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression and the Special Rapporteur on minority issues, for
appropriate action.
80.
The Working Group recommends that the Government accede to the International
Covenant on Civil and Political Rights.
81.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
82.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Chhetri, Mr. Gautam and Mr. Gurung have been released and, if
so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Chhetri,
Mr. Gautam and Mr. Gurung;
(c)
Whether an investigation has been conducted into the violation of the rights of
Mr. Chhetri, Mr. Gautam and Mr. Gurung and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Bhutan with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
83.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
84.
The Working Group requests the source and the Government to provide the
above-mentioned information within six months of the date of transmission of the present
opinion. However, the Working Group reserves the right to take its own action in follow-up
to the opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as of any failure to take action.
85.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.25
[Adopted on 12 November 2024]
25 Human Rights Council resolution 51/8, paras. 6 and 9.