[Congressional Record (Bound Edition), Volume 152 (2006), Part 10]
[Senate]
[Pages 13095-13097]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   IMPORTANCE OF CRIME GUN TRACE DATA

  Mr. LEVIN. Mr. President, over the past decade, through the gathering 
and dissemination of crime gun trace data, the need has been 
highlighted for stronger measures to stem the flow of guns into the 
illegal market and too often, into the hands of criminals.
  One of the responsibilities of the Bureau of Alcohol, Tobacco, 
Firearms and Explosives, ATF, is to trace firearms recovered by local 
law enforcement at crime scenes. The gun is traced from its 
manufacturer to the first purchase using records maintained by firearms 
manufacturers and sellers. The process begins when law enforcement 
recovers a gun in the course of a criminal investigation and contacts 
the ATF with information on the crime being investigated, the name of 
the gun's manufacturer, the caliber and serial number. The ATF first 
checks its records of out-of-business dealers and its multiple sales 
records. If the traced gun is not located in these records, the ATF 
will then contact the manufacturer for the name of the dealer or 
distributor to whom the manufacturer first sold the gun. The dealer is 
then contacted for information on who originally purchased the gun.
  This information provides an invaluable investigative tool for law 
enforcement. Analysis of crime gun traces allows the ATF, as well as 
State and local law enforcement, to not only investigate specific gun 
crimes but also to work to identify the sources of guns used in crimes. 
Crime gun traces can link a suspect to a firearm in a criminal 
investigation, identify gun traffickers whether they are licensed or 
unlicensed sellers, and detect both instate and interstate patterns in 
the sources and types of crime guns.
  It was not until the most recent decade that law enforcement agencies 
have routinely traced guns recovered in crimes. Initially, crime gun 
traces amounted to about 100,000 a year. Today, gun tracing has 
resulted in a database of over 2 million crime guns. The database has 
become a rich source of information for guiding public policy and the 
work of law enforcement officers.
  The rapid expansion of crime gun tracing and the resulting trace 
database has produced a great deal of valuable information on how the 
illegal gun market is supplied. It is this information that helps point 
the way to policies to keep guns out of the hands of criminals.
  Mr. LEAHY. Mr. President, I want to make the Senate aware of a report 
I recently became aware of by the Advocacy Forum, a respected 
organization which documents human rights violations in Nepal by both 
government security forces and the Maoists.
  The Forum's latest report, released this week, describes the 
widespread use of torture on persons in custody. The overwhelming 
majority of documented cases are attributed to the Nepalese police, 
military and armed police. There are also cases attributed to the 
Maoists.
  The descriptions of the use of torture in this report are difficult 
to read. It is appalling that such barbaric acts of cruelty occur in 
the 21st century. Unfortunately, we know that this is not unique to 
Nepal. Torture is routine in dozens of countries.
  Nepal today is at a crossroads. Since popular demonstrations forced 
King Gyanendra to back away from his foolhardy power grab last February 
1, there has been progress towards strengthening Nepal's fledgling 
democratic institutions and beginning a dialog to resolve the conflict. 
The future is unpredictable, however, and we continue to receive 
disturbing reports of extortion and abductions by the Maoists, and of 
resistance by the Nepalese military to much needed reform.
  Addressing these issues, and ending the use of torture and other 
human rights violations, will require new laws to protect the rights of 
detainees in accordance with international norms, reform of the 
judiciary so it is fully independent and has the resources to 
effectively carry out its responsibilities, reform of the military and 
police so they are placed fully under civilian authority and subject to 
the rule of law, and prosecutions of those responsible for violations. 
The international community can and should help support Nepal in taking 
these difficult, essential steps.
  All Senators should be aware of the cases documented by the Advocacy 
Forum, and I ask unanimous consent that a summary of the report be 
printed in the Record.

[[Page 13096]]

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                        [Advocacy Forum--Nepal]

       Sharing Experiences of Torture Survivors--Summary of Data

       Advocacy Forum is a non-profit making non-governmental 
     organization working to promote the rule of law and human 
     rights in Nepal. Our core activities are documentation of 
     cases of human rights violations, monitoring of detention 
     centres, providing legal aid to the victims of human rights 
     violations and involving advocacy in contesting impunity. As 
     part of our on-going work to address human rights violations 
     and denials of access to justice, through our central, 
     regional and district-based offices, we make daily visits to 
     a number of police detention centres in 9 districts and 
     document and monitor human rights violations. We do not have 
     access to military detention centres, but victims of torture 
     at these centres have contacted us to report their 
     experiences, as have victims of the Maoists. Evidence of 
     human rights' abuse is systematically and thoroughly 
     documented.
       Over a period of five years (July 2001 to April 2006) 
     Advocacy Forum documented 5682 cases of human rights 
     violations focusing on extra-judicial killings (198), forced 
     disappearances (335), torture (2,271), rape of women (41); 
     and illegal detention (2,837) committed by the state security 
     forces and the Maoists. During this period we were put under 
     extreme threatening pressure by the State, Maoist and 
     vigilantes in carrying out our activities. Similarly we 
     observed the great security risk experienced by victims and 
     witnesses.
       Last year Advocacy Forum issued a press statement on 26 
     June covering the cases that we had documented up to March 
     2005. Because of the political situation we could not provide 
     details of the torture and experiences of the victims. 
     Between March 2005 to April 2006, we documented 951 cases of 
     torture and 17 cases of rape committed by the State and 
     Maoists. This report sets out some of the experiences of 
     those torture victims who managed to survive and want to 
     share their experiences. Some of the victims' names have been 
     changed to protect their safety.
       When Advocacy Forum intensified the challenge against 
     illegal detention, last year alone (March 05-April 06) 
     through habeas corpus, 418 people who had been detained 
     illegally for a prolonged period of time were released from 
     different detention centres. We were shocked to learn that 
     every single person arrested by army soldiers and held in 
     military detention reported that they had been severely 
     tortured. Their torture experiences varied from deprivation 
     of food to electric shock and rape of women. We do not have 
     the capacity to measure the psychological torture and its 
     effect on the victims and their families. Many of the victims 
     reported that they were threatened not to share their 
     experiences with anyone, in particular human rights groups. 
     Many said that they were ordered to report to the barracks 
     regularly. There was a complete absence of any protection for 
     the victims. So, they were forced into silence, and no 
     survivor could dare to challenge these atrocities.
       Despite all these difficulties, even putting their lives at 
     risk, some victims who had been released from detention 
     played a significant role in the release of others who were 
     languishing in different detention centres undergoing severe 
     torture for a prolonged period of time. By sharing their 
     experiences as to how other fellow detainees were treated in 
     detention and their conditions, they helped us to coordinate 
     our efforts and publicize the whereabouts of some missing 
     people and to release many others.
       From July 2001 to April 2006 Advocacy Forum documented 2271 
     cases of torture. Last year alone (March 2005-April 2006), we 
     documented 951 cases of torture and 17 rape cases. Out of 
     these 951 torture cases, 511 were committed by the police, 
     371 by the military and 11 by the armed police. We also 
     documented 12 cases of torture by the state sponsored 
     vigilantes and 46 cases of torture inflicted by the Maoists. 
     Because of the security risk, 177 survivors released from 
     military detention did not want to share the full details of 
     their torture with us. Excluding those cases, we have 
     thoroughly documented the details of torture in 774 cases. 
     Children as young as 14 years old were also arrested and 
     detained. Out of 951 torture survivors 349 (37%) were 
     juveniles (below the age of 18 years old).
       It should be borne in mind that, due to the limitations on 
     our access to victims, our records only cover a small 
     proportion of the victims of torture. It is impossible to 
     estimate how many victims of torture there are in total in 
     Nepal, but we would guess that we have recorded only 10% of 
     the current cases.
       Analyzing the 774 cases documented last year, we have found 
     that the commonly used methods of torture in barracks include 
     blindfolding for a prolonged period of time (up to 21 
     months), electric shocks, suffocating the victims by pouring 
     water into the nose and mouth, hanging upside down, rape and 
     sexual abuse, piercing under nails, burying, keeping in an 
     abnormal position, tying hands and feet around a stick and 
     swinging the body around, random beatings, fake executions 
     and threats of killing.
       The commonly practiced methods of torture in police 
     detention centers are beatings on soles by plastic pipes, 
     rolling the muscles of thighs, random beatings and forcing 
     victims to sit in an abnormal position.
       We also documented 46 cases of torture inflicted by the 
     Maoists. They have also been practicing torture 
     systematically to punish and to terrorize people. The 
     commonly used methods of the Maoists are breaking the legs 
     and bones of different parts of the body by hitting with 
     heavy objects, wounding and random beatings. They have also 
     put people for a prolonged period of time in ''labor camps''.
       Out of 371 reported cases of torture in the barracks, 
     Bhairabnath Battalion, Maharajgunj Barracks, Kathmandu, 
     Youdha Bhairab Battalion, Maharajgunj Barracks, Kathmandu, 
     Jagadal Battalion, Chauni Barracks, Kathmandu, Mahabirgan 
     Battalion, Chauni Barracks, Kathmandu, Bhimkali Battalion, 
     Chisapani Barracks, Banke, Rajdal Barracks, Lalitpur, Fulbari 
     Barracks, Pokhara, Kaski, Bijaypur Barracks, Kaski, Shivadal 
     Battalion, Gorusinghe Barracks, Kapilvastu, Dhulikhel 
     Barracks in Kavre, Devi Dutta Battalion, Suparitar Barracks 
     in Makawanpur, and Bhawani Box Battalion, Dailekh Barracks in 
     Dailekh are the ones where most of the victims were tortured.
       Out of 511 torture cases by the police, Valley Crime 
     Investigation Branch, Hanumandhoka, Gausala Ward Police 
     Station, Boudha Ward Police Stations, Kalimati Ward Police 
     Stations, Balaju Ward Police Stations, District Police Office 
     Morang, District Police Office Banke, District Police Office 
     Kanchanpur, District Police Office Udapur, District Police 
     Office, Kapilbastu, District Police Office, Kaski are the 
     police stations where most of the victims were tortured. Of 
     those people we interviewed in police detention centres, 
     35.5% in Nepal, 43.8% in Kathmandu said that they had been 
     tortured. However, Advocacy Forum only has access to those 
     people detained by the police who are then taken to Court for 
     remand. If statistics for people released before being taken 
     to Court were included, we consider the percentage of those 
     who have been tortured by the police may be considerably 
     higher.
       Torture is also a result of the failure of the criminal 
     justice system. Though the political context of the country 
     has been changed, the practice of torture has not. Torture is 
     routinely practiced in detention even today. In May 2006 
     alone we documented 72 cases of torture in 21 different 
     police detention centers. The pattern, ways and techniques of 
     the police remain the same as before. Likewise, the judges 
     and the prosecutors continue with their previous prejudices 
     and practices. Neither the judges nor the public prosecutors 
     are adequately sensitized on the issue.
       The existing system forces victims of torture to remain 
     silent. What happens in practice is that if a person is 
     arrested, generally that person will be detained for some 
     days without any custody record, the authority does not even 
     acknowledge the detention of that person, and there is no 
     mechanism that allows inspection or scrutiny of the detention 
     records of the police. During this period the detainee is 
     tortured. When his or her wounds and bruises are healed, the 
     police prepare a paper that shows that the detainee was 
     arrested less than 24 hours previously, 24 hours being the 
     legal limit within which a detainee should be presented to a 
     judge. The detainee is then escorted by the police from the 
     same office to the court. In the presence of the police the 
     judge extends the remand. During this period, detainees are 
     rarely given access to medical services or lawyers. When a 
     detainee goes to prison or comes out of custody only then 
     does he or she share the incidences of torture with others. 
     If a case for compensation is filed, the victim is likely to 
     lose the case as he or she will be fail to prove evidence of 
     torture. In the absence of medical reports, it is hard to 
     convince a judge!
       The whole issue of torture is also related to the issues of 
     an independent and professional police system, independent 
     judiciary and the office of the Attorney Generals. So, it is 
     important that we have a wider discussion about making the 
     criminal justice system more functional and efficient in 
     eliminating torture and for the promotion of rule of law and 
     fair trial.
       Since 2001, Advocacy forum has helped 40 torture victims to 
     bring a case challenging their torture and demanding 
     compensation. Out of 40 cases, 11 have been already been 
     quashed as the victims were unable to provide sufficient 
     evidence of torture, in particular any medical report proving 
     the claim. Victims have also lost their cases because they 
     were unable to establish that they were in custody when they 
     were tortured. For example, Mainya Tamang was arrested on 7 
     November 2004 by the police of Ward Police Station, Bouddha. 
     Following her arrest, she was then taken to the same ward 
     police station where she was detained for two days illegally 
     and for two days she was severely beaten and tortured. On 9 
     November 2004 she was transferred to Kalimati Women's Cell 
     where she was again beaten. On 11 November 2004 the police 
     prepared a paper

[[Page 13097]]

     showing that she was arrested that day and produced her to 
     the District Court of Kathmandu for remand. On 27 December 
     2004, Advocacy Forum filed a case on her behalf demanding 
     compensation for the torture inflicted upon her while she was 
     in detention. Her case was quashed both in the District Court 
     and on appeal in the Appellate Court as both Courts said that 
     at the time when she claims that she was tortured, there was 
     no evidence to prove that she was in detention!
       Out of the 40 cases that we have represented, only 4 
     victims of torture by the police have so far been awarded 
     compensation of 10,000 Nepali Rupees (approximately US$ 135), 
     but they still have not received this compensation. Other 
     cases are still sub-judice of the court.
       Advocacy Forum has faced a number of difficulties in 
     bringing cases of torture. In the beginning, the Court would 
     not even let us register a complaint where military were the 
     accused. The Court asks a victim to prove that he or she was 
     tortured rather than the accused having to prove that the 
     victim was not tortured while in their custody. Those people 
     who remained in custody for many weeks and months without any 
     records of their detention, without access to medical 
     services, lawyers or families have very little chance of 
     proving that they were tortured. In addition, the Torture 
     Compensation Act provides that if the complaint is filed with 
     ``malafide'' intention, the victim will be fined up to 5,000 
     Nepali Rupees. As it is very difficult to prove the case of 
     torture, many victims are discouraged from doing so as the 
     chances of being found guilty of bringing the case with 
     malafide intention and being fined are very high. Thus, the 
     victims have no protection. In many incidents they reported 
     to us that they were put under pressure to retract their 
     complaint. No witness could dare to testify in their favor as 
     they also have no protection. Thus, the whole system is 
     hostile against the victims and favors the perpetrators.
       One of the major problems in the case of torture is the 
     failure of the State to criminalize the act of torture. Since 
     1996 the UN Committee against Torture has been asking the 
     Government of Nepal to criminalize the act of torture, but 
     the State has failed to do so. Furthermore, the existing 
     Torture Compensation Act does not comply with Nepal's 
     international obligations. To make it compatible with Nepal's 
     international obligations, the Torture Compensation Act of 
     Nepal has to be amended in such a way that criminalizes the 
     act of torture, puts the burden of proof on the custody 
     taking officers, includes provisions for the protection of 
     victims and witnesses, ensures lawyers and families have 
     access to detainees right from the beginning of arrest, makes 
     it mandatory for the list of detainees to be made public and 
     put under public scrutiny, if anyone is found to be detained 
     without record, the officer in-charge is accountable, makes 
     provision that ensures perpetrators of torture from other 
     countries are extradited or prosecuted, and ensures that no-
     one will be extradited to any country if there is a risk of 
     torture in that country.
       In addition, the following changes to the law are 
     necessary:
       Mechanisms of transitional justice to deal with past cases 
     of human rights violations including torture;
       An increase in the current maximum amount of compensation, 
     which is currently 100,000 Nepali Rupees (approximately US$ 
     1,350) plus a change to allow the recovery of medical 
     expenses; and
       Changes to the laws of evidence to ensure that evidence 
     produced under torture or duress is inadmissible by making 
     prosecutors provide proof that evidence was voluntary.
       In conclusion, the State has the obligation to investigate 
     all past cases of human rights violations including torture 
     and to prevent violations in the future. A functional 
     mechanism has to be set up to address past violations of 
     human rights including torture and to take measures to 
     prevent such occurring in the future. One way to prevent the 
     future occurrence of such violations is to prosecute those 
     responsible for violations committed in the past. It is also 
     urgent to amend the existing Torture Compensation Act to make 
     it compatible with the provisions of the U.N. conventions 
     against torture.

                          ____________________