Nepal

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Background

Nepal, a landlocked nation in South Asia, is renowned for its rich cultural heritage and diverse geography, encompassing the Himalayan mountain range. In 2008, following a decade-long civil war and subsequent peace process, Nepal transitioned from a monarchy to a federal democratic republic. The promulgation of a new constitution in 2015 marked a significant milestone, establishing a federal structure and enshrining fundamental rights for its citizens.

The Legal system

Nepal's legal system is primarily based on civil law traditions, characterized by written statutes and codes. However, it also incorporates elements of common law, particularly in the application of judicial precedents. This hybrid system reflects the country's historical influences and legal evolution.

Legal Aid

State-Sponsored Legal Aid
The Government of Nepal provides legal aid services to individuals who cannot afford legal representation, aiming to ensure access to justice for all citizens. These services are facilitated through various governmental bodies and initiatives.

NGOs Providing Pro Bono Legal Aid
Several non-governmental organizations (NGOs) play a crucial role in offering pro bono legal aid in Nepal. Notably, the Public Defender Society of Nepal (PDS-Nepal) provides high-quality criminal defense legal aid services to poor and vulnerable individuals charged with crimes. With a team of dedicated defense lawyers, PDS-Nepal operates across multiple offices nationwide, including Kathmandu, Morang, Janakpur, Parsa, Makwanpur, Rupandehi, Nepalgunj, and Kanchanpur.

Number of Lawyers (Criminal/Civil) if Known
The Nepal Bar Association (NBA), established in 1956, is the parent bar association overseeing all bar units throughout Nepal. It has played a fundamental role in the development of the legal field in the country. While the exact number of lawyers specializing in criminal and civil law is not specified, the NBA's extensive membership indicates a substantial legal community.

Source of Defendants Rights

National Sources of Defendant’s rights:
Defendant's rights in Nepal are primarily derived from the Constitution of Nepal, which guarantees fundamental rights such as equality before the law, the right to legal representation, and protection against arbitrary detention.
Additionally, statutory laws, including the Muluki Ain (National Legal Code), outline specific procedural safeguards for defendants within the criminal justice system.

International Sources of defendant’s rights:
Nepal is a signatory to various international human rights treaties that influence defendant's rights, including the International Covenant on Civil and Political Rights (ICCPR). These international instruments obligate Nepal to uphold standards related to fair trial rights, protection against torture, and other fundamental freedoms within its legal framework.

Rights of the Accused

Right Against Unlawful Arrests, Searches and Seizures:
Article 20(1) guarantees that no person shall be deprived of personal liberty except in accordance with the law, safeguarding individuals against unlawful arrests, searches, and seizures.

Right Against Unlawful Detention:
Article 20(2) mandates that any person arrested must be produced before a judicial authority within 24 hours, excluding travel time, ensuring protection against unlawful detention.

Right Not to be Tortured or Ill-Treated:
Article 22 explicitly prohibits physical or mental torture, as well as cruel, inhuman, or degrading treatment of detainees, ensuring their protection against such acts.

Right to Medical Care:
Article 35(1) ensures every citizen's right to free basic health services from the State, which extends to individuals in detention, ensuring their access to medical care.

Right to be Informed of Charges:
Article 20(2) ensures that any person arrested shall be informed of the grounds for such arrest, providing transparency and the ability to prepare an adequate defence.

Right to Presumption of Innocence:
Article 20(6) states that every person charged with an offence shall be presumed innocent until proven guilty, underscoring this fundamental principle of criminal justice.

Right Against Self-Incrimination:
Article 20(4) provides that no person accused of any offence shall be compelled to testify against themselves, safeguarding them from self-incrimination.

Right to Counsel and Effective Assistance:
Article 20(10) ensures that every person shall have the right to consult with a legal practitioner of their choice from the time of arrest, guaranteeing effective legal assistance.

Right to Present a Defense
Article 20(5) guarantees the right of an accused to be defended by a legal practitioner of their choice, ensuring they can present a defense.

Right to Due Process:
Article 20(1) ensures that no person shall be deprived of personal liberty except in accordance with the law, upholding the principle of due process.

Right to Equal Protection of the Laws:
Article 18(1) guarantees that all citizens are equal before the law and are entitled to equal protection of the laws, ensuring non-discriminatory legal protection.

Right to Bail:
While the Constitution does not explicitly mention the right to bail, the legal system permits bail based on the nature and severity of the offense, as outlined in various statutory laws.

Right Against Ex Post Facto Prosecution:
Article 20(8) ensures that no person shall be convicted for an act that was not punishable by law when committed, protecting against ex post facto prosecution.

Right Against Double Jeopardy:
Article 20(7) stipulates that no person shall be prosecuted or punished for the same offence more than once, safeguarding against double jeopardy.

Right to a Fair Trial:

• Generally:
  Article 20(9) guarantees the right to a fair trial by an independent, impartial, and competent court or judicial authority, ensuring justice is served fairly.
• Right to a Trial by Jury:
  Nepal's legal system does not provide for trial by jury; instead, cases are adjudicated by judges.
• Right to a Speedy Trial:
  While the Constitution does not explicitly mention the right to a speedy trial, undue delays can be challenged as violations of the right to fair proceedings under Article 20(9).
• Right to an Impartial Judge:
  Article 20(9) encompasses the right to have cases heard by an impartial judge, ensuring unbiased adjudication.

Right to Language Interpretation:
Article 20(2) ensures that any person arrested shall be informed of the grounds for such arrest in a language they understand, implying the provision of interpretation services when necessary.

Right to Habeas Corpus:
Article 133(2) empowers the Supreme Court to issue writs, including habeas corpus, to challenge unlawful detention, ensuring judicial oversight over custodial practices.

Capital Punishment:
Nepal abolished the death penalty in 1997, reflecting its commitment to human rights and humane treatment.

Right to Appeal:
Article 20(10) provides that any person convicted shall have the right to appeal to a higher court, ensuring a mechanism for reviewing and potentially overturning wrongful convictions.
These constitutional provisions collectively ensure that accused individuals in Nepal are afforded due process and fair treatment within the criminal justice system.

Rights of Counsel

Right to Provide Representation
Legal practitioners in Nepal, categorised as Senior Advocates, Advocates, and Pleaders, have the right to represent clients in various courts:

• Senior Advocates and Advocates: Entitled to appear, plead, and argue before the Supreme Court and any other court or authority in Nepal.
• Pleaders: Authorized to appear, plead, and argue in courts and authorities except the Supreme Court.

These provisions are outlined in Chapter 5, Section 22 of the Nepal Bar Council Act, 1993.

Right of Access to the Client
While specific legal provisions detailing the right of counsel to access clients are not explicitly stated in the provided sources, the general practice and ethical obligations in Nepal necessitate that legal practitioners maintain appropriate communication with their clients to ensure effective representation.

Right to Information
Legal practitioners are expected to act with honesty and provide services within the boundaries of the law while representing any party. They are also required to inform parties about necessary issues, including alternative dispute resolution methods, prospects of the case, and expected time and costs. This ensures that clients are well-informed about their legal matters.

Right to Confidential Communication with the Client
The confidentiality of communications between legal practitioners and their clients is protected under Section 45 of the Evidence Act, 1974. This section stipulates that legal practitioners shall not disclose any communication made to them by their clients during their professional employment without the client's written consent. Exceptions to this rule include communications made in furtherance of any illegal purpose or facts indicating the commission of a crime since the commencement of the practitioner's employment.

These legal provisions collectively ensure that legal practitioners in Nepal can effectively represent their clients while adhering to ethical standards and maintaining the confidentiality of client communications.

Means of Protecting and Enforcing Rights

Exclusionary Rule:
The exclusionary rule, which prevents evidence obtained through unlawful means from being admitted in court, is not explicitly codified in Nepal's legal system. However, the judiciary has the authority to determine the admissibility of evidence based on its legality and relevance, ensuring that evidence obtained in violation of constitutional rights may be deemed inadmissible. This aligns with the principles of a fair trial as enshrined in Article 20 of the Constitution of Nepal, 2015.

Nullity of Procedure:
Procedural nullity refers to declaring legal proceedings invalid due to significant procedural errors or violations. While specific provisions detailing nullity of procedure are not explicitly outlined in the available sources, Nepal's commitment to due process implies that substantial procedural violations could render proceedings void. The judiciary has the authority to assess and address such procedural irregularities to uphold the integrity of the legal process. This is in line with Article 20(9) of the Constitution of Nepal, 2015, which ensures fair proceedings.

Motions
In Nepal's legal system, parties have the right to file motions or petitions to request specific rulings or orders from the court. These motions can address various procedural or substantive issues during legal proceedings. The ability to file motions ensures that parties can actively participate in the judicial process and seek remedies or clarifications as needed. This procedural aspect is governed by the National Criminal Procedure (Code) Act, 2017.

Contempt
Contempt of court refers to actions that disrespect the court's authority or obstruct the administration of justice. In Nepal, the Supreme Court possesses the power to initiate contempt proceedings to uphold its dignity and ensure the proper functioning of the judiciary. According to Article 126(2)(c) of the Constitution of Nepal, 2015, the Supreme Court has the authority to try certain cases, including those related to contempt of itself and its subordinate courts.
Additionally, the Contempt of Court Act, 2067 (2011), once enacted, will provide specific provisions regarding contempt proceedings.

Civil Actions:
Individuals in Nepal have the right to initiate civil actions to seek remedies for violations of their rights or to resolve disputes. The civil justice system provides a structured process for addressing grievances, ensuring that parties can present their cases and obtain appropriate relief. While specific procedural details are not provided in the available sources, the civil litigation framework in Nepal is designed to uphold the rule of law and protect individual rights through judicial intervention. This is supported by Schedule 7, Item 1 of the Constitution of Nepal, 2015, which lists "Criminal and civil work procedures and evidences and oath of office" under the concurrent powers of federal and provincial jurisdictions.

Pre-Trial Procedure

Police procedures

Arrest, Search and Seizure Laws:

Interrogation:

Court Procedures

Pre-Trial:

Oral Trial:

Sentencing:

Appeals:

Rights in Prison

Right to Humane Conditions of Confinement:

Right to Medical Care in Prison:

Right to Mental Health Care:

Restriction of rights:

Visiting rights and telephone restrictions;

Television restrictions.

Rights of Special Populations:

• Women:
• Juveniles:

  Resources