Nepal

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Legal Resources for Nepal

The Constitution of Nepal ^[1]

E-Learning Resources

eLearning Courses for Criminal Defense lawyers

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

Complaint/Information

First Information Report (FIR):
The criminal process typically begins with the lodging of a First Information Report (FIR) by the victim or any informant. This report is registered at the nearest police station, detailing the commission of an offense.

Arrest, Search and Seizure Laws:

Stops and Frisks: Police officers have the authority to stop and search individuals if they have reasonable suspicion of involvement in criminal activity. Such searches must be conducted with respect for individual rights and in accordance with legal provisions.
Arrests: Arrests can be made with or without a warrant, depending on the nature of the offense. For cognizable offences, police may arrest without a warrant; for non-cognizable offences, a warrant is typically required.
Pre-trial Detention: After arrest, the accused may be held in custody during the investigation. The law mandates that the accused must be presented before a judicial authority within 24 hours, excluding travel time, to determine the legality of the detention.
Searches: Police are empowered to conduct searches of persons, vehicles, or premises if there is reasonable cause to believe that evidence related to a crime may be found. Searches of women must be conducted by female officers or in the presence of another woman.
Enforcing the Rules (Exclusionary Rule, Nullity, and Other Procedures): While Nepalese law does not explicitly outline an exclusionary rule, evidence obtained through illegal means may be challenged in court, and its admissibility is subject to judicial discretion.

Lineups and Other Identification Procedures

Lineups: The Act provides for identification parades (lineups) to enable witnesses to identify suspects. These procedures must be conducted fairly to prevent misidentification.
Other Identification Procedures: Additional methods, such as photographic identification or voice recognition, may be employed as necessary, following legal protocols to ensure accuracy and fairness.

Interrogation:

Before Formal Charge in Court: During the investigation, police may interrogate suspects. The law prohibits the use of torture or coercion, and suspects have the right to remain silent and to legal counsel during questioning.
After Defendant is Formally Charged: Once charges are filed, any further interrogation must adhere strictly to legal standards, respecting the rights of the accused, including the right against self-incrimination and the right to counsel.
Enforcing the Rules (Procedures to Protect Against Illegal Interrogation): The law mandates that confessions or statements obtained through coercion, torture, or improper means are inadmissible in court. Mechanisms are in place to investigate and address allegations of misconduct during interrogation.

Court Procedures

PRE-TRIAL	Initial Court Appearance Following an arrest, the accused must be presented before a judicial authority within 24 hours, excluding travel time. This initial appearance ensures that the detention is lawful and informs the accused of the charges. Charging Instrument The prosecution formalises charges against the accused by submitting a charge sheet (also known as an indictment) to the court. This document outlines the specific allegations and legal provisions purportedly violated. Preliminary Hearing Nepalese law does not explicitly provide for a separate preliminary hearing. However, during the initial stages, the court examines the charge sheet to determine if there is sufficient basis to proceed to trial. Pre-Trial Motions Parties may file motions before the trial to address issues such as bail, suppression of evidence, or dismissal of charges. These motions aim to resolve specific legal matters prior to the commencement of the trial. Discovery The discovery process involves the exchange of evidence between the prosecution and defence to ensure both sides are adequately prepared for trial. Nepalese law mandates that the prosecution disclose all evidence, including exculpatory material, to the defense.
TRIAL	Nature of the Trial Trials in Nepal are predominantly adversarial, where the prosecution and defence present their cases before an impartial judge. The judge evaluates the evidence and renders a verdict based on the facts and applicable law. Defendant The defendant has the right to be present during the trial, to be represented by legal counsel, and to present evidence and witnesses in their defence. They also have the right to remain silent and are presumed innocent until proven guilty. Lawyers Both the prosecution and defence are represented by legal practitioners. The defense attorney advocates on behalf of the accused, ensuring their rights are protected, while the prosecutor represents the state, presenting evidence to prove the charges. Expert Witnesses Either party may call upon expert witnesses to provide specialised knowledge or opinions pertinent to the case. The court assesses the credibility and relevance of such testimony. Judges Judges oversee the trial process, ensuring it adheres to legal standards and that the rights of all parties are upheld. They evaluate the evidence presented and issue rulings or verdicts accordingly. Victims Victims have the right to participate in the trial process, which may include providing testimony and being informed about the proceedings. Their rights and interests are safeguarded throughout the judicial process. Sentencing Upon a guilty verdict, the court imposes a sentence based on statutory guidelines, the severity of the offence, and mitigating or aggravating factors. Sentences can range from fines and community service to imprisonment.
APPEALS	Right to Counsel During the appeals process, the appellant has the right to legal representation to challenge the trial court's decision. Ineffective Assistance of Counsel Claims of ineffective assistance of counsel can be grounds for appeal if it is demonstrated that the defence attorney's performance was deficient and prejudiced the outcome. Other Grounds for Appeal Appeals can be based on various grounds, including legal errors during the trial, misinterpretation of the law, or the emergence of new evidence. The appellate court reviews these claims to determine if the trial court's decision should be upheld or reversed. Collateral Remedies (Habeas Corpus, etc.) Beyond direct appeals, individuals may seek collateral remedies such as habeas corpus petitions to challenge unlawful detention or violations of fundamental rights. These remedies provide additional avenues for redress within the legal system.

Rights in Prison

Right to Humane Conditions of Confinement:
The Constitution of Nepal explicitly prohibits physical or mental torture, as well as cruel, inhuman, or degrading treatment of detainees. Article 22(1) of the Constitution states: "No person in detention shall be subjected to physical or mental torture, or be treated in a cruel, inhuman or degrading manner."

Additionally, the Prison Management Bill emphasises the provision of basic human rights to all prisoners, including shelter, quality food, sanitation, employment, remuneration, health and treatment services, and special care for pregnant prisoners.

Immigrants' rights in detention
While specific provisions regarding immigrants in detention are not detailed in the provided sources, Nepal is obligated under international human rights law to ensure that all individuals, regardless of their immigration status, are treated humanely and their rights respected.

Right to Medical Care in Prison:
The Prison Management Bill ensures that inmates receive necessary health and treatment services. This includes provisions for reproductive rights, allowing legitimate inmate couples to stay together for reproduction, and permitting inmates to register marriages with individuals outside the prison.

Right to Mental Health Care:
The Prison Management Bill provides that inmates above 65 years, those with disabilities, and those suffering from mental illness and other incurable diseases will receive special care in terms of food and health.

Restriction of rights:
While prisoners retain certain fundamental rights, some rights may be lawfully restricted due to incarceration. However, any such restrictions must align with both national and international human rights standards to ensure they are not arbitrary or excessive.

Rights of Special Populations:

Women:
The Prison Management Bill includes provisions for reproductive rights, allowing legitimate inmate couples to stay together for reproduction, and permitting inmates to register marriages with individuals outside the prison. Additionally, pregnant inmates are allowed to give birth outside the prison, and minors can stay with their mothers.
Juveniles:
While specific provisions regarding juvenile prisoners are not detailed in the provided sources, international human rights standards, which Nepal is obligated to uphold, require that juvenile prisoners be treated in a manner appropriate to their age and legal status.
GLBT Prisoners
Specific provisions regarding GLBT prisoners are not detailed in the provided sources. However, Nepal's commitment to human rights obligates the state to ensure that all prisoners, regardless of sexual orientation or gender identity, are treated without discrimination.
Mentally ill Prisoners
The Prison Management Bill stipulates that inmates with mental illnesses will receive special care in terms of food and health.