E/CN.4/1997/4/Add.2
page 4
be necessary, the prosecutor reads out the statement and then has it signed by
the person subject to prosecution. The statement must be signed in the
presence of the prosecutor.
16.
The prosecutor may defer this formality and ask the police to carry out
further inquiries.
17.
If the period of 25 days has expired and the investigation must proceed,
the public prosecutor prepares a motivated request for the extension of
detention on the basis of the accusation maintained at that stage of the
investigation. Once the investigation has been completed, the police make a
final report and recommend to the prosecutor either that the person should be
released, because of his innocence or for lack of sufficient evidence, or that
he should be brought to court for trial.
18.
The public prosecutor is not bound by the police recommendations when
taking his decision. If he believes that there are sufficient grounds, he
draws up a formal indictment and submits it to the court (or to the chief
district officer, in exceptional cases, where that officer has power under the
Public Offence Act). The public prosecutor (or the chief district officer, as
appropriate) may decide either to remand the person in detention pending trial
or to release him on bail until that date, provided that the penalty to which
he is liable does not exceed three years; the amount of such bail must take
account of the financial circumstances of the person concerned.
19.
During the trial, the public prosecutor argues the case for the
prosecution against the defence counsel. Under the rules of procedure, the
party instituting the proceedings must have the final word, both in civil and
in criminal cases. The public prosecutor is therefore the last to speak,
unless he brings further charges or in the event of an appeal being lodged by
the defendant. It should be pointed out that the assistance of counsel is not
compulsory at any stage of the proceedings.
20.
Both the defendant and the prosecutor may appeal, but only the defendant
may appeal to the Supreme Court.
21.
The Working Group wishes to emphasize therefore that, at both the
constitutional and the legislative level, Nepal has gradually established a
system governed by the rule of law which counts among the most advanced of the
region: the former absolute monarchy has become a constitutional monarchy; at
the political level, the multi-party system (art. 112 of the Constitution) and
press pluralism are constitutionally protected; the right of association is
recognized and non-governmental human rights organizations, even if they face
some difficulties, enjoy a greater freedom to act and to report than in most
neighbouring countries. While subject to the provisions of the national
security law and the Public Offence Act, the rules of criminal procedure
conform in the main to those set forth in the international human rights
instruments. Lastly, the fact that by Act 2047 of 1990 Nepal has established
the primacy of treaties over domestic laws and has ratified virtually all the
main international human rights instruments is welcomed by the Working Group,
which would like that to serve as an example to many other States in the
region.