E/CN.4/1997/4/Add.2
page 5
II. PROGRESS TO BE MADE AND GAPS NOTED IN THE
IMPLEMENTATION OF LEGISLATION
22.
While welcoming this significant advance in terms of principles, the
Working Group considers that a second stage should follow with all efforts
being mobilized to make these principles truly effective, lest in practice the
rule of due process should ultimately, de facto, become the exception. This
is a real risk but the situation remains controllable by virtue of the
emergence, in the country's recent history, of a human rights culture, as
evidenced, for example, in the discussion generated by the proposed
establishment of a national human rights commission.
23.
The main difficulties to be overcome concern the following areas.
24.
Arrests and custody. The statutory 24-hour period of custody is not
sufficiently observed, and the same holds for the 25-day maximum period
prescribed for the initial stage of pre-trial detention, which is applied in a
very uneven manner from one court to another. On occasion, according to
detained persons interviewed by the Working Group, such arrests are made with
no warrant, not even from the police.
25.
Free legal aid and assistance of an officially appointed lawyer. The
free legal aid provided for by the Constitution (art. 26, para. 14) is very
infrequently given, either because potential beneficiaries are ill-informed or
(and more especially) because of lack of funds. Officially appointed lawyers
receive little, if any, remuneration. While the presence of counsel during
custody is possible, the Working Group observed that it is not compulsory and
noted instances where detainees had not received assistance from counsel for
almost a year after their arrest.
26.
Ill-treatment during investigation. While the prisoners seen by the
Working Group very rarely reported ill-treatment in prisons, the same cannot
be said for police detention centres. In the light of its inquiries into this
matter, the Working Group considers that such dysfunctions are due primarily
to the greater weight attached to confessions in the scale of evidence. This
is probably one of the main reasons for the quite frequent cases of
ill-treatment inflicted during investigations and, consequently, a source of
judicial error. The police and judicial services could be sensitized to this
important issue on the basis of the fact that Nepal has not only ratified the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (although without having incorporated the corresponding legislation
into its domestic law), but has also just approved a bill on compensation for
victims of such practices. This is welcomed by the Working Group, which
accorded great importance to the bill in its interviews with the authorities.
27.
Conditions of application of the Public Offence Act. While the Working
Group noted statistics according to which no one had been detained under the
law on national security, i.e. as a political prisoner, it nevertheless found
that the Public Offence Act, which in theory deals only with ordinary
offences, was being applied in respect of offences obviously coming under the
national security law. This redefinition, which is hardly consistent with the
principle of the legality of offences and penalties, enables the authorities
responsible for law and order to present some prosecutions in the statistics