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

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