Criminal justice system of Nepal

1. Criminal justice system of Nepal  Joint Attorney Yub Raj Subedi  Joint Attorney Soorya Prasad Pokharel 1

2. Limitation of the paper Development of Nepalese legal system Component of criminal justice system Conviction status of Nepal Criminal justice system reform through three Bills Constraint to the strong prosecution system 2

3. Development of Nepalese legal system  Legal system has developed in two fold basis The stage of uncodified law (prior to 1853 A.D.) Law influenced from Hindu philosophy and indigenous customary law The stage of codified law (after the 1853 A.D. ) Start from the promulgation of Muluki Ain 1853 A.D. Made from Rana Prime Minister Junga bahadur form the inspiration of French Napoleon code 3

4. Components of criminal justice system Criminal law and penal policy Police and Public Prosecutor Offenders and defense counsel Court Victims Civil society 4

5. Penal provision Life imprisonment with entire property Life imprisonment Imprisonment with fine Imprisonment Provide claimed amount to the victim Provide reasonable compensation to the victim 5

6. Role of police in criminal justice Registration of crime information Arrive at crime scene as soon as possible Examining the corps and send for autopsy Record the statement of eye witness Search and seizure at any suspected place or person Arrest the suspect and keep in detention Take permission of the court to detain more than twenty four hour to the suspect. Collect the material evidences Take the statement of accused in the presence of prosecutor Release the suspect in guarantee of attendance 6

7. Send blood, semen or any organ of body or any other thing of suspects to examine in laboratory May ask and take consultation to the Prosecutor at any time during the investigation Produce case file to the prosecutor along with his opinion report Submit anything, the goods or document of evidential value that are received after the filing a case, through the prosecutor Produces the prosecution witness in Court through the Prosecutor 7

8. Role of Government Attorney in criminal justice Role in three stage Pre trial stage Trial stage Post trial stage 8

9. Pre trial stage Provide direction and advice to the police Interrogate the accused and present at the time of taking statement of accused Provide permission to the police to release the person in guarantee or attendance Decide whether institute a case or not Frame charge sheet and file it in the Court 9

10. Trial stage Produce offender, material evidence and file along with the charge sheet in court Produce the offender and any material evidence that are arrested or collected after the filing a case Produce witness in the court and examine them and cross the defender witness Plead in different stage of hearing before the court. 10

11. Post trial stage File an appeal in superior court 11

12. Organization of prosecutors office Attorney General office in Kathmandu headed by the Attorney General Sixteen Appellate Attorney Office are located in the place of Appeal Court headed by the Joint Attorney Seventy-five District Attorney office are located in district head quarter of each district headed by the District Attorney 12

13. Police and Prosecutor relation to combat impunity Role and mandates are separated. Police considers interference in their domain if any direction is given by Prosecutor. Generally, prosecutor blame to the weak investigation for the failure of cases. Provision of Central Level Coordination Committee Attorney General Home Secretary Law and Justice Secretary Inspector General of Police Attorney General issued thirty three points guideline to the police and prosecutors : to maintain the coordination and develop conducive relation. 13

14. Accused Accused has right to : Fair trial Against torture Against the preventive detention Get right relating to criminal justice Get legal counseling and legal Aid 14

15. Victim Victim has a right to : Get compensation Rehabilitation Get access of the proceeding of a case 15

16. Court Structure Three tier Supreme Court Appeal Court District Court Criminal and civil cases are heard by the same court, The court of first instance : District Court Case heard by single Judge The court play a role like as an umpire 16

17. Civil Society Civil Society must cooperate to the: Investigating officer (police) in the investigation Prosecutor for prosecution Court in adjudication process 17

18. PROGRESS REPORT OF PROSECUTION(Based on annual report of AG Office fiscal year 2009/2010) 18

19. Proposed Reform in Criminal Justice Reform through Constitution Guarantee of fundamental rights, right to life liberty, right against torture, right against preventive detention and right relating to justice etc. Concept paper of fundamental right committee of constituent assembly recognized the victim right for new constitution. Reform through three Bills Criminal Code Bill,2011 Criminal Procedural Code Bill, 2011 Criminal Offences (Assessment and Execution of Punishment) Bill,2011 19

20. Criminal Code Bill 2011 Define different types of crimes in single code Define punishment in single code Separate provisions of conspiracy, accomplice and attempt of the offence Remove the punishment of entire property Additional punishment for atrocious an habitual criminal Extent life imprisonment to Thirty years Revised the amount of fine 20

21. Juvenile under the age of 10 years is exempted from criminal liability Introduce the community service instead of imprisonment as punishment Introduce the plea bargain system (plea bargain for the exempt of punishment up to 50%) Introduce the interim compensation Principles of criminal justice are mentioned in code Introduced the guarantee as a bail. Introduce the cross examination of co-accused 21

22. Criminal procedural code, 2011 Provide active role to the prosecutors in investigation and prosecution Police arrests the suspect by the permission of the court Police may record the statement of any person through the video conference who can not present due to physical or mental condition Provision of additional or amend charge-sheet Provision for pending the prosecution in petty offences Court may examine the witness through the video conference 22

23. Special provision for the absconded person in warrant Suspend various fundamental rights Prosecution has a priority to produce own witness at first Introduced camera hearing in special cases as human trafficking, sexual offences etc. Provision for maintaining the secrecy of identity of victim and witness. Witness in foreign country can examine through the video conference. The court can issue an order for the protection of witness on his application Provision of co-ordination committee. 23

24. Criminal Offences (Assessment and Execution of Punishment) Bill, 2011 Separate hearing for assessment of punishment Provision of pre assessment report of punishment Basis of punishment The amount of fine shall not affect the payment of compensation Establishment of victim relief /compensation fund Basis of assessment of the amount of compensation Probation and Parole Board: Central headed by the Attorney General District headed by the District Attorney (Prosecutor) . 24

25. Progressive treatment towards the offender Community service instead of imprisonment Suspension of punishment of imprisonment for three year Sending to the offender in reform home Sending to the offender in rehabilitation center instead of prison Imprisonment can be done only in the last day of the week or only in the night Keep in open Jail on the recommendation of Jailer Keep in parole Labor in public work instead of imprisonment Reformative program in Jail Socialization of offender. 25

26. Purpose of socialization Family re-meeting Establishment of social and cultural relation Social unification and reestablishment Business or employment Participate in the skill or job oriented training 26

27. Urgent need to defeat substantial Constraint People are not aware to cooperate in investigation, prosecution and adjudication process. Lack of conceptual and technical knowledge of recent trend of crime and technique of investigation, prosecution and adjudication with police, prosecutor and judges. Lack of cordial professional relation among the police, prosecutor, defense counsel and court personnel. Prosecution is based on subjective evidence rather than material evidence. Lack of team work between the police and prosecutor. 27

28. Unsecured terms and condition of the service of the investigator and prosecutors. No any separate and specialized wing of police for investigation of a crime. Investigator and Prosecutor works under the pressure of the various corner of the society. Lack of favorable working environment including infrastructure like building, laboratory, library etc. Lack of effective witness protection program and perjury laws. Lack of appropriate record system. 28

29. Thank You. To you all. 29 Thank you to you all. Thank you to you all.