Section 1. Respect for the Integrity of the Person, Including Freedom from:
a. Arbitrary Deprivation of Life and other Unlawful or Politically Motivated Killings
There were several reports that the government or its agents committed arbitrary or unlawful killings. On March 6, five individuals were killed and dozens injured when the Armed Police Force (APF) intervened in a protest in Saptari district that became violent. The protesters, who had staged a rally to protest election-related campaigning by an opposition party, reportedly burned tires, threw Molotov cocktails, blocked road traffic, and vandalized vehicles outside the political program. According to human rights organizations, including Human Rights Watch (HRW) and Amnesty International (AI), the APF used indiscriminate and excessive force in attempting to subdue protestors. Reports also alleged that the APF failed to follow the Local Administration Act, which requires security forces to aim below the knee unless there is an imminent threat to human life, and other guidelines on escalating the use of force. In March the government appointed a three-member committee to investigate the killings and approved Nepali rupees (NRs) 1 million ($10,000) payments to the families of each of the victims, which the government declared as martyrs. As of October the committee, which had 15 days to complete its investigation, had not produced a report, nor had the government taken any action against those responsible. The government, however, had distributed the compensation to the victims’ families.
Human rights groups demanded the establishment of an independent commission to investigate allegations of excessive use of force by the Nepal Police and APF against civilians during months of unrest related to the promulgation of the constitution in 2015. In response the government formed the High Level Enquiry Commission (HLEC) in August 2016. Between December 2016, when the HLEC began accepting complaints, and August, the HLEC received 3,031 complaints.
There were developments in a few emblematic conflict-era cases. As an illustrative example, in April the Kavre District Court convicted in their absence three of the four Nepal Army (NA) officers accused of killing 15-year-old Maina Sunuwar in 2004 and sentenced them to life in prison (in the country, a “life sentence” is considered 20 years). Lieutenant Colonel Niranjan Basnet, the only convicted officer still serving with the NA, was acquitted. Although human rights groups praised the court’s decision, which they stated was a partial victory for conflict victims and justice, they also said the district attorney’s decision not to appeal Basnet’s acquittal represented a failure to pursue criminal accountability. They also questioned the willingness or ability of the government to implement the court’s decision, particularly because some of those convicted may no longer reside in the country. As of August the government did not take action to pursue the return of the three convicted persons from their presumed location abroad.
The government did not enforce a 2016 Supreme Court ruling that overturned the 2011 pardon of Bal Krishna Dhungel, a Maoist politician convicted of killing Ujjan Kumar Shrestha in 1998. Despite the Supreme Court decision and order for his apprehension, Dhungel had remained free and was observed attending social functions and publicly criticizing Supreme Court justices. In response to a contempt of court case filed against Dhungel, on April 13, the Supreme Court had ordered the Inspector General of Police to arrest Dhungel within one week. Dhungel was arrested on October 31.
There were no reports of disappearances by or on behalf of government authorities during the year. The new criminal code, which parliament passed in July but will not come into effect until 2018, criminalized disappearance. In 2016 the government faced accusations of involvement in the disappearance of Kumar Tamang, a laborer temporarily living in Tatopani. An investigation initiated by police in March 2016 had not reached a conclusion as of October.
The fate of most of those who disappeared during the 1996-2006 civil conflict remained unknown. According to the National Human Rights Commission, approximately 840 unresolved cases of disappearances remain unresolved, 594 of which may have involved state actors. As of August the government did not prosecute any government officials, current or former, for involvement in conflict-era disappearances, nor had it released information on the whereabouts of the 606 persons the National Human Rights Commission (NHRC) identified as having been disappeared by state actors. The NHRC reported that Maoists were believed to be involved in 149 unresolved disappearances during the conflict. As of August the government had not prosecuted any Maoists for involvement in disappearances.
In June the CIEDP formed five teams to begin investigating complaints of disappearances filed by conflict-era victims. The commission has before it 2,769 registered cases. By contrast the International Committee of the Red Cross listed 1,335 names of missing persons in August.
Human rights organizations expressed concern over flaws related to the CIEDP. According to the International Commission of Jurists, CIEDP investigations suffer from inadequate human and financial resources to handle the large number of cases, opaque appointment processes of investigators, and a lack of measures to ensure confidentiality and security of victims and witnesses. Victims also have expressed concern that investigators in many districts have asked about their interest in reconciliation.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
Contrary to requirements in the 2015 constitution, torture is not explicitly criminalized, and the law does not have clear guidelines for punishing offenders. The Torture Compensation Act provides for compensation for victims of torture. The victim must file a complaint and pursue the case through the courts.
According to human rights activists and legal experts, police resorted to severe abuse, primarily beatings, to force confessions. Local human rights nongovernmental organization (NGO) Advocacy Forum (AF) reported no evidence of major changes in police abuse trends across the country, but AF stated that police increasingly complied with the courts’ demand for preliminary medical checks of detainees, in part because the courts refused to extend the period of legal police custody without such medical checks.
The Terai Human Rights Defenders Alliance (THRDA), another local NGO, stated that torture victims often were hesitant to file complaints due to police or other official intimidation and fear of retribution. In some cases victims settled out of court under pressure from the perpetrators. According to THRDA the courts ultimately dismissed many cases of alleged torture due to a lack of credible supporting evidence, especially medical documentation. In cases where courts awarded compensation or ordered disciplinary action against police, the decisions were rarely implemented according to THRDA and other NGOs. In one noteworthy case in Banke district in March, however, the Chief District Officer compensated two torture victims in line with a district court award in 2013.
According to AF’s latest report on torture published in 2016, 17.2 percent of the 1,212 detainees AF interviewed in 2015 were subjected to some form of physical abuse compared with 16.2 percent in 2014. The same study indicated a slightly higher rate of reported torture among detainees identified as “indigenous.” In a separate study, THRDA reported that 24 percent of detainees in police detention centers in 19 districts in the country’s southern Terai belt had been subjected to some form of physical and/or mental abuse. According to the Nepal Police Human Rights Commission, the vast majority of alleged incidents were not formally reported or investigated.
There have been no cases brought to the criminal justice system of torture committed during the civil conflict.
In February 2016 the UN reported one allegation of sexual exploitation and abuse against a Nepali peacekeeper in South Sudan for an incident that reportedly involved three adult victims. The complainants accused the peacekeeper of sexual assault and transactional sex. The government continues to investigate the allegation.
Prison and Detention Center Conditions
Prison conditions, especially those in pretrial detention centers, were poor and did not meet international standards according to human rights groups.
Physical Conditions: There was overcrowding in the prison system. During the year a monitoring report by the Office of the Attorney General (OAG) indicated that in 51 of the 75 districts, 47 prisons designed to hold 5,594 inmates held 9,592 convicted prisoners. THRDA stated that overcrowding also remained a serious problem in detention centers. According to the OAG report, most prisons and detention centers had sufficient windows, daylight, and air, with a few exceptions.
Authorities generally held pretrial detainees separately from convicted prisoners. Due to a lack of adequate juvenile detention facilities, authorities sometimes incarcerated pretrial detainee children with adults or allowed children to remain in jails with their incarcerated parents.
The OAG report indicated that of 76 detention centers the OAG monitored, 14 lacked separate facilities for women. According to THRDA most prisons lacked separate facilities for women, children, and persons with disabilities.
According to AF and THRDA, medical examinations for detainees generally were perfunctory. AF also reported medical care was poor for detainees with serious conditions. According to the OAG, the government did not implement a 2016 Supreme Court decision ordering it to provide more than 700 grams of rice and 45 NRs (45 cents) per day to each prisoner. According to AF some detainees slept on the floor due to lack of beds and had access only to unfiltered and dirty water and inadequate food, and many detention centers had poor ventilation, lighting, heating, and bedding.
According to the NGO Child Workers in Nepal, minors housed in adult facilities often faced bullying from adult detainees and received poor treatment by police. Hygiene was poor, and police and adult detainees often made minors clean the toilets.
Administration: There were no alternatives to imprisonment or fines, or both, for nonviolent offenders.
Independent Monitoring: There was no official institutional mechanism to monitor prisons or detention centers. The government generally allowed prison and pretrial detention center visits by the OAG, NHRC, the National Women’s Commission, and the National Dalit Commission as well as by lawyers of the accused. THRDA and AF reported that while they and some other NGOs were often prevented from meeting with detainees or accessing detention facilities, some independent human rights observers, including the United Nations and international organizations, were given such access. Media had no access to prisons or detention centers. The NHRC could request government action, but authorities often denied such requests.
Improvements: In May the Department of Prison Management launched the Prison Management Information System software. The new system aimed to better track prisoner biodata, sentencing details, and other records. According to the NHRC, however, implementation of the new system was ineffective during the year.
d. Arbitrary Arrest or Detention
The law prohibits arbitrary arrest and detention, but security forces reportedly conducted arbitrary arrests during the year. The law gives chief district officers wide latitude to make arrests, and human rights groups contended that police abused their 24-hour detention authority by holding persons unlawfully, in some cases without proper access to counsel, food, and medicine, or in inadequate facilities.
ROLE OF THE POLICE AND SECURITY APPARATUS
The Nepal Police is responsible for enforcing law and order across the country while the APF is responsible for combating terrorism, providing security during riots and public disturbances, assisting in natural disasters, and protecting vital infrastructure, public officials, and the borders. In 2015 the government gave the APF the authority to issue warrants to suspects they detain before turning them over to the Nepal Police. Generally, the Nepal Police and the APF executed search and arrest warrants without any prosecutorial or judicial review.
The Nepal Police and APF have human rights commissions (HRCs) and the NA has a human rights directorate (HRD). The NAHRD and Nepal Police HRC have independent investigative powers. The NA’s investigations were not fully transparent according to human rights NGOs. NA HRD representatives stated that nearly all of its cases derived from the Maoist insurgency, and that full transparency could come only in the context of a functioning TRC. The Nepal Police also proposed that conflict-era allegations of abuse should be handled in the context of a functioning TRC.
In contrast with prior years, the Nepal Police did not provide statistics on how many complaints of human rights violations it received. The Nepal Army HRC stated it received no complaints of human rights violations during the year. All security forces received human rights training prior to deployments on UN peacekeeping operations. The NA incorporated human rights training into professional military education, and conducted ongoing training in all units. Each brigade has a designated human rights officer, and divisions have larger human rights staff. At the Army headquarters, a brigadier general, who reports directly to the Chief of Staff, heads the HRD. Similarly, the Nepal Police and APF incorporated training on human rights into their overall training curricula for security forces. The APF and Nepal Police HRCs issued booklets outlining human rights best practices to most police officers.
Police corruption and lack of punishment or accountability for police abuses remained problems.
ARREST PROCEDURES AND TREATMENT OF DETAINEES
The law stipulates that, except in cases involving suspected security and narcotics violations, or when the crime’s punishment would be more than three years’ imprisonment, authorities must obtain an arrest warrant and present the suspect to a court within 24 hours of arrest (not including travel time). THRDA reported that illegal and arbitrary arrests were prevalent, with police failing to bring 14 percent of detainees to court within 24 hours. According to AF, however, there was significant progress in courts demanding to see an initial medical examination before extending the period of remand.
If the court upholds a detention, the law generally authorizes police to hold the suspect for up to 25 days to complete an investigation. In special cases (such as for suspected acts of corruption), a suspect can be held for up to six months. The constitution provides for access to a state-appointed lawyer or one of the detainee’s choice, even if charges have not been filed. Few detainees could afford their own lawyer, and the justice system does not receive sufficient funding to provide free and competent counsel to indigent defendants.
Detainees have the legal right to receive visits by family members, but family access to prisoners varied from prison to prison. Authorities routinely denied defense attorneys access to defendants in custody. AF, which provides legal assistance to detainees, reported an increase in restrictions on access to pretrial detention facilities. While a system of bail exists, bonds are too expensive for most citizens. The accused have the option of posting bail in cash or mortgaging their property to the court. Unless prisoners are released on recognizance (no bail), no alternatives to the bail system exist to assure a defendant’s appearance in court.
Arbitrary Arrest: Leaders of the Rastriya Janata Party-Nepal (RJP-N) claimed that security personnel arrested hundreds of their party cadres in various districts–including Nawalparasi, Dhanusha, Kailali, Kanchanpur, Bardiya, Banke, Kapilvastu, Sunsari, Siraha, and Morang–for participating in public protests before the second round of local elections in June. According to THRDA police released all the protesters within a few days of arrest. THRDA also reported that four individuals associated with the RJP-N were seriously injured in Nawalparasi district when police fired rubber bullets into a crowd of protestors on June 17. In response to both reports, the NHRC issued a public statement urging the government to exercise restraint and refrain from arresting individuals without cause.
Pretrial Detention: Time served is credited to a prisoner’s sentence, but pretrial detention occasionally exceeded the length of the ultimate sentence following trial and conviction.
Under the Public Security Act, security forces may detain persons who allegedly threaten domestic security and tranquility, amicable relations with other countries, or relations between citizens of different castes or religious groups. The government may detain persons in preventive detention for as long as 12 months without charging them with a crime as long as the detention complies with the act’s requirements. The court does not have any substantive legal role in preventive detentions under the act.
Other laws, including the Public Offenses Act, permit detention without charge for as long as 25 days with extensions. This act covers crimes such as disturbing the peace, vandalism, rioting, and fighting. Human rights monitors expressed concern that the act vests too much discretionary power in the chief district officer.
According to human rights groups, in some cases detainees appeared before judicial authorities well after the legally mandated 24-hour limit, allegedly to allow injuries from police mistreatment to heal. AF estimated in a 2015 report that 41 percent of detainees did not appear before judicial authorities within 24 hours of their arrests. THRDA stated police frequently circumvented the 24-hour requirement by registering the detainee’s name only when they were ready to produce the detainee before the court.
Detainee’s Ability to Challenge Lawfulness of Detention before a Court: Those arrested or detained are entitled to challenge in court the legal basis or arbitrary nature of their detention through habeas corpus. According to human rights lawyers, however, no individuals received compensation for an illegal or arbitrary arrest or detention.
e. Denial of Fair Public Trial
The constitution and law provide for an independent judiciary, but courts remained vulnerable to political pressure, bribery, and intimidation. The Supreme Court has the right to review the constitutionality of laws.
Authorities did not consistently respect and implement court orders, including Supreme Court decisions, particularly decisions referring to conflict-era cases as discussed above.
In April the two ruling parties, the Nepali Congress and the Communist Party of Nepal (Maoist Center), filed an impeachment motion against Supreme Court Chief Justice Sushila Karki soon after the court overturned the government’s choice for Inspector General of Police, the country’s top police officer. According to HRW the move violated the principle that an independent judiciary should be free from political interference. The UN High Commissioner for Human Rights stated the attempt to remove Karki raised concerns about the government’s commitment to the rule of law. The parties withdrew the impeachment case on May 29, just as Karki was due to retire upon reaching the age limit for the position.
The law provides for the right to counsel, equal protection under the law, protection from double jeopardy, protection from retroactive application of the law, public trials, and the right to be present at one’s own trial, but these rights were not always applied. Defendants enjoy the presumption of innocence, except in some cases, such as human trafficking and drug trafficking, where the burden of proof is on the defendant. The law provides detainees the right to legal representation and a court-appointed lawyer, a government lawyer, or access to private attorneys. The government provided legal counsel to indigent detainees only upon request. Persons who are unaware of their rights, in particular lower-caste individuals and members of some ethnic groups, are thus at risk of being deprived of legal representation. Defense lawyers reported having insufficient time to prepare their defense. A 2016 Supreme Court directive ordered that the courts must provide free interpretation services to those who do not speak Nepali (the 2011 national census lists 123 languages spoken as a mother tongue). Defense lawyers may cross-examine accusers. All lower-court decisions, including acquittals, are subject to appeal. The Supreme Court is the court of last resort.
Military courts adjudicate cases concerning military personnel under the military code, which provides military personnel the same basic rights as civilians. The Army Act requires that soldiers accused of rape or homicide be transferred to civilian authorities for prosecution. Under normal circumstances the army prosecutes all other criminal cases raised against soldiers under the military justice system. Nevertheless, the NA has told the government it is willing to cooperate with the TRC and CIEDP and will not “hide” behind the Army Act. Military courts cannot try civilians for crimes, even if the crimes involve the military services; civilian courts handle these cases.
POLITICAL PRISONERS AND DETAINEES
THRDA reported that 25 civilians charged in connection with the killing of eight security personnel and a child during protests in Tikapur, Kailali district in 2015 remained in detention. According to THRDA and some political parties, several of the 25 were targeted because they were political leaders and activists of the ethnic Tharu community. On May 19, the government announced its plan to withdraw cases filed against a number of the detained individuals. The government did not specify the number of individuals it planned to release, but it stated it would withdraw “false cases” against those who did not have a connection to the Tikapur incident while continuing to pursue criminal action against those responsible. Indigenous rights groups welcomed the decision to withdraw cases against activists promoting indigenous rights. Legal and human rights experts, however, questioned the government’s decision to circumvent the judicial process. The NHRC stated the government’s decision promoted impunity and politicized a criminal incident. It urged the government to investigate, take legal action against the culprits, and provide compensation to the victims. Separately, in response to a writ petition filed at the Supreme Court against the decision, the court ordered the government to explain its decision. As of August the government had taken no action to implement its plan to withdraw cases.
CIVIL JUDICIAL PROCEDURES AND REMEDIES
Individuals or organizations could seek remedies for human rights violations in national courts.
The Maoists and their affiliate organizations have returned some previously seized property as required by the 2006 Comprehensive Peace Accord that ended the civil conflict, but they kept other illegally seized lands and properties. According to the Asia Foundation’s report this year, a significant number of conflict-era land disputes remained outstanding.
f. Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence
The law prohibits arbitrary interference with privacy, family, home, and correspondence. The government generally respected these prohibitions.
The law allows police to conduct searches and seizures without a warrant if there is probable cause to believe that a crime has been committed, in which case a search may be conducted as long as two or more persons of “good character” are present. If a police officer has reasonable cause to believe that a suspect may possess material evidence, the officer must submit a written request to another officer to conduct a search, and there must be another official present who holds at least the rank of assistant subinspector. Some legal experts claimed that by excluding prosecutors and judges from the warrant procedure, there are relatively few checks against police discretion.