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Criminal justice system of Nepal

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					    Criminal justice system of Nepal




                  Joint Attorney Yub Raj Subedi
                  Joint Attorney Soorya Prasad Pokharel
1
              Limitation of the paper

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


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    Development of Nepalese legal system


    l   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
        Components of criminal justice
                 system

    l   Criminal law and penal policy
    l   Police and Public Prosecutor
    l   Offenders and defense counsel
    l   Court
    l   Victims
    l   Civil society


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    Penal provision

    l   Life imprisonment with entire property
    l   Life imprisonment
    l   Imprisonment with fine
    l   Imprisonment
    l   Provide claimed amount to the victim
    l   Provide reasonable compensation to the
        victim

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    Role of police in criminal justice
    l   Registration of crime information
    l   Arrive at crime scene as soon as possible
    l   Examining the corps and send for autopsy
    l   Record the statement of eye witness
    l   Search and seizure at any suspected place or person
    l   Arrest the suspect and keep in detention
    l   Take permission of the court to detain more than twenty four
        hour to the suspect.
    l   Collect the material evidences
    l   Take the statement of accused in the presence of prosecutor
    l   Release the suspect in guarantee of attendance
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    l   Send blood, semen or any organ of body or any other thing
        of suspects to examine in laboratory
    l   May ask and take consultation to the Prosecutor at any time
        during the investigation
    l   Produce case file to the prosecutor along with his opinion
        report
    l   Submit anything, the goods or document of evidential value
        that are received after the filing a case, through the
        prosecutor
    l   Produces the prosecution witness in Court through the
        Prosecutor
7
    Role of Government Attorney in
    criminal justice

    l   Role in three stage
            l   Pre trial stage
            l   Trial stage
            l   Post trial stage




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                      Pre trial stage

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



9
                          Trial stage

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




10
                    Post trial stage

     l   File an appeal in superior court




11
     Organization of prosecutors office

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




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         Police and Prosecutor relation to
                 combat impunity
     l   Role and mandates are separated.
     l    Police considers interference in their domain if any direction is
         given by Prosecutor.
     l   Generally, prosecutor blame to the weak investigation for the
         failure of cases.
     l   Provision of Central Level Coordination Committee
                  –   Attorney General
                  –   Home Secretary
                  –   Law and Justice Secretary
                  –   Inspector General of Police

     l   Attorney General issued thirty three points guideline to the police
         and prosecutors : to maintain the coordination and develop
         conducive relation.
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     Accused

     l   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
     Victim

     l   Victim has a right to :
         –   Get compensation
         –   Rehabilitation
         –   Get access of the proceeding of a case




15
     Court Structure

     l   Three tier
             v   Supreme Court
             v   Appeal Court
             v   District Court

     l   Criminal and civil cases are heard by the same court,
     l   The court of first instance : District Court
               Case heard by single Judge
     l   The court play a role like as an umpire




16
     Civil Society

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




17
             PROGRESS REPORT OF PROSECUTION
                      (Based on annual report of AG Office fiscal year 2009/2010)


     Case             Total     Settled     Convicted     No conviction   Percent of   Number of
     registration     cases     cases       cases         Cases           conviction   remaining
     entity                                                                            cases
     District         12,411    6,255       4,454         1,801           71.21%       6,156
     Court
     District         8,585     4,080       3,939          141            96.54%       4,505
     Administration
     Office
     Other entity     482       211          201            10            95.26%        271


     Total            21,478    10,546      8,594         1,952           81.49%       10,932




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         Proposed Reform in Criminal Justice

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

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

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     l   Juvenile under the age of 10 years is exempted from
         criminal liability
     l   Introduce the community service instead of
         imprisonment as punishment
     l   Introduce the plea bargain system (plea bargain for
         the exempt of punishment up to 50%)
     l   Introduce the interim compensation
     l   Principles of criminal justice are mentioned in code
     l   Introduced the guarantee as a bail.
     l   Introduce the cross examination of co-accused
21
               Criminal procedural code, 2011


     l   Provide active role to the prosecutors in investigation
         and prosecution
     l   Police arrests the suspect by the permission of the
         court
     l   Police may record the statement of any person through
         the video conference who can not present due to
         physical or mental condition
     l   Provision of additional or amend charge-sheet
     l   Provision for pending the prosecution in petty offences
     l   Court may examine the witness through the video
         conference
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     l   Special provision for the absconded person in warrant
             l   Suspend various fundamental rights
     l   Prosecution has a priority to produce own witness at first
     l   Introduced camera hearing in special cases as human
         trafficking, sexual offences etc.
     l   Provision for maintaining the secrecy of identity of victim
         and witness.
     l   Witness in foreign country can examine through the
         video conference.
     l   The court can issue an order for the protection of witness
         on his application
     l   Provision of co-ordination committee.
23
     Criminal Offences (Assessment and Execution of
                   Punishment) Bill, 2011


     l   Separate hearing for assessment of punishment
     l    Provision of pre assessment report of punishment
     l   Basis of punishment
     l   The amount of fine shall not affect the payment of
         compensation
     l   Establishment of victim relief /compensation fund
     l   Basis of assessment of the amount of compensation
     l   Probation and Parole Board:
             l   Central headed by the Attorney General
             l   District headed by the District Attorney (Prosecutor) .
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     l   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.


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     Purpose of socialization

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




26
          Urgent need to defeat substantial
                     Constraint

     l   People are not aware to cooperate in investigation,
         prosecution and adjudication process.
     l   Lack of conceptual and technical knowledge of recent
         trend of crime and technique of investigation,
         prosecution and adjudication with police, prosecutor and
         judges.
     l   Lack of cordial professional relation among the police,
         prosecutor, defense counsel and court personnel.
     l   Prosecution is based on subjective evidence rather than
         material evidence.
27   l   Lack of team work between the police and prosecutor.
     l   Unsecured terms and condition of the service of the
         investigator and prosecutors.
     l   No any separate and specialized wing of police for
         investigation of a crime.
     l   Investigator and Prosecutor works under the pressure of
         the various corner of the society.
     l   Lack of favorable working environment including
         infrastructure like building, laboratory, library etc.
     l   Lack of effective witness protection program and perjury
         laws.
28   l   Lack of appropriate record system.
     Thank You. To you all.



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