A/HRC/4/33/Add.2
Page 78
16 December 2006 contains a provision requiring torture and cruel, inhuman or degrading
treatment to be punishable by law. As of the beginning of 2007, the Interim Constitution had not
yet been promulgated by the House of Representatives.
420.
Recommendation (c) stated: Incommunicado detention be made illegal, and persons
held incommunicado released without delay;
421.
According to information received from NGOs and other sources, no action has been
taken so far to make incommunicado detention illegal. Article 14 (5) of the Constitution of 1990
provides that persons who are arrested shall not be denied the right to consult and be defended by
a legal practitioner of his choice. Similarly, Section 15 (1) (d) of the Civil Rights Act provides
that “except when otherwise provided for in current Nepali law, no arrested person shall be
deprived of the right to consult a legal practitioner or agent of his choice according to law and to
have his case pleaded by them”. However, CPN-M suspects held by the security forces were
never given access to lawyers while held by the security forces (see below).
422.
With an end to arrests of CPN-M suspects by the Nepalese Army, the practice of
holding detainees incommunicado, often in unacknowledged detention, in army barracks has
ceased. There are sometimes allegations of delays for detainees in police custody to have access
to families or lawyers, but generally detainees are not held incommunicado.
423.
Recommendation (d) stated: Those legally arrested should not be held in facilities
under the control of their interrogators or investigators for more than the time required by
law to obtain a judicial warrant of pre-trial detention, which should not exceed 48 hours.
After this period they should be transferred to a pre-trial facility under a different
authority, where no further unsupervised contact with the interrogators or investigators
should be permitted;
424.
According to information received from NGOs and other sources, as indicated above,
CPN-M suspects were routinely held for long periods incommunicado often in unacknowledged
detention with no access to a judicial authority while in NA barracks. These practices have ended
since April 2006. The Terrorist and Disruptive Activities (Control and Punishment) Ordinance
(TADO) – under which many detainees were held without charge or trial under the previous
government – lapsed at the end of October 2006 and has not been renewed. Most detainees held
under TADO were gradually released after April 2006. A small number of persons affiliated
with CPN-M are now facing other charges.
425.
Of TADO detainees held at in the five high security prisons of Nepal between January
and April 2006, many alleged they had been tortured by the security forces prior to being
transferred to prison. Nearly all detainees reported being beaten and threatened with death as
routine practice, even when they were not being interrogated. The methods described included
beatings with sticks (lathis) mainly on the soles of the feet, kicking, punches directed at the head
and to the chest. A minority of detainees also reported electric shocks, water immersion until
suffocation and mock execution.
426.
With regard to police custody, many detainees held by police are often held beyond 48
hours before being released or transferred to a pre-trial facility. Numerous allegations are
reported of beatings of criminal suspects at police stations, especially during interrogation.
Article 14 (6) of the Constitution requires that every person who is arrested and detained in
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