A/HRC/7/3/Add.2
page 88
445.
Recommendation (f) stated: All detained persons be effectively guaranteed
the ability to challenge the lawfulness of their detention, e.g. through habeas corpus.
Such procedures should function effectively and expeditiously;
446.
In June 2007, the Supreme Court issued a groundbreaking ruling in relation to
disappearances. Based on the work of the Supreme Court Task Force which had been set
up in relation to a group of petitions of habeas corpus related to disappearance cases
from the conflict, the ruling ordered the Government to enact a law to criminalize
enforced disappearance in line with the International Convention for the Protection of all
Persons from Enforced Disappearance; establish a high level commission of inquiry on
disappearances committed during the conflict in compliance with international
standards; conduct investigations and prosecutions of persons responsible for
disappearances; and provide adequate compensation and relief to victims’ families. The
decision was a significant step forward in recognizing the rights of victims of
disappearance and their families to truth, justice and reparations. As of January 2008,
the ruling had yet to be implemented. A credible commission of inquiry had yet to be set
up. Legislation on disappearances was being drafted by the Home Ministry. Copies of
the draft were not available for comment. A previous bill drafted in April and never
adopted fell short of international standards. In its 23-point agreement reached in
December 2007, the Seven Party Alliance agreed that a commission of inquiry into
disappearances would be set up within a month.
447.
The Government informed that the Interim Constitution of Nepal guarantees the
independence of judiciary and the right of a person to habeas corpus. Some 647 and 640
cases of habeas corpus petitions were lodged at the Supreme Court in 2006 and 2005,
respectively. Every detainee has the right to constitutional remedies and ascertaining the
legality of his/her detention. The Interim Constitution of Nepal also guarantees the
independence of judiciary.
448.
Recommendation (g) stated: Confessions made by persons in custody without
the presence of a lawyer and that are not confirmed before a judge not be
admissible as evidence against the persons who made the confession. Serious
consideration should be given to video and audio taping of all persons present
during proceedings in interrogation rooms;
449.
According to OHCHR, in many cases lawyers are not present when detainees
initially make “confessions”, which are often extracted after beatings, threats or other
pressures. Police have openly told OHCHR that they rely heavily on confessions for
criminal investigations, and that they constitute the main and sometimes almost exclusive
part of an investigation. Some have even implied that if they did not use force they would
not be able to obtain a confession.
450.
The Government responded that according to the State Cases Act, 1993, all
investigations of criminal offences are to be done under the direct supervision of the
District Attorney. At present, video and audio equipment are not used at the time of
interrogation. Consideration will be given in the future to improve interrogation
procedures.
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