NEPAL: A minor is tortured and illegally detained, alongside adults, and refused access to a lawyer

The Asian Human Rights Commission has received information that a fifteen-year-old domestic worker, Mr Rameshwor Chhaudari, was arrested by the police on 16 August under allegations of theft. He was brought before the Chief District Officer although Nepali law mandates that minors should be tried by a Juvenile bench. Since then, he has been held in the custody of the Hanumandhoka Metropolitan Police Station, with adult detainees, in clear violation of Nepal's juvenile justice national legislation. Fellow detainees had reported that he was being subjected to torture and his lawyer has been prevented from meeting him. The AHRC is concerned that the boy remains at risk of further torture and ill-treatment and unfair trial as long as he remains in the custody of Hanumandhoka Police Station alongside adult detainees, without access to a lawyer.

CASE NARRATIVE:

According to the information we have received from the Forum for Protection of People's Rights, Nepal, Rameshwor Chhaudari, 15, a permanent resident of Amab VDC ward No.3, Bara District has been working as a domestic worker in the house of an army officer in Kathmandu. The family for which he was working accused him of having stolen gold and other goods from them and he was arrested by the police on 16 August 2012. No arrest warrant was shown and was charged with committing a Public Offence. The Public Offence Act mandates Chief District Officers, non-independent government officials, to judge offences falling under its scope. They can order a two year jail sentence in proceedings which do not meet international standards of fair trial. In addition in this case, the accused is a juvenile and should as such be brought before a juvenile branch, as per section 55 of the Children's Act, 1992.

After the hearing before the CDO, the boy was sent to the custody of Hanumandhoka Metropolitan Police Range.

One week after Rameshwor Chhaudari was arrested the police arrested two of his relatives and another man in relation to the same case and they were also detained in Hanumandhoka Metropolitan Police Range. They witnessed and reported that Rameshwor Chhaudari was kept in the same cell as adults, in violation of the provisions of the Children' Act. The Supreme Court of Nepal has repeatedly interpreted the provisions of the Children's Act in the sense that it was illegal to keep children deprived of liberty together with adults in prison. Further, article 37 c of the Convention on the Rights of the Child also mandates the state party to keep children detainees separated from adults.

The eyewitnesses further shared that he was being tortured, submitted to random beating and falanga (beating of the soles of his feet) and was suffering from psychological trauma.

After being informed of Mr Chhaudhari's situation, a lawyer from PPR Nepal visited Hanumandhoka Metropolitan Police Range on several occasions and each time, under various excuses, the police refused to allow him to meet with the detainee. The lawyer first went to the police station on 7 September and demanded to see the victim. Nevertheless the Deputy Superintendent of Police Arun Kumar BC said that Mr Chhaudari was not present as he had been brought to his village to search the goods he was accused of having stolen. The lawyer came back to the police again on 9 September around 11.30 but again the DSP refused to allow him to meet the victim, stating that lawyers could not meet detainees during office time. Such a regulation does not exist and actually contravenes the provisions of Nepali law, as for instance the 2007 Interim Constitution in its article 24-2 guarantees the right to consult and to be defended by a legal practitioner. The next day, 10 September around 4.30 pm, the lawyer asked the highest ranking police officer in that police station Senior Superintendent of Police Jaya Bahadur Chand for permission to meet with the detainee. Again he was prohibited to meet with the detainee "during office hours". He therefore waited until 6pm, one hour after the end of office hours, but was still not allowed to meet with Mr Chhaudari and was told that the detainee had been brought to the District Attorney's Office. As of 18 September, the lawyer had still not been granted access to the detainee.

On 11 September, PPR Nepal filed a petition in the Kathmandu District Court asking for the mental and physical check-up and treatment of Mr. Chhaudari. The Court ordered the detainee's health check-up to be conducted by the Forensic Department of Tribhuwan University of Teaching Hospital. The medical report is yet to be released.

ADDITIONAL INFORMATION:

The conditions of detention of juveniles and the lack of appropriate investigation and fair trial have been repeatedly denounced by the national and international human rights community but the government has so far failed to address those concerns effectively. As early as 2005 the Committee on the Rights of the Child expressed its concern that "While welcoming the establishment of Juvenile Benches in all the district courts to deal with cases relating to children in conflict with the law, and that training programmes have been organized for law enforcement officials, including the Police Academy, the Committee remains of the view that the legislation and policies of the State party are not in conformity with international juvenile justice standards. The Committee reiterates its concern that the minimum age of criminal responsibility is set as young as 10, and that there is no official system of age verification in place. The Committee is also concerned about conditions of detention, and that persons under 18 are in most cases not separated from adults while in detention due to lack of juvenile detention facilities. The Committee is also alarmed that children are often brought to trial "without any proper investigation" and that a large proportion of juvenile cases are dealt by District Administration Offices which are quasi-judicial." The case of Mr Chhaudari exemplifies the concerns expressed by the Committed on the Rights of the Child, as it was dealt with the Chief District Officer-the head of the District Administration Office- in quasi-judicial proceedings who fail to meet the international standards of fair trial.

In 2011, following a Public Interest Litigation, the Supreme Court ruled the quasi-judicial powers held by the CDOs to be unconstitutional, as CDOs belonged to the executive power and could therefore not be considered an impartial authority. In a 2012 report on the state of fair trial in Nepal, Advocacy Forum, the NGO who had filed the petition found that: "The court ordered the government to redefine which cases should be given to executive officers and which cases should be heard by courts or specialised tribunals. To do so, it requires the government to form a committee to review comparative practice on the extent of judicial powers exercised by executive officers, and to recommend necessary changes within six months of its formation. As an interim measure while reforms are carried out, the court ordered that, within the next year, all CDOs must be shown to have a law degree or be given three months of legal training. As of May 2012, the government had not started to implement this judgement."

SUGGESTED ACTION:Please join us in writing to the authorities listing below, calling on them to ensure the protection of the rights of Mr Chhaudari.

Please be informed that the AHRC is writing a separate letter to the UN Special Rapporteur on Torture and Cruel, Inhuman and Degrading Treatment and to the UN Working Group on Arbitrary Detention calling for their intervention into this matter.

Source: AHRC