Procedural Rights of Defendants in Nepal

Fair trial rights are fundamental principles in legal systems worldwide, ensuring that individuals accused of crimes receive justice in a transparent, impartial, and equitable manner. Rooted in the rule of law, these rights protect individuals from arbitrary prosecution, wrongful convictions, and discrimination. The concept of a fair trial is enshrined in various international legal instruments, including the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).

A fair trial encompasses several key elements, such as presumption of innocence, access to legal representation, the right to be heard, impartial adjudication, and protection from self-incrimination. These rights ensure that legal proceedings are conducted fairly, upholding the dignity and human rights of all individuals involved.

In democratic societies, fair trial rights play a crucial role in maintaining public trust in the justice system and preventing abuses of power. They safeguard against wrongful imprisonment and ensure that justice is not only done but also seen to be done. However, challenges such as judicial bias, lack of legal aid, and political interference threaten fair trial rights in many parts of the world.

Understanding and upholding fair trial rights is essential for the protection of human rights, the credibility of legal institutions, and the promotion of justice in society.

Just as individuals have rights during the arrest and investigation stages, they also possess rights during a trial commencing with the right to a fair and speedy trial itself. Criminal defendants also have the procedural rights to confront their accusers and witnesses, the right to refuse to incriminate themselves, the right to avoid being prosecuted twice for the same offense, and the right to be well informed of any proceedings taken against him or her, among others. These rights of accused, guarantee them due process and fair trial which in turn ensure that they are not punished without guilt, and not in a manner disproportionate to the gravity of their crimes. After the World War II (1939-1945), many legal systems across the world began to extend them to the periods before and after the trial, namely during the investigation, prosecution and sentencing stages.

In order to effectively ensure procedural rights as legal safeguards to the accused, the National Criminal Procedure Code, 2017 (2074), for the first time ever, in Section 9, has provided for a novel provision of arresting suspects only upon first obtaining an arrest warrant to be issued by a case adjudicating official (District Judge). Though this provision is intended to check arbitrary arrests of individuals by the law enforcement and add a judicial filter to the detainment process, this arrangement has largely become ceremonial, as almost all requests for arresting persons are approved by the Judges without seriously pondering on the cause and circumstances of arrest. Moreover, the emergency provision of an urgent arrest warrant, laid down in Section 9 of the same Code, is now being used as a rule rather than exception by citing the same level of urgency in all arrests being made.

At this premise, the major procedural rights of the defendants for ensuring fair-play in all stages of criminal proceedings may be submitted as follows:

1. Right to Probable Cause for Searches and Seizures

As per this right, if law enforcement or the prosecution grabs evidence against someone illegally, then that evidence shall not be admissible in the court, even if it is pertinent to the charge in question. The rule requires probable cause to be established before undertaking any searches and seizures, and the defendants can dispute the charge if they believe such a search and seizure was unreasonable or was mounted without first fulfilling the due requirements.

2. Right against Self-Incrimination

Most criminal laws protect defendants from self-incrimination by establishing their right to maintain silence when questioned by police during arrest or by a prosecutor during trial. Defendant cannot be compelled in any criminal case to be a witness against himself. This right to observe silence of the accused is a hallmark of common law tradition and is also followed in countries like Nepal.

As discussed earlier, the onus of proof in criminal cases largely falls on the prosecution. The accused are not required to provide the police or prosecution with any evidence that could be used against them. This right against self-incrimination safeguards the defendants from being forced to reveal incriminating facts. It also deters the use of torture and other inhumane means to coerce confessions from them. In our context. Article 20(7) of the Constitution of Nepal addresses this right of criminal defendants.

3. Right against Double Jeopardy

The right against double jeopardy surmises that a defendant cannot be tried or punished for the same crime twice. For eg, if a defendant is charged with vandalism and the case is dismissed, the State cannot retry the person with the same offence in the hopes of a better or different outcome. The State cannot even retry the defendants once they are convicted of charges and punishment is pronounced on them, regardless of whether they have served that penalty or not. Article 20(6) of the Constitution of Nepal and Section 9 of the National Criminal Code, 2017 (2074 BS) preserve this right of accused in our country,

4. Right to Counsel and Representation

Every criminal defendant has the right to adequate representation from an attorney and professional legal counsel of his or her choosing. The government will provide a lawyer if they cannot afford to hire one. They normally have the right to confer with their attorneys before a police interrogation, during the trial and at any critical stage in the proceedings, such as a preliminary hearing, final hearing or appeal. The accused may waive their right to counsel and representation provided they recognize the consequences of this action and are willing to represent themselves. However, this waiver is not generally recommended. Articles 20(2) and 20(10) of the Constitution of Nepal lay down this right in our context.

5. Right to a Speedy Trial

All criminal defendants have a right to quick and speedy trial so that they need not stay in jails for years on end waiting for their day in court. The defendants may also choose to waive their right to a speedy trial if they deem it fit for their cases. This may happen where the defense needs more time to formidably build their case. Criminal laws around the world have reasonably or precisely specified what length of time is considered as speedy. There are examples of many criminal cases doing rounds in the Supreme Court of Nepal, which have not been decided even after a decade of their filing at the top court.

6. Right to Confront the Accuser and Witnesses

Under most criminal laws. criminal defendants have the right to confront or cross-examine their accusers as well as the witnesses who testify against them to dispute their accusations or testimony and bring their reliability in question. In most cases, the accuser and witnesses must look the defendant in the eye so that he or she can confront the witness in person. The defendants also have a right to call supporting witnesses to testify on their behalf and to discredit the hostile party.

7. Right to a Reasonable Bail

In common law countries, there is a popular saying in legal circles that bail is right and jail is exception. Bail allows defendants to leave jail, live and work in their communities as they await trial by depositing a sum or piece of property or bank guarantee to ensure they return on their court date. However, bail is not granted in cases where the charges are particularly serious or where the defendant is prima facie seen guilty or if there are slim chances of them or her reporting back to the court again. But even if it is a bailable offence or situation, the court must set a bail amount that is reasonable considering the severity of the offence, the defendant's likelihood of absconding or his or her financial status in society. To the extent possible, no defendants shall have to report to jail due to their inability to file a huge sum of money ordered as bail.

8. Right to be Free from Torture and Other Cruel Punishment and Degrading Treatment

The defendants are protected under most criminal laws from physical and mental torture and other cruel punishment as well as degrading treatment. This safeguard is available for them across the whole spectrum of criminal proceedings - investigation, prosecution, adjudication, and even post sentencing. This means even convicted criminals doing jail time are guaranteed certain rights such as access to basic medical treatment in prison and protected from disproportionately stern punishments or fines that overmatch the gravity of their crimes. For eg, a person convicted of a minor traffic offence should not be sentenced to life in prison or handed the death penalty. Those suffering from cruel and unusual punishment, including mental and/or physical torture at any stage of criminal proceedings, are entitled to seek damages or compensation from the state authorities or their tormentors. The acquittal or conviction of such defendants from the charges is immaterial for claiming such relief

In our context, Article 22 of the Constitution of Nepal (Right against torture) guarantees freedom to the arrestees or detainees from torture and other inhumane treatment.

9. Right to Information on the Proceedings

The accused naturally have a right to know what charges have been pressed against them, to be present when witnesses are testifying against them in court, to have access to the evidence collected and witnesses arrayed against them, and to be informed of the court proceedings and their effects upon them. Right to information is a right to a fair trial and due process as every relevant matter of the case is passed on to the defendants in a transparent manner and on time, enabling them to make informed decisions on their fate. In our context, Article 20(8) of the Constitution of Nepal ensures this crucial right of the accused.

10. Right to Fair Trial and Due Process

Criminal law is a sensitive body of public law that has a direct and decisive bearing on the life, liberty and property of individuals. It has the power to lend a new lease of life on the defendants as well as to cut short their lives. Hence, the observance of due process and certainty of a fair trial is an uncompromising right of the accused regardless of the severity of charges. Let 9 criminals be released from prison, but not a single innocent be put behind bars is a sacrosanct norm of criminal justice. To meet this high bar of sensitivity and responsibility, fair trial and due process form the bedrock of a healthy, credible and balanced approach to criminal law and its proceedings.

Whereas fair trial takes shape once the case enters a court docket, due process are to be observed across all stages of criminal proceedings from investigation, prosecution and adjudication to the enforcement of judgment. That is why, modern judicial systems typically attach more urgency and weight to fair trial and due process while dealing with criminal cases as compared to addressing civil disputes. It is because the loss inflicted by criminal law upon a defendant is often permanent and irrevocable, even if it was wrong or unjust.

In our context, Articles 20(1), 20(2), 20(3), 20(8) and 20(9) of the Constitution of Nepal (Right relating to justice) and Section 10, Chapter 2 (general principles of criminal justice) of National Criminal Code, 2017 (2074 BS) lay down this instrumental right of the accused.

Fair trial rights are essential in upholding justice, human dignity, and the rule of law. They safeguard individuals from wrongful prosecution, arbitrary punishment, and unfair treatment in legal proceedings. The right to a fair trial encompasses procedural protections such as access to legal representation, the presumption of innocence, protection against self-incrimination, and the right to a speedy trial. Despite their legal recognition, challenges such as judicial bias and lack of legal aid persist. Strengthening these rights is crucial for a just society, ensuring that no individual is deprived of liberty without due process and proportional punishment.