Actors in Justice System | Justice System for Victims in Nepal

Actors in Victim Justice System | Justice System for Victims

The components of victim justice system include the police, prosecutors, judges, medical health providers, legal aid providers, the media and civil societies.

Police

The police play the central role n the investigation of a crime in the common law tradition. When the police learn of the alleged commission of a crime, they will begin to investigate immediately. Where exigent circumstances exist, or where a suspect has been caught red handed or fleeing from a crime, the police can arrest the individual on the spot. Otherwise, in non-urgent cases the police will seek an arrest warrant from a judge.

The criminal justice process is initiated by the action of victims and witnesses in reporting crimes. FIR can be registered either by the victim or by a relative of the victim or police themselves who come to know the occurrence of crime. The victim’s first contact with the justice system is usually through the police, and this contact may continue for a considerable part of the judicial process. The response of the police during this first encounter may have a decisive impact on the victim’s attitude to the criminal justice system as such. In fact the ideal relationship between the victims and the system is critical in assuring the achievement of justice, for victims, offenders, the system and the community at large.

The process of registering FIR has been prescribed in the State Cases Act, 2049 BS. [1] Besides, there are some special provisions related to the investigation of rape as prescribed in Chapter on Rape of the National Code, 2020 BS. In the eleventh amendment to the Code, a distinct provision relating to obtaining statement from rape victim has been incorporated. During the investigation of the crime under this chapter, the section states that the statement of victim shall be taken by a woman police personnel and in case such personnel is not available, statement may be taken by other police personnel in the presence of a woman social worker. [2] This provision provides a conducive environment to the rape victim. The victims may feel free to give statement during investigation. The effective implementation of this provision will facilitate to promote access to justice to the rape victim.

The State Cases Act, 2049, as amended in 2066, has incorporated a provision, which makes an investigation officer more accountable for his/her conduct. This provision helps to bring an investigation officer for a departmental action if he/she intentionally or negligently conducts investigation or fails to give due consideration in collecting evidence during investigation process or misses to include evidence as a result of which the case becomes weak. [3] This provision provides ground to make the criminal justice system more accountable towards the victims.

As a 24-hours front-line agency, the police are most likely to have the first contact with victims of crime and abuse of power. The first interaction between the police and the victim is crucial to how the victim copes and recovers. Treating victims in a more sensitive and sympathetic manner inevitably helps the police to do their job better by ensuring that more information is provided and that the victim is more willing and better able to become involved as a witness within the judicial system. [4]

Polices as the law enforcement agency in most of the legal system based on adversarial system take reports for crimes that happen in their areas. Officers investigate crimes and gather and protect evidence. Law enforcement officers may arrest offenders, give testimony during the court process, and conduct follow-up investigations if needed. In addition, police provides victims with information regarding their rights and with referrals to services and resources that can help the victim to heal.

The Declaration on Basic Principles provides little guidance on police conduct as such, although paragraph 4 makes the general statement that victims “should be treated with compassion and respect for their dignity”, a rule that is equally valid for the police.

According to the Council of Europe Recommendation on the Position of the Victim; police officers should be trained to deal with victims in a sympathetic, constructive and reassuring manner, the police should inform the victim about the possibilities of obtaining assistance, practical and legal advice, compensation from the offender and state compensation, the victim should be able to obtain information on the outcome of the police investigation. In any report to the prosecuting authorities, the police should give as clear and complete statement as possible of the injuries and losses suffered by the victim.

Nepal’s Police force is organized under the Police act, 2012 and the Police Rules, 2049. The Home Ministry is the immediate line ministry of the Police. The Criminal Investigation Department operates through 5 Regional, 14 Zonal and 75 District level Police Offices. At present, Women and Children Service Centers of Centre Investigation Department of Nepal Police are actively operating in 75 districts across the nation apart from and 7 Metropolitan Circles in the Kathmandu Valley. [5]

The investigation process is exclusively a police function and the victim has a role only if the police consider it necessary. When a person who has been the victim of a cognizable offence gives information to the police regarding the same, the police are required to reduce the information into writing and read it over to the informant. The informant is required to sign it and get a copy of the FIR.[6]

Prosecutor

Upon completion of their investigation, the police are required to submit a report with the collected evidence and their assessment as to whether there is sufficient evidence to file a case to the public prosecutor for a final decision. The prosecutor may either direct the police to carry out further investigations, file and indictment within 25 days or close the investigation.[7] The victim or complainant does not have a right to appeal such a decision. Victims do not enjoy any specific protection during the investigation nor are they granted any specific procedural rights.[8]

While framing charge sheet, the prosecutor has to follow legal requirement as mentioned in the State Cases act, 2049. [9] Apart from this, there is even not a single provision that insists prosecutor to have consultation with crime victim before framing charge sheet. The State Cases Act, 2049, as amended in 2066, tries to make prosecutor accountable for his/her prosecution responsibilities. Departmental action could be brought against the prosecutor for his/her malafied prosecution. [10] Indirectly, the provision makes prosecutor accountable to protect the interest of the victim thereby promoting access to justice to the victim during the prosecution phase.

Likewise, the Gender Equality Act, 2063 has incorporated additional provision to mention amount of compensation in the decision and to make prevention order for stopping transformation of the property after lodging the case. The Section reads: while deciding the case under this chapter, compensation shall be given to the concerned woman by referring the amount of compensation in the decision when the accused found guilty of committing rape. For the purpose of providing compensation under this chapter, the Court shall give prevention order to stop transformation of share including other property of the accused immediately after lodging the case. [11]

Thought the Nepalese public prosecutor is not directly involved in investigating a crime and participation during the investigation is limited, as and when the investigating police officer submits the case to the public prosecutor, before forwarding to the court, the public prosecutor can direct or instruct the investigating police officer to collect some more evidence or interrogate someone, if necessary. The investigating police officer should obey such directions or instructions.

Constitution of Nepal promulgated in 2072 provides Attorney General for representation of cases wherein the rights, interests or concerns of the Government are involved. This article further states that the Attorney General has the power to make the final decision as to whether or not to initiate proceedings in any case on behalf of Government in any court or other judicial authority. [12] Section 17 of the State Cases Act, 2049, has given the district Government Attorney the authority to decide whether or not to initiate judicial proceedings against suspects. Hence, The Attorney General of Nepal functions as the sole prosecution agency in Nepal. Attorney General may so delegate his or her functions, duties, and powers to his/her district subordinates[13] corresponding to the Police investigation units in districts, and appellate subordinates corresponding to the High Courts.

Department personnel engaged in the investigation or prosecution of a crime shall be mindful of the privacy concerns of victims and witnesses. In particular, Department personnel should use their best efforts to protect private information by redacting this information from records or documents that will be placed in the public record, unless specifically required by court rules or procedure. Private information includes Social Security numbers, bank account information, dates of birth, and, in some circumstances, may include an individual’s identity, address, contact information, or location. [14] Although the primary role of the prosecutor is to present the case in court, many important activities rely on the involvement of victims. Even though the prosecutor is not the “victim’s attorney”, prosecutors have opportunities to keep victims informed and involved, to provide appropriate accommodations in the pre-trial and court setting, and to follow up with information and referrals, as needed.

Judiciary

Courts are run by judges, whose role is to make sure the law is followed and oversee what happens in court. They decide whether to release offenders before the trial. Judges accept or reject plea agreements, oversee trials, and sentence convicted offenders. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms. [15]

The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:[16] (a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information; (b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system; (c) Providing proper assistance to victims throughout the legal process; (d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation; (e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims. It covers court proceedings, which means that victims should, for instance, be informed about the time and scope of the proceedings and the role they are expected to play. It may be helpful to provide special assistance to victims at this stage too. It is also important for victims that unnecessary delays in the disposition of the case be avoided.

When compensation is not fully available from the offender or other sources, States should endeavor to provide financial compensation to: (a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes; (b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.[17]

Under certain circumstances, defendants in criminal case may be ordered by the court to pay restitution; that is to compensate victims for expenses, losses, or injury to persons or property. In some instances, restitution (or reparation as it sometimes is called) may involve the return or repair of stolen or damaged property, or even a requirement that the defendant personally perform certain services for the victim. In many cases, the expense of bringing a civil action against an offender for damages (particularly where the amount of damages suffered by the victim is negligible) makes such action impractical. Many victims who would be ineligible for victim compensation (for example, because they are not victims of violent crimes or are related to the offender) are eligible for restitution.

Moreover, restitution typically provides compensation for losses not usually covered by victim compensation statutes, such as losses due to stolen, lost, or damaged property. In those fourteen states without a functioning victim compensation program, restitution may be the only means (short of a civil action) for an uninsured victim to obtain compensation for his injury. Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means. Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them. Police, justice, health, social service and other personnel concerned should receive training to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid.[18]

In addition to awards form state compensation boards and restitution ordered by the criminal court, victims are entitled to bring actions in civil court seeking damages caused by the crime. Depending on the crime and the circumstances, the victim may be entitled to claim damages from the person who committed the crime; accessories and other persons who aided, abetted, or conspired with the criminal; and third parties who did not intentionally participate in the crime but whose negligence allowed the crime to occur. A victim may be entitled to assert one or more of a group of potential legal claims (or as they are sometimes called, caused of action) including such long-established common-law claims as battery, trespass, negligence, or breach of contract, as well as private claims for damages caused by a violation of a criminal statute.

According to the Council of Europe Recommendation on the Position of Victims, the victim should be informed of; the date and place of a hearing concerning an offence which caused him suffering; his opportunities of obtaining restitution and compensation within the criminal justice process, legal assistance and advice; how he can find out the outcome of the case, it should be possible for a criminal court to order compensation by the offender to the victim and legislation should provide that compensation may either be a penal sanction, or a substitute for a penal sanction or be awarded in addition to a penal sanction. [19]

To inspire confidence in the justice system, the presiding judge should make sure that victims are given due notice of the trial proceedings and that their views are adequately conveyed to the court, Victims should be duly notified of any delay in or adjournment of the proceedings and should be informed about how to obtain the judgment in the case. It is essential that the presiding judge ensures that victims have been adequately informed about any rights they may have to compensation and restitution so that they may, for instance, formulate their claims properly. Victims of crime should be informed of the date and place of the court proceedings concerning the crime whose effects they are suffering and should also be informed of any delay or adjournment. Victims of crime should be duly informed of any rights they have to obtain restitution or compensation for the crime concerned. Victims of crime should be informed of how to obtain a copy of the judgement relating to the crime. [20]

The present Constitution recognized the District Court to be the court of first instance. Therefore, original jurisdiction for most judicial matters belongs to the District Courts, and as such, the District Courts possess jurisdiction over both civil and criminal matters. The highest court in Nepal is the Supreme Court, which is constitutionally a court of record. Decisions of the Supreme Court strongly influence and act as the precedent for many important policies and practices, especially relating to the interpretation of the Constitution and Nepal’s system of governance. These judicial decisions are of prime importance for litigants, lawyers, judicial, quasi-judicial bodies and all of government’s administrative machinery, as they are of binding authority for all. The present Constitution of Nepal has awarded extraordinary jurisdiction to the Supreme Court in Article 133 and to High Court in Article 144 Court in order to reinforce the fundamental rights of citizen.

As part of judicial reform, Nepal’s Judiciary has launched many initiatives guided by a five year strategic plan. Nepal Judiciary’s Third Five Year Strategic Plan (2014-2019) focuses on ensuring speedy justice delivery, predictable judicial processes, accessible justice system and enhanced public trust and confidence towards judiciary. The Plan has further spelt out these four goals into sixteen major strategies and two hundred and fifty six different activities. The goals are focused on increasing access to justice of the poor and vulnerable, decentralization of the justice system, judicial outreach and execution of the court system. This is applicable to the justice for crime victim as well.[21]

Judges should provide essential protection to victims. In cases involving children, for example, special arrangements, such as allowing the victim to testify through closed-circuit television, can also be ordered, where applicable and possible. In order to maintain privacy, judiciary can arrange the hearing of crime victim like rape in camera proceeding and in speedy trial. Instructions requiring defense counsel to meet the child’s eye and not raise his or her voice, as well as other methods of making the courtroom less intimidating to a child, may also be ordered, where applicable and possible. Judges should also expedite trials so as not to further victimize the crime victim through additional delays during an already difficult process. The dignity and healing of victims depends on the respect and assistance extended to them by the professionals and others who come into contact with them.

Legal Aid Providers

In 1984, Human Rights Committee in its General Comment No. 13 elaborated the right stating that every person has the right to be legally represented before the adjudicating authority even if s/he does not have sufficient means to pay for legal assistance.

Legal aid is a tool for accessing justice for those who cannot afford legal service on their own. The Nepalese judicial system has agreed the notion of providing legal aid to poor, marginalized and deprived people since 1970’s. Institutionalization of legal aid service came across with Nepal Bar Association’s initiation in 1980s and is continued through administration under the Supreme Court by appointing a Member of the Bar as a stipendiary advocate in most courts.

Legal Aid Act was promulgated in 1997. As per Legal Aid Act 1997 there should be District Legal Aid Committee in each district. Legal Aid Rules, 1998 had been promulgated to regulate the procedures in providing legal aid. Currently legal aid is covered in all u5 districts since 2009. [22] Legal aid providers can help crime victim to file the case and in the process of litigation if the victim is unable to pay the fee for the case.

Health Provider

Doctors, nurses and other hospital personnel provide tremendous assistance to victims of crime. In addition to police officers, medical personnel, who are often also available 24 hours a day, seven days a week, are commonly the first to come into contact with crime victims who have experienced some form of injury. Doctors are considered as an expert and his/her opinion can be taken as evidence. [23] So doctor’s opinion in crime case is very important for the determination of crime and for victim as well.

All victims of crime should be treated with dignity and respect by hospital staff (including doctors, nurses, intake workers and others). Victims are often fearful and insecure when they arrive at medical centers. Treating the patient with sensitivity-both to their physical condition and to the potential psychological impact of the victimization can help the overall physical and psychological healing process.

National Human Rights Commission

A victim of a human rights violation or any person acting on his or her behalf may also lodge a complaint with the National Human rights Commission. The Commission can investigate a complaint about human rights violations within the limits imposed by section 10 of the Human Rights Commission Act. It has the power to make a recommendation to the concerned authorities to take the appropriate steps, such as prosecuting the alleged perpetrator(s) of torture, which is however not bindings. [24]

Torture victims may also seek to obtain reparation through the NHRC. While the National Human Rights Commission may institute an investigation into such complaints, it does not have the power to award reparation itself. It may only make recommendations to the responsible authorities to provide compensation to torture victims. NHRC can give recommendation to the government for compensation to victim.

National Women Commission

A victim of domestic violence or any person acting on his or her behalf may also lodge a complaint with the NWC within 90 days. A person who has knowledge of an act of domestic violence has been committed, or is being committed, or likely to be committed, may lodge a written or oral complain setting out the details thereof, with the Police Office, NWC or Local body. [25] In a case the complaint is filed before the NWC, necessary action shall be taken in accordance with Prevailing NWC law. NWC can arrange legal support and counseling for the women victim and the women deprived form their rights.

Local Administration and Local Bodies

Local bodies are local government. In the context of Nepal, local bodies are municipalities, VDCs and DDCs established under Local Self Government Act, 2055 and Regulation 2056, Similarly, local administrative bodies are established under Local Administrative Act, 2028 and Some Public (Offence and Punishment) Act, 2027 that are functioning for service delivery on behalf of government and for the maintenance of peace and order. Local administrative bodies are responsible to settle small disputes, punish offenders committing public offense and provide compensation to victims in this regards. A victim of domestic violence or any person acting on his or her behalf may also lodge a complaint with Local bodies within 90 days. In a case the complaint is filed before the local bodies, necessary action shall be taken in accordance with Prevailing law. Local administration and local bodies are playing important role for victim justice.

Media

Media reporting of crime and victimization in both print and broadcast formats can have far reaching effects on victims of crime. The media can play a significant role in public safety by keeping citizens apprised of increases and decreases n crime, trends in violence and victimization (that are specific to international, national and local audiences), and effort to prevent crime, reduce violence and assist victims and measures that individual and communities can take in order to promote safety.

While sensitive coverage of cases involving victims can be helpful and in some cases even healing, media coverage that is sometimes viewed as insensitive, voyeuristic and uncaring can compound the emotional and psychological suffering of victims. Most crime victims have never before dealt with the news media. They can be thrust, often unwillingly, into the limelight solely because of the crimes committed against them. The news media are often viewed as a double-edges sword in their coverage of crime and victimization as regarded the dichotomy of the public’s right to know versus the victim’s right to privacy. Written guidelines that are incorporated into a news medium’s policies, as well as initial and ongoing professional coeducation of its employees, can provide basic principles of ethical journalistic coverage of crime and victimization.

Civil Societies

Since the adoption of the Declaration of Basic Principles of Justice for Victims of Power and Abuse of Crime, important progress has been made in many nations to assist victims of crime. The countries such as Belgium, Canada, France, Germany, India, Israel, Japan, Mexico, the Netherlands, New Zealand, South Africa and the United Kingdom have introduced significant impotents to meet the needs of victims. Further, states in Australia and the Unites States and provinces in Canada have introduced statements of principles about how victim should be treated as well as many other laws and programmes.

These safeguard victims’ rights that protect their interests in the criminal justice system in addition to providing social and financial support to victims. In many cases, these reforms were the direct result of the efforts of non-governmental organization to convince law and policy makers, officials in law enforcement and justice, and the public of their crucial importance to crime victims. These organizations also play an essential role in keeping officials aware of ways in which victims are ignored and mistreated, and of practical programmes for improving both justice and law enforcement responses and the daily lives of victims.

There are many NGOs in Nepal working in the areas of women victims in the form of trafficking, rape, domestic violence, etc. while some deals with child’s victims like bonded child labour, trafficking etc. Some NGOs are providing rehabilitation, restoration and legal aids and assistance to victims in need. Civil society organizations have developed a variety of approaches to the task of sensitizing the public and legislators to the issues. NGOs have conducted research in this area of crime victim. In some districts, the Women’s Development Branches of District Development Committees have started centers for victims of crime, though they do not provide basic witness protection.

[1] The State Cases Act (2049), Sec. 3.

[2] The Muluki Ain, The Chapter of Rape (2020), No. 10 (a).

[3] The State Cases Act (2049), Sec. 34 A. (2).

[4] Handbook on Justice for Crime Victims (New York: United Nations Office for Drug Control and Crime Prevention, Centre for International Crime Prevention) (1999), 57.

[5] “Women And Children Service Directorate”, Central Investigation Department, Nepal Police, accessed November 15, 2016, https://cid.nepalpolice.gove.np/index.php/cid-wings/women-children-servicedirectorate.

[6] The Criminal Procedure Code, (1973), Sec. 154 (1) (2).

[7] The State Cases Act, (2049), Sec. 17.

[8] Shrestha. A Step Towards Victim Justice System, 116.

[9] The State Case Act (2049), Sec. 18.

[10] The State Case Act (2049), Sec. 34 A (1).

[11] The Muluki Ain, Chapter on Rape (2020), Sec, 10 (c).

[12] The Constitution of Nepal, Art. 158 (2).

[13] The Constitution of Nepal, Art. 158 (7).

[14] “Attorney General Guidelines for Victim and Witness Assistance”, US Department of Justice, accessed November 2, 2016, https://www.justice gov/sites/default/files/olp/docs/ag_guidelines2012.pdf.

[15] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985), Para 5.

[16] Stark, The Rights of Crime Victim, 11.

[17] Declaration of Basic Principles of Justice for Victim of crime and Abuse of Power (1985). Art. 12.

[18] Declaration of Basic Principles of Justice for Victim of Crime and Abuse of Power (1985). Art. 12, 14, 15, 16.

[19] “Human Rights in the Administration of Justice”, Women and Children, accessed November 15, 2016, http://www1.umn.edu/humanrts/monitoring/adminchap15.html.

[20] Ibid.

[21] Nepal Judiciary’s Third Five Year Strategic Plan (2014-2019).

[22] “Legal Aid”, Protection of People’s Rights Nepal, accessed November 15, 2016, http://www.pprnepal.org.np/index.php/what-do-we-do/legal-aid.

[23] The Evidence Act (2031). Sec, 23.

[24] The Human Rights Commission Act (2053), Chapter 3.

[25] Domestic Violence (Offence and Punishment) Act (2066), Sec. 4.