3. State Party Reports

Nepal

[Parts of State party report relating specifically to relevant legal minimum ages, and articles 37 and 40]

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Abbreviations

ARI = Acute Respiratory Infection
BPEP = Basic and Primary Education Project
CBR = Community-Based Rehabilitation
CCWB = Central Child Welfare Board
CDO = Chief District Officer
CDD = Control of Diarrhoeal Diseases
CMA = Community Medical Auxiliary
CWIN = Child Workers in Nepal
DCWB = District Child Welfare Board
ECEC = Early Childhood Education and Care
EPI = Expanded Programme of Immunization
HMG = His Majesty's Government
IEC = Information, Education and Communication
INGO = International Non-governmental Organization
INHURED = International Institute for Human Rights, Environment and Development
IRDP = Integrated Rural Development Programme
MCH = Maternity and Child Health
MOH = Ministry of Health
MOE = Ministry of Education, Culture and Social Welfare
NAWB = Nepal Association for the Welfare of the Blind
NCO = Nepal Children's Organization
NFE = Non-Formal Education
ORS = Oral Rehydration Solution
ORT = Oral Rehydration Therapy
PCRW = Production Credit for Rural Women
SAARC = South Asian Association for Regional Cooperation
SFDP = Small Farmer Development Programme
SOS = Save Our Soul
TBA = Traditional Birth Attendant
UNDCP = United Nations Drug Control Programme

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III. DEFINITION OF THE CHILD (art. 1)

54. Attainment of majority. Section 2 (A) of the Children's Act (1992) states that every human being below the age of 16 is a child, whereas the Labour Act (1992) puts the age limit of a child at 14 years. The Nepal Citizenship Act (1963) considers a person below 16 to be a minor. The Begging (Prohibition) Act (1962) states that a person who is below the age of 16 is a child. Similarly, the Insurance Act (1993), the Evidence Act (1974), the Post Office Saving Bank Regulation (1976), and the Contract Act (1966) all consider persons below 16 to be children. The Small Pox Control Act (1963) defines a person below 12 as a child.

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60. Voluntarily giving testimony in court. According to the General law, a person has the right to give testimony in court when he/she is 16.

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62. Criminal liability, deprivation of liberty, and imprisonment. The Children's Act states in section 11: (a) if a child below the age of 10 commits an act which is an offence under law, he/she shall not be liable to any type of punishment; (b) if a child who is between the ages of 10 and 14 years commits an offence which is punishable by a fine, the child shall be warned; and if the offence is punishable by imprisonment, the child shall be sentenced for a period of up to six months, depending upon the offence committed; (c) if the child is between 14 and 16 years of age and commits an offence, he/she shall be punished with half the penalty that is imposed by law on a person who has attained maturity.

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V. CIVIL RIGHTS AND FREEDOMS

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H. The right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (art. 37 (a))

Legislative provisions

144. The Children's Act prohibits any cruel, degrading or inhuman treatment of the child, adding that a child below 10 shall not be liable to any type of punishment, even if he/she commits an act which is an offence under law. According to section 11 of the Act, if a child between 10 and 14 years old commits an offence that is punishable by a fine, the child shall be warned. If the offence is punishable by a prison term, the child shall be sentenced to prison for a term not exceeding six months. If the child is between the ages of 14 and 16, he/she shall be punished with half of the penalty prescribed by law for an adult.

145. The Act (sect. 15) also states that no child shall be subjected to handcuffs and fetters, solitary confinement or confinement with an adult prisoner.

146. The Constitution has abolished the death penalty and prohibits the practice of torture. Article 14 of the Constitution mentions that a person who is detained for investigation, trial or any other reason shall not be subjected to physical or mental torture, nor shall he/she be given any cruel, inhuman or degrading treatment. Any person so treated shall be compensated in a manner as determined by law.

147. If the court deems it reasonable to release a minor from judicial custody, it can release the minor on bail. If a person detains someone illegally, such a person shall be punished by a fine; if the detainee is a minor, the punishment shall be doubled.

Implementation

148. Nepal has been calling for active global cooperation against torture of any form. On 14 May 1991, Nepal became a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

149. No children are at present in prison for committing an offence. About 63 children live in various prisons with parents who are serving prison sentences. Some children who are in prison with their parents are being looked after by NGOs.

Constraints

150. The law relating to compensation for victims of illegal detention, torture and cruel, inhuman and degrading treatment has yet to be enacted. Such a bill, however, is likely to be tabled in the legislature during the summer session of this year.

151. Under Nepalese law, any child who is convicted of a crime and sentenced cannot be detained with adults. However, a separate prison for children does not exist. They are usually imprisoned with adults. Rehabilitation homes for children to be imprisoned for committing offences have yet to be built. As children are confined together with adults in jail, the police are likely to be just as harsh with children as they are with adults.

152. Despite legal provisions, children working as domestic servants are often beaten.

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IX. SPECIAL PROTECTION MEASURES

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B. Children in conflict with the law

1. Administration of juvenile justice (art. 40)

Legislative provisions

334. Before Nepal became a party to the Convention, there were only a few provisions in the laws to protect the interests of the child. After adopting the Convention, the Nepalese Parliament legislated the Children's Act.

335. The Constitution has guaranteed the right to freedom, the right to criminal justice and the right to freedom from preventive detention to all citizens. In addition to this, the Children's Act and other relevant provisions in the laws have provided for the right of a guardian or heir to initiate a case in favour of a child and carry out the proceedings without detaining the child.

336. Section 19 of the Children's Act states the following:

  1. The Court shall not entertain or decide a criminal charge brought against the child unless there is a legal practitioner to defend the child;
  2. In such circumstances the concerned court shall make available the services of a legal practitioner appointed by HMG or any other legal practitioner wishing to provide such services.

337. The Act also provides for the establishment of a juvenile court, as required, and until such a court is established, the Children's Bench, comprised of social workers, child specialists or child psychologists, and the judge of a district court, shall hear and decide cases.

338. The rights of a child alleged to or accused of infringing on the penal law are as follows:

  1. The child is presumed innocent until proven guilty by law. The Evidence Act (1974) stipulates that the burden of proof lies with the plaintiff and the benefit of the doubt goes to the accused;
  2. The child has to be informed promptly and directly of the charges against him or her. Article 14 (5) of the Act stipulates that a person arrested shall not be detained in custody without being informed promptly of the grounds for such an arrest, nor shall he/she be denied the right to consult with and be defended by a legal practitioner of his/her choice. Section 19 states that no case of a child accused of violating a penal law shall be heard or decided unless and until the child is represented by a legal practitioner. For that purpose, the concerned court is required to make arrangements for the services of a legal practitioner, who is appointed by HMG or any other legal practitioner interested in rendering such services;
  3. The child has the right to have his/her case decided without delay on a priority basis by a competent independent judicial authority. Section 57 of the Act requires that a case in which a child is a plaintiff or a defendant be given priority for hearing and verdict. Section 55 of the Act provides for a separate authority to deal with cases involving children;
  4. The child cannot be compelled to give testimony or compelled to confess guilt. Article 14 (3) of the Constitution stipulates that no person accused of an offence shall be compelled to be a witness against himself or herself;
  5. In case the child is considered to have infringed on the penal law, he/she has the right to have the decision reviewed by a higher independent judicial body. Section 56 of the Act stipulates that a person who is not satisfied with the decision of the Juvenile Court or the District Court, as the case may be, may appeal before the Appellate Court within 35 days of such a decision;
  6. The child is entitled to the respect of his/her privacy at all stages of the proceedings. Section 49 of the Act states that only a legal practitioner, the child's parents, guardians or relatives, and persons or representatives of social institutions concerned with the protection of the rights and interests of the child, as may be permitted by the authority hearing the case, may be present during the proceedings of a case related to the child. It has further been stipulated that only those facts as may be permitted by the authority investigating the case or by the authority presiding over the proceedings may be published.


339. Moreover, section 15 of the Act prohibits imposing any severe punishment on a child considered to have transgressed the penal law. Section 11 deals with criminal liability of the child. Any child below the age of 10 is to be presumed exempt as far as penal liability is concerned. For offences committed by children between the ages of 10 to 14 that carry prison terms, the punishment will be limited to six months. For offences by children between the ages of 14 and 16, the punishment will be half of that which is given to an adult convicted of the same crime.

340. Under section 20 of the Act, anyone may file a petition in the district court under whose jurisdiction the child is residing, for the execution of the rights of the child set forth in the Act. Upon receiving such a petition and after making the necessary investigations, the court may issue appropriate orders or decrees. If the court decides that a loss has been caused to the child due to encroachment on the rights set forth in the Act, the court may, while issuing such orders or decrees, also decide to provide the aggrieved child with appropriate compensation.

341. Section 50 of the Act provides for initiation of investigations and exemption from punishment in cases involving a child. Where a child is accused of committing an offence which may require the offender to be tried while under detention, the court, upon considering the age and physical condition of the child, the circumstances leading to the commission of the offence, the place of detention, and the necessity for detaining such a child, may order investigation and trial of the case while putting the child in the custody of his/her father, mother, relative, or guardian or any social institution engaged in the protection of the rights and interests of the child. The concerned authority may also keep the child under probation, considering the physical condition and age of the child as well as the nature and frequency of the offences committed.

342. In the absence of juvenile courts, it is the chief district officer who enforces the judicial, administrative and other measures relating to various articles mentioned above.

Implementation

343. These provisions are yet to be implemented.

Constraints

344. Even two years after the Children's Act was enacted, a juvenile court has not been constituted.

2. Children deprived of their liberty, including any form of detention, imprisonment or placement in custodial settings (art. 37 (b), (c) and (d))

Legislative provisions

345. Article 15 of the Constitution states that no person shall be held under preventive detention unless there are sufficient grounds showing the existence of an immediate threat to the sovereignty, integrity or law and order of the Kingdom of Nepal.

346. As far as court procedure is concerned, if the court deems it reasonable to release a minor from judicial custody, it can grant bail to such a minor. If a person detains someone illegally and the detainee is a minor, the punishment shall be doubled.

3. Sentencing of juveniles, in particular the prohibition of capital punishment and life imprisonment (art. 37 (a))

Legislative provisions

347. Article 12 of the Constitution stipulates that no person shall be deprived of his/her personal liberty, except in accordance with the law, and no law shall be made which makes provision for capital punishment.

348. Article 14 of the Constitution prohibits any torture or other cruel, inhuman or degrading treatment or punishment of any person. Anyone who is subjected to physical or mental torture is entitled to compensation to be determined by the court.

349. Under section 11 of the Act, a child who has violated the penal law shall not be sentenced to life in prison.

4. Physical and psychological recovery and social reintegration (art. 39)

Legislative provisions

350. Section 42 of the Children's Act provides for the establishment of children's rehabilitation homes by the Government.

The following children are to be kept there:

  1. A child to be imprisoned pursuant to the existing law for the investigation or proceedings of the case having been accused of any crime;
  2. A child to be imprisoned as punishment pursuant to existing laws;
  3. A child addicted to drugs;
  4. A child who often runs away from father, mother or the family;
  5. A child who keeps company with persons involved in immoral or illegal activities or takes part in the activities of such persons or depends upon their earnings.

Implementation

351. NGO activities are largely communication based, and more preventive than rehabilitative. There are few NGOs conducting rehabilitation programmes for children who have been abused or neglected.

Constraints

352. Welfare homes have yet to be established.

[Further information in State party report relating to the administration of juvenile justice]

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IV. GENERAL PRINCIPLES

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D. Respect for the views of the child (art. 12)

Legislative provisions

101. Article 12 of the Constitution guarantees the freedom of opinion and expression.

102. Section 19 of the Children's Act states that the court shall not entertain or decide a criminal charge brought against the child unless there is a legal practitioner to defend the child.

103. Under section 57 of the Act, a case in which a child is a plaintiff or defendant shall be given priority for hearing and verdict.

Implementation

104. In preparing the present report, the views of children have been incorporated. During the five-day Children's National Seminar, children representing different ethnic, religious, geographical and socio-economic backgrounds came together in Kathmandu to discuss their rights.

Constraints

105. The law does not provide any directives on how the child can express his/her views freely.

106. In family matters, the views of children are unlikely to be respected. This can be concluded on the basis of a significant rate of child marriage in the country.

V. CIVIL RIGHTS AND FREEDOMS

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G. Protection of privacy (art. 16)

Legislative provisions

136. Article 22 of the Constitution states that, except as provided by law, the privacy of a person, house, property, documents, correspondence or information about anyone is inviolable. Hence, every citizen, including the child, is entitled to the right not to be subjected to arbitrary or unlawful interference in his/her privacy, family home or correspondence, and unlawful attacks on his/her honour or reputation. If such interference or attacks occur, a citizen can exercise the right to constitutional remedy under article 23 of the Constitution.

137. Under section 48 of the Children's Act, permission is required from parents or guardians before a child can be engaged in entertainment or cultural activities having a commercial purpose.

138. The Code of Conduct formulated by the Nepal Journalists' Association and the Nepal Press Council prohibits media persons from revealing the names of child offenders, rape victims and other children in difficult circumstances.

Implementation

139. Provisions framed under section 49 of the Children's Act allow only specified persons to attend proceedings of cases related to children in order to protect their privacy. The proceedings are heard in the closed bench of the Court. Children's cases must be taken up by a juvenile court or by a child bench. The name and address of the child cannot be disclosed to the public.

140. Under the Curse and Defamation Act 1959, parents and guardians may submit a complaint for remedy in favour of their child if anybody has caused harm to the reputation of the child.

Constraints

141. There is no legal provision to investigate cases where children are engaged in the advertisement of goods that are deemed harmful to children.

142. The Constitution states that the right to privacy is inviolable except in accordance with the law, but this law has yet to be formulated.

143. The identities of child offenders, rape victims, prostitutes and HIV-positive children continue to be disclosed by the media. Even the State-owned Rising Nepal and Gorkhapatra dailies have disclosed the identities of child rape victims and women who have tested HIV-positive after returning from the brothels in India. Photographs of AIDS patients have also been published in the private press.

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VI. FAMILY ENVIRONMENT AND ALTERNATIVE CARE

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C. Separation from parents (art. 9)

Legislative provisions

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178. Under the Prison Act, when a child is born of a jailed woman or when she has a child who is below two years old, the mother may keep her child until he/she reaches two years of age.

179. When both the parents go to prison, and there is no other family member to look after the child, the child is taken to a children's welfare home. Even then the child has the right to visit his/her parents in prison.

Implementation

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181. There are about 63 children living in the prisons of Nepal because their parents have committed a crime. An NGO, the Prisoners Assistance Mission, has been working to place these children in welfare centres. The NGO serves as a nexus between the child and the parents.

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J. Periodic review of placement (art. 25)

216. Section 26 of the Children's Act requires guardians to submit an annual report to the concerned child welfare officer that details of, among other things, the expenditures incurred in a child's (orphan's) subsistence, medical treatment and education. The officer may call upon the guardian to present the child before him/her for necessary inquiries.

217. Provisions under section 44 of the Act allow the inspection of the activities of child welfare homes, child rehabilitation centres, orphanages or similar institutions. In case of any wrong-doing, appropriate action may be initiated against the centres.

Implementation

218. Under prevalent laws, the Government has the right to inspect and issue directives to associations which are working for the interests of the child. Among others, the duties of the Child Welfare Board are to collect data relating to the centres, orphanages, centres for mentally retarded children and similar centres which are being run either by individuals or institutions in a district.

Constraints

219. There are no competent agencies to look into this. Due to resource constraints, facilities in these centres could not be upgraded even if they were reviewed periodically.

Source: Initial reports of States parties due in 1992: Nepal, UN Doc. CRC/C/3/Add.34, paras. 54, 60, 62, 101-106, 136-152, 178-179, 181, 216-219, 334-352 (10 May 1995)