Nepali Times Asian Paints
Custody (mis)management


In the sunless reception room of the station, policemen sit on sofas, watching filmi dances on TV. Didactic posters-"Let's not associate with corrupt people"-and photos of police brass line the walls. A monk tries to speak in broken Nepali to the man at the front desk. The families of those tangled in police cases shuffle by.

Middle-aged Shova, squatting on the floor, says, "Ke ho ke ho, thaha chaina"-I don't know what's what. She was arrested 18 days ago, for what, she was not told. She has not received an arrest warrant. She cannot read or write. When the police gave her a prepared statement, she thumbprinted it without knowing what it said.

At her remand hearing a lawyer presented her with another document, and she thumbprinted this too, though it was not read out to her. She does not know how long her remand orders are for. She has not got her Rs 25 daily allowance. She sold her gold earrings to feed herself, and to provide for her fatherless children, now living by themselves. She knows, now, that she is being charged with drug trafficking. But at no time in custody has she been informed of her right to a lawyer, her right to not incriminate herself, or her right to a medical examination. When family members come to visit, they are allowed to see her from afar, but not to speak to her.

Shova's experience is unfortunately typical of those detained in police custody. A report that Advocacy Forum presented recently at a consultation meeting says that only 8 percent of the detainees interviewed at the Hanuman Dhoka Police Station in one calendar year had their cases remanded within 24 hours, as required by the constitution. Only about 35 percent of detainees said that they gave statements of their own will.

Nearly 43 percent said they had not been informed of the reason for their arrest. Over 70 percent said that they had no contact with lawyers. Over 32 percent said they were denied access to their family members. Over 49 percent said that they had suffered severe physical torture. An additional 41 percent complained that they had suffered mild physical, verbal or sexual abuse in detention.

This should be shocking, but so inured are Nepalis to the lack of basic rights that only egregious human rights violations-such as death in police custody-are greeted with a public outcry.

Not far from where Shova sits is "Kerkaar", the station's dreaded interrogation department. This is where Jeevan, another detainee, says he was beaten by policemen two days in a row. He says he couldn't get a medical examination afterwards. The police didn't write down what he said in his statement, he says, and they faked his signature.

Another detainee, Prem Bahadur, says he was beaten unconscious by four or five constables at the station where he was first held. He was taken to Bir Hospital for a medical examination, but no x-rays were taken. Later a constable gave him a couple of Brufen pills to ease the pain in his ribs, he says.

These cases are in Kathmandu. Advocacy Forum's report exposes equally dismal violations at custody centres in Biratnagar and Nepalganj. Lawyers are generally not given access to detainees before their cases are remanded. Detainees are often held illegally, without any documentation, and are sometimes disappeared. They are sometimes hidden from international human rights observers. Police often use violent means to extract confessions. Minors are still being held in adult facilities. Detainees share crowded, bug-infested facilities, sometimes spending nights in hallways. Women have trouble meeting sanitary needs during menstruation, and in the study period one woman even gave birth in custody.

Mandira Sharma of the Advocacy Forum says that reform in custody management is extremely urgent. Indeed, speaking informally, police personnel tend to defend their routine violations. They cannot give medical examinations to detainees, saying there are no financial provisions for it, and that people in custody must pay for them themselves. If detainees talk to family members, they'll help hide incriminating evidence.

The backlog in the courts makes it impossible to remand cases on time. Defence lawyers only cheat detainees or teach them how to lie. If the police don't beat detainees, they'll never confess to their crimes..

By contrast, SSP Chuda Bahadur Shrestha's passion for the rule of law is evident as he speaks, insisting that while new measures must be taken, important gains have been made in custody management under the 1990 constitution's Article 14. The Torture Compensation Act is one gain. In 1996 the police also created a standard custody management format. The present IGP has stressed routing out corruption, improving custody facilities, and improving the police's human rights record. "A course on human rights is now part of basic police training," SSP Shrestha says, "and we are working with national and international human rights agencies."

It is a fallacy, he argues, to lay the responsibility for custody management solely on overburdened police stations. "The solution is to decrease the numbers of people being detained." Community policing is one way to do this: in over thirty-five areas, selected members of local communities have formed consultative groups to work with local police on crime prevention and neighbourhood security, and to resolve minor infractions, avoiding the criminal justice system. SSP Shrestha says that this kind of collaboration decreases the incidence of arbitrary arrest, overcrowding in custody centres, and over-expenditure on the part of the state. "It also promotes friendliness between the communities and the police."

As for ensuring the rights of those already in police custody, this requires activism from the courts as well as from defence lawyers, he says. Mandira Sharma agrees, saying: "The police, the courts and defence lawyers are all very aware of reforms that need to be made."

But this is yet another sector in which reform is much talked about and little acted on. Only a few judges bother to ensure the rights of detainees. Defence lawyers hesitate to go to custody centres because they don't want to seem to be soliciting clients. Communities are largely hostile to accused criminals. And it is unrealistic to think that detainees might demand rights for themselves.

Ravi, a young detainee, says he doesn't know why he was arrested, but thinks it may be because he was walking about at 3AM. "Apparently no one is allowed to walk around before five," he says.

On any given day there are roughly a hundred detainees at the Hanuman Dhoka Police Station, on charges of drug trafficking, theft, rape, terrorism, murder, cheating, traffic-related deaths, forgery, counterfeiting, multiple marriage, public offence, abuse of power and other cryptically coded crimes. A random sampling of their last names reveals the criminalisation of Kathmandu's dispossessed classes: Tamang, Rai, Pokharel, Lepcha, Ghale, Magar, Gurung, Rimal, Lama, Khatri, Yadav, Shrestha, Lama.. Many detainees are migrant labourers from Sindhupalchowk, Kavre, Dhading and Makwanpur districts. More than 75 percent of them are illiterate.

Those who do not know their rights are easily abused. Jamuna, another young detainee, says she did not know that eloping with a second husband was illegal. When asked if she needs a lawyer, she confesses that she does not know what lawyers do. What are the chances that the system will respect her rights?

Behind her, a policeman watching TV picks up the remote and begins to channel surf.

The names of detainees have been changed.

Human Rights Violations in Custody
July 2001 - June 2002

Of 456 detainees in Kathmandu
246 said they were not informed of the reason for their arrest
226 said they were physically tortured
319 said they were forced to sign statements prepared by the police
150 said they were denied access to family members
322 said they did not know that they had the right to consult a lawyer
412 said they were not provided medical examinations

Of 134 detainees in Nepalganj
65 said they were not informed of the reason for their arrest
62 said they were not allowed to visit with family and friends
111 said they were not provided the right to read papers before signing them
40 said they were physically tortured (severely)
93 said they were not provided medical examinations

Of 96 detainees in Biratnagar
74 said they were not informed about the reason for their arrest
73 said they were not allowed to read papers before signing them
61 said they were not aware of the right to have lawyers
17 said they were severely tortured
90 said they were not provided medical examinations

Source: Advocacy Forum

Constitutional rights for criminal justice, under Article 14:

1. No person shall be punished for an act which was not punishable by law when the act was committed, nor shall any person be subjected to a punishment greater than that prescribed by the law in force at the time of the commission of the offence.
2. No person shall be prosecuted or punished for the same offence in a court of law more than once.
3. No person accused of any offence shall be compelled to be a witness against himself.
4. No person who is detained during investigation or for trial or for any other reason shall be subjected to physical or mental torture, nor shall be given any cruel, inhuman or degrading treatment. Any person so treated shall be compensated in a manner as determined by law.
5. No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall be denied the right to consult and be defended by a legal practitioner of his choice.
6. Every person who is arrested and detained in custody shall be produced before a judicial authority within a period of twenty-four hours after such arrest, excluding the time necessary for the journey from the place of arrest to such authority, and no such person shall be detained in custody beyond the said period except on the order of such authority.
7. Nothing in clauses (5) and (6) shall apply to a citizen of an enemy state, and nothing in clause (6) shall apply to any person who is arrested or detained under any law providing for preventive detention.

(11 JAN 2013 - 17 JAN 2013)