Illegal Detention in Nepal

Introduction to Illegal Detention

The Detention which is against the applicable legal provision is illegal detention. The detention which deprives the personal liberty of detainee without following the due process of law. In general, it is unlawful detention/ imprisonment by any authority/person.

Conditions for Illegal Detention in Nepal

Under the realm of Article 20 of ‘Constitution of Nepal’ 2072, following shall constitute illegal detention:

• If any person is detained in custody without informing such person, the ground for arrest.
• If the person arrested had not been produced before the concern court/ adjudicating authority excluding the time necessary for the journey from the place of arrest to such court/ authority.
• Preventative Detention of any person unless there is sufficient ground of the existence of an immediate threat to the sovereignty, territorial integrity, or public peace and order of Nepal.

Remedy for Illegal Detention

A writ of habeas Corpus- A person who has been illegally detained or anyone on behalf of such person can file a petition of habeas corpus under the Article 46, 133 or 144 or 151 at supreme court or high court or district court respectively.

Role of NHRC in Illegal Detention

The NHRC can inquire and investigate based on the complaint/ petition filed by the victim or any person on his/ her behalf or information received by it from any source and make recommendation for action against the perpetrator.

Supreme Court Rules

It provides for the petition of habeas corpus and is provisioned under Rule 33 to 39. A petition of habeas corpus can be filed by the detainee. If the detainee is unable to file the petition of habeas corpus, the petition can be file by his/her relatives or stakeholder having information, stating the reason there off.

Elements to File Habeus Corpus

In addition to the Name, address, identifying details and contact detail of detainee and applicant the following are required to be mentioned in the petition of habeas corpus, if possible:

1. Who, from when and under what circumstances the detainee had been detained?
2. In which place the detainee had been detained?
3. Had the detainee been deprived of food and water or any kind of physical/ mental torture has been inflicted to detainee or not?
4. Any application has been filed in any court this regard? If yes, what was the result of it?

Steps in Petition of Habeas Corpus

1. Filing of habeas corpus petition
2. Preliminary hearing
3. Order of show cause and along with detainee
4. Issue of Search warrant, if required.
5. Order of presentation of evidence.
6. Special order to release detainee in present or bank guarantee or to take the detainee under judicial custody from detainer.

International Principles

UN Body of Principles for the protection of all person under any form of detention or imprisonment:

Principle 11:A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority. A detained person shall have the right to defend himself or to be assisted by counsel as prescribed by law.

Principle 32: A detained person or his counsel shall be entitled at any time to take proceeding according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.