Baseline Survey on JUVENILE JUSTICE SYSTEM IN NEPAL

Baseline Surveyon

JUVENILE JUSTICE SYSTEM IN NEPAL

2010

Commissioned by:Center for Legal Research and Resource

Development (CeLRRd)Kathmandu, Nepal

Conducted by:Kathmandu School of Law (KSL)

Dadhikot–9, BhaktapurPhone: 977-1-6634455, 6634663, Fax: 6634801

E-mail: [email protected], Web: www.ksl.edu.np

Consultant and Chief ResearcherProf. Yubaraj Sangroula, Ph.D.Executive Director, Kathmandu School of Law

ResearcherAsst. Prof. Suraj BasnetKathmandu School of Law

Mr. Sudip DevkotaAdvocate

Preparatory CommitteeProf. Madhav Prasad Acharya, Professor Incharge, KSLKumar Ingnam, President, CeLRRdGeeta Pathak Sangroula, Director, CeLRRdRammani Gautam, Research and Training Coordinator, CeLRRdAnjan Kumar Dahal, Secretary, CeLRRdSudeep Gautam, Program Coordinator, CeLRRdRam Prasad Aryal, Program Coordinator, CeLRRd

Field SurveyorsManisha Subedi Maunata Dhaubanjar Aran Shrestha (A)Shurti Gautam Sontosh K. C Nir Bdr PakharinRain Kumar Khatiwada Gambir Man Jyakhwo Samjhana PhuyalSmiriti Pokharel Ram Chandra Gautam Ghanshyam GhimireRajendra Prasad Santosh Maharjan Ajay Kumar SwarnakarSunil Suwal Raja Ram Duwal Bikash K. RajakRupa Dahal Lalita Shrestha Sunil Hakaju ShresthaGopi Vishokarma Abhiram Timalsina Anil ShresthaRachana Bhusal Smrita Shakya Ranjita ThapaAkirti Giri Rameshwor Neupane Ram Bdr. MijarRam Prasad Buda Anil Kunwar Ankita K. C.Asmita Maharjan Krishna Pyakurel Saroj RegmiNanda Krishna Shrestha Subash B. K. Kalpana VishokarmaKamana Neupane Gokul Sapkota Ghanashyam SilwalRadhika Suwal Laxmi Bakhadyo Krishna Kumari GurungBabu Raja Shakya Binita Budhathoki Sarita KattelSwarnima Bhandari Swechha Ghimire Rita SherpaSagar Ghimire Akshayata Shrestha Nisani Singh ThakuriRenu Ghimire Rahul Chapgain Sangita VishokarmaArati Shrestha (B)

Graph and DesignMaheswor Phuyal

ComputerBinod ShivabhaktiPrakash Karki

Published : July 2010

Copyright : CeLRRd

Published by : Center for Legal Research and Resource Development (CeLRRd)New Baneswor, Kathmandu, Tel : 977-01-2042268, 4483706 Fax: 977-01-4483706E-mail: [email protected], website: www.celrrd.org

Printed at: : Kathmandu, Nepal

t was my privilege to head a fresh survey on juvenile justice system of Nepalafter a decade of the first similar research which was conducted by KathmanduSchool of Law in collaboration with CeLRRd, CWIN, National Police Academyand Danish Institute for Human Rights. The findings of that study had beenable to draw attention of the nation to the issue of juvenile justice in Nepal.Significantly enough, the report of the study was incorporated as a coursematerial of the juvenile justice subject for the Purbanchal University LL.M.program in Criminal Law and Justice. After a decade, I got, with this newstudy, an opportunity to freshly look into the multiple issues of the juvenilejustice system in Nepal. The research was, therefore, enthused me to devotetime and efforts.

While the survey had encountered some problems, it was successfully completed.The students of Kathmandu School of Law under supervision of two competentresearchers carried out the field works, despite number of challenges. Yet,collection of information in some districts was not possible for some reasons,the unavailability of concerned staffs and officials in districts in particular. Aswe all are aware, the culture of cooperating in research activities is yet to bedeveloped in Nepal. The awareness that the ‘research activities provide the sourcefor policy interventions in social problems’ is still not grounded. Hesitation ordenial to provide information by concerned persons is thus a general problemof the research in Nepal. However, my impression is that there has been atremendous change than in the past. The problems faced by the present researchwere not as toughest as the first research in this regard.

The findings of the research shows that there have been a number ofdevelopments in the sector of ‘institutional development of the juvenile justicesystem in Nepal’ after the previous research we conducted. The focal ministryhas been identified by the Government. The central Juvenile Justice CoordinationCommittee has been established. The regulation to enforce the juvenile justicehas been enacted. Most importantly, the juvenile benches, at least in principle,have been established in all 75 districts. Similar developments are found at thelevel of investigating institution, the district police office. The change in theattitude of the ‘justice sector actors’ is, however, still a problem to some extent.The lacking of the ‘conceptual or philosophical clarity’ about the juvenile justiceamong the actors seems to be still looming large. The perception that ‘juvenilejustice is a criminal justice system applicable to minors’ seems to be generalunderstanding among the justice sector actors. The lacking of sensitivity to ‘usepossible diversion means and suspended sentence system’ is the most apparentexample of the misperception. The survey has very categorically identified thisproblem. The insensitivity is apparent in the practice of (a) arrest and detention

PREFACE

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Center for Legal Research and Resource Development

Kathmandu School of Law

of juveniles, including hand-cuffing, as a rule (b) detention of juveniles togetherwith adults, (c) detaining juveniles in jails for judicial custody, (d) delay in disposalof cases and (e) compulsory sentencing the juveniles. These practices are proneto ‘inflate the vulnerability’ of recidivism among the juveniles. The governmentas well as justice sector actors are found less sensitive about this problem.

It is thus hoped that the present study will provide an important source for thefuture policy interventions to improve the standard of the juvenile justice system.

At this juncture, I would like to appreciate the cooperation of the JuvenileJustice Coordination Committee to make this study possible. The appreciationand gratitude goes particularly to Hon’ble Justice Khil Raj Regmi, the charpersonof the Committee. We are also indebted to Dr. Ram Krishna Timalsina, theRegistrar and Mr. Hemanta Rawal, spokeperson, of the Supreme Court, fortheir active supports to accomplish the survey on time. We are also grateful toMr. Ramesh Chand, IGP and Mr. Bigyan Raj Sharma, DIGP, Nepal Police,for their generous support to the study.

I would also like to appreciate the efforts of my students and colleagues tosuccessfully accomplish this study.

Finally, I would like to thank Maheswor Phuyal, Binod Shivabhakti and PrakashK.C. for computer works. CeLRRd also deserves appreciation for choosingKSL to conduct this study.

Prof. Yubaraj Sangroula, Ph.D.Executive Director


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Baseline Survey on Juvenile Justice System in Nepal

Survey Report

FOREWORD

he Report of Juvenile Survey is one of the comprehensive research produced byCeLRRd in the sector of juvenile justice system in Nepal. The research isconducted throughout the country in 75 districts to better understand the legaltreatment to juveniles while they are in custody or reform centers. The officeof police, court, government attorney, jail and juvenile reform centers wereselected in each districts for data collection so far these offices often concernslegal compliances against juvenile delinquency.

The research has benefited from strong cooperation among the advice of specialistconsultants, the invaluable input of a large number of stake holders and commentsreceived during the nationwide survey conducted in the research. It is hopedthat the research will be used by the Government of Nepal, especially to theoffices maintained above and wish that the government institutions concernedwill implement the outcomes progressively, taking into account national needs,babel values of the report, priorities and resources. Furthermore, the reportwill be equally helpful to the students and academicians, and researcher, whodeserves to further research on the issues.

The report, thus, is sufficient to expose how the team of expert and researcherhas conducted their research with distinct capabilities using limited resources ina limited timeframe. It is able to addresses the growing needs, including those ofapplication of justice to minors in criminal legal system and for more detailed,more comparable and more comprehensive original findings. Therecommendations will enable to enrich juvenile justice more practicable withhigher standard and more compatible way.

I would like to express my best gratitude to the DanidaHUGOU, the donor,without such support, the research would probably not bring about. Secondly,it is my privilege to thanks to the team of research survey, who has carried outthis research on time and of the standard. Lastly, again, I appreciate to all staffsand well wishers who have given their valuable suggestions while designing andconducting the research survey.

Finally, on behalf of the institution, CeLRRd, and myself laid down this reportfor additional progress of juvenile justice system in Nepal.

Kumar IngnamPresident

Center for Legal Research and Resource Development (CeLRRd)

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FOREWORD

uvenile justice is most serious and important concern in thecourse of administration of justice. It concerns with right ofthe juveniles alternative measure of punishment differentialtreatment in the hearing of the case and safeguarding thebest interest of the juvenile. Even though Nepal hasundertaken the responsibility incidental to signing up ofChild Rights Convention many of the requirements necessaryfor the effective implementation is still lacking. The onlyone reformatory house so far focusing juvenile justice is anexample of it. The research finding has revealed the exactreality pervading in our system as a whole. Traditionalismseems to have pervaded in our system owning to variousreasons such as lack of training among stakeholders nonsensitivity as to right of the children. It is expected that thefinding of this research might well, sensitize the governmentto take necessary action in the field of juvenile justice andfor the welfare of the children.

Prof. Madhav Prasad AcharyaProfessor Incharge


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Survey Report

e hereby take this opportunity to thank primarily the team of CeLRRd that verysuccessfully accomplished the baseline survey of Juvenile Justice (JJ) System ofNepal. This nation-wide research is believed to supplement the state’s initiative toreform the system, thereby helping on its basis, the capacity enhancement of theJJ stakeholders, lobbying for the recommended legal changes and infrastructuraldevelopment. To what extent state’s various previous interventions have affectedthe system and contributed to safeguard the rights of juveniles is the prime concernof the research. Thus, for all engaged with the juvenile justice system, the baselinefindings would be significant to move forward.

I am very thankful to Dr. Yubaraj Sangroula who led the team of a large numberof researchers, both professionals and law students and from whose understandingand expertise in the juvenile justice, we have largely benefited. Mr. Suraj Basnet,and Mr Sudeep Devkota deserve appreciation for coordinating the overall researchworks across the 75 districts. The students of Kathmandu School of Law did arigorous work, keeping their studies aside, and therefore, I am indebted to theKSL administration for such a great help. Adv. Min Bahadur Mahat’s contributionto conduct survey in Jumla is equally praiseworthy.

I also would like to acknowledge the support of DanidaHUGOU without whosefinancial support, the baseline would never have been conceptualized. Similarly, Iowe thanks to Hon’ble Khil Raj Regmi, Chair JJ Coordination Committee andSeniormost Justice, and Dr Ram Krishna Timilsena, Registrar; Attorney GeneralOffice; Nepal Police; District Courts; Ministry of Home Affairs; CDO Officesof all districts; Prison Management Department; and Child Reform Home,Sanothimi, for their active support without which the research would never havebeen materialized.

Similarly, it goes without saying that I am grateful to the support of CeLRRd’score staffs including Mr. Rammani Gautam, Mr. Sudeep Gautam, Mr SukhadevSapkota and Mr Jaya Bista who actively volunteered to coordinate the researchwork and for other logistical supports. Ms. Sakila Chhetri and Ms. Sandhya Sitoulaneed to be thanked for helping with necessary correspondences. Besides, all central,regional and district staffs are to be thanked for their supports from their respectivelocations. Mr. Ram Prasad Aryal, Coordinator, Legal Aid Department of CeLRRddeserves sincere most thanks for his rigorous engagement in accomplishing theresearch work. Also, I would like to thank Mr. Maheswor Phuyal for create graphand layout of this book.

ACKNOWLEDGEMENT

Geeta Pathak SangroulaDirectorCeLRRd

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ABBREVIATION

AD : AdvocateBS : Bikram SambatCDO : Chief District OfficerCeLRRd : Center for Legal Research and Resource DevelopmentCRC : Child Rights ConventionCWIN : Child Workers in Nepal Concerned CenterDIGP : Deputy Inspector General of PoliceDIHR : Danish Institute for Human RightsF/Y : Fiscal YearFIR : First Information RecordHMG : His Majesty GovernmentICCPR : International Convention on Civil and Political RightsIGP : Inspector General of PoliceINGO : International Non-Government OrganizationINSEC : Informal Sector Service CenterJDLs : Juveniles Deprived of their LibertyJJCC : Juvenile Justice Coordination CommitteeKSL : Kathmandu School of LawNGO : Non-Governmental OrganizationProf. : ProfessorTV : TelevisionUK : United KingdomUN : United NationUS : United StateVDC : Village Development Committee

TABLE OF CONTENT

1. Background ................................................................................... 11

2. Legislative, Administrative and Judicial Measures onRights of Child with reference to Juvenile Justice System ........... 21

3. Challenges and Constraints ........................................................... 23

4. Introduction to the Baseline Survey on Juvenile Justice System .. 24

5. Nepalese Legal System on Juvenile Justice .................................... 28

6. Analysis of Data and Encapsulationof Major Findings ......................................................................... 41

6.1. Part One: Socio-Economic Characters of theJuveniles Facing the Criminal Charges ................................. 41

6.2. Protection of Children Against Illegal Arrest,Torture and Cruel and Degrading Treatments ..................... 67

7. Protection of Juvenile Rightsand Facilities in Jails ...................................................................... 73

8. State of juvenile benches................................................................ 85

9. Major findings established ............................................................ 87

10. Conclusion .................................................................................... 88

11. Recommendations ......................................................................... 90

Annexes ....................................................................................... 91

Annex A : Children’s Act, 2048 (1992) .............................................. 92

Annex B : Convention on the Rights of the Child ......................... 111

Annex C : United Nations Rules for the Protection of JuvenilesDeprived of their Liberty .............................................. 127

Annex D : United Nations Standard Minimum Rules for theAdministration of Juvenile Justice ................................. 140

Annex E : United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) .......................... 157

Annex F : United Nations Guidelines for the Prevention of JuvenileDelinquency (The Riyadh Guidelines) ........................... 164

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Annex G : Decision of Supreme Court of Nepal CasesRelated to Juvenile Justice .............................................. 172

Annex G.1. Bablu Godia .............................................. 173

Annex G.2. Keshav Khadka – I .................................... 177

Annex G.3. Keshav Khadka- II .................................... 181

Annex G.4. Ashish Adhikari ........................................ 184

Annex G.5. Pode Tamang ............................................ 188

Annex G.6. Shyam Krishna Pahari .............................. 192

Annex G.7. Sarita Tamang ........................................... 195

Annex G.8. Raj Kumar Rai ......................................... 198

Annex G.9. Shiva Nyhemafuki .................................... 202

Annex G.10. Santosh Kumar Mahato ............................ 206

Annex G.11. Kalyan K.C ............................................... 212

Annex G.12. Kumar Rai ................................................ 217

Annex G.13 Ganesh Shyantan ...................................... 220

Annex G.14. Devendra Ale, CVICT ............................. 223

Annex G.15. Kumar Chaudhary ................................... 229

Annex G.16. Ka’ Bahadur Darji .................................... 235

Annex H : Juvenile Justice (Procedures) Rules, 2063 ....................... 241

Annex I : Questionnaires ............................................................... 251

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Survey Report

he protection of the best interest ofchildren who have come in a situationof conflict with the criminal laws andhence are undergoing the trail is aprime goal of the modern juvenile1

justice system in any society.Seemingly, the modern juvenile justicesystem is fully restorative in nature;hence no process, method or anyinstrument to be applied can consistin ‘ infliction of any kind ofpunishment or such a treatment thatis psychologically disruptive of thechild’s personality and socialization.This argument unequivocally rejectsthe classical or conservative theory that‘juvenile justice system’ is essentially asphere of criminal justice system.2 Theargument also resists a notion ofthinking or a practice of a theory that

1. Background

tends to establish an inseparable nexusbetween the theories of punishment orcriminality applicable in the sphere ofcriminal justice system with delinquentacts of child.

The rational or justificationunderlying the argument is that ‘achild is not mentally capable ofcommitting a criminal act’ hence noargument that supports application ofthe criminal proceeding in a juvenileact of conflict with law.3 One can thusunhesitatingly argue in favor of thenotion of justice that since no ‘act ofchild in conflict with law’ can bedefined an act of crime, the questionof enforcement of the criminal justicemodes operandi in juvenile justice isfully ruled out. The prospect of the

1. The Black Law Dictionary, Centennial Edition (1891-1991) defines a ‘juvenile’ “a young person who has notyet attained the age at which he/she should be treated as an adult for the purpose of criminal law”. This definitionemphasizes a need of ‘separating a juvenile who has involved in illegal or deviant behavior from the helm ofcriminal justice system’. He/she cannot be treated as an ‘adult’ for the purpose of criminal justice, because ‘nosuch child can be held criminally liable for his/her act’. Obviously, if a child cannot be held criminally liable forhis/her act, the question of applying the criminal trial to determine the degree of culpability or criminal sentenceis fully ruled out. This definition of a ‘juvenile’ does rule out any ‘legitimacy of an act of putting a child subjectto the criminal trial’.

2 . Criminal justice system exists in a society either to confirm criminalization of an act or to exempt a person fromthe charge. The ‘criminalization’ has established objectives. (a) Criminalization might be intended as a pre-emptive, harm-reduction device, using the threat of punishment as a means of deterrence to those proposing toengage in the behavior causing harms. The State becomes involved because it believes that the cost of notcriminalizing (i.e. allowing the harms to continue unabated) outweighs the cost of criminalizing it (i.e. restrictingindividual liberty in order to minimize harm to others). (b) Criminalization may provide future harm reductioneven after a crime, assuming those incarcerated for committing crimes are more likely to cause harm in thefuture. (c) Criminalization might be intended as a way to make potential criminals pay for their crimes. In thiscase, criminalization is a way to set the price that one must pay (to society) for certain actions that areconsidered detrimental to society as a whole. In this sense criminalization can be viewed as nothing more thanState-sanctioned revenge. A child has nothing to do with these objectives of criminalization. In other words,juvenile justice system does not function to achieve the goal of criminalization of an act. See on > http://en.wikipedia.org/wiki/Crime< Accessed on 10/7/2010

3. In McKeiver v. Pennsylvania, 403 U.S. 528 (1971), the American Court denied to juveniles the constitutionalright to a jury trial and halted the extension of full procedural parity with adult criminal prosecutions. In contrastwith its analysis in earlier decisions, in the McKeiver the Court reasoned that “fundamental fairness” in delinquencyproceedings required only “accurate fact-finding,” a requirement that a juvenile court judge acting alone couldsatisfy as well as a jury. Unlike some other cases in the past recognizing that procedural safeguards protectagainst governmental oppression, the Court in McKeiver denied that delinquents required such protection andinstead invoked the notion of stereotyped sympathetic and paternalistic juvenile court judge.

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enforcement of the criminalproceeding in a child’s act in conflictwith criminal law is thus zero. Tobelieve that a child can commit acriminal act is nothing but aconventionally believed ‘commonsense’—an attempt to unreasonablycompare the consequences of actcommitted by a child with that of theadult.

The practice or system of linkingjuvenile justice system and criminaljustice system comes from classicalcommon law and American legalsystem. The juvenile justice systemunder English common law and earlyAmerican colonial law did notdifferentiate between legallycompetent minors and adultsregarding criminal sanctions. Juvenilesaged seven or older who had sufficientcriminal capacity were tried in adultcourts and sentenced to adultinstitutions. Nepal and other countriesin South Asia are fully influenced bythis English Common Law System.While the classical notion treatingjuveniles as adult offenders has nolonger been in practice even in UK andAmerica, the countries like Nepal andformer colonies are still heavilyinfluenced by the conventionalapproach of juvenile justice practicedby the classical English Common LawSystem.

In the United States from about 1825until 1899 a reform movement tookmomentum in the philosophy oftreatment about juveniles in thecriminal law or justice system. Thisreform movement took juvenile

delinquents not as sinners but ratheras ‘ immature, malleable, anddeveloping individuals’ who were verydifferent from adult offenders. Ratherthan applying the retributive justiceof the adult criminal justice system,the reformers argued that juveniledelinquents should be educated andnurtured so that they could becomeproductive members of society ratherthan being housed with adult criminalswho would further mold them intohardened recidivists. By 1899, aseparate juvenile court was establishedin Chicago. The reformers argued thatin order for a judge to properlydetermine the specialized carenecessary for each juvenile who camebefore the court, the formal dueprocess structure of the criminal courtmust be abandoned so that judgescould assess all relevant data and passon appropriate order for betterinterest of the child.4

Experts have identified a juvenilejustice cycle that has continued torevolve since the nineteenth century.The initial cycle starts when the publicperceives a dramatic increase in juvenilecrime and that the juvenile justicesystem is providing too lenientdispositions and too little publicprotection. The system responds withharsher treatment of juveniledelinquents and a reduction ininformal resolution processes. Then,according to a 2000 article by SachaM. Coupet, “following a period ofextreme harshness and largely punitivepolicies, when the level of juvenilecrime remains exceptionally high,

4 . See on “Juvenile Justice System: Contemporary Justice System and Juvenile Detention Alternatives” in >htpp://www.answers.com/topic/juvenile-justice-system-contemporary-juvenile-justice-system-and-juvenile-detention-alternatives< Accessed on 10/7/2010

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Survey Report

‘justice officials…are forced to choose[once again] between harshlypunishing juvenile offenders and doingnothing at all”5. From 1990 to the earlytwenty-first century, the Americanpublic has viewed juvenile crimes asconstantly escalating in number andseverity. By the early twenty-firstcentury, the American society was atthat point in the cycle whereretributive justice had substantiallyovertaken the nineteenth centuryreformers’ notions of rehabilitationand individualized treatment ofjuvenile delinquents. The change injuvenile justice system to punitivesystem by transferring juveniles toadult facilities further worsened thesituation. This has been widelyrealized by experts and criminologist.One of the serious consequences facedwas the increasing recidivism amongthe juveniles. Hence, in order to reducethe cost of recidivism, some Americanstates started experimenting withcommunity-based programs in whichthe child’s family could participate innecessary therapy to cure or controlthe conditions that led to the child’sdelinquency.

Another innovation involvescommunity-based aftercare programs

that provide juveniles released fromsecure confinement facilities amonitoring system of intensivesupervision upon release. Ironically,these aftercare programs are basedupon the ‘rehabilitation model rejectedby the contemporary retributivejuvenile delinquency model’. Inexchange for intensive monitoring bya probation officer, the juvenile underreform service receives individualizedanalysis of the conditions that initiallyled him/her to the delinquency,including assessments of the juvenile’srelationships with family, peers, andthe community. The goal of thisprogram is to reduce recidivism bymixing intensive services andsurveillance. This model of juvenilejustice system demands for theseparation of juveniles from the sphereof criminal justice system.

In the developing countries likeNepal, the misperceptions aboutnotions or principles concerningrelationship of juvenile justice systemwith the criminal justice system areabundant, which often put a child inan adverse condition, hence pushingthem to a state of recidivism and finallyto a state of the hardened criminality.6

These misperceptions are largely

5. Coupet, Sacha M. 2000. “What to Do with the Sheep in Wolf’s Clothing: The Role of Rhetoric and Reality aboutYouth Offenders in the Constructive Dismantling of the Juvenile Justice System.” University of PennsylvaniaLaw Review 148:1303 - 1346 P. 1329

6. The American experience show that the transfer of juveniles to adult courts and the adult correctional systemsdid not pay positively. The total number of juvenile delinquency cases transferred to adult criminal court peakedin 1994, and the number of children tried in adult courts increased 33 percent in 1998. In 2000 approximately14,500 children were incarcerated in adult facilities; 9,100 were housed in adult jails and 5,400 in adult prisons.There was a 366 percent increase in the number of juveniles confined in adult jails from 1983 to 1998. Juvenilesare more likely to be violently victimized and five times as likely to be sexually assaulted if they are placed in anadult rather than a juvenile facility. The recidivism also increased significantly. This led the American authoritiesto adopt a system “segregated incarceration” model, in which juveniles are sentenced as adults but are housed inspecial young offender units which have many of the rehabilitative services available to delinquents in juvenilecorrectional facilities. See on “Juvenile Justice System: Contemporary Justice System and Juvenile DetentionAlternatives” in >htpp://www.answers.com/topic/juvenile-justice-system-contemporary-juvenile-justice-system-and-juvenile-detention-alternatives< Accessed on 10/7/2010

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learned by the Nepalese justice sectoractions from the ‘Anglo-Americansystem’. The practice of adult criminalcourts trying juveniles has not paidpositively in the American society.The misperceptions that ‘a child is amini-criminal’ should therefore beremoved to protect the interest ofsociety by reducing the chance ofincreased recidivism and protectingthe best interest of the child himself/herself. The misperceptions prevalentin Nepal, inter alia, can be outlinedas follows:

a. In the traditional societies likeNepal, the system of justice is oftenguided by lofty or idealistic goalsof ‘social security’ or ‘publicinterest’. This notion of thinkingis worth thinking in goal but itposes a serious danger of ‘lackingconcentration on objectivity of thefact’- the act committed and thesituation of the actor committingthe act. The said thinking patternblindly encourages justice officialsto concentrate on ‘consequences’of the act but not on the state ofthe actor—the cause inducing theactor committing such an act maybe fully ignored. As per thistheory, a child is subjected tocriminal liability because theconsequence of his/her act is

prohibited by law as a crime.Hence, no elements such as age,mental condition and causesinducing a child to commit such anact are matters of concern for thejustice authorities. Due to thislooming misperception, the stateinstitutions become prepared tosubject a child to a harshpunishment. They are ofteninduced to hold a view that theconsequence of the act of child isin no way different from that ofan adult offender. For them the actof a child is as detrimental as thatof an adult criminal. In their viewthe act of a child equally threatensthe ‘social security’ or the ‘publicinterest’. This misperception whichdeals a legally prohibited orcriminalized act in view of itsconsequence fails to pay attentionto the ‘mental state’ of the actor,and hence necessarily associatesjuvenile justice system with criminaljustice system as its part.7

b. The consequence of thismisconception is huge. In a rapidlychanging society like Nepal, thesociety’s former structuretransforms in incredibly faster rate.The breakdown of the older formof the society is thus a usualphenomenon. The tendency of

7 . As already mentioned, the notion of thinking that the juveniles could be subject of the criminaljustice system largely comes from the Anglo-American practice. The American practice in thepast even allowed imposing death penalty to a child offender. The decision of the AmericanSupreme Court in Roper v. Simmons (543 U.S. 551 (2005) has abolished the practice of putting achild offender into the death penalty. Yet, the practice of the imposition of sentences of lifeimprisonment without the possibility of parole on youth under 18 still continues. Currently, 2,484persons sentenced for crimes committed under age 18 are serving life imprisonment without parolein U.S. prisons ( See at The Rest of Their Lives: Life Without Parole for Youth Offenders in the UnitedStates 2008, Human Rights Watch, May 2008). This is practice is abandoned by other countriesin the world. Forty three States of America permit the imposition of life imprisonment with nopossibility of parole in some form for children who commit crimes under 18 at the time of theoffense. See on Jay Elliot, 200 9. The State of Criminal Justice; ABA Criminal Justice Section(URL: http://www.abanet.org/crimjust/juvjust/scj.doc) Accessed on 10/7/2010

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Survey Report

children violating the older valuesis too apparent and frequent. Thefrequency of the juveniledelinquency is thus larger. In sucha state, if the children allegedlyinvolved in delinquent activities aresubjected to free and uncontrolledaccess to adult offenders’, thesociety may face a serious challengeof the ‘recidivism’. The separationof the juvenile justice system fromthe criminal justice system is thusequally important from the socialinterest. In contrary, the criminaljustice system by placing thejuveniles in free access to adultoffenders may convert itself into a‘system of generating criminalrecidivists’.

c. The main goal of the criminal justicesystem in any society is to ‘pose adeterrence’ to potential offendersfrom volunteering or beinginspired to commit criminalactivities.8 The punishmentimposed on offender forcommitting a criminal act is toredress the consequence emergedout his/her act. The punishmentdoes not reinstate the past. Thepunishment is also important torender the offender realize andbemoan his/her past criminal act.

A child is considered not able tocomprehend the ‘consequence’ ofhis/her act. Psychologically, nochild is capable of making a‘reasoned’ judgment of his/her act.9What the objective then thepunishment can serve in the case ofjuvenile? The answer is ‘Nothing’.The absurd dogmatism that ‘thepunishment serves the objective ofinstitutionalized revenge’ practicedby the American system is largelyresponsible to subject a juvenile toa harsh treatment by the Stateinstitutions of justice’ in manyparts of the world. The harshpunishment to juveniles is mainlyresponsible to merge the juvenilejustice system with the criminaljustice system.

d. The failure to comprehend thedifference between the state of‘acknowledgment of guilt’ and ‘theacknowledgement of thecommission of act’ is also equallyresponsible to equate a juvenilewith an adult offender and henceto necessarily link up juvenilejustice with criminal justice system.The ‘guilty mind’10 is an ‘intentionalevil design’—a state of selfinstigating to commit the crime, inwhich the ‘desired consequence’ of

8 . See Supranote 29 . There are several theories telling how children fall prey to crimes. These theories show that ‘the

child commits a crime’ under influence of circumstances he/she comes into. Being a juvenile in anyone’s life is part of the stage of development. The behavior patterns of juveniles are influenced inpart by what goes on in the environment in which they live. Every stage of development hastransitions. Family members, friends, and peers all influence these times of transition for thejuvenile. It is sometimes accompanied by a desire for material things, fashion, peer pressure, cashand more. At times, the demands of wants and needs are intensified by a society that consists ofhigh mobility, social change, and is materialistic. Also, social changes can create anxiety anddisillusionment for adolescents and thus they commit delinquent acts. See on Wicklife, Joseph A.“Why Juveniles Commit Crimes”? (URL: www.yale.edu./ynhit/curriculum/units/2000)

10 . As defined by Black Law Dictionary (Centennial Edition 1891-1991), ‘guilt’ in criminal law meansa ‘quality which imparts criminality to a motive or act, and renders the person amenable topunishment by the law. This is a quality of ability to take responsibility for offences.

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the criminal act is foreseen, wellthought about or designed andstrategically planned. All effortsare therefore concentrated tomaterialize the ‘ill design’—thefinal consequence of which isdefined as the crime. Obviously,the acknowledgement of the ‘guiltymind’ is the most importantelement of self recognition of the‘ill-consequence’ of the act. Acriminal act requires presence of aharmful consequence with ‘guiltymind’ i.e. a criminal act committedwith ill-consequence with fullknowledge of ensuing harms to thevictim. The acknowledgement ofthe harmful consequence (fact) ofan act’, however, does notnecessarily require presence of a‘guilty mind’. It implies that anyact committed without desired ill-consequence to cause harm to thevictim is not a crime.Psychologically, a child maycommit an act of harmfulconsequence but the same cannotbe an outcome of his/her desiredill-consequence, or guilty mind.This insight of the juvenile acts alsorejects the ‘theory of equation ofjuvenile justice with the criminaljustice system’. The perceivedsimilarity of these two systems in

fact leads to the way of ‘juvenilejustice system ending at thecriminal justice system’.

e. The role or function of the set ofprocedures applied by the criminaljustice system is to ‘search, collect,and analyze evidences and use themto confirm or reject theinvolvement of a person in thealleged criminal activity. Theconviction of a person in the allegedcrime is a precondition forinfliction of any sentence; nopunishment is imposed unless theallegation is confirmed byevidences. The investigation,prosecution and adjudicationprocedures are thus solelymotivated by the need of‘confirming’ or ‘rejecting’ theinvolvement of the accused incommitting the alleged crime. But,no child facing the charge isconsidered to be a ‘criminal’. Whythen the procedures followed bythe criminal justice system areindiscriminately applied in processof investigation, prosecution andadjudication of delinquency of achild? Many systems have failed tosearch for a rational and pro-childanswer of this question,11 and thereason behind it is the same looming

11 . The assault on reformative juvenile justice system started in USA in Kent v. United States, 1966.U.S. The Supreme Court responding to a position that juvenile cases were civil, not criminal, held,“There is evidence, in fact, that there may be grounds for concern that the child receives the worstof both worlds; that he gets neither the protections accorded to adults nor the solicitous care andregenerative treatment postulated for children.” The Court thereby rejected the reform movement’sjustification for informality in juvenile delinquency cases. And a year later in In re Gault, the Courtset the due process boundaries between adult criminal procedure and juvenile delinquency trials.First, the Court rejected the reformers’ claims that the juvenile justice system accurately and fairlydetermined children’s criminal responsibility: “Under our Constitution, the condition of being aboy does not justify a kangaroo court.” Second, although Gault rejected the argument that theFourteenth Amendment due process clause requires identical due process procedures for adults andjuveniles, the Court determined that juveniles must at least receive alternative equivalents. Thus,in a juvenile delinquency trial, children are entitled to: (1) notice of the charges, (2) a right tocounsel, (3) a right to confrontation and cross-examination, and (4) a privilege against self-

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Survey Report

misperception that ‘juvenile justicesystem’ is other aspect of thecriminal justice system. The ‘rescueor rehabilitation and reintegration’of the child accused from thetendency of ‘breaking laws’ orcoming in conflict with laws is thesole issue for consideration of thejuvenile justice.12

These misperceptions are borrowedfrom classical common law andAmerican practices, and areabundantly responsible to besmirchthe ‘pro-child notion of juvenile justicesystem in Nepal’. Thesemisperceptions are resulted in thefollowing attributes or tendencies ofthe Nepalese juvenile justice system:

a. A child who has come into conflictwith the law has been consideredto be an ‘alleged offender’ and istreated accordingly. As in thegeneral course of the criminaljustice system, the child is arrestedand incarcerated into detention cell;he/she is interrogated anddeposition is recorded exactly likeadult; he/she is charged with

criminal liability and prosecuted onthe charge; and he/she is also triedfollowed by pronouncement of thesentence like in the adult cases. Tolook from a perspective collectiveestablished by these practices, thejuvenile justice system of Nepal cansarcastical ly be defined as a‘criminal justice system applicableto the children below 16 year ofage’.

b. A child allegedly engaged indelinquency is formally chargedand sentenced. The only benefitavailable for being a child is the‘concession or reduction in thesentence by half’. The proceduresfollowed by the investigation andprosecution processes are similar tothat applied for the adults. The trialof the case is different only in thesense that it is conducted in a ‘roomearmarked as juvenile court whichis, at least in practice, not accessiblefor all.

c. No child fallen in trap of conflictwith the law is considered as‘victim’ of the adverse situation or

incrimination. The U.S. Supreme Court quickly followed the Kent and Gault cases with the 1970case In re Winship, which held that juvenile delinquency requires the “beyond a reasonable doubt”adult standard of proof, and the 1971 case McKiever v. Pennsylvania, which held that juvenilescharged with a criminal law violation are not entitled to a jury trial because the Sixth Amendmentright to jury trial applies only to criminal actions and because juries would substantially evisceratethe beneficial aspects of the juvenile court’s “prospect of an intimate, informal protectiveproceeding.” See on “Juvenile Justice System: Contemporary Justice System and Juvenile DetentionAlternatives” in >htpp://www.answers.com/topic/juvenile-justice-system-contemporary-juvenile-justice-system-and-juvenile-detention-alternatives< Accessed on 11/7/2010

12 . The primary goal of the juvenile justice system is reform. The objective is to provide the juvenileappropriate services in an effort to get the youthful offender on a course in which he or she will notbreak the law again in the future. Perhaps the most significant of all problems associated with thejuvenile justice system is the high recidivism rate. The four primary reasons why recidivism ratesare high within the juvenile justice system are a lack of appropriate placement options, insufficientmental health services, inadequate substance abuse treatment programs and slim educationalopportunity. In the end, the inadequacies and problems of the juvenile justice system have createda constant cycle in which minors head in, out and back in to the juvenile justice system. For moredetail see >http://www.ehow.com/about_5365215_problems-juvenile-justice.html< Accessed on11/7/2010

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circumstance. The cause pushingthe child to the circumstance hasnever been an issue ofconsideration at the court whilethe trial is taking place. The childis in fact considered ‘a mini-offender’. When a child hascommitted an act with punishmentof the extended period ofimprisonment, he/she uponreaching the state of puberty shallbe liable to serve the remainingpart of the sentence as an adultoffender.

In Nepal, the juvenile justice systemin present state truly implies a ‘childor juvenile branch of the criminaljustice system’. The concept ofjuvenile justice system is thusseemingly besmirched. Theprobability of a child fallen in trap ofthe so-called juvenile justice system isvulnerable to grow as a hardenedcriminal, a recidivist. While theinteractions and discussions forimprovement of the juvenile justicesystem are ongoing over a decade, thetangible result benefiting the childrenis less visible. Against the abovementioned negative perspectives, thepresent research has a greatsignificance in bringing the issue of‘modern juvenile justice system’ inlimelight.

In Nepal, the ever first research onjuvenile justice system took place in2002. It was carried out byKathmandu School of Law incooperation and participation ofNational Police Academy, Center forLegal Research and ResourceDevelopment (CeLRRd) and CWIN.

The research significantly highlightedthe ‘plight faced by the child’ withinthe traditional criminal justice systemof Nepal. The study had been able tobring in surface the issue of ‘neglectand negative impacts of treatmentmeted out by children in the criminaljustice system’. It categoricallypresented that the application of thecriminal procedures to try juveniles inconflict with laws was not onlydisastrous in his/her personalitydevelopment but also equallydisastrous to the society as the ill-treatment meted out in the name ofjustice would be an effective catalyticto transform such child into hardenedcriminals. Psychologically, thechildren facing the trail andpunishment were destroyed becausethe punishment resulting following atedious traditional proceduralformalism practiced by the Nepalesecriminal justice system was physicallyas well as mentally harmful to thepersonality of the victimized children.

The research was able to successfullysensitize the Nepalese authoritiesresponsible for delivery of the justice.The research report analyzed thefindings taking in account of objectivesof the modern juvenile justice systemwhich intended to help the childunderstand the consequence of his/heract against law and rescue himself/herself from the given ill-circumstances. To rescue andrehabilitate the child througheducation, integration andsocialization is the most fundamentalobjective of the modern juvenilejustice system.13 This notion of the

13 . The objective is to provide the juvenile appropriate services in an effort to get the youthful offenderon a course in which he or she will not break the law again in the future. For more detail see <http://www.ehow.com/about_5365215_problems-juvenile-justice.html> Accessed on 11/7/2010

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Survey Report

juvenile justice system requiresexistence of the psychologicallysensible institutions, procedures andoutcomes. It puts focus on ‘diversion’from the criminal justice system at alllevels and points. Hence, the modusoperandi followed by the investigation,prosecution and formal trial oradjudication system of the criminaljustice does not constitute elements ofthe juvenile justice system. The impactof the study was wider in Nepal.Following the research, thereformation of the criminal justicesystem with an effect to ‘separate thejuvenile justice system’ became anagenda of discussion of thegovernment as well as the judiciary.The research, inter alia, had been ableto create the following positiveimpacts:

a. The issue of juvenile justice systemobtained wider attention of thecivi l society as well as theinstitutions of justice. The SupremeCourt of Nepal proactivelyintervened on issues of arrest,detention and treatment of childduring investigation. One of theconcrete results of this interventionwas that the practice of detentionof child along with adult wasprohibited. In turn, thegovernment was forced to establisha “Child Reform Center” at SanoThimi, Bhaktapaur.

b. The Juvenile Benches in all districtscourts were established, at least inprinciple. Through a regulation,the practice of trial of juveniles atclosed camera court wasintroduced. In addition, a ruleintroducing the bench consisting ofa child psychologist, a socialworker, a child right expert was

also introduced. This was definitelya positive intervention.

c. The judiciary conducted specialtraining activities for judges andjudicial staff on internationalstandards concerning juvenilejustice. The Nepal Police and theOffice of the Attorney General alsoconducted training for their staffson international standards onjuvenile justice. The trainingactivities contributed significantlyto develop the sensitivity of thejustice actors.

d. The interest of civil societytremendously increased on issuesof juvenile justice system. Anumber of NGOs in Kathmanduand other parts of the countryvolunteered to engage in advocacyof rights of and best interests ofchild.

These developments somehowcontributed in minimizing thenegative impacts created by themisperceptions discussed above.

The concept of child welfare andprotection is no alien to Nepalesesociety despite countless of childrenare exposed to poverty, hardships andneglect. Traditionally, a torturous orill treatment is discarded andcondemned by the values adopted bythe Nepalese society. In both familyand society, children have anaffectionate place. However, thepositive social values concerning childare not exploited to ‘reform the justicesystem applicable to the children’.Though Nepal has adopted CRC andseveral other human rightsinstruments, the actual condition ofjustice system applicable to childrenis poor by all implications and

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standards. The discussion below willamply demonstrate poor state of thesystem:

a. The age of criminal liability isextremely low. A child above theage of 10 years is criminally liablefor his/her act against criminal law.A child aged between 10 and 14years can be imprisoned for aperiod of six months for violatingthe criminal law.

b. The juvenile justice system,conceptually, institutionally andstructurally, is far from meetingthe required standards of a modernjuvenile justice system that intendto reform or rescue the child from‘vulnerability of delinquency’.Obviously, as discussed above, achild is tried by applying theprocess applicable to the criminaltrial . The attitude of theauthorities of the justice sectoractors is less progressive and lesssensitive to the children.

c. The indiscriminate detention ofchildren allegedly involved indelinquency is not a less seriousproblem in Nepal. Often, childrenare incarcerated for investigationas well as to execute punishment.This problem has been in practicefor long time. INSEC, forinstance, in 2000, reported that 510children had been detained in 2001,all of whom had been below 15

years of age.14

d. While international instrumentsratified by Nepal, for instanceICCPR and CRC, oblige thegovernment to separate juvenilesfrom adult in detention cells, thepractice of placing them togetherwith adults is a rampant practice.While it is difficult to know howmany children are annually arrestedand detained due to poor systemof record, the number of childrenarrested and detained every year isincreasing. The Nepal’s report tothe Committee on the Rights ofChild in 1995 stated that there wereno children in the prison chargedwith crimes. The report is,however, not true. In 1995, therewere 65 children serving thesentence or undergoing thecriminal trial.15 As Reported by theUS Department of State, in 1997,there were 144 children in jails andsome children were below the ageof 9 years.16 In 1998, the official ofthe Department of Prison said thatthere were no children in jails forserving sentences, but the UNChild Rights Committee cited alocal (Nepalese) NGO and claimedthat there were over 100 childrenbeing incarcerated in jails 1998.17 In2000, 75 children had been jails18

whereas in 2001, as per the reportof INSEC, there were 23 juvenilesin different prisons.19 The

14 . See Sangroula, Yubaraj, 2005. Concept and Evolution of Human Rights: Nepalese Perspectives.Kathmandu School of Law, P. 347.

15 . See CRC/C/3/Add.34. 10 May, 1995. Point 14916 . See for detail, the ‘US State Department Report, 1997: P. 12.17 . Supranote 15: Point 1418 . Ibid19 . See the petition in Balkrishna Mainali v. HMG, Decision No. 3505, 056, Supreme Court of Nepal.

Judgment Date, 2058/4/23

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Survey Report

population size of the childrenprison inmates is increased over theyears, which is obvious by thepresent survey.

The information mentioned aboveshow that the size children inmateis in rise. With that givensituation, it is obvious that manymore children are being victimized

by the practice of application ofthe criminal proceedings in thename of juvenile justice. Theproblem of dragging children tothe criminal justice system ismainly caused by the ‘loomingmisperceptions’ among justicesector actors and governmentauthorities involved in policymaking.

2. Legislative, Administrative and JudicialMeasures on Rights of Child with referenceto Juvenile Justice System

epal ratified the Child RightsConvention in 1990. Nepal has beenone of the first countries to sign theConvention on 26 January 1990.Following the ratification of theConvention on 14 September 1990,the commitment of the Governmentwas demonstrated when Nepaladopted its first ever juvenile law, theChildren Act, in 1992. This was amajor step for development of thejuvenile justice system in Nepal. Thislaw is designed to safeguard the interestof children. It covers the rights andinterest of children, the protection ofthe child, guardians, welfare, workinghours and leisure. The Children Actin relation to the juvenile justice makesthe following important provisions:

a. In the line with Article 40 of theConvention, the Act has establisheda minimum age below whichchildren are presumed not to havethe capacity to infringe the penallaw. Section 11 of the Act states thatany child below the age of 10 is

presumed to be innocent and is notliable to any punishment, while achild between the ages of 10 and14 years is liable to a warning onlyor, depending on the nature of theoffence, to imprisonment (limitedto six months).

b. Section 15 of the Children Actstipulates that no child should besubjected to hand-cuffs, fetters, orsolitary confinement, nor shouldthe child be put together with anadult prisoner in cases.

c. The Act also provides that no caseof a child should be heard ordecided unless there is a legalpractitioner present to defend thechild and that the court shouldmake arrangements for the servicesof a legal practitioner.

d. The Act further provides that onlya legal practitioner, the child’sparents, guardians or relatives, andpersons or representatives of socialinstitutions concerned with the

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protection of the rights andinterests of the child may bepresent during the proceedings ofa case.

e. Section 55 of the Children Actprovides for the establishment ofthe juvenile court; as per thesection the juvenile bench will beformed if there is no juvenile court.The juvenile bench comprises of asocial worker, a child psychologist,a child rights expert and child’slegal representative besides a judge.

f. Section 57 of the Act gives priorityto the hearing and decision of acase in which a child is the plaintiffor defendant.

g. Section 50 of the Act states thatjuveniles charged with delinquencyare required to stay in a childrenrehabilitation centre or in theguardianship of any person ororganization both during theinvestigation process and aftersentencing, but not in the policecustody or jail.

h. Section 32 of the Act requires theGovernment to constitute centraland district child welfare boardscomposed of social workers,women social workers, medicalpractitioners, child psychologists,teachers and Governmentrepresentatives. Accordingly, theprovisions have been made in theAct requiring the Government toappoint child welfare officers(Section 33) and establish childwelfare homes (Section 34) andchild rehabilitation homes (Section42). Categories of children havebeen identified to be kept in childrehabilitation homes.

These provisions of the Children Actshow that the Government of Nepal,at least in principle, is committed toenforce the right of child concerningjuvenile justice. The Children Act,1992, is the main legislative instrumentto protect rights of the Nepalesechildren. Pursuant to section 55 of theAct, the Government has in eachdistrict court established a juvenilebench. The juvenile benches in alldistricts courts are supposed to workas a closed camera court.

The minimum age of criminalresponsibility in Nepal is 10 years. Achild below the age of 10 years ispresumed unable to violate law orcommit any crimes. Pursuant tosection 42 of the Act, the juvenilescharged with delinquency must bekept in the reform centre. A significantstep taken by the Government (TheMinistry of Women and Child) in thisregard recently is the formation of the“Juvenile Justice CoordinationCommittee (JJCC)’ for necessarypolicy interventions with regard tojuvenile justice. The Committee hasbeen headed by a senior most judgeof the Supreme Court. Thefundamental role of JJCC is tostrengthen Juvenile Justice System ina coordinated manner. The legalmandates of JJCC are follows:

a. Development of necessary policyand institutional development ofthe juvenile justice. The committeehas mandate to adopt policy withregard to institutional developmentand strengthening of juvenilejustice at all levels, includingrecommendation for newlegislation and enforcementmechanism.

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Survey Report

b. Better coordination andcollaboration with all stakeholdersis another role of the committee.

c. The committee is also responsiblefor conducting promotionalactivities such as advocacy,awareness and social mobilizationincluding participation ofvulnerable groups.

d. It is also responsible for conductingresearch and studies, developmentof curriculum for academicinstitutions in line of child rightseducation and lobby to introducethe curriculum in University andSchool Course.

e. The monitoring and evaluation of

the juvenile justice programs alsofalls within the scope of thecommittee’s work.

The committee, since establishment,has been providing policy guidelinesto enhance juvenile justice in Nepal.The decision of the committeeregarding expansion of the juvenilebenches in all districts courts has beenimplemented by Central ChildWelfare Board. The major programso far implemented by the Board is theimplementation of the Juvenile JusticeOperation Regulation 2006 in 12districts, 20 namely, Ilam, Morang,Saptari, Makawanpur, Kathmandu,Bhaktapur, Lalitpur, Kaski,Rupandehi, Banke, Surkhet andKanchanpur.

3. Challenges and Constraints

lthough Nepal has signed the CRC, isalso committed to the Beijing Rulesand the Riyadh Guidelines and hasadopted the Children Act, thechallenges in implementation of amodern and workable juvenile justicesystem are not less serious and easierto address. The constraints of financialresource, expertise, skills and positiveor changed attitude are greatly lackinghence posing difficulty inimplementation of the system with itstrue notion and spirit. While thecommitment to develop policy andinstitutional development required bythe system is visible, the lack of visionand misperceptions due to lacking inclarity of concepts are two serious

problems. In addition, the followingother problems are also equallyrelevant ones:

a. The lack of clarity of concept ofjuvenile justice among the peopleengaged in advocacy of rights ofthe child has been seen as a majorproblem. This is also true of actorsof the justice system and concernedgovernment officials who areengaged in development andimplementation of the juvenilejustice policies and programs.

b. The negative impact created by thelooming misperceptions of juvenilejustice is also a serious problem inits smooth and result oriented

20 . See on Government of Nepal NATIONAL PROGRESS REPORT “Plus 5” Review of the 2002 Special Session onChildren and A World Fit for Children Plan of Action December 2006

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enforcement. The traditionalformalistic attitude of the judges,prosecutors, police officers andlawyers who view juvenile justicean integral part of the criminaljustice system is equally seriousproblem in enforcement of thecriminal justice system. Thisattitude ignores the need of dealingwith juvenile behaviors differently.

c. The juvenile justice systemrequires many different types ofinstitutional and structural facilitiesand support systems. They includejuvenile friendly court rooms,correction or rehabilitationcenters, probation and parolesystems, and psychologicallytrained free legal aid service. Nojuvenile justice system can be

properly enforced in absence ofsuch institutions or facilities. Butthese institutions and systems aregreatly lacking in Nepal.

d. Proper and conceptually welldesigned training and orientationactivities are also seen as a hurdlein smooth development of juvenilejustice system in Nepal. Whilethere are some training activitiesconducted for police, lawyers,administrators and NGOs, theineffectiveness of such training interms of conceptual clarity andunderstanding can be questioned.Most of these training activitiessuffer from the samemisperceptions discussed in thebackground part.

4. Introduction to the Baseline Survey onJuvenile Justice System

n 2002, CeLRRd in collaborationwith Kathmandu School of Lawconducted the first ever baselinesurvey on juvenile justice system inNepal. Addressing some importantissues raised by the survey, theGovernment of Nepal issued theJuvenile Justice (Procedure)Regulation in 2006. While the juvenilejustice system of Nepal is stilloperating in integration with thecriminal justice, there have been someattempts to separate the former fromthe latter. The enactment of theChildren Act requiring mandatoryinvolvement of a social worker, a childpsychologist, a child right expert anda lawyer as essential part of the juvenile

bench in closed camera is an indicatorof the departure. Similarly, themandatory provision of the socialinquiry report, the provision forquick disposal (within 120 days) of thejuvenile cases, the provision forestablishment of the separate policeunit for investigation of juveniledelinquency and dealing with juveniles,and provision for establishment of theJuvenile “Justice CoordinationCommittee” for policy guidelines aresome other important institutionaldevelopments to separate the juvenilejustice system from the criminal justiceand to protect rights and best interestsof child.

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Survey Report

However, the assessment of theimpacts of such programs orimprovements is not possible inabsence of adequate baseline data. Thepresent survey, therefore, purports togenerate data establish baselineinformation and thus to help peoplein analyzing the actual situation of thejuvenile justice system in Nepal. After2002 joint survey of CeLRRd andKathmandu School of Law, manymore NGOs embarked into activitiesto promote and strengthen thestandards of the juvenile justice systemin Nepal. However, their activities andimpacts are not fully reported oraccessible to public. Hence, CeLRRdhas conducted this baseline survey incooperation with Kathmandu School

of Law to generate necessaryinformation on actual situation ofjuvenile justice system in Nepal.

Nevertheless, conducting such a surveyitself is a challenging work. In Nepal,the culture of assisting or cooperatingresearch activities is greatly lacking.This problem often discouragesresearchers. The same problem wasalso faced by the present survey team.While over 58 law students fromLL.B. senior classes and 3 faculties hadbeen fully engaged in the survey, eventhen it was not possible toexhaustively collect nationwide data.While the survey team had intendedto personally visit 45 districts21 tocollect information, due to lack of

21 . Jhapa, Illam, Morang, Sunsari, Dhankuta, Udyapur, Saptari, Siraha, Dhanusa, Mohattari, Sarlahi, Sindhuli, Rautahat,Bara, Parsa, Makwanpur, Chitwan, Kathmandu, Lalitpur, Bhaktapur, Sindhupalchok, Kavrepalanchok, Nuwakot,Gorkha, Dhading, Lamjung, Tanahu, Syangjha, Kaski, Baglung, Parbat, Nawalparasi, Rupandehi, Kapilavastu,Gulmi, Palpa, Pyuthan, Dang, Salyan, Jumla, Banke, Bardiya, Surkhet, Kailali and Kanchanpur. One of thereasons for selection of these districts for personal observation was their (a) accessibility in a short period oftime, (2) the adequate number of cases, along with potentiality of having some juvenile cases in each of thesedistricts, and (c) the availability of key informants (experts) for interview. At least two students from Kathmandu( ununder field supervision of LL.M. students) spent at least 10 7 days in one districts.

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active or engaged support of somecourts, some police offices andgovernment attorney offices, theoriginal plan was somehow disturbed.As a matter of fact, the survey teamcould not collect all information alltargeted districts. Information from30 remote districts22 was collectedfrom secondary sources, i.e. help ofthe Supreme Court. The archivesystem of the courts, the police officeand government attorney offices is stillarchaic, hence posing tremendousdifficult in exploring information.The staffs are hardly aware of therecords.

A. Objectives of the baselinesurvey

The present baseline survey purportsto address the following specificobjectives:

a. To identify the actual number ofjuveniles who have fallen in trapof conflict with law.

b. To see whether the juvenilesdetained in police custody orprison are separated from otherinmates, i.e. the adult prisoners.

c. To explore the situation ofjuveniles and juvenile reformhome.

d. To explore the practice at Policeand Prosecutor Office in relationto juvenile cases.

e. To observe the functioning of

juvenile benches as to whether theyare compatible to the universallyrecognized standards.

f. To explore the practice of use ofsuspended sentences in the cases ofjuveniles

g. To explore the situation of theapplication of and possibilitiesabout diversion in juvenile cases.

h. To explore the situation of theenforcement of Supreme Courts’decision in juveniles issues.

B. Methodology and Scopeof Work

To materialize the objectives, thefollowing methods were adopted;

a. Background study (desk work): thelegal and administrativeframeworks concerning juvenilejustice system in Nepal.

b. Collection of secondary data from30 remote districts identified by anexpert team based on volumes ofcases and possibility of visit andcompiling information in shortperiod of time.

c. Collection primary data from 45districts identified by an expertteam based on higher volume of thejuvenile cases.

To conduct the survey in proper way,a set of guidelines was prepared by theteam of researchers. The survey wasconducted with the prior approval of

22. Baitadi, Darchula, Bajhang, Bajura, Kalikot, Mugu, Humla, Dolpa, Rukum, Rolpa, Myagdi, Arghakhachi, Jajarkot,Dailekh, Aacham, Mustang, Manang, Rasuwa, Solukhumbu, Sankhuwasawa, Taplejung, Terathum, Panchathar,Bojhpur, Kothang, Okhaldunga, Ramechap, Doti, Dadeldhura and Dolakha. These 30 districts were not includedin direct or personal observation of surveyors for (a) time constraints, i.e. long time to travel bu t the entireresearch was to be completed within a period of 5 months, (b) less number of criminal cases, with less chance ofjuvenile cases, and (c) unavailability of adequate experts to provide key information. The total number ofjuvenile cases from these 30 districts in a period of three year was 14.

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Survey Report

the “Juvenile Justice CoordinationCommittee”. To generate appropriatedata, different forms of questionnairesand interview schedules were developedby the researchers’ panel. These toolswere applied to collect informationfrom the district courts, the districtgovernment attorney offices, thedistrict police offices, the chief districtoffice, and the custody and prisonsfrom 45 districts. Moreover, astructured observation tool wasapplied to compile information aboutthe practices of juvenile benches in 45districts. The responsibility ofconducting the survey was taken byKatmandu School of Law, and for thispurpose a group of three faculties and30 students from LL.M. and LL.B.levels were mobilized.

The following specific tools had beenemployed to collect the data:

Interview with juveniles underpolice detention for investigation:Total 20 juveniles under policedetention were interviewedthrough a structured questionnaireform. The Juveniles were foundonly in 13 districts during the timeof survey. These districts are Jhapa,Illam, Sunsari, Dhankuta,Udayapur, Chitwan, Kathmandu,Lalitpur, Sindhupalchok,Nuwakot, Kaski, Rupandehi andKailali. Hence, the analysis of aboutcustodial situation of juveniles isbased on information obtainedfrom the interview with 20juveniles.

Interview with Police Investigators:From 45 districts, total 68 policeofficers involved in investigation ofcrimes were interviewed. Theinformation from police

investigators is collected in a‘structured’ questionnaire form.The information sought from thistool concentrates on proceduresapplied by the police investigatorsin investigation of the juveniles andthe treatment given to them.

Interview with juveniles in theJuvenile Reform Home atSanothimi, Bhakatapur: 40 juvenilesout of 86 staying at the center wereinterviewed. The information onsituation of the juvenile reformcenter, the impression of juvenilesof the reform center, and thejudicial system are based on theinformation obtained from theinterview with 40 juveniles.

Interview with Official of JuvenileReform Home: One officer of thehome was interviewed. Thisinterview focused on facilities andmanagement system of the Home.

Interview with Judges: 36 judgesout of 45 districts visited for thesurvey were interviewed. Judges infive districts were not availableduring the time of survey. Judgesin some other districts were notavailable for interview. In somedistricts, they declined to beinterviewed. The districts in whichjudges interviewed are Jhapa,Morang, Sunsari, Dhankuta,Udayapur, Siraha, Dhanusha,Mohattari, Sindhuli, Bara, Parsa,Makawanpur, Kathmandu,Lalitpur, Bhakatapur,Sindhupalchock, Kavrepalanchock,Nuwakot, Gorkha, Dhading,Tanahu, Syangjha, Kaski, Baglung,Parbat, Nawalparasi, Rupandhei,Kapilavastu, Gulmi, Pyuthan,Dang, Salyan, Banke, Surkhet,

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Kailali and Kanchanpur.

Interview with Juveniles in Jails: 59juveniles from 22 districts wereinterviewed. While the number ofjuveniles may be many more thanthis figure, the jailers in all districtswere not equally cooperative toprovide access to juveniledetainees. The survey team wasthus able to locate only 59juveniles from 22 jails. Thus, thesituation of juveniles detained injails and the treatment they arereceiving from jail management isbased on the information suppliedby 59 juveniles from 22 districts.The information obtained fromjuveniles was documented in astructured questionnaire. Twentydistricts are Illam, Morang,Sunsari, Udayapur, Saptari, Sirha,Sarlahi, Sindhuli , Rautahat,Makawanpur, Chitwan,Sinduplachok, Kavreplanchok,Nuwakot, Syangjha, Baglung,Nwalparasi, Rupandhei, Dang,Salyan, Kailali and Khotang.

Observation of the facilities of theReform Home at Sanothimi: Theinformation collected by theobservation was documented in astructured form.

Observation of the Juvenile BenchProceedings: During the survey

time, it was possible to observe thejuvenile bench proceeding in 13district courts. 22 district courts,out of 45 district courts, hadseparate court rooms for juvenilebench. These districts are Illam,Morang, Sirha, Chitwan,Kathmandu, Lalitpur, Bhaktapur,Kavrepalanchok, Nuwakot,Tanahu, Syangjha, Kaski, Baglung,Rupandehi, Kapilavastu, Plapa,Dang, Banke, Surkhet, andKanachanpur.

Court Record system Study: Therecord system study was possiblein only 30 district courts out of 45targeted. The study of case files andrecord system was not possible inother districts due to severalreasons, one of them being the poorsystem of record management.

Interview with the Chief DistrictOfficers: 40 chief district officers orassistant chief district officers wereinterviewed through a structuredquestionnaire form.

Interview with GovernmentLawyers: 44 government lawyerswere interviewed from 44 districts.

The compiled data were decoded andanalyzed. The report is presented byusing a combination of descriptive,analytical and comparative methods.

5. Nepalese Legal System on Juvenile Justice

a. General Introduction

Every legal system may have its owninnate characteristics. The indigenouslegal system of Nepal based on the

Muluki Ain (Country Code) hasinfluence of normative principles fromthe “Hindu Legal Philosophy” and thevalues about moral duties of personsunderlying the Hindu Dharma. After

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1951, however, the Nepalese legalsystem has gradually been attracted tothe English legal law system.Historically, the criminal justicesystem of Nepal was founded on‘inquisitorial notions’, which requiredthe accused to prove that the chargeagainst him/her was false. From 1951onwards, it began to shift towards theEnglish law based accusatorial systempracticed in colonial India.

The judges in the indigenousinquisitorial system often relied onpower of ‘unseen force’ for deliveryof justice. The system was called‘brahma nyaya’ which required thejudges to piously ask their mind andheart about the truth of the case. Itwas a common belief among them thatwhat their inner good consciencesuggested would amount to be a ‘truejudgment’. The subjective or cognitiveconclusions derived from the‘introspection of the good conscience’constituted the main source forlegitimacy of the judgment delivered.The Hindu doctrine of karma alsoplayed a crucial role in shaping thenorms of justice. According to it, anact of crime and the ensuingpunishment was an outcome of thedeeds in the past life—‘agilo janma kokarma’. The deiva (an unseen divineforce) was believed to act as a truejudge—a human judge did exactly whathe/she was spiritually dictated by thedeiva. An act of crime was thus takennot simply as an act of deviance from,or violation of, a law resulting incriminal liability but it was also seenas a “paap karma” (a deed of sin)

affecting the substance of life in itspresent form and also inreincarnation. Naturally, the conceptof punishment was essentiallyconnected with the “moralpurification” of the person involvedin criminal act, which was calledprayaschitta, a process of performingremorse with a pious intent ofrescuing him/her from the curse thatwas to affect the next life negatively.2323

Seemingly, the concept of justice andthe judge’s obligation to dispense wasdeeply influenced by a moral duty tohelp persons to keep them in a stateof ‘karmic’ soundness.24 The judgefailing to abide by this eternal role wasbelieved to suffer from ‘a curse of theGod’. The duty of judge to delivertrue justice was thus a ‘professionalwork as well as spiritual duty’ towardperfection of life. Naturally, the dutyto deliver justice was seen not merelya secular official act of judges, but itwas also considered as a ‘karmic duty’of them. This notion of duty requiredthe judges to perform their roles withall perfection ‘to achieve a justice inits absolute form or sense’. As a matterof fact, when they felt that their‘humanly capacity’ (prudence orintellect) was unable to guide them toreach a conclusion about the case theypreferred to surrender themselvesbefore the ‘blessing’ of an unseen force–the deiva. The instrument of “ordeal”was the best option for this—it wasbelieved that “God” would necessarilyprotect the ‘right person’ or ‘innocentperson’.

23 . On this see ‘Sangroula, Yubaraj 2010. Jurisprudence: Philosophy of Law- Oriental Perspective with SpecialReference to Nepal; Kathmandu School of Law, pp 206-208.

24 . Ibid

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In accord with the tenets of the“inquisitorial system”, the judgessimultaneously performed functionsof investigation and adjudication ofcrimes. They often visited scenes ofcrimes, interviewed suspects, imposedsanctions on them to repent andundergo immediate consequences fortheir acts. The moral and ethical rulesfounded on ‘Hindu notion of justice’thus played crucial roles in guiding thejudges to dispense justice.

The Nepalese legal system began totransform into an adversarial systemfrom 1951. In the light of the changedcontext, it was simply usual for thetraditional justice system to receivecritiques. The rules of substance andprocedure both were exposed forreview in the new context broughtabout by the democratic politicalchanges. The concept of ‘juvenilejustice’ emerged in Nepal as anoutcome of this review being guidedby the principles of justice developedby the colonial English legal system.In a modern and developed society,the process of justice takes childrenin conflict with laws differently fromadults. The process is generallymarked by a leniency and empathy inall aspects of the procedures andtreatment. The rationale for a lenientand empathetic attitude to children isjustified by a fundamental principleof criminal law that ‘a person can befound fully or partly criminally liableonly if he/she is able to understandthe consequence of his/her actforbidden by law’. Children areconsidered innocent aboutconsequences of their acts, hencegiving them immunity from criminalliability of their acts. The internationaljuvenile law underlies this principle.

The CRC which constitutes the ‘keyinternational law’ on the issue ofjuvenile justice has been signed andratified by the Government of Nepal.Pursuant to Section 9(2) of the TreatyAct, 1992, of Nepal such internationaltreaties or conventions possesssupremacy as they are to prevail overdomestic laws in a state contradiction.

b. Jurisdiction andInstitutional Framework

In this part, the discourse aims tooutline the overall ‘legal framework’and its functioning critically. Thediscourse will take in account the mostkey substantive as well as proceduralrules about juvenile justice system inthe light of standards laid down bythe international law on juvenilejustice. To materialize this object, thediscourse will examine the currentstate of the ‘legal framework’ aboutprevailing juvenile justice system ofNepal in view of a number ofstandards set forth by the Conventionon the Rights of the Child, 1989 (thefull text is given in Annex B). Thediscourse will also pay attention to theprovisions of the United NationsStandard Minimum Rules for theAdministration of Juvenile Justice,1985 (“Beijing Rules”—the full text isgiven in Annex D), the United NationsRules for the Protection of JuvenilesDeprived of their Liberty, 1990(“JDLs”—the full text is given in AnnexC) and the United Nations Guidelinesfor the Prevention of JuvenileDelinquency, 1990 (“RiyadhGuidelines”—the full text is given inAnnex F).

As stated above, Nepal is one of thefew first state parties to sign and ratify

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the CRC. Its commitment to abide bythe obligations to ‘enforce andinstitutionalize the standards of thejuvenile justice laid down by the CRCis thus absolute’ . The otherinstruments, for their non-bindingnature, constitute only moralobligations to follow. Theseinstruments, which play importantrole in rationalizing the domestic lawson juvenile justice system, however,cannot be simply ignored by anycountry having obligation to abide byinternational law under the Charter ofthe United Nations. In thisperspective, these instruments alsoplay a significant role in rationalizingthe juvenile justice system of Nepal.

The main focus of the discourse herewill be on the ‘laws and practices’ ofdelivering justice to juveniles who havehad confronted with the criminal law.The criminal law enforcement systemincludes both preventive and reactivestages. In the former, the strategies ofcrime prevention followed may not bedirectly related to the process of justicedispensation process. The legalreaction to criminal law breakers is thereactive stage. This stage covers theentire procedures or processes to befollowed in investigation of the crime,the indictment or prosecution, thetrial, and the execution of judgmentsof the court. In Nepal, the generalprocedural mechanisms of the criminaljustice delivery system are alsoapplicable in the treatment ofjuveniles. It is therefore essential toexamine the general provisions ofprocedural law which are basicallyrelated to the criminal justice system.This will help understand the specificprocedural safeguards under thecriminal justice system to juveniles,

and it, in the meantime, will open away for thinking about developmentof the alternative approach that wouldbe more congenial for juveniles.

c. Age for Criminal Liability

It is an established principle that youngpeople need special protection inprocedures of justice. It is a tough jobto fix the parameters of juvenile statushowever. Even at international level,the guidelines are not fully clear andplainly entrenched. The universalacceptable standard of the age ofcriminality is yet to be established.There is due to a lack of singleinternational standard for children tobe imputed with charge ofdelinquency. The CRC requires thestate parties nothing but to establish“a minimum age” below which thechildren should not be presumed tohave a capacity of violating the penallaw” (Art. 40.3.a). The commentary onRule 4.1 of the Beijing Rules declaresa principle that “the beginning of thatage shall not be fixed at too low agelevel, bearing in mind the facts ofemotional, mental and intellectualmaturity”.

Despite such flexibility, the age ofcriminal responsibility has been aconsistent source of criticism by theCommittee on the Rights of the Child(hereafter “the Committee”). In itsConcluding Observations on Statereports, it has repeatedly referred tothe desirability of setting the highestpossible minimum age. Countrieswhere this limit is set at 10 years orbelow have been subject to particularscrutiny.

Nepal has been criticized in thisconcern. In Nepal, as it is provided

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by Section 11 of the Children Act,1992, (see Annex A) the age of criminalresponsibility is 10 year. In itsSummary Report of 1996, theCommittee on the Rights of the Childfound it “inconceivable that a 10-year-old child could be deprived of his orher liberty”.25 The Act, however, doesprovide for mitigation of punishmentin accordance with a child’s age, hencechildren aged between 10 and 14 facelesser punishments than young peopleaged 14 to 16.26

In Nepal, the problem of age inconnection with child’s responsibilityto his/her delinquent act is seriouslyproblematic. The practice of doublestandards maintained by the system ofjustice is obvious. This is most clearlyseen in the criminal law and civil lawsystems. Under the civil law justicesystem, no child below 16 year of ageis considered as a person having legalliability to his his/her transactions.For instance, no child below 16 yearage can enter into a contract and incurcontractual obligation therefrom. Thesimilar protection in the criminal lawsystem is, however, not available to achild who is below 16 year of age. Inthe criminal justice system, the age ofpenal majority is fixed at lower agecompared to that in civil justicesystem. Section 2(a) of the ChildrenAct, for instance, defines a juvenile asa child who has not attained the ageof sixteen years. This can becontrasted to the position under civillaw. For instance, Section 3 of theContract Act, 2056, provides that noindividual is capable to enter into acontract who have not completed the

age of sixteen years. The Begging(Prohibition) Act, 1962, NepalCitizenship Act, 2007, HotelManagement and Liquor (Sales andDistribution) Control Act, 1966,Insurance Act, 1993, Evidence Act,1974 and Post Office Saving BankRegulation, 1976, all consider personsbelow 16 year a child. According toClause 1 of the Section on Rape of theMuluki Ain, no person can have sexualintercourse with a girl below 16 years,regardless of her consent. In contraryto these provisions, the Labour Act,1992, however, puts the age limit of achild at 14 years. In the Small PoxControl Act, 1963, this limit islowered further and a person below12 is defined to be a child. Clause 2 ofthe Section on Marriage of the MulukiAin provides that the age of the girland boy must be twenty year of ageto consummate the marriage.

A higher age limit is found establishedunder the Civil Service Regulations asit has stipulated that a person must beat least 18 years old to seekgovernment employment. Forrecruitment in the Army, a person hasto be at least 18 years old. The YoungBoys (Recruitment and Conditions ofServices) Rules, 1971, says that youngboys must be between 15 and 18 yearsold to be recruited. The PoliceRegulations, 1992, require a person tobe above 18 years of age forrecruitment in the police force.

An analysis of the rationales behindsuch provisions is outside the scope ofthis paper. However, the briefdiscourse reveals that ‘there is no fixed

25 . See at CRC/C/SR.302: para. 3626 . Section 11 (2) and (3), Children’s Act, 1992

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standard applied to consider a persona juvenile’. The different jurisdictionsare allowed by the law to treat ‘a child’differently. A simple unansweredquestion looming large is that ‘if aperson cannot take civil liability below16 year of age what it is the rationalebehind that makes the law maker tothink it fit that a child below 16 yearcan take the criminal liability’?Seemingly, the Nepalese criminal lawsystem fails to seriously consider thespirit of the CRC in regard withjuvenile justice. In it a child is definedas any individual who has attained theage of eighteen year. The provision isreiterated in the three UN juvenilejustice instruments, i.e. the BeijingRules, the Riyadh Guidelines, and theUnited Nations Rules for theProtection of Juveniles Deprived oftheir Liberty. The instruments use theterm “young person”, which includesthe terms “juveniles” and “children” upto the age of eighteen (as defined bythe CRC).

It is arguable that these limits shouldalso apply to the age of criminalliability. As outl ined in theCommentary to Rule 4.1 of theBeijing Rules, it is widely held thatthere is a close relationship betweenthe notion of responsibility fordelinquent or criminal behavior andother social rights and responsibilities(such as marital status, civil majority,etc.) Above all, as stated by theCommittee on the Rights of theChild, this standard should bereconsidered on the basis of objectiveand non-discriminatory criteria andshould be guided by the best interestsof the child.27 Whether this suggestion

is respected at present is a matter forscrutiny. The limits of juvenileresponsibility must also be examinedtogether with the treatment of youngpeople in conflict with the law, onboth sides of the boundary. At 8 yearsof age, the age of minimum criminalresponsibility in Scotland is among thelowest in the world. However, itshandling of juvenile cases has beenviewed as “progressive” because thechildren’s hearing system avoidscontact with the formal justice systemfor children who are under 16 year.As a contrast, in Romania, theminimum age is 14 year. A child ofthat age will be brought to court forthe same offence and possiblysentenced to detention as a result.Thus, the age at which criminalresponsibility is set may or may notreflect a repressive or rehabilitativeperspective on the part of theauthorities. In Nepal, there aredifferent categories of punishment forchildren found guilty of an offencethat correspond to their age. However,it is still the case that a child as youngas ten may be found guilty of anoffence, and be subject to treatmentunder the formal justice system. In thefollowing sections, we will examinethe nature of such treatment ofjuveniles within the formal justicesystem and try to find out how itaccords with the guiding principles ofjuvenile justice the safeguards thatexist.

d. Investigation

In Nepal, the State Cases Act, 1993,and State Cases Rules 2055, are majorstatutes to deal with the procedures

27 . RCRC (A/51/41) paras 1128, and 1136.

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about the crime investigation. Theyinclude procedures for submission ofthe first information report (FIR)about crimes and alleged offenders,the process of evidence collection,steps and jurisdictions to be followedfor the investigation and theprosecution of the crime and, to someextent, the process of adjudication—the trial of the case. The scope orjurisdiction of these statutes is,however, limited to the cases listed bythe Schedule One of the Act. Forjuvenile cases, the Children Act (fortext see Annex A) is a special law. Inthe absence of any specific provisionmade by the Children Act, the generallaw (the provisions of Muluki Ain andthe State Cases Act) will regulate theprocess of investigation, prosecutionand adjudication of the juvenile cases.

The State Cases Act (1993) authorizesevery individual to report about anoffence, which he/she has informedof, to the nearest police office. Uponinformation of any offence has takenplace or is likely to take place, theconcerned police officer has to visitthe place of crime and take actions topreserve the evidence. The policeofficer can arrest the suspect and applyall means or procedures to investigatethe crime as required by it. If thesuspect is juvenile the specialprocedures need to be applied.

The physical and psychologicalprotection of juveniles is mostimportant at this stage. Arguably, thearrest and immediate subsequent

actions, such as detention andinterrogation, constitute the stage ofinvestigation in which the juvenile maybecome the victim of ill-treatment,including physical or psychologicaltorture.28 As stated in the Commentaryto Rule 10 of the Beijing Rules, theperiod of initial contact with lawenforcement agencies is of greatimportance. It can profoundlyinfluence the juvenile’s attitudetowards the State and society, andmoreover, be instrumental indetermining the success of any furtherintervention. As such, compassion andkind firmness on the part of the lawenforcement officers are important inthese situations. However, this is notoften the case in Nepal. There areallegations by juveniles that they havebeen subjected to torture and otherforms of ill treatment immediatelyafter arrest.29 In this sensitive period,juveniles need a high standard ofprotection. Unfortunately, rights tothis protection are often denied as itis seen in frequent failures to ensurethe involvement of a juvenile’s legalrepresentative and guardians duringproceedings.

The legislative protection against themistreatment of juveniles duringinvestigation is adequately establishedin Nepal. The Interim Constitution,2007, like the 1990 Constitution,prohibits physical or mental tortureof a person who is detained for thepurpose of investigation, for trial orfor any other reason.30 The TortureCompensation Act, 1997, provides for

28 . ICDC, (1998) Juvenile Justice, Innocenti Digest 3, UNICEF International Child Development Centre, Florence:UNICEF, P. 8

29 . See “Street Children and Juvenile Justice in Nepal” : A Case Study (By Indra Lal Singh, Unicef). URL: WWW.Unicef-irc.org/portfolios/document/486_Nepal.htm

30 . Article 26 of the Interim Constitution, 2007

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compensation to the victims oftorture.31 The Children Act appliesthis provision more specifically to thecase of juveniles. It states that“notwithstanding anything mentionedin other laws in force, no child shallbe subjected to handcuffs and fetters,solitary confinement or put togetherin prison with the adult prisoners incase a child is convicted for anyoffence”.32

International provisions regarding theuse of instruments of restraints arecontained in the Standard MinimumRules for the Treatment of Prisoners.Rule 33 states that the instruments ofrestraints should never be applied as apunishment. It says that theinstruments of chains or irons shouldnot be used as restraints. The Ruleprescribes that the use of instrumentsof restraint should only be had onlyunder the prescribed circumstances33

and even then, no longer than strictlynecessary.34 The prohibition againstharm is found in the Beijing Rules. TheRule 10.3 enjoins the law enforcementagencies to “promote the well-being ofthe juvenile” and “avoid harm” to himor her. As stated in the Commentary,this should be broadly interpreted asdoing the least harm possible to thejuvenile in the first instance, as well asany additional or undue harm. As perRule 17.3 of the Beijing Rules,juveniles shall not be subject tocorporal punishment. Regardinginterrogation, pursuant to Principle

21.2 of the Body of Principles for theProtection of All Persons under AnyForm of Detention or Imprisonmentstates that during interrogation, nodetained person shall be subject toviolence, threats or methods ofinterrogation that impair theirjudgment or capacity to makedecisions. Under Principle 33 of thesame, review or remedy can be soughtfor such treatment.

However, the prevailing legislativemeasures do fully incorporate theserules or principles provided by theinternational laws mentioned above.While the practice of torture issignificantly reduced over the last someyears, there are reports that thepractice is not fully abolished. Thepractice of handcuffing is still in use.This has been a matter of concern forthe Committee on the Rights of theChild, particularly in regard tomentally ill children, a practicepermitted by provisions in the MulukiAin.35

The Supreme Court has condemnedthe practice of handcuffing asimmoral, and had issued an orderthrough a writ of mandamus removethe practice of handcuffing thejuveniles.36 Surprisingly enough,however, the Supreme Court, againstthe spirit of the law and the earlierruling, a judge of the Supreme Courtrefused to remove the handcuffs of ajuvenile who was produced before the

31 . Section 4 of the Torture Compensation Act, 199732 . Section 15, Children Act, 199233 . Standard Minimum Rules for the Treatment of Prisoners, Rule 33 a-c34 . Ibid, Rule 3435 . CRC/C/15/Add.57: para. 2436 . Balkrishna Mainali v. Ministry of Home Affairs and Others, writ No 3505 of the Year 2056, dated 2058.4.23

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bench with handcuffs for hearing ofhis writ petition of habeas corpus. Thelawyer’s plea for the removal of thehandcuff was dismissed by the bench.The bench asked a question to lawyer‘who would be responsible if thejuvenile runs away’? 37

The Committee has expressed concernthat Nepal, with regard to preventionof torture, has not complied with theprovision set forth by Article 37 (a)of the Convention.38 Further, theCommittee has pointed out that thesentences laid down for thepunishment in acts of torture by lawenforcement officers are lackingseverity and hence has encouraged theauthorities to make such sentencesharsher while bearing in mind theprovision of Article 37 (a) of theConvention.39 The then Governmentof Nepal (HMG) had accepted thecomment of the Committee about thelegislative failing on this point. In1996, it admitted before theCommittee that the bill to compensatepersons who suffered torture did notrefer expressly to cruel, inhuman ordegrading treatment and so did notfully comply with the Convention. Italso stated that it would take dueaccount of the Committee’s view thatthe provision of one-year term ofimprisonment for persons who hadtortured a child or an adult wasinadequate.40

Protection against abuse of power canbe secured by measures for supervisionof the investigation. The legislativemeasure exists in this regard. The StateCases Act, for instance, states that theinterrogating officer has to takedeposition of the suspect in thepresence of the public prosecutor/government attorney. Furthermore,Clause 24 of the Muluki Ain’s Sectionof the chapter on Court Procedureprescribed that the deposition of anindividual, who has not attained theage of sixteen years, must be taken inthe presence of a guardian. Thisprovision is in accord withinternational emphasis on theinvolvement of parents and guardiansin the justice process for juveniles.41 However, this provision is kept flexiblein the case of suspects of murder, theftand rape. In these cases, the guardianis asked to be present, only if he/sheavailable.

In Nepal, the police office can detaina suspect for investigation, withoutremand of the judicial authority, foronly 24 hours. However, thedetention period can be extended if itis considered necessary to detain thesuspect by order of the court havingjurisdiction to try the case. Themaximum period extension fixed bythe State Cases Act is 25 days. TheNarcotic Drugs (Control) Act, 2033(1973), however, permits extension ofthe period for 90 days.

37 . The Bench was presided over by the senior most judge Hari Prasad Sharam, who retired after becoming the ChiefJustice. The story of juvenile unfriendly treatment of the presiding judge was published by an English Daily,namely the Kathmandu Post. For detail see, “The Kathmandu Post”, March 7th, 2002

38 . CRC/C/15/Add.57: para. 2439 . CRC/C/SR.302: para. 3740 . CRC/C/SR.302: para. 4841 . See CRC Article 40.2. It states that juveniles should be informed promptly and directly of the charges against

them, and, if appropriate, through their parents or legal guardians.

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The concern for speedy investigationor pre-trial process derives from thewidely held belief that the deprivationof liberty should be used only as a lastresort, and then only for theminimum possible period. Hence, thestipulation of Rule 13.1 of the BeijingRules that “detention in pending trialshall be used only as a measure of lastresort and for the shortest possibleperiod of time.” Furthermore, asprovided by Rule 13.2, wheneverpossible, “detention in pending trialshall be replaced by alternativemeasures, such as close supervision,intensive care or placement with afamily or in an educational setting orhome.” Juveniles in pre-trial detentioncan face a danger of “criminalcontamination”, and as such,alternative measures should be soughtto best ensure their well being. Thisissue requires critical discourse inNepal. The findings of the empiricaldata below will show that children areincarcerated for a longer period in trialhence exposed to a situation to developthem as ‘hardened criminals’ byassociation with adult offenders.

The separation of children from adultsin detention is one of the mostimportant requirements of thejuvenile justice system. It is a basic andlong-standing principle of the criminaljustice either. It has two foldobjectives: to protect children fromexploitation, abuse and negativeinfluences by adults; and, to ensurethat the detention of children has not

affected facilities that cater to theirspecial needs.42 It is a principlearticulated in numerous internationalinstruments as well. Article 10 of theICCPR, for instance, states: “Accusedjuvenile persons shall be separatedfrom adults and brought as speedilyas possible for adjudication”43 andfurthermore, “…be accordedtreatment appropriate to their age andlegal status.”44 Rule 13.4 of the BeijingRules also states that “Juveniles underdetention in pending trial shall be keptseparate from adults and shall bedetained in a separate institution or ina separate part of an institution alsoholding adults.”45

e. Prosecution

The final prosecuting authority forstate cases in Nepal lies on theAttorney General. Article 135 theInterim Constitution of Nepal, 2007,has vested the Attorney General withthe authority to make the final decisionas to whether or not to initiateproceedings of any case on behalf ofthe Government. The AttorneyGeneral’s power of prosecution inpractice is delegated to the districtgovernment attorneys. After receiptof the detail report of theinvestigation, including documentsand evidences compiled in course ofinvestigation, the governmentattorneys study the cases files anddecide whether to prosecute or not.In practice, however, almost everycase is prosecuted. While there is a

42 . ICDC, (1998) Juvenile Justice, Innocenti Digest 3, UNICEF International Child Development Centre, Florence:UNICEF, P. 13

43 . Article 10.2.b44 . Article 10.345 . Also See, Standard Minimum Rules for the Treatment of Prisoners 85 (2)

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provision empowering them tofurther investigate and submitadditional evidence, the practice ofdoing so is negligible.46

The prosecution is independentlycarried out by the governmentattorney. The police investigatingofficer has no ‘say’ in prosecution.The prosecution takes place in theform of charge sheet, which containsa detail description of the fact (s) ofthe case along with explanation of thecircumstances of the crime and theevidence collected and the accusationas well as the sentence sought toimpose on the suspect. No specialprovision of prosecution is availablein Nepal for the juvenile accused. Theonly element that makes a prosecutiondifferent for juvenile accused is thatthe government attorney invokesapplication of Section 11 of theChildren Act which requiresreduction of the sentence to juvenileby half.

f. Trial Procedures

The trial follows the same proceduresas applicable to the case of an adultaccused. A juvenile is accusedpresented in the court along with thecharge sheet as usual, i.e. as in the caseof adult accused. The only differenceis that the juvenile cases tried by abench earmarked as juvenile benchthat consists of a social worker, apsychologist, and a child right expertin addition to the judge.

As a general rule, the trial process in

all courts of Nepal is open andaccessible to public as required by theprinciple of public hearing. Theprocess of juvenile bench, however, isconducted in closed camera. It isaccessible only to the parents, relativesor friends of the juvenile, his/herlawyers, and the governmentattorney. The name of the juvenile iskept undisclosed to the public. Thejuvenile judge may also allow presencein the court of persons or therepresentatives of a social organizationinvolved in safeguarding the rights andinterests of the child to observe theproceedings in the bench.47

Unfortunately, in practice, most ofthe courts are open during the hearingof juvenile cases. This is regrettable. Ifproperly implemented, the aboveprovisions could help to put a child atease and facilitate their fullparticipation in the process. Suchmeasures are also important for theprotection of the child’s right toprivacy, something guaranteed by interalia, Article 40.2.vii of the CRC andRule 8 of the Beijing Rules. Theinterests of the juvenile as well as justiceare important in determining howopen proceedings may be and how thejudgment may be published.48

Juveniles are young people particularlysusceptible to stigmatization. Thecriminological researches on labelingprocesses have shown numerousdetrimental effects that can result fromthe identification of young persons’“delinquent” or “criminal” characters.For this reason, it is important toensure protection against the adverse

46 . Section 17.3 of the State Cases Act, 199347 . Section 49, Ibid48 . See Article 14.1 of the International Covenant on Civil and Political Rights, 1966

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effects of publicity and uphold theinterests of the individual.49

In Nepal, under the Defamation Act,1959, parents and guardians maysubmit a complaint for remedy againstany harm caused by anybody to thereputation of the child. The concernto protect juveniles has beenrecognized by the Code of Conductformulated by the Nepal Journalists’Association and the Nepal PressCouncil which prohibits mediapersons from revealing the names ofjuveniles facing trial, rape victims andthose children who are in difficultcircumstances. However, this has notbeen a practice often. As observed byGovernment of Nepal in its report tothe Committee in 1995, identities ofchild offenders, rape victims,prostitutes and HIV-positive childrencontinue to be disclosed by the media.Even the State-owned Rising Nepal andGorkhapatra dailies have disclosed theidentities of child rape victims andwomen who have tested HIV-positive.Photographs of AIDS patients havealso been published in the privatepress.50

The accused produced along with thecharge sheet must give his/herdeposition to the court. Whilerecording the disposition takes placein the court, the government attorneyand the defense lawyer are presentalong with the judge. However, noneof them is allowed to ask questions andcross-examine the accused. This samepractice is followed in the juvenile

bench without any reason. Article 40(2) (iv) of the CRC protects the rightnot to be compelled to give testimonyor confess guilt.51 However, no suchpractice is enhanced or protected inNepal. Nepal follows a system of‘staggering trial’, which continues fora long time. The practice of continuestrial does not exist, which often placesjuveniles in a state of vulnerability.

g. The Juvenile Court

The above-mentioned generalprocedure is applicable to all personsincluding juveniles. However, in thecase of a juvenile, the court should firstdecide whether the case is to be triedby the juvenile bench or an ordinarybench. The trail begins accordingly.If the accused is found to be a juvenile,the case is referred to the juvenilebench. If there are more than oneaccused of the same offence, and oneor more of the accused have reachedthe age of majority, the case will betried by an ordinary bench of thedistrict court.52 Seemingly, theprovision is irrational as in such asituation juveniles are deprived of theprocedural safeguards provided tothem by the domestic as well asinternational laws.

After the motion for record ofdeposition of the suspect is completed,the court starts a ‘motion forbailment’, i.e., whether the suspectshould be released on bail or be keptin judicial custody. In general, if aperson is accused of crime that is

49 . Beijing Rules, Rule 8 and the Commentary50 . CRC/C/3/Add.34: para. 14351 . Also see, Article 14.3.g. of the ICCPR52 . Proviso to section 55(2) of the Children’s Act

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punishable with imprisonment ofmore than three years and the evidencecollected shows prima facie that theaccused has committed the crime,they will be sent to jails for the judicialcustody until the final decision of thecase takes place.53 The arguments ofthe lawyers precede the decision onbailment. However, the period of thejudicial custody in any case should notexceed the total term of thepunishment.54

However, this procedure is notrigorously followed in practice.Rajkumar, for instance, was chargedfor a crime of assisting murder. Hisage was a juvenile of 14 years. He saidhe was 12 year old when he wasbrought to the court. In the bailmentmotion, the district court held thatRajkumar was liable for half of thepunishment of an adult and asked himto furnish a deposit of Rs.15, 000 asbail bond. For failure to pay thedeposit he was sent to prison. Thedistrict court did not pay attentionto the age that was given by theaccused himself. In a writ of habeascorpus,55 the Supreme Court foundthat the actual age of the child wastwelve years. As per the Children Act,he was liable for imprisonment of notmore than six months. At the time ofthe hearing, the child had alreadyserved this maximum limit ofimprisonment. This type of practiceand insensitivity at the stage of thebailment hearing goes against thereformative approach and ignoresprovisions permitting a child to be

sent to a reform home instead ofprison.

The Children Act has made specialprovision to safeguard the interestsand rights of every juvenile in thebailment motion regardingrepresentation of their case. As perSection 19, the court should notproceed with or entertain, or decide acriminal charge against a juvenile unlessthere is a legal practitioner to defendhim/her. The same section furtherdirects to provide a legal practitionerif the juvenile has no lawyer of his/her own. The right to legal assistanceat all stages of the proceedings is mademandatory by Article 14.3.b and d ofthe ICCPR, Principles 11, 17 and 18of the Body of Principles for theProtection of All Persons under AnyForm of Detention or Imprisonment,Rule 93 of the Standard MinimumRules for the Treatment of Prisoners,Article 40.2.ii and iii of the CRC, andRule 15 of the Beijing Rules.

Regarding the custody of the juveniles,Section 42(2)(a) & (b) of the ChildrenAct states categorically that where achild is to be imprisoned according tothe existing law they shall be kept in aJuvenile Reform Home. Theseprovisions guarantee that a juvenilewill not be kept in prison or custodyat any stage of the criminalproceedings. In practice, however, thejuveniles are kept in police custody orjails indiscriminately. Duringinvestigation they are never sent to theJuvenile Reform Home.

53 . See, Clause 118 of the Muluki Ain in Court Management Section54 . See, Clause 119, Ibid55 . Supreme Court Writ NO.25 0f 2058, decided on 2058-10-2

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A. Size of juvenile populationin conflict with the laws

As stated in the background part ofthis report, no concept of JuvenileJustice existed in Nepal before theChildren Act 1992 was introduced.This Act was passed by the House ofRepresentatives (the then parliament)as a specific law to give effect to theChild Rights Convention, 1989,which Nepal ratified in 1990 as one ofthe signatories. Though a Clause of theMuluki Ain, in its Section onPunishment, has a provision forreduction of the sentence forchildren56, the practice of treating thejuveniles in the criminal proceedingsnot as adults did not exist at all. As amatter of fact, the following practiceswere usual in Nepal:

a. Juveniles alleged of committingdelinquencies were arrested, hand-cuffed, detained, and imprisonedusually in an exactly similar wayas adults;

b. They were placed in detentioncells and prison with adultsindiscriminately;

c. They were tried in criminal courtsopenly; and

d. They were incarcerated in jails toserve the sentences irrespective of

6. Analysis of Data and Encapsulationof Major Findings

6.1. PART ONE: SOCIO-ECONOMIC CHARACTERS OF THEJUVENILES FACING THE CRIMINAL CHARGES

56 . As per Clause 11 of the Muluki Ain’s Section on Punishment, the children convicted of a criminal charge wouldbe sentenced half of the punishment given to adults in the same crime.

psychological impacts it wouldcast on their personality.

The Children Act, 1992, as mentionedin this report under heading of“Legislative Administrative andJudicial Measures” introducedmeasures to prohibit such practices. Itmade provisions for the establishmentof a juvenile court, as well asintroduced a practice, at least inprinciple, of trying children in conflictwith the criminal laws by a benchcomprising of a judge, a social worker,a child psychologist and a child rightexpert. However, the followingconstraints posed hindrances in theeffective implementation of the Act:

a. No police office in any districthad a separate space or detentioncell for exclusive custody of thechildren;

b. No district had budget to set up aseparate juvenile court or juvenilebench;

c. The sensitivity of the actors of thecriminal justice system to accusedwas poor, hence the facilities orrights guaranteed by the ChildrenAct were simply ignored;

d. No child reform center torehabilitate juveniles accused wereavailable in Nepal, hence any

42



juvenile undergoing trial orserving the sentence was put withthe adult offenders in jailsindiscriminately.

The administration of justice in Nepalalso did not develop a practice ofmaintaining a ‘separate record system’of juvenile accused. The entry of therecords of the arrested or prosecuted,or convicted juveniles has not beenmade in a separate system of record.The traditional practice of registeringrecords of juvenile cases as well aspersonal details of juvenile accused orconvicts in a roster of adult accusedand convicts continues even after theChildren Act, 1992, has come intoforce. It is therefore extremelydifficult to locate juveniles and obtaininformation about their cases. Whilejuvenile cases are considered as civilcases, the disregard of this practice istaken normally.

In 2002, when an unprecedentedsurvey on juvenile justice wasconducted jointly by CeLRRd andKathmandu School of Law, it wasrevealed that the act of identifying orrecognizing a child in jail or policedetention cell was not an easier to do.The only possible way to locatechildren in jails was to physicallycontact the detained children andestablish their identity and situationby visiting jails and detention cells.This situation almost after a decadehas hardly changed. The governmenthardly has statistics on juveniles kept

in systematic way. Though the policedepartment has developed a system of‘maintaining the aggregated figure’ ofjuveniles, it is, however, not systematicand updated. To obtain anyinformation about the population ofjuvenile inmates and their trialsituation, one has to visit jails andinterview each and every juvenileincarcerated in jai ls scatterednationwide and the juvenile ReformHome at Sano Thimi at Bahktapur.

After that survey, many issues ofjuvenile justice, along with plights ofchildren in the prevailing criminaljustice system, came into the limelight.The poor state of the juvenile justicesystem then became able to attractattention of the civil society as well asthe state institutions, including thejudiciary. A few major achievementsresulted in that context can be outlinedas follows:

a. The Government of Nepalbrought a policy of establishing ajuvenile bench in all districtcourts;57

b. The Supreme Court proactivelyintervened in favor of theimplementation of the ChildrenAct by issuing an order for thedetention of juveniles form adultsand establishment of the ChildReform Homes in particular;58

c. A Child Reform Home was setup in Bhaktapur, in which thesome children detained in jails inmany part of the country were

57 . An order for this effect was made in …58 . In the case of Bablu Godia v. District Court of Nepalgunj and others, the Supreme Court of Nepal passed an order

to the respondents to place the juvenile in Child Reform Home. The Supreme Court in Keshav Khadka v. DistrictCourt Dhankuta and Pode Tamag v. HMG issued a mandamus to place juveniles in Reform Home and makenecessary arrangement for the establishment of a Reform Home. These judgments of the Court in these caseshave been attached in Annex G.

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Survey Report

shifted, although not all of them;d. The police offices in districts, at

least in principle, establishedjuvenile cell to investigate the casesof juveniles.

e. The Juvenile Justice CoordinationCommittee was established witha mandate of policy interventionsto improve the condition ofjuvenile justice system.

These achievements, althoughsuffering from a number of setbacks,have made some tangibleimprovements in the sector of juvenilejustice record system. Withappreciation of these achievements, thepresent survey has succeeded tocompile the following statistical detailsof the juveniles facing charges indifferent parts of the country.However, as indicated in themethodology part, the compilation ofthe information encountered anumber of problems. Some majorproblems were as follows:

a. The attitude of some actors ofjustice sector was not fullycooperative in matters ofproviding information or givingaccess to the information. Thisproblem hampered the study tosome extent. The collection ofinformation from all 45 targeteddistricts did not become possiblesimply because some concernedauthorities in police, district courtand jail declined to give access torequired information. Some policeofficers decl ined to giveinformation on the ground thatthere is no policy to give suchinformation. Some judges werereluctant to cooperate with anexcuse that they were busy and

had no time for surveyors to speakwith. Many jail authoritiesdeclined to provide access tointerview juveniles. Further, thelack of space to privately visitinmates also seriously hinderedthe interview process.

b. The record system in all justicesector institutions is very poorlymaintained. No disaggregatedfigures are maintained. Hence, thesurveyors had to look all recordsto disaggregate the requiredinformation.

c. In some offices no concernedemployees were available toprovide information. Theavailable employees were notfound inclined to offer help.

As a matter of fact, the informationfrom some districts could not beobtained.

Based on the information collected bythe survey, the total number ofjuveniles facing the criminal charges inthree years period, from the F/Y 2063-64 to 2066-67, all over the country isfound 343. This figure includes 86juveniles staying at the JuvenileReform Home at Sano Thimi,Bhaktapur. To disaggregate the figure,238 juveniles are found charged withcriminal proceeding in the F/Y 2063-64 and 2064-65. The disaggregatedfigure of these two years is notavailable. Similarly, the number ofjuveniles facing the criminal charge inthe F/Y 2065-66 is 85. These twofigures together with 20 juvenilesunder investigation in the late part ofthe F/Y 2066 (238+85+20) constitutethe total figure of juveniles facing thecriminal charges since F/Y 2063/64.

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The above table presents the followinginformation on current size of thepopulation of juveniles facing criminallegal actions:

a. In 13 out of 45 districts physicallysurveyed or observed, thesurveyors found 20 juveniles inpolice detention cells. In otherdistricts observed, no juvenileswere found detained by policeduring the time of survey. Thesurveyors had opportunity topersonally interview thesejuveniles. The total number ofjuveniles interviewed in the policedetention (in 13 districts) is20. Hence, the informationobtained from these 20 juvenilesis used to ‘generalize the situationof juveniles’ in the policedetention.

b. The records about juveniles from30 remote hill districts areobtained from respectivedistrict courts throughthe assistance and coordination ofthe Supreme Court of Nepal. Inthese 30 districts, 9 districts arefound having juveniles facingcriminal charges. In these 9

districts, there are 14 juvenilesundergoing trial or serving thesentences.

c. According to statistics madeavailable by the Nepal PoliceHeadquarters on the populationof juveniles, the total 238 juvenilesare facing criminal charges in theperiod of two fiscal years 2063-64and 2064-65.

d. The total number of the juvenilesfacing the criminal charges in theF/Y 2065-66 is 85.

The figures stated above show a trendof increase in the number of thejuveniles involved in delinquentbehaviors. The number iscomparatively huge than that of the1990s. It implies that the problem ofjuvenile delinquency is consistentlyincreasing demanding an increasedattention of the Government as wellas the judiciary to curb it properly.The growth of the size of juvenilesinvolved in violation of the criminallaws in lack of a proper system ofcurbing it will pose a threat ofincreased recidivism as increasingnumber of juveniles are exposed to the

DistrictsCourtstargeted

physicallyand collectinformation

Districtswhere

Juvenileswere

found inPolice

Detention

Number ofJuvenilesfound inpolice

detentionduring the

survey timein 2066

As per policerecord,

Juveniles facingcriminal chargesnationwide in aperiod of twoyears (2063-

2065)

As per policerecord,

Juveniles facingcriminalcharges

nationwide inthe FY 2065-

2066

Number ofDistricts of

which recordsobtained through

help of theSupreme Court

for the years2063-2066

Number ofJuvenilesin Trial in

30 districtsnot

physicallyobserved

45 13 20 238 85 30 14

Table 1: Statistical details of juveniles facing charges of conflict with criminal laws

59. This figure is not included in the police record of three years (2063 to 2066)60 . This figure is included in police record of three years (2063 to 2066)

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Survey Report

association of adult offenders in jailsand police detention cells.

B. Population of juveniles inthe Juvenile Reform Home

As it has already been mentioned,there is only one Child Reform Homein Nepal so far. While theGovernment of Nepal (Ministry ofWomen, Children and Social Welfare)has adopted a policy of encouragingcivil society (NGOs and PrivateSectors) to establish Child ReformHomes in some districts, the currentlyavailable only Reform Home islocated in Sano Thimi, Bhaktapur. Noother Juvenile Reform Home isavailable in any part of the country.The pressure for this Reform Home

to accommodate juveniles from allparts of the country is obviously big.

The visit of this Reform Home by thesurveyors has revealed the followinginformation;

a. Currently, total 86 juveniles areaccommodated by this ReformHome, whereas the total capacityis only 70 persons.

b. In F/Y 2066-67, total 87 juvenilesreferred by courts, CDO andother institutions for placementwere sent back due to lack ofcapacity to accommodate anyonethan the existing ones; and

c. The above situation implies thatthese 87 juveniles are returned tothe jails.

Total JuvenilesFacing criminal

charge 343(FY 2063 to 2066)

1. Rape 23 9 322. Murder 12 15 273. Robbery 3 1 44. Attempt to murder 1 1 25. Trafficking in persons - 3 36. Theft 3 8 117. Rhino Poaching - 1 18. Arms/Ammunition 1 - 19. Attempt to Rape 1 - 110. Narcotic drugs - 4

Total 44 42 86

Current Situation

Convicted Under Trial

Table 2: Distribution of juveniles staying Juvenile Home by criminal charges imposed

S.no. Criminal charge Total number

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Distribution of Juveniles by stage of trial

The distribution of juveniles atReform Home by criminal chargespresents the following scenario:

As presented by the Table 2, thecrimes of rape and murder are seen asthe most frequently committed crimesby juveniles. Obviously,comparatively larger number ofjuveniles undergoing trial and servingsentences is associated with the crimeof rape and murder which subjectssuch juveniles to a bigger term ofimprisonment provided that thecharges are sustained by the courts.The cause for why such a greaternumber juveniles is involved in suchhigh-sentencing crimes requires anindependent in-depth socio-psychological study.

C. Population of juveniles inprisons

The foregone discourse hasabundantly presented that Nepal hashad a popular practice of detainingjuveniles in jails with adultsindiscriminately. The previous surveyjointly conducted by CeLRRd andKathmandu School of Law, intechnical and financial assistance of theDanish Institute of Human Rights(DIHR), in 2002, had revealed ashocking state of detention of juvenilesin jails. They were indiscriminatelyincarcerated in jails together withadults, and had been deprived of eventhe basic minimum facilities thechildren of Nepal under the ChildrenAct, 1992, are entitled for. As inspiredby the survey, a number of writpetitions of Habeas Corpus andmandamus were thus brought forconsideration of the Supreme Court.The findings of the survey, togetherwith the interventions of the SupremeCourt through the said writ petitions,had impacted positively indevelopment of the juvenile justicesystem of Nepal. The impact can beseen in the following achievements:

a. In Bablu Godia vs. HMG, theSupreme Court passed a verdictagainst the Banke District Courtand the Government of Nepal forincarcerating the child (BabluGodia) indiscriminately in jail(Banke Prison) together with adultoffenders. The verdict thendirected the Government toimmediately transfer thepetitioner to a Child ReformHome. Accordingly, he wasremoved from the jail , butunfortunately he, instead of beingplaced in Reform Home, was

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Survey Report

detained in a further difficultdetention cell. A fresh writpetition of Habeas Corpus wasthen filed at the Supreme Court.The Supreme Court, with astricture to the Government,made an order to place thejuvenile detainee in a ReformHome, and if such home does notexist, make the arrangement ofone immediately.

b. Due to this proactive interventionof the Supreme Court, theGovernment in a partnership withan INGO (USEP) established aJuvenile Reform Home at SanoThimi, Bhaktapur, and hence anumber of children servingsentences in different prisons hadbeen shifted to this Reform Home.

c. The Government also establishedtwo important institutions, namelythe Juvenile Justice CoordinationCommittee and Central andDistrict Child Welfare Boardwhich is responsible to implementprograms to strengthen thestandard of the juvenile justice andthereby protect the rights ofchildren. Accordingly, juvenilebenches have been, at least inprinciple, established in all 75districts. Moreover, the JuvenileJustice (Procedures) Regulation,

2006, has been enacted and hascome into force, at least inprinciple.

Notwithstanding these positivedevelopments, a number of juveniles,mainly due to the lacking of adequateJuvenile Reform Homes, are forced tolanguish in jails with totally childunfriendly and psychologicallydisruptive atmosphere. In thisconnection, the present survey revealsthe following unwanted situations:

a. The only one Juvenile ReformHome at Bhaktapur has capacityof accommodating only 70children at a time. However, manymore children have been placed atthe center beyond its capacity.Currently, there are 86 childrenliving in the center.

b. From different district courts, theChief District Offices, the policeoffices and the offices likeConservation Parks and Forests,a number of children are referredto the center. The number ofreferred children is quite huge ascompared to its accommodationcapacity. Hence, many childrenreferred to such institutions aresent back to be incarcerated in thejails. The following table willplainly explain the situation:

1. 2062-63 58 51

2. 2063-64 110 102

3. 2064-65 128 107

4. 2065-66 88 92

5. 2066-67 86 87

Table 3: Accommodation scenario of the Juvenile Reform Home at Sano Thimi, Bhaktapur

S.no. Fiscal Year RemarksNumberAccommodated

Number NotAccommodated

Some children in the column“Not accommodated” are nowacquitted and some of themare formally transferred to jailsfor their attainment of the ageof 16 during the trial.

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Some important trends are visiblefrom these figures. They are:

a. The sensitivity of the criminaljustice actors to refrain fromsending children to jails seems tohave been increased. This isevident from increasing numberof juveniles being referred to theReform Home. The increasedfigure of the children referred tothe Reform Home presents apositive trend in sensitivity of thejudges to the children rights.

b. However, the sensitivity of theGovernment policy makers seemsdiscouraging. The failure of theGovernment to establish adequateReform Homes, despite theavowed goal of establishingReform Homes in each regionunder the 9 th Five YearDevelopment Plan, is anindicative of this discouraging

state of sensitivity.

c. Most importantly, the abovefigures confirm that morejuveniles are still being languishedin jails. This fact implies a statethat the Government policymakers as well as the actors of thejustice system are still not seriousenough for proper and adequateimplementation of the CRC andthe Children Act.

The following information extractedby the survey will abundantlycorroborate the statement that theGovernment of Nepal has failed toproperly and adequately enforce theCRC and the Children Act, 1992, forthe best interest of the children:

a. The incidents of children comingto the state of conflicts with thecriminal laws are increasing,whereas the institutional

Number of Juveniles at Reform Home at Sano Thimi

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Survey Report

mechanisms to reform them arefar from being adequate. TheGovernment’s activism, in thefield of juvenile justice, at leastat field level, is less realistic andless meaningful. The fact thatmore children are still endingup at jails for trial and sentencespresents a discouraging state ofdevelopment and Nepal’sfailure of internationalcommitment to protect therights of children by ensuringa ‘fair and adequate juvenilejustice system’.

b. While exact or aggregatedfigure of juveniles in jails is notavailable in any institution, theavailable disaggregated figuresabundantly provide a basis forestimation that the number ofchildren in jails exceeds thenumber of children in ReformHome at Sano Thimi,Bhaktapur. This assertion issubstantiated by the figuresmentioned below.

c. The report made available bythe Crime Investigation Departof Police Headquarter coveringthe period of two years (F/Y2063-64, 2064-65) presents afigure of 238 juveniles currentlyundergoing trail or serving thesentences. The report of the F/Y 2065-66 presents a figure of85 juveniles. Assuming thatthose juveniles are undergoingtrial or have been convicted, thenumber of juveniles isseemingly quite bigger to thatnumber which is currentlyaccommodated by the ReformHome.

d. From the report made availableby 30 hill-remote districtsthrough Supreme Court, 14juveniles are facing criminalcharges. This figure implies thatthose 14 juveniles are eitherundergoing trial or serving thesentences. These children are,therefore, not included withinthe figure that is accommodatedat present by the Child ReformHome at Sano Thimi.

e. The present survey team hadlocated 59 juveniles in prisonsin 22 out of 45 districtssurveyed. 3 out of 59 childrencould not know the districtthey were from. These childrenwere personally interviewed bysurveyors. However, thenumber of juveniles is notexhaustive as some prisonadministrations were notcooperative to discloseinformation. Moreover, due tothe lack of systematicinformation or record system,it was not possible forsurveyors to exhaustivelylocate the children in prisons.To compare with theaggregated figure provided bythe police (238), the estimatednumber of the juveniles in theprisons at present is at leastdouble in the size of thoseinterviewed by the surveyors.

f. In view of all the disaggregatedfigures discussed above, thefollowing statisticalinformation or findings can beextracted:

50



Some inferences possible to draw upfrom these statistics are as follows:

a. Minus 86 juveniles accommodatedin Juvenile Reform Home at SanoThimi, the estimated figure of

juvenile being jailed consists of237 juveniles.

b. Even assuming that some juvenileshave been acquitted by the courtsin the period of three years, the

Table 4: Projection of estimated figures of Juveniles in jails, reform home and police detention

Total AggregatedFigures Provided

by PoliceHeadquarters forTwo Years (F/Y

2063-4 and 2064-5)

Total AggregatedFigure Provided

by PoliceHeadquarters for

F/Y 2065-66

TotalAggregated

figure of Threeyears

(2063-66)

Juvenilesfound in Police

CustodyDuring Survey

in 2066

Total Juvenile inChild Reform

Home at SanoThimi

PossibleNumber of

Juveniles inJails

238 85 323 (238+85) 20 86 237 ( 323-86) Male Female 74 11

Table 5: Total estimated figure of jailed juveniles

Total number of Juvenilesin police detention for

investigation(Not prosecuted in 2066)

Total Number of Juvenilesat Juvenile Reform Home

(2066-2067)Possible Number of

Juveniles in Jails (2066-2067)

20 86 237

Total Number of Juveniles facing criminal charges

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Survey Report

figure of children beinglanguished in jails is comparativelybigger to those in the ChildReform Home at Sano Thimi.

The Nepalese jails have a practice oftransferring juveniles into the recordof adults once they reach the age of 16years while waiting for the judgment.The record of juveniles is thus atemporary phenomenon in Nepal. Anumber of juveniles disappear in therecord of the jails due to the operationof law. Hence, it may not be possibleto find the exact number of juvenilesin jails due to this erroneous systemof record. Nevertheless, it is anestablished fact that there were 323juveniles detained for the charges ofcrimes in three fiscal years, i.e. 2063-64, 2064-65 and 2065-66. There wereat least 20 cases identified during thetime of survey by the end of the year2066. Hence, it is safe to concludethat, from fiscal year 2063 to up tonow, there are 343 (323+20) juvenileswho have happened to fall in trap ofthe criminal charges.

D. Distribution of juveniles bycriminal charges imposedon

As briefly touched upon before, thecrimes of theft, rape and murdercollectively constitute the largestproportion of cases the juveniles arecharged against. Since there are noindependent comprehensive studiesavailable to show the factors orreasons as to why more juveniles arebeing indulged in such crimes, thescenario itself demands that there is anurgency of an in-depth andcomprehensive socio-psychologicalanalysis of ‘the current trends’ of

juvenile delinquencies. The presentsurvey shows that there is a consistentrise of cases. The urgency of such astudy is not only academicallyimportant but also indispensable tohelp framing proper policies to curbthe situation pragmatically.

The table 6 will present a comparativeanalysis of the sectors of crimes thejuveniles are increasingly involved in:

The statistics in the above table givean enormous insight about the stateof juvenile delinquency in Nepal.These statistics help to infer thefollowing trends:

a. The crime of theft constitutes themost frequently committeddelinquency by juveniles. Thehigh frequency of the crime ofthefts suggests that the factors likepoverty or teenagers’ quest for so-called fanciful lifestyle may beplaying the crucial role indragging increasingly largernumber of juveniles into deviantbehaviors. In a country where 31%people are forced to survive belowthe bottom line of poverty, it maynot be unusual to find poverty asthe ‘major driving force behindjuveniles becoming easy prey tothe deviant behaviors’.

b. The high figure of juveniles’involvement in sexual crimes likerape put anyone in a strangesituation. The figure looksincredible if is considered fromthe point of view of age. Thissituation may be an indication ofrapid breakdown of theconventional sex values or taboosof the society. The situation alsoindicates to deterioration of theinformal societal control system.

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Table 6: Distribution of Juveniles by types of crimes in the Fiscal Year 2063-64 and 2064-65

S.N. Number of Juveniles EngagedCrime Types

1. Crime Related with Possession or Use of Explosives 12. Attempt to Theft 13. Crimes against Essential Commodity Protection Law 14. Trafficking of Human Beings 25. Polygamy 26. Miscellany 27. Attempt to Murder 58. Arms and Ammunition Related Crimes 69. Robbery 610. Manslaughter ( Bhabitabya) 711. Narcotic Drugs ( Use, Possession, Supply and Transaction) 1912. Murder/Homicide 2813. Public Offences (Public Nuisance, Gangsterism and

Hooliganism, and similar crimes) 3014. Rape 4315. Theft ( including Shop Lifting) 85

Total 238

1. Rape 10 - 102. Theft ( including Shop Lifting) 12 - 123. Attempt to Murder 4 - 44. Public Offences (Public Nuisance, Gangsterism

and Hooliganism, and similar crimes) 13 4 175. Arms and Ammunition Related Crimes 8 - 86. Arson 1 - 17. Murder/Homicide 5 3 88. Narcotic Drugs ( Use, Possession, Supply

and Transaction) 7 1 89. Robbery 10 - 1010. Trafficking of Human Beings - 3 311. Manslaughter (Bhabitabya) 1 - 112. Money Counterfeiting 1 - 113. Kidnapping 2

Total 74 11 85

Table7: Distribution of juveniles by types of crimes and sex in the fiscal year 2065-66

TotalFemale JuvenilesMale JuvenilesCrime TypesS N

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Survey Report

The huge figure of rape casesimplies to a weaker state ofsecurity of girls as well asdegrading state of moraldeterrence on the part of boys.

c. The high figure of the crime ofmurder committed by thejuveniles indicates to a seriousbreakdown of deterrence tojuveniles. The argument iscorroborated by almost equallyhigh figure of the crime ofhooliganism and ‘gangsterism’ inpublic places like roads, schools,

etc. The negative impact ofextended socio-political transitionand high frequency of the eventsof street violence is thus obvious.The influence of violence andbreakdown of rules in the wakeof transition during and afterbloody conflict might have playeda crucial role in rise of indulgenceof teenagers in such crimes.

d. Involvement of the juveniles incrimes relating to arms and narcoticdrugs, on the other hand, indicatesto an exposure of juveniles to an

Distribution of Juveniles by Crime Types (FY 2063 to 2065)

54



emerging trend of organizedcrimes. This also implies to a factof decreasing ‘family control’ overthe juveniles.

e. The statistics also present amasculine character of the ‘regimeof juvenile delinquency’. Theproportion of participation ofmale and female juveniles indelinquency maintains a huge gap.It implies that the deviantbehavior in boys, compared to thegirls, is phenomenal. However,the involvement of femalejuveniles in category of humantrafficking cases makes peoplestunned.

The trends described aboverequire further study. The statisticspresent that the problem ofdelinquency possesses more than onedynamics, which need in-depthanalysis based on empirical data. Thepresent research could not do it dueto its limited objectives and otherlimitations.

E. Distribution of juvenilesfacing the criminal chargesby identification ofregional, social and ethnicorigin

The national aggregated data(238+85=323) provided by the PoliceDepartment cannot be distributedbased on regional, social and ethnicorigin of the juveniles. The departmentof police has not maintained data indisaggregated form showing regionalconnection, ethnicity and social originof the juveniles. The present surveyhas made attempts to ‘project thesituation of regional, ethnic and socialorigin connection of juveniles’ basedon their sample population’. Thesurvey has used three differentcategories of juveniles for interview.They were (a) 20 juvenile detaineesinterviewed in the police detentionfrom 13 districts; (b) 59 juvenileinmates interviewed in jails from 22districts; and (c) 40 juvenilesinterviewed from Juvenile ReformHome at Sano Thimi.

Total Number = 85(FY 2065/66)

Female,13%

Male,87%

Distribution of juveniles by types of crimes and sex in the fiscal year 2065-66

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Survey Report

For this purpose, the juveniles havebeen placed in four major categories:

a. Madhesi (regional identity)b. Dalit (caste or social identity)c. Janajati (ethnic identity)d. Khasa/ Brahmin (caste or social

identity)

The table below presents a‘comparative scenario of theinvolvement of these different groups’in juvenile delinquency:

The below sample statisticalinformation presents the followingtrends:

a. The majority of juveniles facingcriminal charges come from the

Table 8: Distribution of juvenile delinquents by regional, ethnic and social origin connection

Category

Respondents from police detention 1 1 9 9 20Respondents from jails 11 9 21 18 59Respondents from Juvenile Reform Home 3 8 21 8 40

Total 15 18 51 35 119

TotalKhasa/BrahminJanajatiDalitMadhesi

Distribution of Juveniles (based on 119) by region, ethnicity and social origin

Janajati community immediatelyfollowed by Khasa/Brahmin castor social origin group. Thesituation implies that the childrenfrom these two groups arecomparatively vulnerable in highdegree.

b. The degree of vulnerability seemscomparatively milder amongMadhesi children.

c. The Dalit cast or social group isin the lowest rank of vulnerabilityaccording to the figure. However,if we consider the figure from thenational population proportion(12%) of the dalit community, thefigure should be regarded asextremely vulnerable.

56



F. Distribution of juvenilesfacing criminal charges bysex ratio:

The analysis of the quantitativeinformation about sex participation ofjuveniles in delinquency is based onthe same three categories of samplerespondents, i.e. 20 juveniles frompolice detention, 59 respondents fromjails and 40 respondents in childreform home. The total sample size is119 juveniles.

presence of females in delinquency isnegligible. The reasons are notobvious. An independent socio-psychological study is thus seen urgentin this regard.

Nevertheless, a few assumptionssuggested for the further study can beoutlined as follows:

a. There may be a nexus between thedecade long conflict and ensuingdisplacement of the families.

Table 9: Sex ratio of juveniles facing criminal charges

Category TotalJuveniles in child reform homeJuveniles in JailsJuveniles in police custody

Male 18 57 36 111Female 2 2 4 8

Total 20 59 40 119

As mentioned earlier, the findings ofthe sample survey present a scenarioof the male juveniles’ predominantposition in involvement of juveniledelinquency. Comparatively, the

Traditionally, the girls remainunder the guardianship of somekind hence protecting themselvesfrom learning deviant behaviorsfrom peers.

Distribution of juveniles (based on 119) by sex

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Survey Report

b. The situation of boys is reverse.The conflict and violence mayhave served for boys as a sourceof learning deviant behaviors.Traditionally, the family or socialcontrol system over boys islenient or relaxed, which helpsboys to expose themselves to thenegative impacts of the transitionand develop pro-violencetendencies in a wake of thebreakdown of law and ordersituation.

c. The world of criminals isgenerally controlled by the malecriminals. Hence, thevulnerability of male childrencoming to the contact with malecriminals is greater.

d. Economic hardship at family maybe another crucial factor. In suchsituation, male children can easilymove out of home, and losetraditional family tie and controlin their behaviors.

The larger population of themigrating and street children,therefore, consists of boys. Thesituation is reverse in the case ofgirls. They feel that the outsideworld is unsafe for them. Hence,they rather look for some kindof protection. Migration is thusless phenomenal in their case.

e. These assumptions need an in-depth study. The present studycan suggest no concrete opinionsor arguments in regards with the

factors or causes making malechildren more vulnerable to theacts of delinquency.

G. Distribution of juvenilesfacing criminal charges byage:

In this part, juveniles have beencategorized into three groups, i.e. a)the children aged below 10 years; b)the children aged between 10 and 14years; and c) the children aged above14 and below 16 years. Thisclassification is based on section 11 ofChildren Act, 1992, which deals withthe age of criminal liability of thechildren.61 However, the juvenilesoften cross the age of 16 years in jailsor reform home while undergoingtrial or serving the sentence imposedon them. Such juveniles are also listedas juveniles in this research. Thedistribution of the juveniles for thispurpose is thus based on 119 childreninterviewed from three differentsectors described above.

The figures in the above table containsome important findings:

a. Reportedly, one of the childreninterviewed in police custody wasbelow ten years old. Under theprevailing law i.e. section 11(1) ofthe Children Act, no child agedbelow 10 years can be held liablefor any criminal act. The act ofarrest and detention of such a childis ostensibly illegal. Having a child

61 . No child aged below 10 years is criminally liable for any act committed by him/her. The children aged between10 and 14 years can be subjected to a sentence of imprisonment not exceeding six months as an except ion.Otherwise, they should be released by ‘some verbal warning’. The children aged above 14 years and below 16years are criminally liable to undergo half of the sentence for adults in a given crime.

58



aged below 10 years in the policedetention shows that the policeinvestigators have no adequatesensitivity towards rights andwelfare of child. Having a childbelow 10 years in the custody alsoimplies that the practice ofconfirming the true age of childat the time of arrest, or as soon asdetention starts, is lacking. Thisis a serious violation of theChildren Act, 1992. This kind oftendency in police investigatorsposes a hindrance to the desiredreform of the conventional notionof juvenile justice in Nepal.

b. The percentage of the childrenaged between 10 and 14 years inboth the police detention and jailsis significantly large. As perSection 11(2) of the Children Act,the category of this age groupchild cannot be sentenced formore than 6 months’imprisonment, even so in only inrare case. Unfortunately, 11 suchchildren were found in jails.Similarly, 8 such children werealso found in police custody.

c. Only 11 children below 14 yearswere found lucky to findplacement in the Juvenile Reform

Table 10: Juveniles in detention and Reform Home by distribution of age

Category TotalChildren inreform home

Juvenilesin Jails

Children inpolice custody

Aged below 10 years 1 - - 1

Aged between 10 and 14 years 8 11 11 30

Aged above 14 years and below 16 years 11 38 24 73

Above 16 while waiting trail - 10 5 15

Total 20 59 40 119

Distribution of Juveniles (based on 119) by age

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Survey Report

Home. This state presents a verynegative scenario about thesensitivity of the justice sectoractors towards rights of child.This poor state of sensitivitypresents that the state or criminaljustice actors are still not promptand committed to protect the bestinterest of children.

(a) Interestingly, 15 juveniles havecrossed the age of 16 while waitingfor final verdict of the case. Whilethere is a provision in the law todispose juvenile cases within 120days, the said provision has notbeen respected in large number ofjuvenile cases. The juveniles havegrown up adults while waiting thetrial.

These findings reveal a very poor stateof the juvenile justice system in Nepal.The looming insensitivity of the justicesector actors might have been a resultof the misperception discussed in thebackground part of this report.

H. Distribution of thejuveniles by information orknowledge about chargesimposed on them:

One of the features of the juvenilejustice system that differentiates itfrom the criminal justice is that

children in conflict with laws areassumed to have no ‘guilty mind’. Itmeans that juveniles do possess nomind of criminality or culpability.While they may be having knowledgeof possible consequence of their acts,they are not assumed to hold guiltyor criminal mind to create the givenconsequences.

This theory, therefore, calls for alenient or liberal attitude on the partof justice sector actors to thetreatment of juveniles. The presentsurvey has made no efforts to testpsychological conditions of thejuveniles inducing juveniles to commitdelinquent acts. The survey, however,made attempt to test knowledge ofjuveniles about ‘charges levied onthem’ and its understanding. Thesample respondents were thus asked aquestion as to “What crime they arecharged with”? The findings based on119 children present the followingscenario (Table 11) in this regard:

The figures in the table reveal someimportant characteristics:

a. All juveniles in the policedetention were informed of thecharge of crime imposed on themat the time when they had beenarrested. They are told aboutcharges by the arrestingpersonnel.

Table 11: Knowledge of criminal charge imposed on

Category TotalChildren in childreform home

Childrenin Jails

Children inpolice detention

Children informed of charge 20 48 15 83

Children not informed of charge - 11 25 36

Total 20 59 40 119

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Distribution of Juveniles (based on 199) by informantion of charge

b. However, not all juveniles injails were informed as towhy they had exactly beenin jails and under what lawthey had been prosecutedfor.

c. Most of the juveniles inprisons are those who areundergoing the trial.

d. But those lucky childrenwho have been in the reformhome, they are almost cutoff the information aboutthe judicial process. Theyspend normal life in thereform home and are notgenerally concerned withtheir cases.

e. The environment they areliving with seems to be animportant factor playingrole in their information ofthe charge. Interestingly,however, in none of thesecases, the court are found

fully and pro-activelyapplying the provision ofthe Children Act whichenables courts to put childunder the custody of parentsor social organizations. Thisprovision of the Act seemsalmost forgotten by theCourts.

I. Distribution ofjuveniles byauthorities sendingthem to jails andreform homes:

The findings in this regard arebased on information providedby 59 juvenile respondentsinterviewed from different jailsand 40 juvenile respondents fromthe reform home at Sano Thimi.The interviews present thefollowing scenario:

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Survey Report

These figures present the followingspectacular trends:

a. The district courts’ juvenilebenches are the main ‘institutions’sending juveniles to jails andreform homes.

b. Since there are no children inreform homes referred by theoffice of the CDOs, it implies thattheir knowledge about ChildrenAct and juvenile justice isquestionable.

c. Four juveniles interviewed fromjails and one respondent fromreform home said they were sentto jails and reform home by thepolice respectively. Thisinformation is, however, due toignorance of the children on theauthority they had jurisdiction todetain.

d. The information that 71.2%juveniles had been incarcerated byorders of the court is, however,presents an incredible state of

Table 12: Scenario of institutions sending children to jails and reform home

Category TotalJuveniles from jails

CDO 10 16 - -

Court 42 71.2 38 95

Police 4 6.8 1 2.5

Others such as forest office 1 1.7 1 2.5

Don’t know 2 3.4 - -

Total 59 40 99

Juveniles at reform home

% %

1

0

1

38

0 10

42

4

1

2Don’t know

Others suchas forest office

Police

Court

CDO

Distribution of juveniles(based on 59) at jails bysending authority

Distribution of juveniles(based on 40) at

Juvenile Reform Homeby sending authority

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insensitivity of the juvenilebenches towards modern notionof juvenile justice and rights andbest of children, particularly in acircumstance, as shown inprevious tables, where the sizableproportion of the childrenincarcerated in jails is below 14years.

J. Distribution of Juvenilesby stage of criminalproceedings:

The information in this regard is alsobased on description provided by 99children as mentioned in the precedingsection. As revealed by the interviewwith these juveniles, the

overwhelming majority of juveniles injails and juvenile reform home arewaiting for final trial. The followingfactor will self-explain the situation:

The figures above show that theoverwhelming number of juveniles isdeprived of their liberty as they aredetained for trial. The attitude ofadministration of justice towardsjuveniles is not seen encouraginglyprogressive and liberal. 8 out of 99children have lost their liberty simplydue to their inability to pay bail bond.How child can generate ‘assets’ tosecure bail security is a substantialquestion.

Interestingly enough, the proportionof convicted juveniles is comparativelysmaller. It implies that most of the

Table 13: Scenario of juveniles in judicial custody for trial

Category Waiting for trail

Juveniles in jails (59) 37 62.7% 5 8.5% 17 28.8%

Juvenile in reform home(40) 31 77.5% 3 7.5% 6 14.0%

Total 68 8 % 23 %

Jailed because could not pay bail money Convicted

Distribution of juveniles by trial and conviction situation

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Survey Report

juveniles are to exhaust sentence (termof imprisonment) during the timewaiting for the final trial. At the stageof final trial, either the child is releasedor convicted. However, even thejudgment of the court goes toconviction, the term of imprisonmenthas elapsed during the judicial custodyfor trial. As mentioned already, a childbelow 14 years cannot be imprisonedfor a period more than six months.However, the practice of detainingchildren for trial over 120 days impliesthat this rule is overlooked; hencemany children of this category aredetained more than legally permittedsentence. This fact presents a negativestate of ‘juvenile justice’ in Nepal.

K. Distribution of Juveniles orparents’ occupation andeducational status

The information in this regard is basedon descriptions provided by 79juveniles in the police detention and59 in jails for judicial custody. Thejuveniles in reform home have beenexcluded deliberately because theyhave been enjoying educationalfacilities in the reform home. Theeducation they have received at thecenter has nothing to do with‘educational’ status of juveniles at thetime of delinquency.

The distribution of the economicstatus of juveniles in the above tableshows that the proportion of poor andworking class family involved injuvenile delinquency is comparativelybigger. The information obtainedfrom interview with judges during thesurvey also confirms this fact. 27 outof 40 judges (67.5%) interviewed haveopined that the bulk of juveniles facingcriminal trial come from economicallypoor background. In their opinion thepoverty is the major factors in pushingthe increasing number of children indelinquency. 20 out of 38 CDOs andassistant CDOs interviewed from 38districts also hold the similar opinion.From these findings, it can beconcluded that the problem ofdelinquency is closely associated withthe poor economic status of thefamilies the juveniles are belonging to.

However, this situation should also beviewed in the light of the followingfacts:

a. Children from financially soundfamilies find good schooling sincechildhood, and thus the scope ordegree of vulnerability of suchchildren being prey todelinquency is comparativelyreduced.

b. In the given paradigm of thepower structure, the incarceration

Table 14: Economic situation of juveniles in police and jail detention

Category

Poor 11 27 38Having some means of subsistence 2 26 28Others (Having sufficient means) 7 6 13

Total 20 59 79

Children in police custody Children in jail Total

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of a child from affluent family inpolice custody is almost unlikely.Generally, the children from pooror weaker families end at policedetention or jails. This fact is wellconfirmed by overwhelmingnumber of children waiting fortrial in judicial custody for beingunable to pay the bail bond.

c. Lack of schooling might be themajor factor for large number ofchildren to fall prey to thedelinquency. As shown by thestatistics, overwhelming numberof children facing criminalcharges come from poor andweaker economic background,

i.e. having only some means ofsubsistence. The lacking of soundeconomic condition of families hasdirect impact on the children’seducation which in turncontributes to their vulnerability.

d. The following (Table 15)educational status of the juvenilerespondents will further elucidatethe situation:

Together, children with no educationat all or with primary educationconstitute the majority of juvenilesfacing the criminal charges. Thelinkage of poverty and education withdelinquency is thus obvious.

Children in police custody Children in jail

Table 15: Educational situation of juveniles in police and jail detention

Category

Illiterate 6(30%) 10(17%) 16

Primary Education 5(25%) 28(47.5%) 33

Secondary Education 9(45%) 21(35.6%) 30

Total 20 (100%) 59 (100%) 79 (100%)

Children in Police Custody Children in jail Total

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Survey Report

N. Comparative analysis ofthe socioeconomiccharacters of juveniles

In an economically least developedsociety like Nepal, the factors pushingthe children to a situation of criminalactivities are complex. More than onefactor is responsible to push the childinto a situation of deviant behavior.And these factors in fact constitute avicious circle engulfing children easily.

Let us examine the followingcharacteristics of Nepalese society tofurther elucidate the situation:

a. Nepalese society is socially andeconomically a divided society.Access to political powers andeconomical resources is notequally available for all; the largerpart of the Dalit and Janajatipopulation is economically poorand is pushed back tomarginalization of development.

b. The economic and politicalmarginalized has serious impacton education. Good education isnot accessible or affordable tomarginalized community.

c. Lacking of access to educationrenders the children ignorant andincreases the vulnerability ofchildren fal ling prey todelinquency.

The following additional statistics willamply show the socio-economiccharacters of the juveniles:

a. 16.16% (16 out of 99) of thejuveniles facing the criminalcharges are illiterate and 33.3% ofjuveniles (33 out of 99) have onlyprimary level of education, i.e.they have only completed thegrade 3. These two categories ofsurveyed juveniles togetherconstitute 49.49%. Obviously, agreat majority of the juvenilesfacing the criminal charges areilliterate or sparsely educated.

b. Over two/third majority of thejuveniles facing the criminalcharges belong to povertystricken families. Of total 79juveniles interviewed for this

Educational status of juvenilesin Police Custody

Educational status ofjuveniles in Jail

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purpose (children in Reform homes are excluded), 48.10% (38 out of 79)come from absolute poverty background, and 35.44% (28 out of 79) comefrom the families with some means of subsistence. Together, 83.54% ofjuveniles came from poverty-stricken background. The relation ofdelinquent behavior of a child with his her economic and educationalsituation is thus obvious.

c. Out of 119 juveniles interviewed from police detention cell, jails and reformhome, 42.85% (51 out of 119) juveniles belong to Janajati community and15.12% (18 out of 119) from Dalit community. Together, these two groupsconstitute 57.98% of the total interviewed juveniles.

d. Out of 99 (59 in jails and 40 in Reform Home) interviewed, 68.68% areundergoing trial, and 59.59% are incarcerated in jails against the commitmentunder the Child Rights Convention and the provisions of the ChildrenAct, 1992.

e. The prevailing justice system is thus not poor and marginalized communityfriendly.

Sample size

99 (59+40) 16+33=49 49.49%

79 (59+20) 38+20=58 73.4%

119 (20+59+40) 61 51.26%

Number of illiterate andjuveniles having onlyhad primary education

Number of children frompoor and economically

weaker families

Number of children fromJanajati and Dalit

communities

The nexus of poverty, low status of education and socio-political marginalizationis spectacularly established by these figures. The problem of juvenile delinquencyis thus essentially connected with socio-economic characters of the society. Thevulnerability of many more children from these communities being engulfed inthe problem is thus obvious.

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Survey Report

t has amply been discussed in theforegone chapters that the practices ofillegal arrest, torture and cruel anddegrading treatments to children arestrictly prohibited by the laws ofNepal. The Children Act, 1992, is acomprehensive law that guarantees theprotection of the best interests of thechildren of Nepal in all circumstances.The Act, together with CRC and theconstitutional provisions, protects thefollowing rights of the children ofNepal in relation to process of justice:

a. No child should be subjected tohandcuffing;

b. No child should be detainedtogether with adult under anycircumstances;

c. Child should be kept in ReformHome and no kind ofpsychological or physical tortureshould be inflicted on;

d. Child should be allowed to havecompany of parents or guardiansin all stages of the judicialproceedings instituted againsthim/her;

e. Child’s case should be tried by ajuvenile court comprising of ajudge, a child right expert, a socialworker and a child psychologist;

f. Hearing of the case should takeplace in a closed cameraproceeding, only attended by thelawyer of the child, his parents,guardians, or friends, and theconcerned officials;

g. Child has a right to have legalcounsel, and the government is

6.2. PROTECTION OF CHILDREN AGAINST ILLEGAL ARREST,TORTURE AND CRUEL AND DEGRADING TREATMENTS

obliged to find a legal counsel, ifchild has no such counsel.

These minimum guarantees of the fairtrial are to be strictly observed. Thepresent survey, however, does not findproper and adequate implementationof these guarantees in practice. Asmentioned above, over 50% of thejuveniles facing the trial have beenincarcerated in prisons against theChildren Act’s provision that childrenshould be kept in juvenile reformhome while they are undergoing atrial. The fact that a large number ofchildren are languishing in jails againstthe legal guarantees does imply thatchild’s right to fair juvenile justice isbeing violated. The following findingspoint out to an utter unsatisfactorystate of the situation:

A. Practices of arrest andvulnerability

The findings in this regard are reliedon information extracted frominterviews with 20 juveniles frompolice detention cells and 59 juvenilesundergoing trial or serving sentences.Particularly, the information acquiredfrom 20 juveniles facing investigationof charges under police detention ishighlighted in this part.

The findings of the survey present thatthe majority of juveniles are facingcharges of rape, murder, theft, use andtransaction of narcotic drugs andpublic offences (like hooliganism).This description is validated by

I

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respondents of both categories ofjuveniles. With regard to arrest, thefollowing information extracted from20 respondents in police custody isworth considering:

a. 95% (19 out of 20) juvenilesreported that they were arrestedby the police personnel in,whereas one juvenile said he wascaught by the vil lagers andsubmitted to the police. Thisinformation is corroborated bythe information obtained frominterview of the policeinvestigators. 24 (35.3) out of 68police investigators interviewedfrom 43 districts said that theytake juveniles to the court inuniform.

b. As per the information ofrespondents, the police personnelinvolved in arrest of 65% of themwere in uniform, whereas in 30%cases police personnel were inusual civilian dress.

40% (8 juveniles) of these juvenileshad carried weapons with them inthe time of arrest, whereas 55%(11 juveniles) the arresting policepersonnel had no weapons carriedwith them. During theobservation of the juvenilebenches in the targeted courts, thesurvey team also had occasion tosee a police person carrying aweapon when producing thejuvenile at the court. Theinformation given by the juvenileswas corroborated by this fact.

d. The time of arrest also presents animportant insight. 30% (6

c. Interestingly enough, the policepersonnel involved in arrest of

Time of arrest of the juveniles

Possession of Weapons during arrest

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Survey Report

juveniles) had been arrested in themorning time, 40% (8 juveniles)at day time and 30% (6 juvenilesat the evening time).

e. Regarding the place of arrest, onejuvenile in police detention cell

parents of 55% (11) juveniles werenot given information of theirarrest at the time of arrest.

g. After arrest, health check up of13 (65%) juveniles was done in thehealth post. Rest others weredetained without any healthcheck-up. However, 97.1% (66 outof 68) police investigators saidthat the medical check-up is doneimmediately after arrest.

Place of Arrest

reported that he was arrested bypolice from the school. 25% (5juveniles) had been arrested fromhome. 45% (9 juveniles) had beenrounded up at the roads, 5% (1juvenile) from friend’s house and15% (3 juvenile) from other placesoutside their homes.

f. According to the informationobtained from respondents, the

Information to parents about arrest

Health check up

h. Out juveniles detained, only onechild was informed about his/her

Information given about theright the arrested ju

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rights. Others were simply putinto custody and subsequentlyinterrogated.

The detention of juvenilestogether with adults is prohibitedby the law of Nepal. In practice,however, the prohibition israndomly disregarded. Thepractice of following theprocedures of investigationapplicable to adult suspects isfound applied without anydiscrimination. The practice ofdiversion is almost completelylacking in the stage ofinvestigation. This is evident inthe following informationprovided by the juveniles.

a. As in the case of adult suspect,the deposition (statement) wastaken from all juveniles indetention cells.

b. They were asked to sign awritten document preparedby the police personnel.

c. Only 3 juveniles had read thedocument out for thembefore the signature wastaken. Only 2 juveniles saidthat what was written in thedocument was told by themand understood.

The statement of the majority ofchildren in detention was taken bythe police personnel. 9 juveniles(45%) said that the deposition wastaken by police personnelsolely, whereas the lawrequires the presence of guardiansas mandatory rule. 2 juveniles(10%), however, said that thestatement was taken by policepersonnel in the presence of theGovernment attorneys. Restothers (9 juveniles) had noknowledge about it.

Shockingly enough, 16 juveniles(80%) were put into custodytogether with adults and two ofthem were placed at police roomstogether with police personneland only two of them were keptalone. The police offices have noseparate detention cell fordetaining juveniles. Theinvestment of the government ininfrastructural developmentrequired by the modern juvenilejustice is very poor. This fact istrue in the case of courts andprisons too. The reform actionsof the government in the field ofjuvenile justice are confined to the‘legislative measures andinstitutional strengthening’. Thereform actions in lacking of therequired infrastructure are thusbringing no yields to the juvenilesfacing the charges.

Detention

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Survey Report

k. Concerning the process ofremand, 7 juveniles (35%) revealedthat they had been taken to thecourts after two days. Mostimportantly, 8 juveniles (40%) hadno information exactly howmany days after they were takento the courts. This fact impliesthat they were not taken to thecourts immediately after thearrest. As revealed from theinterview, only one juvenile wastaken to the court the same dayand 4 were taken within 2 days.The practice of diversion fromdetention is thus not respected.The sensitivity of the policepersonnel that the detention maypsychologically destroy the childand may lead to the state ofrecidivism is largely absent in theinvestigation system of Nepal.While the police investigators mayhave many excuses in this regard,such excuses cannot prevent thechild being affected by thevulnerability of recidivism. Thediversion is the only means toprotect the child from theproblem of recidivism and it is in

the benefit of the society at large.The simple ignorance of the policeofficer to keep a child in thedetention cell with adult suspectslonger period will ‘transform thechild into an offender’ in future.The understanding that ‘thejuvenile justice system byapplication of diversion fromdetention is an instrument ofpreventing the recidivism in thechild’ seems poor among thepolice investigators.

How far the courts are sensitive aboutthe constitutional right of child to bepresented within 24 hours of arrest isworth mentioning here. As per theinformation of the detained juveniles,the state of affairs does not seemencouraging. This assertion findsground in the following information:

Deposition

Taken to the Court for remand

Judges had asked questions in thisregard only to 3 juveniles (15%).It implies that large numberjudges remain indifferent to the

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issue of detention duration.

Only 1 juvenile informed that he wasasked by the judge if he had beentortured.

The judicial activism with regard to‘diversion of child from detention’ is notapparent. The child friendly juvenile justicesystem is yet to be established in Nepal.

B. Practice of Torture, Cruel andDegrading Treatment

As the following information has revealed,the treatment of police investigators tojuveniles during investigation period is notjuvenile-friendly as well as against the bestinterest of the detained children.

a. As per the information obtained byinterview with juveniles in policedetention, the practice of handcuffingis found still widely prevalent duringthe police custody, particularly duringthe transportation of juveniles to andfrom the courts for reamand andhearing prcesses. Out of 20 juvenilesin detnetion interviewed, 10 juveniles(50%) reported that they had beenhand-cuffed on the way to and fromcourts for remand (myad thap). Thisinformation given by the juveniledetainees has been corroborated by the‘responses of judges’. The four (10%)of forty judges interviewed during thesurvey conceded that the childrenproduced at the courts are oftenbrought in hands-cuffing condition. 19(47.5) interiewed judges claimed that‘they would order the police to releasehand-cuffing’. However, 9 (22.5%)judges raised the excuses of ‘security’and viewed that it was the police’sdiscretion.This establsihedinformation indicates to a

‘discouraging trend’ reagrdingimplementation of the Children Acteffectively and meaningfully especiallyin relation to proetcion of the detainedchildren from mistreatment. Thesurvey team during the observation ofthe 22 juvenile benches also noticed ‘theprevalence of the practice of hand-cuffing of juveniles’. The obserbvationhad chance to find a juvenile producedin the juvenile bench in a state of hand-cuffing. The situation helps to inferthat the pratical situation of the juvenilejustice system in Nepal has to go longway to develop.

b. The sensitivity of the police officers andtheir sub-ordinates to protect thejuveniles’ privacy also seemsproblmeatic—it almost doesnot exist.For intance, 12 juveniles (60%) indetnetion reported that they wereproduced at the court publicly. Theproduction of juveniles publicly in astate of hand-cuffing is a gross violationof the basic norms of the juvenilejustice as well as the statutoryprovisions establsihed by the ChildrenAct.

c. Concerning torture in the detention,one juvenile reported that he wastortured. Only one child in detentionsaid that he was treated in a friendlymanner. Interestingly enough, 18juveniles (90%) said nothing about it.This silence can be interpreted inanyway. The vulnerability of thechildren in detention being tortured isnot ruled out in the police detnetion.On the other hand, out of 59 juvenilesundergoing the trial or serving thesentences in jails, 10 (16.9%) reportedthat they had often been tortured bythe jail security guards.

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Survey Report

he findings in this part are based oninformation obtained from interviewswith 59 juveniles who are eitherundergoing trial at different stages orare serving the sentences. As per theChildren Act, no child is supposed tobe detained in prisons, irrespective ofhis/her conviction or terms ofimprisonment he/she has to serve. Yet,except 86 juveniles, who areaccommodated in the Juvenile ReformHome at Sano Thimi, all otherjuveniles under trial or conviction aredetained in prisons. As it has beenmentioned in the foregone chapter,the actual population size of juvenilesin prisons, based on intelligentestimation, exceeds the totalpopulation of juveniles accommodatedby the Juvenile Reform Home. Thefollowing findings established by thesurvey are worth pondering uponhere:

a. In violation of the statutoryprohibition on detention ofjuveniles together with adults, thepractice of detaining juvenilesboth under trial and those servingsentences together with adults isfound a common practice inNepal. This fact indicates to asituation of ‘gross negligence of

7. Protection of Juvenile Rightsand Facilities in Jails

the Government and Judiciary’ inprotecting rights and bestinterests of the children. Thesituation shows that there hasbeen a lack of ‘apprehension’about recidivism the juveniles candevelop from the adult prisoners.The unrestricted access of juvenilesin association with adult offendersto learn habit and skills of crimewill foment ‘intense criminalmentality’ of the children inprisons. The study in othercountries has shown that theindiscriminate detention ofjuveniles in jails has promotedrecidivism in incredibly higherrate. Any negligence of thecriminal justice actors in thisregard would be costly to thesociety.62

b. Shockingly enough, even somejuveniles aged below 14 years aredetained in prisons together withadults accused or offenders. Thepossibility of juveniles learningcriminal habits and skills from theadult criminal is thus serious.

c. During the detention in jails, thejuveniles are given no special ordifferent treatment. The

T

62 . In America, the indiscriminate detention of juveniles with adults has intensely promoted recidivism.In the United States, definitions and age limits of juveniles vary, the maximum age being set at 14years in some states and as high as 21 years in others. The 16- to 20-year age group, consideredadult in many places, has one of the highest incidences of serious crime. A high proportion of adultcriminals have a background of early delinquency. During Fiscal Year 2005, Washington courtsentered 13,127 juvenile dispositions. Approximately 77% of the offenders were boys andapproximately 76% (9,937) of the dispositions involved offenders who had a history of one ormore prior offenses. See >www.sgc.wa.gov/Pubs/recidivism_Report< Accessed on 16/7/2010

74



treatment juveniles are receivingfrom the prison management isexactly the same as available to theadult prisoners.

d. Most prisons of Nepal arecongested, crowded anddilapidated in structure. Thejuveniles being incarcerated insuch prisons are susceptible topsychological aberration andlearning criminal behaviors fromadult offenders. The recidivismand impact of indiscriminateimprisonment needs to be furtherstudied.

A. Purpose of detention inprisons

As per the information collectedfrom the interviews with 59 juveniles,37 juveniles are incarcerated in jails fortrial, whereas 17 juveniles are lodgedin jails to serve the sentence ofimprisonment. 5 juveniles, however,revealed that they were in jails for

inability to pay bail bond. Since theytoo are under trial, in total 42 juvenilesare being languished in jails for thepurpose of trial. All these juveniles areprone to learn criminal skills andbehaviors from adult offenders.Sarcastically saying, the State seems tobe happy to ‘transform the juvenilesinto criminals’ by its utter insensitivityin matter of ‘indiscriminate detentionof children for trial in jails’. Thefrustration about the physical andenvironment situation of the jails willpromote vulnerability among thejuveniles to develop attraction to thefanciful world of crimes.

Detention of both these categories ofjuveniles in jails together with adultprisoners is a gross violation of therights of children as well as thestatutory provisions of the ChildrenAct, 1992.63 This situation also raises aquestion about Nepal’s commitmentor obligation to abide by theprovisions of the Child RightsConvention.

B. Facilities of education andskills in jails

The physical condition of most of thejails in Nepal is poor due to theirdilapidated structure and is lackingbasic or minimum facilities. The overpopulation is serious problem too.Several studies and reports of jailreform commissions over the last twodecades have categorically establishedthat the majority of jails in Nepal arenot fit for human stay. The majorityof them are crowded by inmates’

63 . Section 15 of the Children Act, 1992.

Detention in jails

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Survey Report

population exceeding their capacity toaccommodate. The facilities of sports,library and entertainments are rarelyavailable. In this circumstance, it isnatural that the detained juveniles arenot only subjected to boring state oflife but they are also extremelyunhappy to the state of general life ofprisons.

The chance of pursuing any kind ofeducation in such a situation is hardlyavailable for them. Even if there aresome facilities available, the childrencan hardly attracted to such facilities.Concerning the availability ofeducational or learning facilities, theobservation of jails and interview withof juveniles present the followingfindings:

a. 12 juveniles (20.3%) have had theopportunity to formal educationin schools inside the jails.However, the overwhelmingmajority (47-79.7%) has had nosuch facilities available. Thefacilities of the formal educationare scarcely adequate. Obviously,a large number of juvenileswithout facilities of learning

engagement and sharing theaccommodation with adultoffenders are naturally vulnerableto develop the deviant or criminalbehaviors among the juveniles.The state of having so manychildren in jails without propercare and rendering to share theaccommodation with adultprisoners presents that thegovernment is less sensitive tochild rights and welfare. This alsoindicates to an acute state ofvulnerability of victimization ofjuveniles, including sexual abuse,by adult offenders. Thegovernment and the judiciary,who sent children to jails fordetention, seem uninformed ofthis problem.

Juveniles with educational facilities

Possibility of learning skill

Concerning the vocational skilldevelopment opportunities, thejuveniles indicated that they had someopportunities available. However,these opportunities were very basic innature such as weaving cloths, caps,tailoring etc. 26 (44.19%) juveniles

76



indicated that they could get chanceto learn such skills, whereas 33 (55.9%)expressed no hope of having suchopportunities.

C. Facilities of sport andentertainment

51 juvenile respondents respondedthat they had access to watch televisionand to listen to radio. The surveyorshad observed that most of the jailsvisited had facility of watchingtelevision and had limited sportsfacility, like volleyball ground andtable tennis board. How far thesefaci lities are enough to addressjuveniles’ need is difficult to say.

no restrictions on visits to juveniles byfamilies, relatives and friends.However, some juveniles simplycannot benefit from suchopportunities because their families arefar from the location of the jails.

41 juveniles said that they werefrequently visited by family members,whereas, 4 juveniles reported visits byrelatives, and 5 by friends. 9 juvenilesreported visits by none. Theincarceration of the juveniles the jails

Facilities of sport and entertainment

D. Family and social visit orinteractions

The overwhelming majority of thejuveniles (84.7%) expressed that theyhave had enjoyed visits of relatives,families and friends. However, 15.3%expressed that they have had no suchoccasions. It sounds that jails have put

Visits of family and friends

Visits of juveniles

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with adults in a state of less contactwith the families enhances theirvulnerability of developing recidivism.

The facility of entertainment and socialvisits mentioned above is by no meansadequate. While majority of juvenilesreport no problem in visits byfamilies, friends and relatives, thesemeetings in true sense are not privateinteractions. In fact such meetings arelimited in terms of timeframe as wellas privacy. Most jails of Nepal haveno space or facilities for private orexclusive conversations betweeninmates and their visitors. Theconversations between inmates andtheir visitors, including their lawyers,take place in the presence of thesecurity guards.

E. Facility available in theChild Reform Home atSano Thimi

The atmosphere at the JuvenileReform Home at Sano Thimi isincomparably better than those in jails.The following features of the ReformHome make lives of the juvenilesmuch more comfortable and happieras compared to that in jails.

a. The Reform Home is situated inspacious place, along withadequate housing and space forwalking around and playing.

b. The Reform Home is keptrelatively clean, and adequateemployees are available to lookafter cleanliness and otherambient atmosphere.

c. The security guards do not holdweapons and the house is notsurrounded by walls as in jails.

d. The water supply system is goodand relatively adequate.

e. The condition of toilets is good.The boys and girls have separatetoilets.

f. Relatively good library is installedwith adequate space for reading.

g. Regular medical facility isarranged. The Reform Home hasprovisions of medical as well aspsychiatric consultants.

h. Relatively adequate sport facilityis arranged within the compoundwhich includes facilities forfootball, volleyball andbadminton as well as indoorgames such as chess.

i. Juveniles have facilities of formaleducation as well as vocationalskil l training. The school islocated inside the compound ofthe Home.

As stated by the concerned official, theReform Home has the capacity toaccommodate only 70 juveniles. Yet,the home is currently accommodating86 juveniles.

Sex of juveniles

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The information containedhereinafter is based on informationprovided by the forty juvenilesinterviewed, who are staying at thehome.

F. Behaviors and treatmentof Reform Home staffs tojuveniles

As expressed by 36 juveniles, thebehavior of home’s staffs is affectionateand helpful. However 4 juvenilesexpressed their dissatisfaction towardstheir treatment to them. go for higher education in government

school outside the premise.

As compared to the juveniles detainedin the jails, the facility andopportunity of education in thishome is incomparably higher andextensive. In terms of quality as wellas the opportunity of education, theservice provided by the Reform Homeshould be rated satisfactory; at leastthe vulnerability of the juvenilesdeveloping recidivism is far low insuch a home. As a matter of fact, 29(72.5%) juveniles rate the opportunityand facilities of the formal educationadequate and excellent, whereas, 11(27.5%) juveniles seem skeptical of theadequacy of the opportunity. Theywant more facilities of education andlearning skills for vocation.

The facility for formal education inthe Reform Home is incomparablewith that in jails. This situation, withrich facility to limited number ofpeople is creating a circumstance ofinequality before the law. Thevocational training opportunity in theReform Home, however, is not ratedadequate and effective by the juveniles.While there are some training

Treatment towards juveniles

G. Adequacy of opportunityto obtain education

As mentioned earlier, a school up tothe fifth grade is located inside thepremise of the Reform Home. Theschool is financially supported byEducation Department’s Relief Fund.It implies that the juveniles are entitledto free education up to grade 8. 5teachers are recruited to operate theschool. Students can have facility to

Adequacy of opportunity

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opportunities to develop their skillsfor employment, 36 juveniles rated thevocational skill training as inadequateand ineffective.

H. Sports and entertainmentfacilities

The Reform Home has entertainmentmeans like TV and sports adequatelyprovided. Hence, 36 juveniles feel

satisfaction where as 4 want furtherimprovement in the existing facilities.

I. Torture and other crueland degrading treatment

Unhappily enough, even the juvenilesat the Reform Home express concernsabout the treatment of security guardsthough they are in civil dress and donot carry weapons with them. Almosthard to believe, 12 juveniles reportedmistreatment and a kind ofpsychological torture by the Home’ssecurity guards.

J. Procedural standard of thejuvenile justice system

On the basis of the informationextracted from the survey, it is reallydifficult to establish the functionalstandard of the juvenile justice systemin Nepal. The findings of the surveydiscussed in the previous chapterscategorically provide a number of‘indicators to determine the treatmentsof juveniles by the justice actors’. Thefundamental lacuna or setbackemerged from the analysis of theinformation acquired from the surveyis that the insensitivity to the rightsand best interests of the child duringarrest, detention, interrogation,prosecution, bailment and trial processis looming large. Due to this problem,the treatment of justice actors tojuveniles is questionable.

The discussion in the foregonechapters very precisely present that thetemptation to practice a juvenile caseas a criminal case is obvious. Juveniledelinquents are often treated ascriminal offenders. This assertion is

Effectiveness and adequacyof skill training

Adequacy of entertainment facilities

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confirmed by the following findingsdiscussed in the foregone chapters:

a. The practice of being arrested bypolice like adult offenders is notuncommon. They are oftenarrested by police personnel inuniform and weapons. They aregenerally detained together withadults and also torturedoccasionally.

b. Investigators are not consciouslyaware of the age and psychologicalconditions of the juveniles. Theyare indiscriminately arrested andput into detention cells. Somejuveniles are also put on hand-cuffs and publicly exposed.

c. The prosecution system seems tobe not particularly concernedabout the best interests of thechild while carrying out theprosecution. The juveniles arecharged with offences andpunishments like adults. Theconcept of diversion fromprosecution is not practiced at all.

d. While the juveniles are producedbefore the courts from remandand trial process, the best interestof the child has not been a matterof serious attention for judiciary.The need of protecting a juvenilefrom encroachment of his/herprivacy and stigma attached tohis/her act is less considered.

These facts present a state of operationof misperception that the juvenilejustice system means nothing but theenforcement of the criminalproceeding in the case of juveniles.This misperception is practiced inrampant in Nepal. The problem ofjuvenile justice in Nepal is related not

only with the urgency of change inlegal and institutional frameworks, butit also essentially associated with thelacking of the conceptual clarity andattitudes of the justice actors.

This chapter purports to furtherdeeply investigate the conceptual andattitudinal dimensions of the problemfacing the juvenile justice system inNepal.

For this purpose, the research team hasapplied the tool of extractinginformation by closely scrutinizing oranalyzing the process or proceduresapplied by the courts in conductingtrial and examining and using evidencessubmitted by the prosecutors.Though the survey team intended toaccess each and all cases from 45targeted districts within a period offour years (F/Y 2063 to the date ofthe survey (Ashad 2067), for thispurpose, it was simply not possibledue to lack of cooperation from someofficials from some courts. Hence, thestudy is confined to 30 districts inwhich the access to information wasextended without any constraints.From these 30 districts, 166 juvenilecases covering the period of three yearsfrom 2063 are scrutinized and analyzedto address the above stated objective.The analysis herein after is thus basedon information extracted fromscrutiny of 166 juvenile cases by thesurveyors in spots.

a. Detail description aboutthe situation of cases

The total number of juveniles facingtrial in 166 criminal charges is 189. Asimple statistical comparison indicatesto a very important fact that only in

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very rare cases, more than one juvenileis involved. This fact apparentlyindicates to a trend that the juveniledelinquency in Nepal is still lesssophisticated in terms of organizednexus among juveniles. To put insimple terms, most of the juveniledelinquency acts in Nepal arecommitted by children in involvementof single one. The organized criminalphenomenon is still not a seriousproblem.

The following findings are establishedby the scrutiny of the records of the166 juvenile cases:

a. 74 cases are currently under trial.This figure constitutes 44.57% ofthe total. Rest other cases (92 -55.42%) are finalized.

b. The prevailing law provides thata juvenile case has to be finishedtrying within 120 days. However,the analysis of the record of 166cases shows that the courts havehad obliged to this mandatoryprovision only in 12.08% (35)cases.

c. The longer the period taken bytrial the longer the detentioncontinues. It implies that thedistrict courts are responsible forthe extended period of judicialdetention of juveniles in 78.02%of juvenile cases.

b. Situation ofRepresentation of legalcounsel

The right to representation by a legalcounsel is a fundamental rightguaranteed by the constitution itself.

It is one of the prerequisites of the fairtrial as well as due process of law. Thisright is inviolable even in the criminaltrial. The significance of the right isfurther greater in the juvenile justice.Moreover, the Children Act, 1992, hasmade the representation of a child inthe trial as a mandatory element of thejuvenile justice. In fact, no juvenilebench can be set without the presenceof a lawyer to represent the juvenile.This rule is, however, not fullycomplied with by the courts. This isevident from the analysis of the recordof the juvenile cases. As it is found,only in 138 cases (83.13%) out of the166 cases, the presence of lawyers wassecured. In 28 cases, however, thejuveniles were found tried withoutlawyers’ representation.

c. Acquittal and convictionratio

The conviction ratio of juveniles isfound comparatively bigger ascompared to the conviction ratio ofthe adult offenders. As several studies

Situation of representationof legal counsel

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have established, the conviction ratioof the adult accused in Nepal is below50% of the total cases.64 However, theratio of conviction is quite bigger inthe juvenile cases to the usual ratio ofthe adult offenders in the criminalcases. The analysis of the records of92 decided cases presents that in84.14% (138) cases the juveniles areconvicted. This implies that thecriminal justice system iscomparatively conservative to thejuveniles. This is an interestingsituation and demands an in-depthresearch. One of the reasons might bethat the juveniles do not tell lie. Itmeans that the criminal justice systemof Nepal is not helpful for those ‘whohelp the process of justice’.

e. Evidences to determinethe age of juvenile

Age has been an issue of controversyduring the trial. The practice of policeinvestigator increasing the age ofjuvenile suspects is not ruled out inNepal. This practice is often resortedby the police in order to avoid theadditional procedures required by theChildren Act in the investigation ofthe crime of the juveniles. The issueof actual age of the juvenile suspectbecomes intensified when the case istried by the court. The analysis of thejuvenile cases record reveals thefollowing information:

In 35.5% of the cases, the birthcertificate of hospital is foundused.

In 45.2% of the cases, the courtshave used certificate of school orVDC to determine the age.

In 9.7% of the cases, the courtshave relied on the doctors’opinion and,

In 9.7% of the cases, the courtshave used varying means todetermine the cases.

e. Practice of suspendedsentence

The Children Act 1992, Section 50(2)provides for the suspended sentence.According to this provision, thesentence of the juvenile can besuspended. It means that the sentenceis not enforced immediately.Interestingly enough, the analysis ofthe 166 cases from 30 districts noticednothing in this regard, However, theinterview of the 40 judges as a part ofthe survey reveals that the practice ofsuspended sentence exists in Nepal.

64 . For instance, out of 3563 active cases, 799 had been finalized in F/Y 2064-64. The prosecutionsustainability rate of these cases was 46.55%. See Attorney General’s Annual Report, 2063-64,P. 21.

Minority Age Determination

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The responses obtained from therespondent judges reveal thefollowing:

25% (10 judges) claimed that theyhave exercised the mandate ofsuspending the sentence.

57.5% (23 judges) however,declined to claim that they haveused this judicial mandate.

17.5% (7 judges) were notinformed about the concept of thesuspended sentence and expressedtheir ignorance.

causes of many juveniles ending up atjails.

On the other hand, the widespreadreluctance to exercise the power tosuspend sentence by the judgesnegatively affects the objective of theChildren Act and defiles thecommitment of the government to theChild Rights Convention.

f. Transfer of juvenile casesin the Juvenile Benches

The Supreme Court in 2063/6/26decided to set up juvenile benches inall district courts, and undertake trialof the juvenile by the juvenile benches.As per the report of the Ministry ofWomen, Children and Social Welfareas well as the Supreme Court, thejuvenile bench is established in all 75districts courts. It means that onwardsthat decision, all juvenile cases are triedonly in juvenile benches.

However, the survey revealssomething different in this regard. Forinstance, the information obtainedfrom interview with 40 judges in thisregard presents the following scenario:

Only 6 judges (15%) interviewed,answered that all juvenile cases arenow transferred to the juvenilebenches.

Whereas, 15 judges (37.5%)interviewed, expressed a negativestate. That means that no juvenilebench procedure is being appliedonly while trying the juvenilecases.

Importantly, 19 (47.5%) judgesinterviewed are even not aware

Practice of suspended sentence

This crucial information answers whythe abundance of children isundergoing the trial in judicialcustody. The concept of suspendedsentence is one of the crucialinstruments of diversion of juvenilesfrom punishment. However, in thepresent situation, it is found not usedgenerally. The effective and liberalenforcement of the suspended sentenceinstrument will relieve juveniles fromdetention in jails. The widespreadreluctance of exercising it is one of the

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about the current position

The state of the trial of the juvenilecases is crystal clear from thisinformation. Despite so many talks,a seminar and policy discussion at

Judges’ reaction to transfer of juvenilecases to juvenile benches

central level, the standard of thejuvenile justice at grassroots isextremely poor. The improvementhas not been spectacular. This state ofaffairs indicates to the following validinferences.

The juvenile bench exists in paperbut not practiced in manydistricts.

The Children Act’s provision thatthe juvenile bench must compriseof a Child Right expert, a socialworker and a child psychologistis hardly in practice in majorityof the districts.

The vast majority of the juvenilesis thus subjected to faceconventional criminal trialpractice in the name of juvenilejustice.

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he foregone chapter presents not avery encouraging scenario of thejuvenile benches. Though theGovernment and the judiciary claimthat the juvenile benches areestablished in all 75 districts, it wouldbe disheartening to say that manydistrict courts have no separate roomor facilities for juvenile benches. Mostcourts’ infrastructure is so poor,dilapidated and congested that theestablishment of the juvenile bench asexpected by the Children Act 1992 issimply impossible.

The present survey reveals that only22 out of 45 district courts visited haveset up separate juvenile benches. Restothers have juvenile benches only inthe paper but not in physical existence.In such courts, the same bench isdeclared ‘a juvenile bench’ when thecase of a juvenile is tried.

Obviously in district courts other thanthose 22, the rights of juvenile to (1) aproceeding in a closed camera bench,(2) the protection of the privacy, and(3) the composition of the bench alongwith the child right expert, socialworker, and child psychologist is stillnot in practice.

A. Physical infrastructure ofjuvenile benches

The survey team after observation ofthe physical condition of the juvenilebenches in 22 courts has extracted thefollowing information:

a. Eight district courts (36.4%) havenice and spacious room along with

8. State of juvenile benches

T

a round table and adequatefurniture.

b. Ten district courts (45.5%) have aseparate room for juvenile bench.However, they have no facility ofround table. It is ordinary likegeneral court room.

c. Four district courts (18.2%) haveseparate room for juvenilebenches, but have not requiredfacilities, including adequaterequired furniture.

B. Practice of closed cameracourt

During the observation of trialproceedings in the juvenile benches,the survey team had found that thejuvenile bench was conducted in closedcamera only in 13 courts. In 5 courts,the juvenile bench functioned as anormal court. In 4 courts, theobservation of the trial proceeding wasnot possible, as there was no case

Physical infrastructure ofjuvenile benches

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schedule during the survey.

C. Presence of defenselawyer

It was observed that defense lawyerswere presented in 13 juvenile benches,whereas in 5 juvenile benches thedefense lawyers were missing. In 4juvenile benches, informationremained incomplete as the trial didnot take place for technical reasons.

D. Child friendly environment

As observed by the team in 13juvenile benches, the environmentwas child friendly. In others, theenvironment was not sound.

Practice of closed camera court

Presence of lawyers during trial

Child Friendly environment

E. Other importantinformation

Adequate drinking water facilitywas found in 9 (40.9%) juvenilebenches.

Adequate sitting arrangement wasfound in 14 (63.6%) juvenilebenches.

There was a permanent camerafixed in 17 (77.3%) juvenilebenches.

The child friendly language wasfound used in 11 (50%) juvenilebenches.

Police personnel producing thechild were in uniform in 8 (36.4%)juvenile benches.

In one juvenile bench (4.5%) achild was produced withhandcuffs.

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9. Major findings established

The present survey brings in limelight anumber of crucial findings about thecurrent state of the juvenile justicesystem in Nepal. These findings areencapsulated as follows:a. The distinction between juvenile

justice system and criminal justicesystem is not found in operation inthe overwhelming higherproportion of cases. Only in a veryfew limited district courts, thejuvenile benches are properlyarranged and conducted. Though,the Government reports thatjuvenile benches are established inall 75 district courts’, the presentsurvey reveals the juvenile benchesin many districts are not situated inseparate court room. Out of 45districts surveyed, only 22 districtcourts had separate court rooms forjuveniles and of them only 13juvenile benches were foundfunctioning with the true spirit ofthe juvenile justice.

b. The sensitivity towards rights andbest interest of the child is stillweaker in Nepal’s justice sector.Unacceptable practices such as (1)detention together with adults (2) thedetention of juveniles as a commonrule (3) the handcuffing of the childalong with sporadic incidents oftorture, (4) denial of bail, and (5)decline to use the rule of suspendedpunishments are common eventoday.

c. The majority of the juveniles facingthe criminal charges came fromeconomically poor background.They are victimized of a viciousnexus of poverty, ignorance andsocio-political marginalization

family background. The practice ofincarceration in detention alongwith adult offenders and accusedpose a serious vulnerability amongthe juveniles to learn criminalbehaviors and develop tendency ofrecidivism. This seems to be aserious challenge but has not beenreceiving proper attention of theGovernment.

d. The mandatory provisions of theChildren Act are not fully pursuedwith. Though the Children Actspecifically requires the trial ofjuvenile cases by the juvenile benchesand has categorically specified the120 days limitation for disposal ofcases, the reality is that in only asmall fraction of cases the rule isfollowed. It seems that the districtcourts have not developed asensitivity to consider juvenile casesfrom a clear understanding that theprotection of rights and bestinterests of the child is the primeconcern of the juvenile benches.

e. About two-third majority ofjuvenile population waiting forundergoing the trial are languishingin jails, in an extremely adversecondition. The government doesnot seem aware of such childrendeveloping a state of criminality byassociation with hardened criminals.

All these findings indicate to a stateof affairs that the juvenile justice hasbeen largely viewed by the justicesector actors as a system of criminaljustice applicable to young people.The reform in attitude is thus vitalfor strengthening the standard of thejuvenile justice system.

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he history of efforts to reform thejuvenile justice system in Nepal is verybrief. It starts from adoption of theChild Rights Convention 1989 andtakes the course of steady growthfrom the enactment of the ChildrenAct 1992. This has been adopted bythe Parliament as a fundamentallegislative measure to give effect to theConvention.

The Children Act, 1992, has virtuallyseparated, at least in principle, thejuvenile justice system from thecriminal justice system. The Act hasemphasized the protection for rightsand best interest of child as the spiritas well as the fundamental objectiveof the Act. Any attempt or endeavorsto use the provisions of the Act againstthe best interest of the child wouldtherefore become void and irrational.

Over the past some decades, Nepal hasundergone severe socio-politicalchanges in the aftermath of a decadelong bloody conflict. The traditionalvalues and norms of the society arebroken. The pro-violence affairs of adecade long conflict have significantlyshattered the children of Nepalpsychologically. The rapid growth ofjuvenile delinquent population has anexus with conflict and and negativeeffect of the post conflict transitionand traumatic conditions.

The children from poor working classfamilies have become easy prey todelinquency in this context. Theresearch has categorically revealed thatthe poverty and delinquency has astrong nexus, and this nexus has beenaggravated seriously by the

10. Conclusion

deprivation of educationalopportunities and conditions of socio-political marginalization of thechildren some categories of thepopulation like dalit and janajati.

Thought the Government of Nepal,after 1990, has initiated activities toaddress the problem of delinquencyand the justice system applicable tojuveniles, but the impacts are not verymuch seen. Though adequatelegislative measures are adopted toimprove the conditions of child’s lifeand the juvenile justice system, theimplementation of the legislativemeasures in practice is poor and impactis less than desired. Hence, thejuveniles, as the present study hasshown, are vulnerable of injustice. Thevulnerability can be seen, as presentedby the study, in the following facts:

(a) The justice sectors’ sensitivity andpreparedness to improve theapplication of procedures andfunctioning of institutionsregarding juvenile justice systemhas not been seen encouraging.

(b) The justice sector actors are notseen motivated fully by thenecessity and urgency ofprotecting rights and bestinterests of child. They are foundoften influenced by the practiceof formalism andconventionalism.

(c) The tendency of overlooking theprevailing laws protecting rightsand best interests of the childamong concerned authorities isstill not fully addressed. Hence,even after the juvenile benches are

T

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established, the change in trialsystem has not been seenspectacular.

As a matter of fact, a large number ofjuveniles facing criminal charges areexposed to:

(a) Indiscriminate arrest,mistreatment, torture anddetention;

(b) The detention together with adultoffenders is common posingdanger of transforming thejuvenile into a state of recidivism.

(c) Due to lack of desired state ofsensitivity and awareness ofprofessional responsibility amongthe justice sector actors, manyjuveniles have been unduly putinto judicial detention and thrownin to jails. The state of

psychological devastation of thechild is thus extremely serious;

(d) The juvenile justice institutionsare not properly arranged andmade functional. In this situation,the juveniles are forced to take theburden of criminal liability whichis devastating to theirpsychological condition.

In the light of the present findings, thepresent study has found nosatisfactory state of the juvenile justicesystem in Nepal. However, the studyhas been able to learn that the state ofawareness about the necessity of aworkable juvenile justice issignificantly increased. Moreover,institutional frameworks areestablished. Most importantly, thelegislative measures for the juvenilejustice are ensured.

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11. Recommendations

ased on findings of the study, thefollowing recommendations in order toimprove the condition of the Nepalesejuvenile justice system are suggested:

a. An in-depth socio-psychologicalanalysis of the nexus betweendelinquents and their conditions ofpoverty, ignorance,marginalization and other similarfactors is considered urgent.Without such a study no desiredplan of actions to improve thesystem to justice can be made.Hence, the study recommends fora national socio-psychologicalanalysis of the factors of juveniledelinquency.

b. The Government is urged to set upat least one Reform Home in eachregion with a capacity ofaccommodating the present figure(about 250) juveniles facing thecriminal charges. The existingpractice of placing the juveniles injails for judicial custody is harmfulfor the development of the childas well as it may be a serious factorleading the juveniles to recidivism,hence transforming them intodangerous offenders.

c. The Supreme Court is urged toissue a strict instruction to trialcourts to make juvenile benchesfunctional as per the spirit of theChildren Act and CRC.

d. Viewing that record system indistrict courts is in extremely poorstate, the juvenile justicecoordination committee is urged todevelop a project to receive the

progress report about juvenile casesfrom all districts on monthly basis.It is also urged to seek clarificationfrom district courts expiring thelimitation of 150 days to dispose thecase.

e. Separate documentation systemconsidered urgent to recordjuvenile cases in police station, courtand other concerned institutions.

f. Special training course for policeofficers, prosecutors, defenselawyers, Chief District Officer andother quasi-judicial bodies onconceptual clarity of the juvenilejustice is considered necessary. Thesaid training course must preciselyaddress the looming misperceptionsthat the juvenile justice system is acriminal justice system applicable tominors.

g. The pratice of placement ofjuveniles with adult criminals mustbe stopped and for this theestablishment of reform homes inregions should taken as a priorityintervention.

h. The juvenile court/bench mustfulfill the minimum standard. Forthis the Government must dibrushadequate allocation of budget.TheGovernment has to address thisproblem immediately.

i. The current practice oftransforming children to jails afterthey reach age of 16 years to servethe sentence must be abandoned.The Government must takeinitiative to set up a system ofprobation be urgently.

B

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Annexes

Annex A : Children’s Act, 2048 (1992)

Annex B : Convention on the Rights of the Child

Annex C : United Nations Rules for the Protection of Juveniles Deprivedof their Liberty

Annex D : United Nations Standard Minimum Rules for theAdministration of Juvenile Justice

Annex E : United Nations Standard Minimum Rules for Non-custodialMeasures (The Tokyo Rules)

Annex F : United Nations Guidelines for the Prevention of JuvenileDelinquency (The Riyadh Guidelines)

Annex G : Decision of Supreme Court of Nepal Cases Related to JuvenileJustice

Annex H : Juvenile Justice (Procedures) Rules, 2063

Annex I : Questionnaires

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Date of the Royal Seal and Publication inthe Nepal Gazette 2049/2/7 (May 20, 1992)Preamble: Whereas, for the physical,mental and intellectual development of thechildren it is expedient to make legalprovisions in order to protect the rights andinterests of the children.Be it enacted by parliament in the twenty-first year of the region of his Majesty kingBirendra Bir Bikram Shah Dev.

Chapter- 1Preliminary

1. Short Title and commencement:1) This Act may be called the

“CHILDRENS ACT, 2048 (1992).”2) It shall come into force on such date

as his majesty’s Government may,by a notification published in theNepal Gazette, appoint.

2. Definitions: Unless the subject orcontext otherwise requires, in this Acta) “Child” means every human being

below the age of 16 years.b) “Guardian” means the guardian

appointed under section 22 for thepurpose of protecting the child.

c) “Children Welfare Board” meansthe Central Children Welfare Boardand the District Children WelfareBoard constituted under section 32for the protection and well being ofchildren.

d) “Children Welfare Officer” meansthe Children Welfare officerappointed under section 33 by HisMajesty’s Government and includesany other person or employee as

prescribed to act on behalf of suchOfficer.

e) “Abandoned Child” means a child-1) Who has no father, mother or

any other member of his familyto look after him.

2) Who has been neglected by hisfather, mother or any othermember of his family eventhough they exit.

3) Who does not have any meansof living.

f) “Children’s Welfare Home” meansthe Children’s welfare Homeestablished by his Majesty’sGovernment under section 34 forhe purpose of upbringing andmaintenance of the AbandonedChild.

g) “Chief of the Children’s WelfareHome” means and includes anyperson who works as the Chief ofthe Children’s Welfare Home orany person who acts on behalf ofsuch Chief in his absence.

h) “Children’s Rehabilitation Home”means Children’s RehabilitationHome established by His Majesty’sGovernment under Section 42 orany Children’s RehabilitationHome being used for that purpose.

i) “Prescribed” or “As prescribed”means prescribed or as prescribed inRules made under this act.

Chapter-2Rights and interests of children

3. Rights to a name and determination of

Children’s Act, 2048 (1992)

Annex A

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birth date of the Child :1) From birth, every child shall be

granted a name according to thereligion, culture and tradition by hisfather, if the father is not availableby his mother and if the mother isalso not available by any othermember of his family. In cases wherethe father , mother or any othermember of his family is not alive ortheir whereabouts are not known,the person or organisation bringingup the child shall give a name to suchChild.

2) In cases the date of birth of anychild is not traced, the personorganisation bringing up the child,in consultation with a registeredmedical practitioner, determine thebirth date of the Child. Unlessotherwise proved, the date sodetermined shall be considered to bethe date of birth of the child.

4. Right maintenance and upbringing,education and health care :1) Parents shall be under an obligation

to make arrangements so as to bringup the child and to provideeducation, health care, sports andrecreation facilities to the childaccording to the economic status oftheir family.

2) The parents or guardian of the childshall cause to be given thevaccination necessary to save theChild from diseases. The localauthorities and related agencies ofHis Majesty’s Government shallrender assistance in his matter.

3) His Majesty’s Government shallrender assistance in makingarrangements for the proper healthcare to the pregnant mothers andthe mothers who have recently givenbirth to a child.

4) His majesty’s Government shallrender assassinate in makingarrangements for providing adviceeducation and services relating tofamily planning and preventivehealth care to the parents.

5. Discrimination not to be made betweena son or daughter and between sons anddaughters themselves in matters relatingupbringing :No discrimination shall be madebetween a son and daughter andbetween sons and daughters themselvesin matters relating to their upbringingeducation and health care.

6. Discrimination not be made betweenchildren born out of wedlock or inlawful wedlock or between the adoptedor the natural Child.1) No discrimination shall be made

between children born out ofwedlock or in lawful wedlock inmaters of their upbringingeducation or health care.

2) No discrimination of any kind shallbe made between the natural or theadopted son or daughter.

7. Prohibition on torture cruel treatment:No child shall be subjected to tortureor cruel treatment. Provided that, theact of scolding and minor beating tothe child by his father, mother,member of the family, Guardian orteacher for the interests of the Childhimself shall not be deemed to violatethe provisions of this section .

8. Facilities to be given to maintaincontact :1) In circumstances where the parents

of the child are living separately dueto divorce or another reason, thechild living with the father shall begiven an opportunity to maintainpersonal relation and direct contact

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with the mother and vice-versa ona regular basis or be allowed to livetogether with the other parent forsometimes.Provided that, the court mayprohibit to grant the facility ofmaintaining direct contact or livingtogether if there is a reasonableground to believe that such directcontact and personal relation orliving with the other may becontrary to the Child’s interest.

2) If the parents do not agree on thequestion of the time of maintainingdirect contact or the duration ofliving with the father or motherunder sub-section (1), the questionshall be settled as decided by thecourt.

9. Adopted son or daughter to bepermitted to make direct contact orcorrespondence with natural parents :A person adopting a son or daughterhaving fulfilled the legal requirementsshall, if such adopted son or daughterwishes, permit him or her to maintaindirect contact or make correspondencewith his or natural parents on a regularbasis.

10. Right to mention the name of motherand material grandfather :In cases where a child is required undera law to mention the names of his fatherand grandfather in connection withofficial proceedings or in practice, theChild may, until the whereabouts ofhis father are known, mention thenames of his mother and maternalgrandfather. In the case of the childeither of whose parents are not traced,if the person or organisation bringingup the child certifies in writing that theparents have not been traced , suchChild shall have the right not tomention the names of his father,

mother or grandfather.11. Child and Criminal Liability :

1) If the Child below the age of 10years commits an at which is anoffence under law, he shall not beliable to any type of punishment.

2) If the age of the Child is 10 years orabove 10 years and below 14 yearsand he commits an offence which ispublishable with fine under law, heshall be warned and explained andif the offence is punishable withimprisonment, he shall be punishedwith imprisonment for a term whichmay extend to six months dependingon the offence

3) If the child who is 14 years or above14 years and below 16 yearscommits an offence he shall bepunished with half of the penaltyof the penalty to be imposed underlaw on a person who has attainedmaturity.

4) If any one induce any minor tocommit any offence, the person whoinduce the minor shall be held fullyliable as i f he himself havecommitted the offence.

12. Disqualification’s or recidivism not tobe applicable:1) If a person is to be disqualified to

hold any office or enjoy any facilityunder the law or reason ofcommitting an offence, suchdisqualification shall not beapplicable with regard to a childcommitting an offence during hischildhood.

2) For the purpose of determinationof recidivism, an offence committedduring childhood shall not beincluded therein.

3) Even if a Child commits the sameoffence more than once, he shall

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not be liable to additionalpunishment on the basis ofcontinuation of such offence.

13. Prohibition to engage Children inbegging and to make fakir :1) No Child shall be permitted to be

engaged in begging except infollowing the religious or culturaltraditions.

2) No measure shall be taken whichwill be directed towards making aChild Sanyasim Bhikchhu or fakir,and such measure, even if taken, shallno illegally valid.

3) A Child who has been made SanyasiBhikchhu or fakir prior to thecommencement of this Act may, onattaining majority, enter into familylife if he so wishes.

14. Prohibition on offering of Child in thename of God or Goddess :1) No person shall, for the purpose of

fulfilling the promise made to godor for serving any other religiouspurpose, offer of surrender his oranybody else’s Child to any God orGoddess by buying such Child,offering economic gain, under anykind of coercion or undueinfluence.

2) No person shall, by acceptingeconomic benefit, sell or hand-overotherwise his Child to anybody forthe purpose stipulated in sub-section(1)

3) No panda, Dhami, priest or thechief on any religious enshrinementshall incite to the commission of anact contained in sub-section (1) norshall perform or permit to persormreligious formalities in case where aperson brings his Child to anytemple with the purpose of offeringor surrendering to God or Godess.

4) If any event takes place after thecommencement of this Act, inviolation of sub-section (1), (2) and(3) above, the father, mother or anymember of the family shall takecustody of the Child and makearrangements for upbringing,education and health care of suchChild on equal footing with othermembers of the family as if suchevent never took place.

5) Notwithstanding anythingcontained in sub-section (4), a Childreferred to sub-section (1) and (2)who is below the age of 16 years atthe commencement of this Act shallbe brought up by any of the livingparents

15. Prohibition on imposing rigorouspunishment : Notwith-standinganything contained in the existing laws,no Child shall be subjected tohandcuffs and fetters, solitaryconfinement or live together in prisonwith a prisoner who has attainedmaturity in case a child is convicted forany offence.

16. Children not to be made involved inimmoral profession :1) No person shall involve or use a

child in immoral profession.2) No photograph of a child shall be

taken or allowed to be taken, norsuch photograph shall bedistributed or exhibited for thepurpose of engaging a Child inimmoral profession.

3) No publication, exhibition ordistribution of photograph orpersonal events or descriptions of achild tarnishing the character of suchChild shall be made.

4) No child be made involved in thesale or distribution of, andtrafficking in alcoholic drinks,

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narcotic drugs or any other drugs.17. Restriction on employment:

1) A Child who has not attained theage of 14 years shall not be employedin any works as a labourer.

2) A Child who has attained the ageof 14 years or above shall not beemployed in work as a labourerduring the period from 6’O clockin the evening to 6 O’clock in themorning.

3) A child who may be employed inwork as a labourer shall not be madeto be engaged in work against hiswill.

4) Every child-labourer shall beprovided equal remuneration forthe equal work withoutdiscrimination of any kind,irrespective of the child’s sexreligion, race or color1, caste andcommunity.

18. Protection from engaging in hazardouswork : No child shall be engaged inwork that is likely to be harmful to theChild’s health or to be hazardous tothe Child’s life.

19. Children’s case not to be entertainedin the absence of legal practitioner:1) The court shall not entertain or

decide a criminal charge broughtagainst the child unless there is alegal practitioner to defend thechild.

2) In circumstances referred to in sub-section (1) the concerned court shallmake available the service of a legalpractitioner appointed on behalf ofhis majesty’s Government or of anyother legal practitioner wishing toprovide such service.

20. Enforcement of rights:(1) For the enforcement of the rights

set out in his Chapter, every person

shall have the right to file a petitionon behalf of the Child to a Districtcourt of a district where the Childis residing. On receipt of suchpetition, the concerned Court may,upon inquiry into the matter,enforce the right by issuing theappropriate order, direction or writ.Provided that, in matter relating tothe prohibition on maintainingdirect contact or living by the Childin pursuance of the proviso clauseof sub-section (1) of section 8, suchaction may be initiated or an ordermay be issued only on the basis of apetition of the parent (s) of theconcerned Child.

(2) In cases where a person is aggrievedas a result of inflicting harm on anyright conferred by this chapter, thecourt may, in issuing order,direction or writ under sub-section(1), decide to grant a reasonableamount of compensation.

Chapter 3Provisions Relating to the protection

of the child and relating to theguardian

21. Looking after an orphan and custodyof his property :1) If the Children welfare officer or

the Chief District officer is informedof the fact that a Child does not haveany relative of same home to lookafter the Child, the Childrenwelfare officer or the Chief Districtofficer, as the case may be, shall makenecessry arrangement Chief DistrictOfficer, as the case may be, shallmake necessary arrangement forupbringing and maintenance of thechild In doing so, ht child shall beas as far as practicable, given to thecustody of te nearest relative of the

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child. In the case of non availabilityof such relative, person ororganisation wishing to take thechild for his maintenance andupbringing the child shall besurrendered to the nearest childrenswelfare hme.

2) In cases where the Child referred toin sub-section (1) has any propertythe children welfare officer or thechief district officer shall prepare astatement thereof in the presence ofat least tow local witnesses and shallkeep one copy thereof in his officeand the other one shall be given tothe person or organisationresponsible for upbringing andmaintenance of the Child.

3) The statement of property preparedunder sub-section (2) and theproperty mentioned therein shall begiven to the custody of the person,organisastion or the children’swelfare home responsible forupbringing and maintenance of theChild and such perosn,sorganisation or the children’swelfare home shall certify in writingthe taking of the custody. pendingthe ustody of the property of theChild, the responsibility of takingcare of or of protecting the propertyshall lie with the children welfareoffier, and if he is not available, withthe chief district officer.

4) The income derived from theproperty mentioned in sub-section(3) may be used by the personorganisation or the children’swelfare home taking responsibilityfor the maintenance, upbringing,education and health care of thechild. The person, organisation orthe children’s welfare hometakingresponsibility enjoy the same rightsand comply with the same terms and

conditions as those of aa guardianappointed under this Act.

22. Appointment of Guardian :1) In case where a Child a deprived of

his family for reasons of death ofhis parents of adult relativebelonging to the same home, oreven if though alive, if they areunable to bring up or look after thechild for reason of physical ormental incapacity, every personmay, for the purpose of giving thechild to a guardian apply to thechildren welfare officer. On receiptof such application, the childrenwelfare officer shall upon necessaryinquiry into the matter appoint aGuardian fort the child subjected tothe provisions of this section.

2) In appointing a Guardian undersub-section (1), priority shall begiven, as far as practicable, to thenearest heir.Provided that, if it is notappropriate to appoint the nearestheir as the Guardian for reasons offamily confrontation, quarrel or forany other reason, the Childrenwelfare officer may, stating thereason thereof, appoint as he deemsappropriate a distant heir or anyother person as the Guardian of thechild.

3) In appointing a Guardian pursuantto sub-section (2) consent of theappointee to that shall be obtained.

4) Notwithstanding anythingcontained in sub-section (2) thefollowing persons shall not bequalified to be appointed to or,hold the office of the Guardian :-(a) if he is suffering from mental

disease,(b) if he has not attained the age of

25 years,

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(c) if he is relieved of the office ofguardian in accordance withsection 28,

(d) if he is convicted of any offenceby court involving moralturpitude, or

(e) if he turns out to be insolvent.5) If nobody agrees to act as Guardian

of the Child or if no appropriateperson is available to be theGuardian,. The children welfareofficer shall make arrangements tosend the Child to children’s welfarehome.

6) In case there is any property, it alsoshall be handed over while handingover the child to the Guardianpursuant to sub-section (2) or to theChildren’s welfare pursuant to sub-section (5). While handing over theproperty, its statement shall beprepared and one copy shall be keptin his office and the other one shallbe given to the Guardian or Chiefof the Children’s Welfare homewho takes over the property.

7) The Guardian or Chief of theChildren’s welfare Home may spendthe income derived from theproperty taken over pursuant tosub-section (6) for the maintenance,education and health care of theconcerned child and keep itsaccount.

23. Interest and property of the child tobe safeguarded:1) The main duty of the Guardian shall

be to safeguard the interest of thechild.

2) The Guardian shall give specialattention to the following pointsbesides other things :-(a) To bring up the Child in a way

that will enhance the physical

and mental development of thechild.

(b) To arrange for the educationwhich may help the intellectualdevelopment of the child.

(c) To prevent the child from beinginvolved in bad habit orcompany

(d) To keep the up-to-date recordof the child’s property and toprotect it.

3) The Guardian shall initiatenecessary proceedings in order torealise the property or income ofthe child misappropriates by othersand to release the impendedproperty. for this purpose, theguardian may submit application,complaint or suit in the office orcourt or may initiate othernecessary legal proceedings onbehalf of the child .

24. The works to be done by the Guardian:The Guardian may, to bear theexpenses necessary for the maintenance,education or health care of the childgive any property child to any personfor earning or on rent.

25. The works not to be done by theGuardian:The Guardian shall not do any of thefollowing works.a) To engage the Child in work that

requires more labour than hisphysical capacity can bear.

b) To engage the child in any workwhich may hurt in his religious orcultural usage or to use his propertyon such work or

c) To sell the Child’s property toothers with an intention to take itback by himself.

26) Report to be submitted by the

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Guardian :1) The Guardian shall submit a report

to the concerned children welfareofficer stating all the particularsrelating to the expenses incurred onhis own for the maintenance, healthcare and education of the child andthe income earned for the propertyof the child and the expensesincurred our of such income for themaintenance of the child in eachyear within the month of Baisakh(may 13)

2) The Children welfare officer if hedeems necessary may check thereliability of the statement orstatistics mentioned in the reportsubmitted pursuant to sub-section(1), inspect or cause to inspect thechild and the place where hisproperty is remained. For thispurpose, the children welfare officermay order to present the concernedchild before himself and also makenecessary inquiry with the child. incase the children welfare officerissues an order to present the childbefore him, it becomes the duty ofthe Guardian to present the child

27. The Guardian any retire takingapproval :1) In case the Guardian, appointed

pursuant to this Act, desires to retirebeing unable to discharge his duty ,shall submit an application statingthe reason thereof to the childrenwelfare officer at least one monthbefore. The Guardian shall also haveto submit along with theapplication, the statement of theproperty of the child that he hastaken in custody and the expensesup to the date of the application.

2) If the reason stated in theapplication submitted pursuant to

sub-section (1) is deemed reasonable,the children welfare officer shallcause to handover the property inthe custody of the Guardian to anyoffice or person and permit him toretire.

28. Guardian may be removed :The children welfare officer mayremove the Guardian, in case it isproved that he has done any work incontravention to section 23, 24 or 25or gives a false statement whilesubmitting the report pursuant tosection 26.

29. Another Guardian to be appointed :1) In case any Guardian has expired or

the Guardian cannot be retaineddue to any situation pursuant tosub-section. (4) of Section 22 or theGuardian is retired pursuant toSection 27 or removed pursuant tosection 28, the children welfareofficer shall subject to section 22appoint another Guardian insteadof such Guardian,.

2) If the Guardian, who is removedfrom the Guardianship or is notretained as a Guardian pursuant tosub-section (1) has any property ofthe Child in his custody he shallhandover such property and therelated documents to the office orperson specified by the ChildrenWelfare Officer.

30. Maintenance of the Child having nosufficient income:1) The Guardian may submit an

application to the Chief Districtofficer for the Governmentassistance if he could not bring upthe Child in a proper way due toin-sufficiency of income orproperty or the property isconsumed by any other in an illegalway and the Chief District Officer

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shall, if he deems the statementreasonable, make available necessaryGovernment assistance. In case suchassistance is not available, anarrangement shall be made to keepthe child in the children’s WelfareHome.

2) In case any Child in is handed overto the Children’s Welfare Home,the responsibility of the Guardianshall be deemed to be terminatedfrom the date of such handover.

31. Gurdian to receive remuneration :1) The Children Welfare Officer shall

specify the remuneration of theGuardian on the basis of theproperty and income of the Child.

2) The Guardian may take five percentof the reasonable expenses incurredfor the realization of the propertyor income of the Child pursuant tosub-section (3) of section and thecurrent price of the property sorealised or the income in the formof remuneration.

3) In case the Guardian has spent someamount on his own for themaintenance, education or healthcare of the Child, he may also realisesuch amount from the income of theChild.

Chapter 4Welfare Provisions

32. Constitution of Central and DistrictChildren Welfare Board :1) His Majesty’s Government shall, by

publishing a notification in NepalGazeette constitute CentralChildren Welfare Board Consistingof twenty on members at themaximum including the membersfrom along the social workers,woman social workers, medical

practitioners Child psychologistsand teachers. The Name of thechairperson and member of theCentral Children’s Welfare Boardshall be as prescribed in the samenotice. The Board shall worksubject to the policy and directivesof his majesty’s Government.

2) A district Children Welfare Boardshall be constituted in district underthe convernship of the ChiefDistrict officer. in the districtChildren welfare board, there shallbe the persons as appointed by theChief District officer specially fromamong the following personsbesides other persons :-(a) Persons involved in social

service,(b) Social Workers involved in the

works relating to the rights andinterests of the children.

(c) Women social workers,(d) Medical practitioners,(e) Child Psychologist,(f) Teachers.

3) The tenure of the officials of theCentral Children Welfare Boardand District Children WelfareBoard shall be of four years andthey may be reappointed.

4) The chairperson of the DistrictChildren Welfare Board shall be theperson prescribed by the membersof District Children Welfare Boardfrom among themselves and untilsuch chairperson is appointed, theChief District Officer himself shallact as the chairperson of the Board.

5) Each District Children Welfareboard shall have to submit an annualreport relating to the children’swelfare activities conducted in thedistrict level to the Central Children

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Welfare Board within the month ofBaisakh. The Central ChildrenWelfare Board shall prepare anation-wide report relating to thechildren on the basis of the annualreports received from the DistrictChildren Welfare Board and submitit to His Majesty’s Government ineach year within the month ofAshadh (July 13)

6) Besides those written in this Act, theother functions, duties, rights andprocedures of the Central Childrenwelfare Board and the DistrictChildren Welfare Boards shall be asprescribed.

33. Appointment of Children WelfareOfficer :1) His Majesty’s government may

appoint Children Welfare Officerin requisite number. His Majesty’sGovernment may designate anyother person or personnel to act asthe children welfare officer pursuantto this Act until the Childrenwelfare officers are appointed.

2) The Children Welfare Officer,appointed or designated pursuant tosubsection (1) shall work subject tothe general control and directive sof the district children welfareboard.

3) Besides those written in this Act, theother functions, duties, rights areterms and conditions of service ofthe Children Welfare Officer shallbe as prescribed.

34. Establishment and operation ofChildren’s welfare home :1) His majesty’s Government shall

establish Children’s Welfare Homein the various regions of thekingdom of Nepal as required.

2) His Majesty’s Government may

utilize Children’s Welfare Home,orphanage or center operated byany other person or organizationfor the purpose of keeping thechildren until the establishment ofChildren’s welfare home pursuantto sub-section (1).Provided that, anything written inthis sub-section shall not be deemedto have given rights to his majesty’sGovernment to interfere i theoperation of such Children’sWelfare Home, orphanage orcenter.

35. Abandoned Child to be kept in theChildren’s Welfare Home1) The chukdreb welfare Officer and

teh police prsonnel shall handoverthe abandoned child, they havefound or handed over to them byany person, to the nearest hildren’swelfare home after keeping therecords of teh child includiong thename, surname, address,photograph, any special mark on hisbody and thumb impressions and asfar as practicable the name of hisfather and grandfather jin theiroffice.

2) The Chief of the concernedChildren’s welfare home shall takeinto its custody the abandoned childbrought to handover pursuant tosub-section (1) except in the case oflack of lodging place.

3) In case the Chief of the Children’sWelfare home did not take into itscustody the abandoned child due tothe reason mentioned in sub-ection(2), such child may be handover toany other children’s welfar home.

4) Tha abandoned child residing in thechildren’s welfare home shall bekept seperately on the ground ofsex.

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5) The children welfare officer, policeor Chief of the concerned children’swelfaer home may, in order to findout father, mother, relaties orGuardian of the abandoned childcause to publish a notice includingthe descriptin and photograph ofsuch child in any paper or cause tocommunicate through any othermedium of communication.

36. Duration to be kept in the children’swelfare home :1) An abandoned child shall be kept

in the children’s welfare home untilhe atttains the age of sixteen years.Provided that, if the child of suchage is sent of from the children’swelfare home, it is deemed that hewill face the problem of livelihood,he may be kept in the children’swelfare home until he attains the ageof eighteen years.

2) Notwithstanding anythingcontained in sub-section (1), the agebar to live in the children’s welfarehome does not apply in the case ofblind, disabled or mentally retardedabandoned child, until they are sentto the childrens welfare homeprovided for their living.

3) Notwithstanding anythingcontained in sub-section (1), if thefather, mother or the Guardian ofthe abandoned child desiored to takethe child with them, the chief of thechildren’s welfare home shall allowto take tha child at any time andprepare a document for such takeover of the child.

37. Assistance to be give to providevocational training or to put on the job:1) The abandoned Children residing in

the Children’s Welfare home shallbe involved in vocational training or

teaching and learning on the basisof their aptitude and knowledgte

2) His majesty’s Governmnet shallprovide assistance to eagage anabandoned child who has alreadyobtained any knowledge or skill inany vocational jobs suitable to hisknowledte or skill.

38. Child may be kept in the children’swelfare on the condition of payment.:1) In case the father, mother or

relatives of teh child who often runsaway from the home agrees to bearall the expenses required for hismaintenance, the chief of theconcerned children’s welfre homemay allow to keep such child in thechilden’s welfare home havingprepared a document of agreementto bear such expenses.

2) When the child kept in thechildren’s welfare home pursuant tosub-section (1), completes thespecified period in the childrenwelfare home, the chief of thechildren’s welfare home shallhandover the child to the custodyof his father mother or relatives.Whilehandling over the child thebalance amount, if any, of themoney deposited for themaintenance of such child shall alsobe returened alongwith thestatement of expenses incurred forhis maintenance.

3) In case any child kept in thechildren’s welfare home pursuant tosub-section (1) has escaped from thehildren’s welfare home or hasexpired, the chief of the childrenWelfare home or has expired, theChief of the chilren’s welfare homeshall immediately give thisinformation tot he father mother orrelatives of the child and do

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everything possible to trace him inthe case of escapint.

4) The Chief of the Children’sWelfare Home shall, while givingthe Child to the custody of hisfather, mother or relatives pursuantto sub-section (2), also return hisimmovable property, if any, andthe related documents.

5) In case the Child escape pursuant tosub-section (3) is not found or theChild has expired, any goods orimmovable property of the childshall be returned to his father,mother or relatives and realisedfrom them the due expenses relatingto the child, if abny.

39. General punishment may be given tomaintain the discipline :1) In case an abandoned child does not

comply with the terms andconditions to be complied withwhile staying in the children’swelfare home or does any act whichviolates the discipline, the Chief ofthe Children’s Welfare home mayimpose any of the followingpunishments on such Child :(a) To deprive him from the

faci lities available in thechildren’s Welfare home notexceeding three days at one timeor,

(b) to realise full or partial amountof the damage, in case anytingof the children’s welfare homeis broken or damagedknowingly.

2) Notwithstanding anythingcontained in sub-section (1), it shallnot be deemed to conferred thepower to the chief of the children’swelfare home to beat or detain thechild in solitary confinement or tostop giving food and water to wuch

child.3) For the purpose of realisation of the

amount of the damage from theabandoned child pursuant to clause(b) of sub-section (1), the chief ofthe children’s welfare home shallrealise the amount as possible fromthe income of the concerned childor from his salary, if he has to getany for working there, and shallhave to reconcile by remitting theremaining amount.

40. Expenses may be realised handling overthe child to his father, mother, etc :1) In case it is known that the father,

mother or a member of the familyof any child has enrolled him t achildren’s welfare home, orphangeor such other centre giving a falsestatement that he is an abandonedchild or an orphan, the chief of thechildren’s welfare home shall haveto handover such cjhild to his father,mother or a member or the familywhoever comes in contact.

2) In the situation pursuant to sub-section (1) the concernecd children’swelfare home orphange or centershall have to realise all the expensesincurred for the maintenance of theconcerned child as a government duefrom the father, mother or amember of the family of the childwho has enrolled him fraudulently.Provided that, the concernedchildren’s welfare home, orphangeor centre shall not realise theexpenses incurred for themaintenance of the child in case thefather, mother or a member of thefamily of the child has no incomeor property.

41. Chief of the children’s welfare hometo keep records and to report :1) The Chief of the Children’s

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Welfare home shall have to preparepersonal records of all theabandoned children resising in hechildren’s welfare home. if anypunishment pursuant to sub-section(1) of section 39 is awarded to abychild, that also shall be mentionedin such record.

2) The form of personal records to bekept pursuant to sub-section (1) shallbe as prescribed.

3) The records maintained pursuant tosub-section (1) shall be kept secredand such records shall not be shownor given to any person othe thanthe children welfare board orchildren welfare officer or theperson or office having permissionfrom such board or officials.Provided that, this restriction shallnot apply to the records demandedby the court in relation to a case.

4) The chief of the children’s welfarehome shall send reports, in theprescribed from stating all theactivities carried out by thechildrens welfare home in the lastyear, to teh district children welfareboard and children welfare officerin each year within the month ofBaisakh (May 13).

42. Establishment and operation ofChildren’s Rehabilitation Home :1) His Majesty’s Governmetn shall

establish children’s Rehabilitationhomes as required.

2) The following children shall be keptin the children’s RehabilitationHome established pursuant to sub-sectin (1) :-(a) A child to be imprisoned

pursuant ot the existing law forthe investigation orproceedings of the case being

accused in any crime,(b) A child to be imprisoned

beinbg punished pursuant toexisting Law,

(c) A child addicted to narcoticdrugs.

(d) A child who often runs awayfrom father, mother or thefamily,

(e) A child who has company withthe persons involved inimmoral or inexpedientactivities or takes part in theactivities of such persons ordepends upon their earnings.

(f) Children of the catagoriesprescribed by his Majesty’sGovernment.

3) His Majesty’s Government Mayutil ise the private Children’sWelfare home, orphange or centreoperated by any person or body inthe form of children’s rehabilitationhome temporarily by obtainingpermissionof such person or bodyuntil the childrens rehabilitationhome temporrarily by obtainingpermission of such person or bodyuntil the children’s rehabilitationhome is estabilished pursuant tosub-section. (1)

4) In case the child mentioned in teclause (d) of sub-section (2) is keptin the children’s Rehabilitationhome with the consent of his family,his family shall have to bear theexpenses incurred for hismaintenance.

5) The operation of the children’srehabilitation home and thefacilities, training and education tobe provided for the childrenresiding therein as well as the termsand conditions to be followed bythe children shall be as prescribed.

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43. Establishment and operation oforphange and centre for mentallyretarded children1) His Majesty’s Government shall

establish orphange and centre formentally retarded children asrequired for the maintenance anddwelling of orphans, disabled ormentally retarded children havingno parents,

2) His Majesty’s Government shallprovide necessary education for thechildren residing in the orphange orcentre for mentally retardedchildren pursuant to sub-section (1)

3) Notwithstanding anythingcontained in sub-section (1) Hismajesty’s Goverment may, underunder an agreement, utilise theorphange or center for mentallyretarded children operated by anyother person or organisation, forthe purpose of this Act.

44. Inspection of Children’s welfare home,children’s Rehabilitation home,orphange etc.1) The centra children welfare board

may inspect to cause to inspect allchildren’s welfare home orphangesor centres established within thekingdom of Nepal at any time andthe district children welfare boardor children welfare officer mayinspect or cause to inspect thechildren’ s Welfare homes,orphanges or centres within theirown area at any time.

2) The children welfare officer shallinspect the children’s welfarehomes, orphanges or centres at leasttwice a year within his area andwhild doing such inspection, in caseit is found that any act to be donepursuant to this act and the rulesmade thereunder is not done or any

act ios done in contravention to theexisting law, he shall have to sendits report to the district childrenwelfare board.

3) The children welfare board orchildren welfare officer may issuedirectives to correct theirregularities found in the Childrenswelfare home, childrensrehabilitation home orphanges oruch other centres and it shall be themain duty of the chief of thchildren’s wwelfar home childrensRehabilitation home, orphanges orcentries to follow such directives.

45. Provisions relating to the childrenswelfare home childrens rehabilitationhome orphanges etc :The person to operate the children’swelfare home, childrens rehabilitationhome orphanges etc power to be usedby him terms and dconditions of hisservice and the rules to be obeyed byand the education and training to beprovided for the children residing insuch children’s welfare home children’srehabilitation home orphanges orcentres shall be as prescribed.

Chapter 5Working Hours and Leisure

46. Particulars to be given by the personengaging a child as a labourer :1) The person or organisation engaging

a child as a labourer shall send aphotograph and particulars of theconcerned child in teh prescribedform to hte district children welfareboard.

2) The District Children welfareboard, if it deems necessary, maycause to submit the particulars inaddition to the particulars submittdpursuant to sub-section (1), and

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check or cause to check whether thestatement written in the particularsare correct or ot. in case anything isfound in contravention to this actor exiosting law or statementmentioned tin teh particulars whilechecking the person who checked onbehalf of teh board may givenecessary directives to correct it.

3) It shall be the duty of the concernedperson or organisation to submitthe particulars demanded and tocomply with the directives issuedpursuant to sub-section (2).

47. Working hours and leisure :1) While engaging a child as a laborer

pursuant to section 46, he shall nothe engaged more that 6 hours a dayand not more that 36 hours a week.

2) Generally, after continuous workof three hours, leisure of half anhour and a holiday of one day foreach week shall be given to the childengaged in the work pursuant tosub-section (1). The leisure of halfan hour for each day and a holidayfor each week provided thus shallalso be regarded as the workinghours for the purpose of thissection.

48. Approval to be obtained :1) In case any corporate body or

industrial enterprise has to engage achild of 14 years or above as alabourer or any other has to includeany child in any recreation orcultural programme havingcommercial purpose, shall obtainapproval of the children welfareofficer and his father, mother orguardian as well.Provided that, no permission isrequired pursuant to this section toengage the children of anyeducational organization,

Children’s welfare home, children’srehabilitation home or orphange inthe functions organized by thoseorganizations or to cause toparticipate them in the culturalprogram’s conducted by thoseorganization for the wide interestof such organisations.

2) In the place where there is not achildren welfare officer, thepermission pursuant to sub-section(1), shall be taken from the labouroffice of his Majesty’s Government,it it exists and if not, the permissionshall be taken from the ChiefDistrict officer.

Chapter 6Miscellaneous

49. Only particular persons can attend inthe case relating to the Child :1) The legal practitioner or the father,

mother, relatives or Guardian ofthe child and if the officer hearingthe case deems it appropriate andpermits any person or therepresentative of the socialorganization involved insafeguarding the rights and interestsof the Child may attend in thebench in the proceedings of any caserelated with the child initiatedunder this Act existing laws.

2) The case pursuant to sub-section (1)and the particulars of the incidentrelating to it cannot be published inany paper without the permissionof the investigating officer of thecase or the officer hearing the case.such restriction shall also prevail forthe owner of the press, news agentsand photo news agents.

50. Investigation of the case and pendingof the punishment

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1) In case officer hearing the casedeems that it is not appropriate tokeep the child in prison inconsideration to the physicalcondition, age of the accused childwho is to be investigated keeping inprison pursuant to existing law,situation ate the time of offence andthe place of imprisonment, mayissue an order to handover the childto the custody of his father,mother, relatives, or Guardian orany social organisation involved insafeguarding the rights and interestsof the child or lthe children’srehabilitation home on thecondition to present him as andwhen required and to carry oninvestigation or proceeding of thecase.

2) In case the officer hearing the casedeems it is not appropriate to keepthe child in who has got a sentenceof imprisonment being proved as anoffender in consideration to hisphysical condition, age, or situationat the time of offence and repetitionof offence etc. he may keep the casepending for not to undergo thepunishment at once or mayprescribe the uration of suchprescribed punishment to be passedresiding in a children’s rehabilitationhome or remaining in theguardianship of any person ororganisation. The officer hearing thecase may issue an order in the caseof the child whose punishment isthus suspended, if the child is givena sentence of imprisonment beingproved an offender of the same orany other offence during the periodof one year, to implement thepunishment at one time adding boththe sentences of imprisonment.

51. Case can be filed on behalf of a child :

1) In case a suit or complaint is to befiled or case to be defended in anymatter of righ of a child, his father,mother or Guardian may file a suit,complaint or defend the case. Thisright goes to his claimant, in casethe child has no father, mother orGuardian.

2) The case relating to the offence tobe punished under this Act can beinitiated on the complaint of anyperson or his Majesty’sGovernment.

52. Statistics relating to the Child andrestriction in its use :1) The police office shall keep the

statistics of the child apprehendedon the charge of any offence in thesecret from mentioning his name,address, age, sex , familybackground, economic conditions,offence committed by him and ifany proceeding is initiated on it, itsparticulars and the copy of suchstatistics shall be sent to the policeHead Quarter every six month.

2) In case the statistics maintainedpursuant to sub-section (1) are to bepunished for any study or researchwork, it can be published or utilisedon the basis of age or sex withoutmentioning the name, surname oraddress of the child.

53. Punishment:1) In case any person commits any

offence in contravention to section13, 17, 18 or abets orther to commitsuch offence or attempts to do so,he shall be punished with a fine upto three thousand rupees or withimprisonment for a term which mayextended to two years more inaddition.

2) In any person commits any offencein contravention to section 14 or

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abets others to commit such offenceor attempts to do so, he shall bepunished with a fine up to tenthousand rupees or withimprisonment for a term which mayextend to five years or with both.If it is proved that any person hassold a child taking any amount, suchamount also shall be seized from theperson selling the child and in casesuch amount could not be realised,he shall be punished withimprisonment for a term which mayextend to two years more inaddition.

3) In case any person commits anyoffence in contravention to section7 or 15, he shall be punished with afine upto five thousand rupees orwith imprisonment for a term whichmay extend to one year or withboth. In case of torture and crueltreatment he shall be made liable topay a reasonable amount ofcompensation to the child.

4) In case person commits any offencein contravention to sub-section (1),(2) or (3) of section 16 or abets othersto commit such offence or attemptsto do so, he shall be punished witha fine upto ten thousand rupees orwith imprisonment for a term whichmay extend to one year or withboth and the photographs takenwith an aim to engage the child inan immoral profession and all thepublications printed with an aim topublish may be seized by the orderof the court.

5) The person engaging a child in thebusiness in contravention to sub-section (4) of section 16 shall bepunished with imprisonment for aterm which may extend to five yearsin addition to the punishment to begiven pursuant to existing Laws.

6) In case there has been any hurt inthe character of the child or adverseeffect in his health or dismemberingof physical organ due to the reasonthat any person has caused the childto engage in any prohibitedbusiness pursuant to section 16, 17or 18 the officer hearing the casemay cause to pay a reasonableamount of compensation inproportion to such damage to thechild from such person in additionto the punishment to be givenpursuant to sub-section. (1) or (4)

7) In case the Guardian contravenes ordoes not follow anything mentionedin section 23, 24 or 25, he shall bepunished with a fine up to threethousand rupees or withimprisonment for a term which mayextend to three months or withboth.

8) In case the Guardian submits areport contrary to section 26 or theproperty to be returned pursuantto section 29 is not returned, he shallbe punished with a fine up to sixthousand rupees or withimprisonment for a term which mayextend to six months or with bothand the property misappropriatedshall also be realisesd from him.

9) In case the Chief of the Children’sWelfar home shows or givespersonal particulars maintainedpursuant to section 41 to anyunathorised person or any personpublishes the particulars of a casecontraty to section 49 or disclosesthe secrecy of the statistics relatingto the child or brings it in use orpublishes it contrary to section 52,he shall be punished with a fineupto three thousand rupees or withimprisonment for a term which may

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extend to three months or withboth and all the papers and booksrelating to the offence shall also beseized.

10) In case any person commits anyoffence in contravention to section46, 47 or 48 he shall be punishedwith a fine upto three thousandrupees or with imprisonment for aterm which may extend to threemonths or with both.

54. Limitation :Complaints shall be filed within oneyear from the date of offencecommitted which is punishable underthis Act.Provided that, the complaint may befiled forever in case the property of achild is sold malafidely and within threeyears from the date of such happeningin the case a child is caused to engage inan immoral profession.

55. Office hearing the case and proceduresto be followed relating to the case :1) His Majesty’s Government shall, by

publishing a notification in theNepal Gazette constitute Juvenilecourt as required. The area andheadquarter of such Court shall beas prescribed in the same notice.

2) The Juvenile court constitutedpursuant to sub-section (1) shall havethe power to hear and decide thecase of first instance in which thechild is a plaintiff or defendantexcept in the situation of section 20.Provided that, the juvenile courtshall not hear and decide the case inwhich a child is involved along witha major person.

3) The concerned District Court shallhave the power to hear and decidethe case pursuant to sub-section (2)until the Juvenile Court the case filed

in the District Court shall betransferred to the Juvenile Court.

4) There shall be a children’s Bench ineach District Court for hearing anddeciding the case to be heard fromthe District Court pursuant to sub-section (3).

5) His Majesty’s Government shallprescribe the procedure relating tothe constitution of the Children’sBench pursuant to sub-section (4) onthe advice of the Supreme Court andmay include social worker, childspecialist or child psychologistbesides the judges while prescribingthe bench.

6) The procedures to be followed bythe Juvenile Court or DistrictCourt for hearing and deciding thecases shall be as prescribed and untilsuch procedure is prescribed thoseCourts shall follow the proceduresof the summary procedure Act,2028.

56. Appeal :Any person not satisfied with thedecision made by the Juvenile court ofDistrict Court pursuant to section mayfile an appeal to the Appellate Courtwithin thirty five days of such decisionmade thereto.

57. Priority to be given in hearing the cases:The case under this Act in which a childis a plaintiff or defendant shall have tobe given priority for hearing anddeciding.

58. Power to frame Rules :His Majesty’s Government may framenecessary Rules for implementing theobjectives of this Act.

59. Repeal :1) No. 1 and 2 of the Chapter “of

Poor” of Muluki Ain (Law of theLand) are hereby repealed.

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2) The figure “1” after the word“mahal” (Chapter) contained innumber 6 of the Chapter “of poor”of Muluki Ain (Law of the Land) isdeleted.

3) The words “ the child below the ageof 8 years or “ appearing in No. 1of the chapter “of punishment” ofthe Muluki Ain (Law of Land) andthe phrases “if the age of of the childis 8 years or above 8 years and below12 years and he commits an offencewhich is punishable with

imprisonment, he shall be punishedwith imprisonment for a term whichmay extend to two monthsdepending on the offence. if thechild who is 12 years or above 12years and below 16 years commitsan offence he shall be punished withhalf of the penalty of the penalty tobe imposed on a person who hasattained maturity. The child or“appearing in the same No. havebeen deleted.

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PreambleThe States Parties to the presentConvention,Considering that, in accordance with theprinciples proclaimed in the Charter of theUnited Nations, recognition of the inherentdignity and of the equal and inalienablerights of all members of the human familyis the foundation of freedom, justice andpeace in the world,Bearing in mind that the peoples of theUnited Nations have, in the Charter,reaffirmed their faith in fundamentalhuman rights and in the dignity and worthof the human person, and have determinedto promote social progress and betterstandards of life in larger freedom,Recognizing that the United Nations has,in the Universal Declaration of HumanRights and in the International Covenantson Human Rights, proclaimed and agreedthat everyone is entitled to all the rightsand freedoms set forth therein, withoutdistinction of any kind, such as race, colour,sex, language, religion, political or otheropinion, national or social origin, property,birth or other status,Recalling that, in the Universal Declarationof Human Rights, the United Nations hasproclaimed that childhood is entitled tospecial care and assistance,Convinced that the family, as thefundamental group of society and thenatural environment for the growth and

Convention on the Rights of the Child

Adopted and opened for signature, ratification and accession byGeneral Assembly resolution 44/25 of 20 November 1989 entry into force

2 September 1990, in accordance with article 49

Annex B

well-being of all its members andparticularly children, should be affordedthe necessary protection and assistance sothat it can fully assume its responsibilitieswithin the community,Recognizing that the child, for the full andharmonious development of his or herpersonality, should grow up in a familyenvironment, in an atmosphere ofhappiness, love and understanding,Considering that the child should be fullyprepared to live an individual life in society,and brought up in the spirit of the idealsproclaimed in the Charter of the UnitedNations, and in particular in the spirit ofpeace, dignity, tolerance, freedom, equalityand solidarity,Bearing in mind that the need to extendparticular care to the child has been statedin the Geneva Declaration of the Rights ofthe Child of 1924 and in the Declaration ofthe Rights of the Child adopted by theGeneral Assembly on 20 November 1959and recognized in the Universal Declarationof Human Rights, in the InternationalCovenant on Civil and Political Rights (inparticular in articles 23 and 24), in theInternational Covenant on Economic,Social and Cultural Rights (in particular inarticle 10) and in the statutes and relevantinstruments of specialized agencies andinternational organizations concerned withthe welfare of children, ‘Bearing in mind that, as indicated in the

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Declaration of the Rights of the Child, “thechild, by reason of his physical and mentalimmaturity, needs special safeguards andcare, including appropriate legal protection,before as well as after birth”,Recalling the provisions of the Declarationon Social and Legal Principles relating tothe Protection and Welfare of Children,with Special Reference to Foster Placementand Adoption Nationally andInternationally; the United NationsStandard Minimum Rules for theAdministration of Juvenile Justice (TheBeijing Rules) ; and the Declaration on theProtection of Women and Children inEmergency and Armed Conflict,Recognizing that, in all countries in theworld, there are children living inexceptionally difficult conditions, and thatsuch children need special consideration,Taking due account of the importance ofthe traditions and cultural values of eachpeople for the protection and harmoniousdevelopment of the child,Recognizing the importance ofinternational co-operation for improvingthe living conditions of children in everycountry, in particular in the developingcountries,Have agreed as follows:

PART IArticle 1

For the purposes of the presentConvention, a child means every humanbeing below the age of eighteen years unlessunder the law applicable to the child,majority is attained earlier.Article 21. States Parties shall respect and ensure

the rights set forth in the presentConvention to each child within theirjurisdiction without discrimination of

any kind, irrespective of the child’s orhis or her parent’s or legal guardian’srace, colour, sex, language, religion,political or other opinion, national,ethnic or social origin, property,disability, birth or other status.

2. States Parties shall take all appropriatemeasures to ensure that the child isprotected against all forms ofdiscrimination or punishment on thebasis of the status, activities, expressedopinions, or beliefs of the child’sparents, legal guardians, or familymembers.

Article 31. In all actions concerning children,

whether undertaken by public orprivate social welfare institutions,courts of law, administrative authoritiesor legislative bodies, the best interestsof the child shall be a primaryconsideration.

2. States Parties undertake to ensure thechild such protection and care as isnecessary for his or her well-being,taking into account the rights and dutiesof his or her parents, legal guardians,or other individuals legally responsiblefor him or her, and, to this end, shalltake all appropriate legislative andadministrative measures.

3. States Parties shall ensure that theinstitutions, services and facilitiesresponsible for the care or protectionof children shall conform with thestandards established by competentauthorities, particularly in the areas ofsafety, health, in the number andsuitability of their staff, as well ascompetent supervision.

Article 4States Parties shall undertake all appropriatelegislative, administrative, and othermeasures for the implementation of the

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rights recognized in the presentConvention. With regard to economic,social and cultural rights, States Parties shallundertake such measures to the maximumextent of their available resources and,where needed, within the framework ofinternational co-operation.Article 5States Parties shall respect theresponsibilities, rights and duties of parentsor, where applicable, the members of theextended family or community as providedfor by local custom, legal guardians or otherpersons legally responsible for the child, toprovide, in a manner consistent with theevolving capacities of the child, appropriatedirection and guidance in the exercise bythe child of the rights recognized in thepresent Convention.Article 61. States Parties recognize that every child

has the inherent right to life.2. States Parties shall ensure to the

maximum extent possible the survivaland development of the child.

Article 71. The child shall be registered

immediately after birth and shall havethe right from birth to a name, the rightto acquire a nationality and. as far aspossible, the right to know and be caredfor by his or her parents.

2. States Parties shall ensure theimplementation of these rights inaccordance with their national law andtheir obligations under the relevantinternational instruments in this field,in particular where the child wouldotherwise be stateless.

Article 81. States Parties undertake to respect the

right of the child to preserve his or heridentity, including nationality, nameand family relations as recognized by

law without unlawful interference.2. Where a child is illegally deprived of

some or all of the elements of his orher identity, States Parties shall provideappropriate assistance and protection,with a view to re-establishing speedilyhis or her identity.

Article 91. States Parties shall ensure that a child

shall not be separated from his or herparents against their will, except whencompetent authorities subject tojudicial review determine, in accordancewith applicable law and procedures,that such separation is necessary for thebest interests of the child. Suchdetermination may be necessary in aparticular case such as one involvingabuse or neglect of the child by theparents, or one where the parents areliving separately and a decision must bemade as to the child’s place of residence.

2. In any proceedings pursuant toparagraph 1 of the present article, allinterested parties shall be given anopportunity to participate in theproceedings and make their viewsknown.

3. States Parties shall respect the right ofthe child who is separated from one orboth parents to maintain personalrelations and direct contact with bothparents on a regular basis, except if it iscontrary to the child’s best interests. 4.Where such separation results from anyaction initiated by a State Party, suchas the detention, imprisonment, exile,deportation or death (including deatharising from any cause while the personis in the custody of the State) of one orboth parents or of the child, that StateParty shall, upon request, provide theparents, the child or, if appropriate,another member of the family with theessential information concerning the

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whereabouts of the absent member(s)of the family unless the provision ofthe information would be detrimentalto the well-being of the child. StatesParties shall further ensure that thesubmission of such a request shall ofitself entail no adverse consequences forthe person(s) concerned.

Article 101. In accordance with the obligation of

States Parties under article 9, paragraph1, applications by a child or his or herparents to enter or leave a State Partyfor the purpose of family reunificationshall be dealt with by States Parties in apositive, humane and expeditiousmanner. States Parties shall furtherensure that the submission of such arequest shall entai l no adverseconsequences for the applicants and forthe members of their family.

2. A child whose parents reside indifferent States shall have the right tomaintain on a regular basis, save inexceptional circumstances personalrelations and direct contacts with bothparents. Towards that end and inaccordance with the obligation of StatesParties under article 9, paragraph 1,States Parties shall respect the right ofthe child and his or her parents to leaveany country, including their own, andto enter their own country. The rightto leave any country shall be subjectonly to such restrictions as areprescribed by law and which arenecessary to protect the nationalsecurity, public order (ordre public),public health or morals or the rightsand freedoms of others and areconsistent with the other rightsrecognized in the present Convention.

Article 111. States Parties shall take measures to

combat the illicit transfer and non-

return of children abroad.2. To this end, States Parties shall

promote the conclusion of bilateral ormultilateral agreements or accession toexisting agreements.

Article 121. States Parties shall assure to the child

who is capable of forming his or herown views the right to express thoseviews freely in all matters affecting thechild, the views of the child being givendue weight in accordance with the ageand maturity of the child.

2. For this purpose, the child shall inparticular be provided the opportunityto be heard in any judicial andadministrative proceedings affecting thechild, either directly, or through arepresentative or an appropriate body,in a manner consistent with theprocedural rules of national law.

Article 131. The child shall have the right to

freedom of expression; this right shallinclude freedom to seek, receive andimpart information and ideas of allkinds, regardless of frontiers, eitherorally, in writing or in print, in theform of art, or through any othermedia of the child’s choice.

2. The exercise of this right may be subjectto certain restrictions, but these shallonly be such as are provided by lawand are necessary:(a) For respect of the rights or

reputations of others; or(b) For the protection of national

security or of public order (ordrepublic), or of public health ormorals.

Article 141. States Parties shall respect the right of

the child to freedom of thought,conscience and religion.

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2. States Parties shall respect the rights andduties of the parents and, whenapplicable, legal guardians, to providedirection to the child in the exercise ofhis or her right in a manner consistentwith the evolving capacities of the child.

3. Freedom to manifest one’s religion orbeliefs may be subject only to suchlimitations as are prescribed by law andare necessary to protect public safety,order, health or morals, or thefundamental rights and freedoms ofothers.

Article 151. States Parties recognize the rights of the

child to freedom of association and tofreedom of peaceful assembly.

2. No restrictions may be placed on theexercise of these rights other than thoseimposed in conformity with the lawand which are necessary in a democraticsociety in the interests of nationalsecurity or public safety, public order(ordre public), the protection of publichealth or morals or the protection ofthe rights and freedoms of others.

Article 161. No child shall be subjected to arbitrary

or unlawful interference with his or herprivacy, family, home orcorrespondence, nor to unlawfulattacks on his or her honour andreputation.

2. The child has the right to the protectionof the law against such interference orattacks.

Article 17States Parties recognize the importantfunction performed by the mass media andshall ensure that the child has access toinformation and material from a diversityof national and international sources,especially those aimed at the promotion ofhis or her social, spiritual and moral well-

being and physical and mental health. Tothis end, States Parties shall:(a) Encourage the mass media to

disseminate information and materialof social and cultural benefit to thechild and in accordance with the spiritof article 29;

(b) Encourage international co-operation inthe production, exchange anddissemination of such information andmaterial from a diversity of cultural,national and international sources;

(c) Encourage the production anddissemination of children’s books;

(d) Encourage the mass media to haveparticular regard to the linguistic needsof the child who belongs to a minoritygroup or who is indigenous;

(e) Encourage the development ofappropriate guidelines for theprotection of the child frominformation and material injurious tohis or her well-being, bearing in mindthe provisions of articles 13 and 18.

Article 181. States Parties shall use their best efforts

to ensure recognition of the principlethat both parents have commonresponsibilities for the upbringing anddevelopment of the child. Parents or,as the case may be, legal guardians, havethe primary responsibility for theupbringing and development of thechild. The best interests of the child willbe their basic concern.

2. For the purpose of guaranteeing andpromoting the rights set forth in thepresent Convention, States Parties shallrender appropriate assistance to parentsand legal guardians in the performanceof their child-rearing responsibilitiesand shall ensure the development ofinstitutions, facilities and services forthe care of children.

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3. States Parties shall take all appropriatemeasures to ensure that children ofworking parents have the right tobenefit from child-care services andfacilities for which they are eligible.

Article 191. States Parties shall take all appropriate

legislative, administrative, social andeducational measures to protect thechild from all forms of physical ormental violence, injury or abuse, neglector negligent treatment, maltreatmentor exploitation, including sexual abuse,while in the care of parent(s), legalguardian(s) or any other person whohas the care of the child.

2. Such protective measures should, asappropriate, include effectiveprocedures for the establishment ofsocial programmes to provide necessarysupport for the child and for those whohave the care of the child, as well as forother forms of prevention and foridentification, reporting, referral,investigation, treatment and follow-upof instances of child maltreatmentdescribed heretofore, and, asappropriate, for judicial involvement.

Article 201. A child temporarily or permanently

deprived of his or her familyenvironment, or in whose own bestinterests cannot be allowed to remainin that environment, shall be entitledto special protection and assistanceprovided by the State.

2. States Parties shall in accordance withtheir national laws ensure alternativecare for such a child.

3. Such care could include, inter alia,foster placement, kafalah of Islamic law,adoption or if necessary placement insuitable institutions for the care ofchildren. When considering solutions,due regard shall be paid to the

desirability of continuity in a child’supbringing and to the child’s ethnic,religious, cultural and linguisticbackground.

Article 21States Parties that recognize and/or permitthe system of adoption shall ensure that thebest interests of the child shall be theparamount consideration and they shall:(a) Ensure that the adoption of a child is

authorized only by competentauthorities who determine, inaccordance with applicable law andprocedures and on the basis of allpertinent and reliable information, thatthe adoption is permissible in view ofthe child’s status concerning parents,relatives and legal guardians and that,if required, the persons concerned havegiven their informed consent to theadoption on the basis of suchcounselling as may be necessary;

(b) Recognize that inter-country adoptionmay be considered as an alternativemeans of child’s care, if the child cannotbe placed in a foster or an adoptivefamily or cannot in any suitable mannerbe cared for in the child’s country oforigin; (c) Ensure that the childconcerned by inter-country adoptionenjoys safeguards and standardsequivalent to those existing in the caseof national adoption;

(d) Take all appropriate measures to ensurethat, in inter-country adoption, theplacement does not result in improperfinancial gain for those involved in it;

(e) Promote, where appropriate, theobjectives of the present article byconcluding bilateral or multilateralarrangements or agreements, andendeavour, within this framework, toensure that the placement of the childin another country is carried out bycompetent authorities or organs.

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Article 221. States Parties shall take appropriate

measures to ensure that a child who isseeking refugee status or who isconsidered a refugee in accordance withapplicable international or domesticlaw and procedures shall, whetherunaccompanied or accompanied by hisor her parents or by any other person,receive appropriate protection andhumanitarian assistance in theenjoyment of applicable rights set forthin the present Convention and in otherinternational human rights orhumanitarian instruments to which thesaid States are Parties.

2. For this purpose, States Parties shallprovide, as they consider appropriate,co-operation in any efforts by theUnited Nations and other competentintergovernmental organizations ornon-governmental organizations co-operating with the United Nations toprotect and assist such a child and totrace the parents or other members ofthe family of any refugee child in orderto obtain information necessary forreunification with his or her family. Incases where no parents or othermembers of the family can be found,the child shall be accorded the sameprotection as any other childpermanently or temporarily deprivedof his or her family environment forany reason , as set forth in the presentConvention.

Article 231. States Parties recognize that a mentally

or physically disabled child shouldenjoy a full and decent life, inconditions which ensure dignity,promote self-reliance and facilitate thechild’s active participation in thecommunity.

2. States Parties recognize the right of the

disabled child to special care and shallencourage and ensure the extension,subject to available resources, to theeligible child and those responsible forhis or her care, of assistance for whichapplication is made and which isappropriate to the child’s condition andto the circumstances of the parents orothers caring for the child. 3.Recognizing the special needs of adisabled child, assistance extended inaccordance with paragraph 2 of thepresent article shall be provided free ofcharge, whenever possible, taking intoaccount the financial resources of theparents or others caring for the child,and shall be designed to ensure that thedisabled child has effective access to andreceives education, training, health careservices, rehabil itation services,preparation for employment andrecreation opportunities in a mannerconducive to the child’s achieving thefullest possible social integration andindividual development, including hisor her cultural and spiritualdevelopment

4. States Parties shall promote, in thespirit of international cooperation, theexchange of appropriate information inthe field of preventive health care andof medical, psychological andfunctional treatment of disabledchildren, including dissemination ofand access to information concerningmethods of rehabilitation, educationand vocational services, with the aimof enabling States Parties to improvetheir capabilities and skills and to widentheir experience in these areas. In thisregard, particular account shall be takenof the needs of developing countries.

Article 241. States Parties recognize the right of the

child to the enjoyment of the highest

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attainable standard of health and tofacilities for the treatment of illness andrehabilitation of health. States Partiesshall strive to ensure that no child isdeprived of his or her right of access tosuch health care services.

2. States Parties shall pursue fullimplementation of this right and, inparticular, shall take appropriatemeasures:(a) To diminish infant and child

mortality;(b) To ensure the provision of

necessary medical assistance andhealth care to all children withemphasis on the development ofprimary health care;

(c) To combat disease andmalnutrition, including within theframework of primary health care,through, inter alia, the applicationof readily available technology andthrough the provision of adequatenutritious foods and cleandrinking-water, taking intoconsideration the dangers and risksof environmental pollution;

(d) To ensure appropriate pre-nataland post-natal health care formothers;

(e) To ensure that all segments ofsociety, in particular parents andchildren, are informed, have accessto education and are supported inthe use of basic knowledge of childhealth and nutrition, the advantagesof breastfeeding, hygiene andenvironmental sanitation and theprevention of accidents;

(f) To develop preventive health care,guidance for parents and familyplanning education and services.

3. States Parties shall take all effective andappropriate measures with a view to

abolishing traditional practicesprejudicial to the health of children.

4. States Parties undertake to promoteand encourage international co-operation with a view to achievingprogressively the full realization of theright recognized in the present article.In this regard, particular account shallbe taken of the needs of developingcountries.

Article 25States Parties recognize the right of a childwho has been placed by the competentauthorities for the purposes of care,protection or treatment of his or herphysical or mental health, to a periodicreview of the treatment provided to thechild and all other circumstances relevantto his or her placement.Article 261. States Parties shall recognize for every

child the right to benefit from socialsecurity, including social insurance, andshall take the necessary measures toachieve the full realization of this rightin accordance with their national law.

2. The benefits should, whereappropriate, be granted, taking intoaccount the resources and thecircumstances of the child and personshaving responsibil ity for themaintenance of the child, as well as anyother consideration relevant to anapplication for benefits made by or onbehalf of the child.

Article 271. States Parties recognize the right of

every child to a standard of livingadequate for the child’s physical,mental, spiritual, moral and socialdevelopment.

2. The parent(s) or others responsible forthe child have the primaryresponsibility to secure, within their

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abilities and financial capacities, theconditions of living necessary for thechild’s development.

3. States Parties, in accordance withnational conditions and within theirmeans, shall take appropriate measuresto assist parents and others responsiblefor the child to implement this rightand shall in case of need providematerial assistance and supportprogrammes, particularly with regardto nutrition, clothing and housing.

4. States Parties shall take all appropriatemeasures to secure the recovery ofmaintenance for the child from theparents or other persons havingfinancial responsibility for the child,both within the State Party and fromabroad. In particular, where the personhaving financial responsibility for thechild lives in a State different from thatof the child, States Parties shall promotethe accession to internationalagreements or the conclusion of suchagreements, as well as the making ofother appropriate arrangements.

Article 281. States Parties recognize the right of the

child to education, and with a view toachieving this right progressively andon the basis of equal opportunity, theyshall, in particular:(a) Make primary education

compulsory and available free toall;

(b) Encourage the development ofdifferent forms of secondaryeducation, including general andvocational education, make themavailable and accessible to everychild, and take appropriatemeasures such as the introductionof free education and offeringfinancial assistance in case of need;

(c) Make higher education accessible to

all on the basis of capacity by everyappropriate means;

(d) Make educational and vocationalinformation and guidance availableand accessible to all children;

(e) Take measures to encourage regularattendance at schools and thereduction of drop-out rates.

2 . States Parties shall take all appropriatemeasures to ensure that schooldiscipline is administered in a mannerconsistent with the child’s humandignity and in conformity with thepresent Convention.

3. States Parties shall promote andencourage international cooperation inmatters relating to education, inparticular with a view to contributingto the elimination of ignorance andilliteracy throughout the world andfacilitating access to scientific andtechnical knowledge and modernteaching methods. In this regard,particular account shall be taken of theneeds of developing countries.

Article 291. States Parties agree that the education

of the child shall be directed to:(a) The development of the child’s

personality, talents and mental andphysical abilities to their fullestpotential;

(b) The development of respect forhuman rights and fundamentalfreedoms, and for the principlesenshrined in the Charter of theUnited Nations;

(c) The development of respect for thechild’s parents, his or her owncultural identity, language andvalues, for the national values of thecountry in which the child is living,the country from which he or shemay originate, and for civilizations

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different from his or her own;(d) The preparation of the child for

responsible life in a free society, inthe spirit of understanding, peace,tolerance, equality of sexes, andfriendship among all peoples,ethnic, national and religiousgroups and persons of indigenousorigin;

(e) The development of respect for thenatural environment.

2. No part of the present article or article28 shall be construed so as to interferewith the liberty of individuals andbodies to establish and directeducational institutions, subject alwaysto the observance of the principle setforth in paragraph 1 of the presentarticle and to the requirements that theeducation given in such institutions shallconform to such minimum standardsas may be laid down by the State.

Article 30In those States in which ethnic, religious orlinguistic minorities or persons ofindigenous origin exist, a child belongingto such a minority or who is indigenousshall not be denied the right, in communitywith other members of his or her group,to enjoy his or her own culture, to professand practise his or her own religion, or touse his or her own language.Article 311. States Parties recognize the right of the

child to rest and leisure, to engage inplay and recreational activitiesappropriate to the age of the child andto participate freely in cultural life andthe arts.

2. States Parties shall respect and promotethe right of the child to participate fullyin cultural and artistic life and shallencourage the provision of appropriateand equal opportunities for cultural,

artistic, recreational and leisure activity.Article 321. States Parties recognize the right of the

child to be protected from economicexploitation and from performing anywork that is likely to be hazardous orto interfere with the child’s education,or to be harmful to the child’s healthor physical, mental, spiritual, moral orsocial development.

2. States Parties shall take legislative,administrative, social and educationalmeasures to ensure the implementationof the present article. To this end, andhaving regard to the relevant provisionsof other international instruments,States Parties shall in particular:(a) Provide for a minimum age or

minimum ages for admission toemployment;

(b) Provide for appropriate regulationof the hours and conditions ofemployment;

(c) Provide for appropriate penaltiesor other sanctions to ensure theeffective enforcement of the presentarticle.

Article 33States Parties shall take all appropriatemeasures, including legislative,administrative, social and educationalmeasures, to protect children from the illicituse of narcotic drugs and psychotropicsubstances as defined in the relevantinternational treaties, and to prevent the useof children in the illicit production andtrafficking of such substances.Article 34States Parties undertake to protect the childfrom all forms of sexual exploitation andsexual abuse. For these purposes, StatesParties shall in particular take allappropriate national, bi lateral andmultilateral measures to prevent:

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(a) The inducement or coercion of achild to engage in any unlawfulsexual activity;

(b) The exploitative use of children inprostitution or other unlawfulsexual practices;

(c) The exploitative use of children inpornographic performances andmaterials.

Article 35States Parties shall take all appropriatenational, bilateral and multilateral measuresto prevent the abduction of, the sale of ortraffic in children for any purpose or inany form.Article 36States Parties shall protect the child againstall other forms of exploitation prejudicialto any aspects of the child’s welfare.Article 37States Parties shall ensure that:(a) No child shall be subjected to torture

or other cruel, inhuman or degradingtreatment or punishment. Neithercapital punishment nor lifeimprisonment without possibility ofrelease shall be imposed for offencescommitted by persons below eighteenyears of age;

(b) No child shall be deprived of his orher liberty unlawfully or arbitrarily.The arrest, detention or imprisonmentof a child shall be in conformity withthe law and shall be used only as ameasure of last resort and for theshortest appropriate period of time;

(c) Every child deprived of liberty shallbe treated with humanity and respectfor the inherent dignity of the humanperson, and in a manner which takesinto account the needs of persons ofhis or her age. In particular, every childdeprived of liberty shall be separatedfrom adults unless it is considered in

the child’s best interest not to do soand shall have the right to maintaincontact with his or her family throughcorrespondence and visits, save inexceptional circumstances;

(d) Every child deprived of his or herliberty shall have the right to promptaccess to legal and other appropriateassistance, as well as the right tochallenge the legality of the deprivationof his or her liberty before a court orother competent, independent andimpartial authority, and to a promptdecision on any such action.

Article 381. States Parties undertake to respect and

to ensure respect for rules ofinternational humanitarian lawapplicable to them in armed conflictswhich are relevant to the child.

2. States Parties shall take all feasiblemeasures to ensure that persons whohave not attained the age of fifteen yearsdo not take a direct part in hostilities.

3. States Parties shall refrain fromrecruiting any person who has notattained the age of fifteen years intotheir armed forces. In recruiting amongthose persons who have attained the ageof fifteen years but who have notattained the age of eighteen years, StatesParties shall endeavour to give priorityto those who are oldest.

4. In accordance with their obligationsunder international humanitarian lawto protect the civilian population inarmed conflicts, States Parties shall takeall feasible measures to ensureprotection and care of children who areaffected by an armed conflict.

Article 39States Parties shall take all appropriatemeasures to promote physical andpsychological recovery and social

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reintegration of a child victim of: any formof neglect, exploitation, or abuse; tortureor any other form of cruel, inhuman ordegrading treatment or punishment; orarmed conflicts. Such recovery andreintegration shall take place in anenvironment which fosters the health, self-respect and dignity of the child.Article 401. States Parties recognize the right of

every child alleged as, accused of, orrecognized as having infringed the penallaw to be treated in a manner consistentwith the promotion of the child’s senseof dignity and worth, which reinforcesthe child’s respect for the human rightsand fundamental freedoms of othersand which takes into account the child’sage and the desirability of promotingthe child’s reintegration and the child’sassuming a constructive role in society.

2. To this end, and having regard to therelevant provisions of internationalinstruments, States Parties shall, inparticular, ensure that:(a) No child shall be alleged as, be

accused of, or recognized as havinginfringed the penal law by reasonof acts or omissions that were notprohibited by national orinternational law at the time theywere committed;

(b) Every child alleged as or accused ofhaving infringed the penal law hasat least the following guarantees:(i) To be presumed innocent until

proven guilty according to law;(ii) To be informed promptly and

directly of the charges againsthim or her, and, if appropriate,through his or her parents orlegal guardians, and to havelegal or other appropriateassistance in the preparationand presentation of his or her

defence;(iii) To have the matter determined

without delay by a competent,independent and impartialauthority or judicial body ina fair hearing according to law,in the presence of legal orother appropriate assistanceand, unless it is considered notto be in the best interest of thechild, in particular, taking intoaccount his or her age orsituation, his or her parents orlegal guardians;

(iv) Not to be compelled to givetestimony or to confess guilt;to examine or have examinedadverse witnesses and toobtain the participation andexamination of witnesses onhis or her behalf underconditions of equality;

(v) If considered to have infringedthe penal law, to have thisdecision and any measuresimposed in consequencethereof reviewed by a highercompetent, independent andimpartial authority or judicialbody according to law;

(vi) To have the free assistance ofan interpreter if the childcannot understand or speakthe language used;

(vii) To have his or her privacyfully respected at all stages ofthe proceedings. 3. StatesParties shall seek to promotethe establishment of laws,procedures, authorities andinstitutions specificallyapplicable to children allegedas, accused of, or recognizedas having infringed the penallaw, and, in particular:

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(a) The establishment of aminimum age belowwhich children shall bepresumed not to have thecapacity to infringe thepenal law;

(b) Whenever appropriate anddesirable, measures fordealing with such childrenwithout resorting tojudicial proceedings,providing that humanrights and legal safeguardsare fully respected.

4. A variety of dispositions, such as care,guidance and supervision orders;counselling; probation; foster care;education and vocational trainingprogrammes and other alternatives toinstitutional care shall be available toensure that children are dealt with in amanner appropriate to their well-beingand proportionate both to theircircumstances and the offence.

Article 41Nothing in the present Convention shallaffect any provisions which are moreconducive to the realization of the rightsof the child and which may be containedin:(a) The law of a State party; or(b) International law in force for that State.

PART IIArticle 42

States Parties undertake to make theprinciples and provisions of the Conventionwidely known, by appropriate and activemeans, to adults and children alike.Article 431. For the purpose of examining the

progress made by States Parties inachieving the realization of the

obligations undertaken in the presentConvention, there shall be establisheda Committee on the Rights of theChild, which shall carry out thefunctions hereinafter provided.

2. The Committee shall consist of tenexperts of high moral standing andrecognized competence in the fieldcovered by this Convention. Themembers of the Committee shall beelected by States Parties from amongtheir nationals and shall serve in theirpersonal capacity, consideration beinggiven to equitable geographicaldistribution, as well as to the principallegal systems.

3. The members of the Committee shallbe elected by secret ballot from a listof persons nominated by States Parties.Each State Party may nominate oneperson from among its own nationals.

4. The initial election to the Committeeshall be held no later than six monthsafter the date of the entry into force ofthe present Convention and thereafterevery second year. At least four monthsbefore the date of each election, theSecretary-General of the UnitedNations shall address a letter to StatesParties inviting them to submit theirnominations within two months. TheSecretary-General shall subsequentlyprepare a list in alphabetical order ofall persons thus nominated, indicatingStates Parties which have nominatedthem, and shall submit it to the StatesParties to the present Convention.

5. The elections shall be held at meetingsof States Parties convened by theSecretary-General at United NationsHeadquarters. At those meetings, forwhich two thirds of States Parties shallconstitute a quorum, the personselected to the Committee shall be thosewho obtain the largest number of votes

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and an absolute majority of the votesof the representatives of States Partiespresent and voting.

6. The members of the Committee shallbe elected for a term of four years.They shall be eligible for re-election ifrenominated. The term of five of themembers elected at the first electionshall expire at the end of two years;immediately after the first election, thenames of these five members shall bechosen by lot by the Chairman of themeeting.

7. If a member of the Committee dies orresigns or declares that for any othercause he or she can no longer performthe duties of the Committee, the StateParty which nominated the membershall appoint another expert fromamong its nationals to serve for theremainder of the term, subject to theapproval of the Committee.

8. The Committee shall establish its ownrules of procedure.

9. The Committee shall elect its officersfor a period of two years.

10. The meetings of the Committee shallnormally be held at United NationsHeadquarters or at any otherconvenient place as determined by theCommittee. The Committee shallnormally meet annually. The durationof the meetings of the Committee shallbe determined, and reviewed, ifnecessary, by a meeting of the StatesParties to the present Convention,subject to the approval of the GeneralAssembly.

11. The Secretary-General of the UnitedNations shall provide the necessary staffand facilities for the effectiveperformance of the functions of theCommittee under the presentConvention.

12. With the approval of the General

Assembly, the members of theCommittee established under thepresent Convention shall receiveemoluments from United Nationsresources on such terms and conditionsas the Assembly may decide.

Article 441. States Parties undertake to submit to

the Committee, through the Secretary-General of the United Nations, reportson the measures they have adoptedwhich give effect to the rightsrecognized herein and on the progressmade on the enjoyment of those rights:(a) Within two years of the entry into

force of the Convention for theState Party concerned;

(b) Thereafter every five years.2. Reports made under the present article

shall indicate factors and difficulties, ifany, affecting the degree of fulfilmentof the obligations under the presentConvention. Reports shall also containsufficient information to provide theCommittee with a comprehensiveunderstanding of the implementationof the Convention in the countryconcerned.

3. A State Party which has submitted acomprehensive initial report to theCommittee need not, in its subsequentreports submitted in accordance withparagraph 1 (b) of the present article,repeat basic information previouslyprovided.

4. The Committee may request fromStates Parties further informationrelevant to the implementation of theConvention.

5. The Committee shall submit to theGeneral Assembly, through theEconomic and Social Council, everytwo years, reports on its activities.

6. States Parties shall make their reports

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widely available to the public in theirown countries.

Article 45In order to foster the effectiveimplementation of the Convention and toencourage international co-operation in thefield covered by the Convention:(a) The specialized agencies, the United

Nations Children’s Fund, and otherUnited Nations organs shall be entitledto be represented at the considerationof the implementation of suchprovisions of the present Conventionas fall within the scope of theirmandate. The Committee may invitethe specialized agencies, the UnitedNations Children’s Fund and othercompetent bodies as it may considerappropriate to provide expert advice onthe implementation of the Conventionin areas falling within the scope of theirrespective mandates. The Committeemay invite the specialized agencies, theUnited Nations Children’s Fund, andother United Nations organs to submitreports on the implementation of theConvention in areas falling within thescope of their activities;

(b) The Committee shall transmit, as it mayconsider appropriate, to the specializedagencies, the United Nations Children’sFund and other competent bodies, anyreports from States Parties that containa request, or indicate a need, fortechnical advice or assistance, alongwith the Committee’s observations andsuggestions, if any, on these requestsor indications;

(c) The Committee may recommend to theGeneral Assembly to request theSecretary-General to undertake on itsbehalf studies on specific issues relatingto the rights of the child;

(d) The Committee may make suggestionsand general recommendations based on

information received pursuant toarticles 44 and 45 of the presentConvention. Such suggestions andgeneral recommendations shall betransmitted to any State Partyconcerned and reported to the GeneralAssembly, together with comments, ifany, from States Parties.

PART IIIArticle 46

The present Convention shall be open forsignature by all States.Article 47The present Convention is subject toratification. Instruments of ratification shallbe deposited with the Secretary-General ofthe United Nations.Article 48The present Convention shall remain openfor accession by any State. The instrumentsof accession shall be deposited with theSecretary-General of the United Nations.Article 491. The present Convention shall enter into

force on the thirtieth day following thedate of deposit with the Secretary-General of the United Nations of thetwentieth instrument of ratification oraccession.

2. For each State ratifying or acceding tothe Convention after the deposit of thetwentieth instrument of ratification oraccession, the Convention shall enterinto force on the thirtieth day after thedeposit by such State of its instrumentof ratification or accession.

Article 501. Any State Party may propose an

amendment and file it with theSecretary-General of the UnitedNations. The Secretary-General shallthereupon communicate the proposed

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amendment to States Parties, with arequest that they indicate whether theyfavour a conference of States Parties forthe purpose of considering and votingupon the proposals. In the event that,within four months from the date ofsuch communication, at least one thirdof the States Parties favour such aconference, the Secretary-General shallconvene the conference under theauspices of the United Nations. Anyamendment adopted by a majority ofStates Parties present and voting at theconference shall be submitted to theGeneral Assembly for approval.

2. An amendment adopted in accordancewith paragraph 1 of the present articleshall enter into force when it has beenapproved by the General Assembly ofthe United Nations and accepted by atwo-thirds majority of States Parties.

3. When an amendment enters into force,it shall be binding on those StatesParties which have accepted it, otherStates Parties still being bound by theprovisions of the present Conventionand any earlier amendments which theyhave accepted.

Article 511. The Secretary-General of the United

Nations shall receive and circulate toall States the text of reservations madeby States at the time of ratification oraccession.

2. A reservation incompatible with theobject and purpose of the presentConvention shall not be permitted.

3. Reservations may be withdrawnat any time by notification to thateffect addressed to the Secretary-General of the United Nations, whoshall then inform all States. Suchnotification shall take effect on the dateon which it is received by the Secretary-General

Article 52A State Party may denounce the presentConvention by written notification to theSecretary-General of the United Nations.Denunciation becomes effective one yearafter the date of receipt of the notificationby the Secretary-General.Article 53The Secretary-General of the UnitedNations is designated as the depositary ofthe present Convention.Article 54The original of the present Convention, ofwhich the Arabic, Chinese, English, French,Russian and Spanish texts are equallyauthentic, shall be deposited with theSecretary-General of the United Nations.IN WITNESS THEREOF the undersignedplenipotentiaries, being duly authorizedthereto by their respective governments,have signed the present Convention.

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I. Fundamental Perspectives1. The juvenile justice system should

uphold the rights and safety andpromote the physical and mental well-being of juveniles. Imprisonmentshould be used as a last resort.

2. Juveniles should only be deprived oftheir liberty in accordance with theprinciples and procedures set forth inthese Rules and in the United NationsStandard Minimum Rules for theAdministration of Juvenile Justice (TheBeijing Rules). Deprivation of theliberty of a juvenile should be adisposition of last resort and for theminimum necessary period and shouldbe limited to exceptional cases. Thelength of the sanction should bedetermined by the judicial authority,without precluding the possibility ofhis or her early release.

3. The Rules are intended to establishminimum standards accepted by theUnited Nations for the protection ofjuveniles deprived of their liberty in allforms, consistent with human rightsand fundamental freedoms, and with aview to counteracting the detrimentaleffects of all types of detention and tofostering integration in society.

4. The Rules should be appliedimpartially, without discrimination ofany kind as to race, colour, sex, age,language, religion, nationality, politicalor other opinion, cultural beliefs or

practices, property, birth or familystatus, ethnic or social origin, anddisability. The religious and culturalbeliefs, practices and moral concepts ofthe juvenile should be respected.

5. The Rules are designed to serve asconvenient standards of reference andto provide encouragement and guidanceto professionals involved in themanagement of the juvenile justicesystem.

6. The Rules should be made readilyavailable to juvenile justice personnel intheir national languages. Juveniles whoare not fluent in the language spokenby the personnel of the detentionfacility should have the right to theservices of an interpreter free of chargewhenever necessary, in particularduring medical examinations anddisciplinary proceedings.

7. Where appropriate, States shouldincorporate the Rules into theirlegislation or amend it accordingly andprovide effective remedies for theirbreach, including compensation wheninjuries are inflicted on juveniles. Statesshould also monitor the application ofthe Rules.

8. The competent authorities shouldconstantly seek to increase theawareness of the public that the care ofdetained juveniles and preparation fortheir return to society is a social serviceof great importance, and to this end

United Nations Rules for the Protectionof Juveniles Deprived of their Liberty

Adopted by General Assembly resolution 45/113of 14 December 1990

Annex C

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active steps should be taken to fosteropen contacts between the juveniles andthe local community.

9. Nothing in the Rules should beinterpreted as precluding theapplication of the relevant UnitedNations and human rights instrumentsand standards, recognized by theinternational community, that are moreconducive to ensuring the rights, careand protection of juveniles, childrenand all young persons.

10. In the event that the practicalapplication of particular Rulescontained in sections II to V, inclusive,presents any conflict with the Rulescontained in the present section,compliance with the latter shall beregarded as the predominantrequirement.

II. Scope and Application of the Rules11. For the purposes of the Rules, the

following definitions should apply:(a) A juvenile is every person under the

age of 18. The age limit below whichit should not be permitted todeprive a child of his or her libertyshould be determined by law;

(b) The deprivation of liberty meansany form of detention orimprisonment or the placement ofa person in a public or privatecustodial setting, from which thisperson is not permitted to leave atwill, by order of any judicial,administrative or other publicauthority.

12. The deprivation of liberty should beeffected in conditions and circumstanceswhich ensure respect for the humanrights of juveniles. Juveniles detainedin facilities should be guaranteed thebenefit of meaningful activities andprogrammes which would serve topromote and sustain their health and

self-respect, to foster their sense ofresponsibility and encourage thoseattitudes and skills that will assist themin developing their potential asmembers of society.

13. Juveniles deprived of their liberty shallnot for any reason related to their statusbe denied the civil, economic, political,social or cultural rights to which theyare entitled under national orinternational law, and which arecompatible with the deprivation ofliberty.

14. The protection of the individual rightsof juveniles with special regard to thelegality of the execution of thedetention measures shall be ensured bythe competent authority, while theobjectives of social integration shouldbe secured by regular inspections andother means of control carried out,according to international standards,national laws and regulations, by a dulyconstituted body authorized to visit thejuveniles and not belonging to thedetention facility.

15. The Rules apply to all types and formsof detention facilities in which juvenilesare deprived of their liberty. SectionsI, II, IV and V of the Rules apply to alldetention facilities and institutionalsettings in which juveniles are detained,and section III applies specifically tojuveniles under arrest or awaiting trial.

16. The Rules shall be implemented in thecontext of the economic, social andcultural conditions prevailing in eachMember State.

III. Juveniles under Arrest or AwaitingTrail17. Juveniles who are detained under arrest

or awaiting trial (“untried’’) arepresumed innocent and shall be treatedas such. Detention before trial shall beavoided to the extent possible and

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limited to exceptional circumstances.Therefore, all efforts shall be made toapply alternative measures. Whenpreventive detention is neverthelessused, juvenile courts and investigativebodies shall give the highest priority tothe most expeditious processing of suchcases to ensure the shortest possibleduration of detention. Untrieddetainees should be separated fromconvicted juveniles.

18. The conditions under which an untriedjuvenile is detained should be consistentwith the rules set out below, withadditional specific provisions as arenecessary and appropriate, given therequirements of the presumption ofinnocence, the duration of the detentionand the legal status and circumstancesof the juvenile. These provisions wouldinclude, but not necessarily be restrictedto, the following:(a) Juveniles should have the right of

legal counsel and be enabled toapply for free legal aid, where suchaid is available, and to communicateregularly with their legal advisers.Privacy and confidentiality shall beensured for such communications;

(b) Juveniles should be provided,where possible, with opportunitiesto pursue work, withremuneration, and continueeducation or training, but shouldnot be required to do so. Work,education or training should notcause the continuation of thedetention;

(c) Juveniles should receive and retainmaterials for their leisure andrecreation as are compatible withthe interests of the administrationof justice.

IV. The Management of Juvenile FacilitiesA. Records

19. All reports, including legal records,medical records and records ofdisciplinary proceedings, and all otherdocuments relating to the form, contentand details of treatment, should beplaced in a confidential individual file,which should be kept up to date,accessible only to authorized personsand classified in such a way as to beeasily understood. Where possible,every juvenile should have the right tocontest any fact or opinion containedin his or her file so as to permitrectification of inaccurate, unfoundedor unfair statements. In order toexercise this right, there should beprocedures that allow an appropriatethird party to have access to and toconsult the file on request. Uponrelease, the records of juveniles shall besealed, and, at an appropriate time,expunged.

20. No juvenile should be received in anydetention facility without a validcommitment order of a judicial,administrative or other publicauthority. The details of this ordershould be immediately entered in theregister. No juvenile should be detainedin any facility where there is no suchregister.

B. Admission, registration, movement& transfer

21. In every place where juveniles aredetained, a complete and secure recordof the following information should bekept concerning each juvenile received:(a) Information on the identity of the

juvenile;(b) The fact of and reasons for

commitment and the authoritytherefor;

(c) The day and hour of admission,transfer and release;

(d) Details of the notifications to

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parents and guardians on everyadmission, transfer or release of thejuvenile in their care at the time ofcommitment;

(e) Details of known physical andmental health problems, includingdrug and alcohol abuse.

22. The information on admission, place,transfer and release should be providedwithout delay to the parents andguardians or closest relative of thejuvenile concerned.

23. As soon as possible after reception, fullreports and relevant information on thepersonal situation and circumstances ofeach juvenile should be drawn up andsubmitted to the administration.

24. On admission, all juveniles shall begiven a copy of the rules governing thedetention facility and a writtendescription of their rights andobligations in a language they canunderstand, together with the addressof the authorities competent to receivecomplaints, as well as the address ofpublic or private agencies andorganizations which provide legalassistance. For those juveniles who areilliterate or who cannot understand thelanguage in the written form, theinformation should be conveyed in amanner enabling full comprehension.

25. All juveniles should be helped tounderstand the regulations governingthe internal organization of the facility,the goals and methodology of the careprovided, the disciplinary requirementsand procedures, other authorizedmethods of seeking information and ofmaking complaints and all such othermatters as are necessary to enable themto understand fully their rights andobligations during detention.

26. The transport of juveniles should becarried out at the expense of the

administration in conveyances withadequate ventilation and light, inconditions that should in no waysubject them to hardship or indignity.Juveniles should not be transferredfrom one facility to another arbitrarily.

C. Classification and placement27. As soon as possible after the moment

of admission, each juvenile should beinterviewed, and a psychological andsocial report identifying any factorsrelevant to the specific type and levelof care and programme required by thejuvenile should be prepared. Thisreport, together with the reportprepared by a medical officer who hasexamined the juvenile upon admission,should be forwarded to the director forpurposes of determining the mostappropriate placement for the juvenilewithin the facility and the specific typeand level of care and programmerequired and to be pursued. Whenspecial rehabilitative treatment isrequired, and the length of stay in thefacility permits, trained personnel of thefacility should prepare a written,individualized treatment planspecifying treatment objectives andtime-frame and the means, stages anddelays with which the objectives shouldbe approached.

28. The detention of juveniles should onlytake place under conditions that takefull account of their particular needs,status and special requirementsaccording to their age, personality, sexand type of offence, as well as mentaland physical health, and which ensuretheir protection from harmfulinfluences and risk situations. Theprincipal criterion for the separation ofdifferent categories of juveniles deprivedof their liberty should be the provisionof the type of care best suited to theparticular needs of the individuals

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concerned and the protection of theirphysical, mental and moral integrityand well-being.

29. In all detention facilities juvenilesshould be separated from adults, unlessthey are members of the same family.Under controlled conditions, juvenilesmay be brought together with carefullyselected adults as part of a specialprogramme that has been shown to bebeneficial for the juveniles concerned.

30. Open detention facilities for juvenilesshould be established. Open detentionfacilities are those with no or minimalsecurity measures. The population insuch detention facilities should be assmall as possible. The number ofjuveniles detained in closed facilitiesshould be small enough to enableindividualized treatment. Detentionfaci lities for juveniles should bedecentralized and of such size as tofacilitate access and contact between thejuveniles and their families. Small-scaledetention facilities should be establishedand integrated into the social, economicand cultural environment of thecommunity.

D. Physical environment andaccommodation

31. Juveniles deprived of their liberty havethe right to facilities and services thatmeet all the requirements of health andhuman dignity.

32. The design of detention facilities forjuveniles and the physical environmentshould be in keeping with therehabilitative aim of residentialtreatment, with due regard to the needof the juvenile for privacy, sensorystimuli, opportunities for associationwith peers and participation in sports,physical exercise and leisure-timeactivities. The design and structure ofjuvenile detention facilities should be

such as to minimize the risk of fire andto ensure safe evacuation from thepremises. There should be an effectivealarm system in case of fire, as well asformal and drilled procedures to ensurethe safety of the juveniles. Detentionfacilities should not be located in areaswhere there are known health or otherhazards or risks.

33. Sleeping accommodation shouldnormally consist of small groupdormitories or individual bedrooms,while bearing in mind local standards.During sleeping hours there should beregular, unobtrusive supervision of allsleeping areas, including individualrooms and group dormitories, in orderto ensure the protection of eachjuvenile. Every juvenile should, inaccordance with local or nationalstandards, be provided with separateand sufficient bedding, which shouldbe clean when issued, kept in goodorder and changed often enough toensure cleanliness.

34. Sanitary installations should be solocated and of a sufficient standard toenable every juvenile to comply, asrequired, with their physical needs inprivacy and in a clean and decentmanner.

35. The possession of personal effects is abasic element of the right to privacy andessential to the psychological well-beingof the juvenile. The right of everyjuvenile to possess personal effects andto have adequate storage facilities forthem should be fully recognized andrespected. Personal effects that thejuvenile does not choose to retain orthat are confiscated should be placed insafe custody. An inventory thereofshould be signed by the juvenile. Stepsshould be taken to keep them in goodcondition. All such articles and moneyshould be returned to the juvenile on

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release, except in so far as he or she hasbeen authorized to spend money orsend such property out of the facility.If a juvenile receives or is found inpossession of any medicine, the medicalofficer should decide what use shouldbe made of it.

36. To the extent possible juveniles shouldhave the right to use their own clothing.Detention facilities should ensure thateach juvenile has personal clothingsuitable for the climate and adequate toensure good health, and which shouldin no manner be degrading orhumiliating. Juveniles removed from orleaving a facility for any purpose shouldbe allowed to wear their own clothing.

37. Every detention facility shall ensurethat every juvenile receives food that issuitably prepared and presented atnormal meal times and of a quality andquantity to satisfy the standards ofdietetics, hygiene and health and, as faras possible, religious and culturalrequirements. Clean drinking watershould be available to every juvenile atany time.

E. Education, vocational training andwork

38. Every juvenile of compulsory schoolage has the right to education suited tohis or her needs and abilities anddesigned to prepare him or her forreturn to society. Such education shouldbe provided outside the detentionfacility in community schools whereverpossible and, in any case, by qualifiedteachers through programmesintegrated with the education system ofthe country so that, after release,juveniles may continue their educationwithout difficulty. Special attentionshould be given by the administrationof the detention facilities to theeducation of juveniles of foreign origin

or with particular cultural or ethnicneeds. Juveniles who are illiterate orhave cognitive or learning difficultiesshould have the right to specialeducation.

39. Juveniles above compulsory school agewho wish to continue their educationshould be permitted and encouraged todo so, and every effort should be madeto provide them with access toappropriate educational programmes.

40. Diplomas or educational certificatesawarded to juveniles while in detentionshould not indicate in any way that thejuvenile has been institutionalized.

41. Every detention facility should provideaccess to a library that is adequatelystocked with both instructional andrecreational books and periodicalssuitable for the juveniles, who shouldbe encouraged and enabled to make fulluse of it.

42. Every juvenile should have the right toreceive vocational training inoccupations likely to prepare him orher for future employment.

43. With due regard to proper vocationalselection and to the requirements ofinstitutional administration, juvenilesshould be able to choose the type ofwork they wish to perform.

44. All protective national andinternational standards applicable tochild labour and young workers shouldapply to juveniles deprived of theirliberty.

45. Wherever possible, juveniles should beprovided with the opportunity toperform remunerated labour, ifpossible within the local community,as a complement to the vocationaltraining provided in order to enhancethe possibility of finding suitableemployment when they return to theircommunities. The type of work should

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be such as to provide appropriatetraining that will be of benefit to thejuveniles following release. Theorganization and methods of workoffered in detention facilities shouldresemble as closely as possible those ofsimilar work in the community, so asto prepare juveniles for the conditionsof normal occupational life.

46. Every juvenile who performs workshould have the right to an equitableremuneration. The interests of thejuveniles and of their vocational trainingshould not be subordinated to thepurpose of making a profit for thedetention facility or a third party. Partof the earnings of a juvenile shouldnormally be set aside to constitute asavings fund to be handed over to thejuvenile on release. The juvenile shouldhave the right to use the remainder ofthose earnings to purchase articles forhis or her own use or to indemnify thevictim injured by his or her offence orto send it to his or her family or otherpersons outside the detention facility.

F. Recreation47. Every juvenile should have the right to

a suitable amount of time for daily freeexercise, in the open air wheneverweather permits, during which timeappropriate recreational and physicaltraining should normally be provided.Adequate space, installations andequipment should be provided for theseactivities. Every juvenile should haveadditional time for daily leisureactivities, part of which should bedevoted, if the juvenile so wishes, to artsand crafts skill development. Thedetention facility should ensure thateach juvenile is physically able toparticipate in the available programmesof physical education. Remedialphysical education and therapy shouldbe offered, under medical supervision,

to juveniles needing it. G. Religion48. Every juvenile should be allowed to

satisfy the needs of his or her religiousand spiritual life, in particular byattending the services or meetingsprovided in the detention facility or byconducting his or her own services andhaving possession of the necessarybooks or items of religious observanceand instruction of his or herdenomination. If a detention facilitycontains a sufficient number of juvenilesof a given religion, one or morequalified representatives of that religionshould be appointed or approved andallowed to hold regular services and topay pastoral visits in private to juvenilesat their request. Every juvenile shouldhave the right to receive visits from aqualified representative of any religionof his or her choice, as well as the rightnot to participate in religious servicesand freely to decline religious education,counselling or indoctrination.

H. Medical care49. Every juvenile shall receive adequate

medical care, both preventive andremedial, including dental,ophthalmological and mental healthcare, as well as pharmaceutical productsand special diets as medically indicated.All such medical care should, wherepossible, be provided to detainedjuveniles through the appropriatehealth facilities and services of thecommunity in which the detentionfacility is located, in order to preventstigmatization of the juvenile andpromote self-respect and integrationinto the community.

50. Every juvenile has a right to beexamined by a physician immediatelyupon admission to a detention facility,for the purpose of recording anyevidence of prior ill-treatment and

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identifying any physical or mentalcondition requiring medical attention.

51. The medical services provided tojuveniles should seek to detect andshould treat any physical or mentalillness, substance abuse or othercondition that may hinder theintegration of the juvenile into society.Every detention facility for juvenilesshould have immediate access toadequate medical facilities andequipment appropriate to the numberand requirements of its residents andstaff trained in preventive health careand the handling of medicalemergencies. Every juvenile who is ill,who complains of illness or whodemonstrates symptoms of physical ormental difficulties, should be examinedpromptly by a medical officer.

52. Any medical officer who has reason tobelieve that the physical or mentalhealth of a juvenile has been or will beinjuriously affected by continueddetention, a hunger strike or anycondition of detention should reportthis fact immediately to the director ofthe detention facility in question andto the independent authorityresponsible for safeguarding the well-being of the juvenile.

53. A juvenile who is suffering frommental illness should be treated in aspecialized institution underindependent medical management.Steps should be taken, by arrangementwith appropriate agencies, to ensure anynecessary continuation of mental healthcare after release.

54. Juvenile detention facilities shouldadopt specialized drug abuse preventionand rehabil itation programmesadministered by qualified personnel.These programmes should be adaptedto the age, sex and other requirements

of the juveniles concerned, anddetoxification facilities and servicesstaffed by trained personnel should beavailable to drug- or alcohol-dependentjuveniles.

55. Medicines should be administered onlyfor necessary treatment on medicalgrounds and, when possible, afterhaving obtained the informed consentof the juvenile concerned. In particular,they must not be administered with aview to eliciting information or aconfession, as a punishment or as ameans of restraint. Juveniles shall neverbe testers in the experimental use ofdrugs and treatment. Theadministration of any drug shouldalways be authorized and carried outby qualified medical personnel.

I. Notification of illness, injury anddeath

56. The family or guardian of a juvenileand any other person designated by thejuvenile have the right to be informedof the state of health of the juvenile onrequest and in the event of anyimportant changes in the health of thejuvenile. The director of the detentionfacility should notify immediately thefamily or guardian of the juvenileconcerned, or other designated person,in case of death, illness requiringtransfer of the juvenile to an outsidemedical faci lity, or a conditionrequiring clinical care within thedetention facility for more than 48hours. Notification should also be givento the consular authorities of the Stateof which a foreign juvenile is a citizen.

57. Upon the death of a juvenile during theperiod of deprivation of liberty, thenearest relative should have the rightto inspect the death certificate, see thebody and determine the method ofdisposal of the body. Upon the death

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of a juvenile in detention, there shouldbe an independent inquiry into thecauses of death, the report of whichshould be made accessible to the nearestrelative. This inquiry should also bemade when the death of a juvenileoccurs within six months from the dateof his or her release from the detentionfacility and there is reason to believethat the death is related to the periodof detention.

58. A juvenile should be informed at theearliest possible time of the death,serious illness or injury of anyimmediate family member and shouldbe provided with the opportunity toattend the funeral of the deceased orgo to the bedside of a critically illrelative. J. Contacts with the widercommunity

59. Every means should be provided toensure that juveniles have adequatecommunication with the outside world,which is an integral part of the right tofair and humane treatment and isessential to the preparation of juvenilesfor their return to society. Juvenilesshould be allowed to communicatewith their families, friends and otherpersons or representatives of reputableoutside organizations, to leavedetention facilities for a visit to theirhome and family and to receive specialpermission to leave the detention facilityfor educational, vocational or otherimportant reasons. Should the juvenilebe serving a sentence, the time spentoutside a detention facility should becounted as part of the period ofsentence.

60. Every juvenile should have the right toreceive regular and frequent visits, inprinciple once a week and not less thanonce a month, in circumstances thatrespect the need of the juvenile for

privacy, contact and unrestrictedcommunication with the family and thedefence counsel.

61. Every juvenile should have the right tocommunicate in writing or bytelephone at least twice a week with theperson of his or her choice, unless legallyrestricted, and should be assisted asnecessary in order effectively to enjoythis right. Every juvenile should havethe right to receive correspondence.

62. Juveniles should have the opportunityto keep themselves informed regularlyof the news by reading newspapers,periodicals and other publications,through access to radio and televisionprogrammes and motion pictures, andthrough the visits of the representativesof any lawful club or organization inwhich the juvenile is interested.

K. Limitations of physical restraint andthe use of force

63. Recourse to instruments of restraintand to force for any purpose should beprohibited, except as set forth in rule64 below.

64. Instruments of restraint and force canonly be used in exceptional cases, whereall other control methods have beenexhausted and failed, and only asexplicitly authorized and specified bylaw and regulation. They should notcause humiliation or degradation, andshould be used restrictively and onlyfor the shortest possible period of time.By order of the director of theadministration, such instruments mightbe resorted to in order to prevent thejuvenile from inflicting self-injury,injuries to others or serious destructionof property. In such instances, thedirector should at once consult medicaland other relevant personnel and reportto the higher administrative authority.

65. The carrying and use of weapons by

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personnel should be prohibited in anyfacility where juveniles are detained.

L. Disciplinary procedures66. Any disciplinary measures and

procedures should maintain the interestof safety and an ordered community lifeand should be consistent with theupholding of the inherent dignity ofthe juvenile and the fundamentalobjective of institutional care, namely,instilling a sense of justice, self-respectand respect for the basic rights of everyperson.

67. All disciplinary measures constitutingcruel, inhuman or degrading treatmentshall be strictly prohibited, includingcorporal punishment, placement in adark cell, closed or solitaryconfinement or any other punishmentthat may compromise the physical ormental health of the juvenile concerned.The reduction of diet and the restrictionor denial of contact with familymembers should be prohibited for anypurpose. Labour should always beviewed as an educational tool and ameans of promoting the self-respect ofthe juvenile in preparing him or her forreturn to the community and shouldnot be imposed as a disciplinarysanction. No juvenile should besanctioned more than once for the samedisciplinary infraction. Collectivesanctions should be prohibited.

68. Legislation or regulations adopted bythe competent administrative authorityshould establish norms concerning thefollowing, taking full account of thefundamental characteristics, needs andrights of juveniles:(a) Conduct constituting a

disciplinary offence;(b) Type and duration of disciplinary

sanctions that may be inflicted;(c) The authority competent to impose

such sanctions;(d) The authority competent to

consider appeals.69. A report of misconduct should be

presented promptly to the competentauthority, which should decide on itwithout undue delay. The competentauthority should conduct a thoroughexamination of the case.

70. No juvenile should be disciplinarilysanctioned except in strict accordancewith the terms of the law andregulations in force. No juvenile shouldbe sanctioned unless he or she has beeninformed of the alleged infraction in amanner appropriate to the fullunderstanding of the juvenile, and givena proper opportunity of presenting hisor her defence, including the right ofappeal to a competent impartialauthority. Complete records should bekept of all disciplinary proceedings.

71. No juveniles should be responsible fordisciplinary functions except in thesupervision of specified social,educational or sports activities or in self-government programmes.

M. Inspection and complaints72. Qualified inspectors or an equivalent

duly constituted authority notbelonging to the administration of thefaci lity should be empowered toconduct inspections on a regular basisand to undertake unannouncedinspections on their own initiative, andshould enjoy full guarantees ofindependence in the exercise of thisfunction. Inspectors should haveunrestricted access to all personsemployed by or working in any facilitywhere juveniles are or may be deprivedof their liberty, to all juveniles and toall records of such facilities.

73. Qualified medical officers attached tothe inspecting authority or the public

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health service should participate in theinspections, evaluating compliance withthe rules concerning the physicalenvironment, hygiene,accommodation, food, exercise andmedical services, as well as any otheraspect or conditions of institutional lifethat affect the physical and mentalhealth of juveniles. Every juvenileshould have the right to talk inconfidence to any inspecting officer.

74. After completing the inspection, theinspector should be required to submita report on the findings. The reportshould include an evaluation of thecompliance of the detention facilitieswith the present rules and relevantprovisions of national law, andrecommendations regarding any stepsconsidered necessary to ensurecompliance with them. Any factsdiscovered by an inspector that appearto indicate that a violation of legalprovisions concerning the rights ofjuveniles or the operation of a juveniledetention facility has occurred shouldbe communicated to the competentauthorities for investigation andprosecution.

75. Every juvenile should have theopportunity of making requests orcomplaints to the director of thedetention facility and to his or herauthorized representative.

76. Every juvenile should have the right tomake a request or complaint, withoutcensorship as to substance, to the centraladministration, the judicial authority orother proper authorities throughapproved channels, and to be informedof the response without delay.

77. Efforts should be made to establish anindependent office (ombudsman) toreceive and investigate complaints madeby juveniles deprived of their liberty

and to assist in the achievement ofequitable settlements.

78. Every juvenile should have the right torequest assistance from family members,legal counsellors, humanitarian groupsor others where possible, in order tomake a complaint. Illiterate juvenilesshould be provided with assistanceshould they need to use the services ofpublic or private agencies andorganizations which provide legalcounsel or which are competent toreceive complaints.

N. Return to the community79. All juveniles should benefit from

arrangements designed to assist them inreturning to society, family l ife,education or employment after release.Procedures, including early release, andspecial courses should be devised to thisend.

80. Competent authorities should provideor ensure services to assist juveniles inre-establishing themselves in society andto lessen prejudice against suchjuveniles. These services should ensure’,to the extent possible, that the juvenileis provided with suitable residence,employment, clothing, and sufficientmeans to maintain himself or herselfupon release in order to facilitatesuccessful reintegration. Therepresentatives of agencies providingsuch services should be consulted andshould have access to juveniles whiledetained, with a view to assisting themin their return to the community.

V. Personnel81. Personnel should be qualified and

include a sufficient number ofspecialists such as educators, vocationalinstructors, counsellors, social workers,psychiatrists and psychologists. Theseand other specialist staff shouldnormally be employed on a permanent

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basis. This should not preclude part-time or volunteer workers when thelevel of support and training they canprovide is appropriate and beneficial.Detention facilities should make use ofall remedial, educational, moral,spiritual, and other resources and formsof assistance that are appropriate andavailable in the community, accordingto the individual needs and problemsof detained juveniles.

82. The administration should provide forthe careful selection and recruitment ofevery grade and type of personnel, sincethe proper management of detentionfacilities depends on their integrity,humanity, ability and professionalcapacity to deal with juveniles, as wellas personal suitability for the work.

83. To secure the foregoing ends, personnelshould be appointed as professionalofficers with adequate remuneration toattract and retain suitable women andmen. The personnel of juveniledetention facilities should becontinually encouraged to fulfil theirduties and obligations in a humane,committed, professional, fair andefficient manner, to conduct themselvesat all times in such a way as to deserveand gain the respect of the juveniles, andto provide juveniles with a positive rolemodel and perspective.

84. The administration should introduceforms of organization and managementthat facilitate communications betweendifferent categories of staff in eachdetention facility so as to enhancecooperation between the variousservices engaged in the care of juveniles,as well as between staff and theadministration, with a view to ensuringthat staff directly in contact withjuveniles are able to function inconditions favourable to the efficientfulfilment of their duties.

85. The personnel should receive suchtraining as will enable them to carry outtheir responsibilities effectively, inparticular training in child psychology,child welfare and internationalstandards and norms of human rightsand the rights of the child, includingthe present Rules. The personnel shouldmaintain and improve their knowledgeand professional capacity by attendingcourses of in-service training, to beorganized at suitable intervalsthroughout their career.

86. The director of a facility should beadequately qualified for his or her task,with administrative ability and suitabletraining and experience, and shouldcarry out his or her duties on a full-time basis.

87. In the performance of their duties,personnel of detention facilities shouldrespect and protect the human dignityand fundamental human rights of alljuveniles, in particular, as follows:(a) No member of the detention

facility or institutional personnelmay inflict, instigate or tolerate anyact of torture or any form of harsh,cruel, inhuman or degradingtreatment, punishment, correctionor discipline under any pretext orcircumstance whatsoever;

(b) All personnel should rigorouslyoppose and combat any act ofcorruption, reporting it withoutdelay to the competent authorities;

(c) All personnel should respect thepresent Rules. Personnel who havereason to believe that a seriousviolation of the present Rules hasoccurred or is about to occurshould report the matter to theirsuperior authorities or organsvested with reviewing or remedialpower;

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(d) All personnel should ensure the fullprotection of the physical andmental health of juveniles,including protection fromphysical, sexual and emotionalabuse and exploitation, and shouldtake immediate action to securemedical attention wheneverrequired;

(e) All personnel should respect theright of the juvenile to privacy, and,

in particular, should safeguard allconfidential matters concerningjuveniles or their families learnedas a result of their professionalcapacity;

(f) All personnel should seek tominimize any differences betweenlife inside and outside the detentionfacility which tend to lessen duerespect for the dignity of juvenilesas human beings.

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PART ONEGENERAL PRINCIPLES

1. Fundamental perspectives1.1 Member States shall seek, in conformity

with their respective general interests,to further the well-being of the juvenileand her or his family.

1.2 Member States shall endeavour todevelop conditions that will ensure forthe juvenile a meaningful life in thecommunity, which, during that periodin l ife when she or he is mostsusceptible to deviant behaviour, willfoster a process of personaldevelopment and education that is asfree from crime and delinquency aspossible.

1.3 Sufficient attention shall be given topositive measures that involve the fullmobilization of all possible resources,including the family, volunteers andother community groups, as well asschools and other communityinstitutions, for the purpose ofpromoting the well-being of thejuvenile, with a view to reducing theneed for intervention under the law,and of effectively, fairly and humanelydealing with the juvenile in conflictwith the law.

1.4 Juvenile justice shall be conceived as anintegral part of the nationaldevelopment process of each country,within a comprehensive framework of

Annex D

United Nations Standard Minimum Rules forthe Administration of Juvenile Justice

(“The Beijing Rules”)Adopted by General Assembly resolution 40/33of 29 November 1985

social justice for all juveniles, thus, atthe same time, contributing to theprotection of the young and themaintenance of a peaceful order insociety.

1.5 These Rules shall be implemented inthe context of economic, social andcultural conditions prevailing in eachMember State.

1.6 Juvenile justice services shall besystematically developed andcoordinated with a view to improvingand sustaining the competence ofpersonnel involved in the services,including their methods, approachesand attitudes.

CommentaryThese broad fundamental perspectives referto comprehensive social policy in generaland aim at promoting juvenile welfare tothe greatest possible extent, which willminimize the necessity of intervention bythe juvenile justice system, and in turn, willreduce the harm that may be caused by anyintervention. Such care measures for theyoung, before the onset of delinquency, arebasic policy requisites designed to obviatethe need for the application of the Rules.Rules 1.1 to 1.3 point to the important rolethat a constructive social policy for juvenileswill play, inter alia, in the prevention ofjuvenile crime and delinquency. Rule 1.4defines juvenile justice as an integral partof social justice for juveniles, while rule 1.6

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refers to the necessity of constantlyimproving juvenile justice, without fallingbehind the development of progressivesocial policy for juveniles in general andbearing in mind the need for consistentimprovement of staff services.Rule 1.5 seeks to take account of existingconditions in Member States which wouldcause the manner of implementation ofparticular rules necessarily to be differentfrom the manner adopted in other States.2. Scope of the Rules and definitions

used2.1 The following Standard Minimum

Rules shall be applied to juvenileoffenders impartial ly, withoutdistinction of any kind, for example asto race, colour, sex, language, religion,political or other opinions, national orsocial origin, property, birth or otherstatus.

2.2 For purposes of these Rules, thefollowing definitions shall be appliedby Member States in a manner whichis compatible with their respective legalsystems and concepts:(a) A juvenile is a child or young

person who, under the respectivelegal systems, may be dealt with foran offence in a manner which isdifferent from an adult;

(b) An offence is any behaviour (act oromission) that is punishable by lawunder the respective legal systems;

(c) A juvenile offender is a child oryoung person who is alleged tohave committed or who has beenfound to have committed anoffence.

2.3 Efforts shall be made to establish, ineach national jurisdiction, a set of laws,rules and provisions specificallyapplicable to juvenile offenders andinstitutions and bodies entrusted with

the functions of the administration ofjuvenile justice and designed:(a) To meet the varying needs of

juvenile offenders, while protectingtheir basic rights;

(b) To meet the needs of society;(c) To implement the following rules

thoroughly and fairly.CommentaryThe Standard Minimum Rules aredeliberately formulated so as to beapplicable within different legal systemsand, at the same time, to set some minimumstandards for the handling of juvenileoffenders under any definition of a juvenileand under any system of dealing withjuvenile offenders. The Rules are always tobe applied impartially and withoutdistinction of any kind.Rule 2.1 therefore stresses the importanceof the Rules always being appliedimpartially and without distinction of anykind. The rule follows the formulation ofprinciple 2 of the Declaration of the Rightsof the Child.Rule 2.2 defines “juvenile” and “offence” asthe components of the notion of the“juvenile offender”, who is the main subjectof these Standard Minimum Rules (see,however, also rules 3 and 4). It should benoted that age limits will depend on, andare explicitly made dependent on, eachrespective legal system, thus fully respectingthe economic, social, political, cultural andlegal systems of Member States. This makesfor a wide variety of ages coming under thedefinition of “juvenile”, ranging from 7years to 18 years or above. Such a varietyseems inevitable in view of the differentnational legal systems and does not diminishthe impact of these Standard MinimumRules.Rule 2.3 is addressed to the necessity ofspecific national legislation for the optimal

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implementation of these StandardMinimum Rules, both legally andpractically.3. Extension of the Rules3.1 The relevant provisions of the Rules

shall be applied not only to juvenileoffenders but also to juveniles who maybe proceeded against for any specificbehaviour that would not bepunishable if committed by an adult.

3.2 Efforts shall be made to extend theprinciples embodied in the Rules to alljuveniles who are dealt with in welfareand care proceedings.

3.3 Efforts shall also be made to extend theprinciples embodied in the Rules toyoung adult offenders.

CommentaryRule 3 extends the protection afforded bythe Standard Minimum Rules for theAdministration of Juvenile Justice to cover:(a) The so-called “status offences”

prescribed in various national legalsystems where the range of behaviourconsidered to be an offence is wider forjuveniles than it is for adults (forexample, truancy, school and familydisobedience, public drunkenness, etc.)(rule 3.1);

(b) Juvenile welfare and care proceedings(rule 3.2);

(c) Proceedings dealing with young adultoffenders, depending of course on eachgiven age limit (rule 3.3).

The extension of the Rules to cover thesethree areas seems to be justified. Rule 3.1provides minimum guarantees in thosefields, and rule 3.2 is considered a desirablestep in the direction of more fair, equitableand humane justice for all juveniles inconflict with the law.4. Age of criminal responsibility4.1 In those legal systems recognizing the

concept of the age of criminal

responsibility for juveniles, thebeginning of that age shall not be fixedat too low an age level, bearing in mindthe facts of emotional, mental andintellectual maturity.

CommentaryThe minimum age of criminal responsibilitydiffers widely owing to history and culture.The modern approach would be to considerwhether a child can live up to the moraland psychological components of criminalresponsibility; that is, whether a child, byvirtue of her or his individual discernmentand understanding, can be held responsiblefor essentially antisocial be ha vi our. If theage of criminal responsibility is fixed toolow or if there is no lower age limit at all,the notion of responsibility would becomemeaningless. In general, there is a closerelationship between the notion ofresponsibility for delinquent or criminalbehaviour and other social rights andresponsibilities (such as marital status, civilmajority, etc.).Efforts should therefore be made to agreeon a reasonable lowest age limit that isapplicable internationally.5. Aims of juvenile justice5.1 The juvenile justice system shall

emphasize the well-being of the juvenileand shall ensure that any reaction tojuvenile offenders shall always be inproportion to the circumstances ofboth the offenders and the offence.

CommentaryRule 5 refers to two of the most importantobjectives of juvenile justice. The firstobjective is the promotion of the well-beingof the juvenile. This is the main focus ofthose legal systems in which juvenileoffenders are dealt with by family courtsor administrative authorities, but the well-being of the juvenile should also beemphasized in legal systems that follow thecriminal court model, thus contributing to

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the avoidance of merely punitive sanctions.(See also rule 14.)The second objective is “the principle ofproportionality”. This principle is well-known as an instrument for curbingpunitive sanctions, mostly expressed interms of just deserts in relation to the gravityof the offence. The response to youngoffenders should be based on theconsideration not only of the gravity of theoffence but also of personal circumstances.The individual circumstances of the offender(for example social status, family situation,the harm caused by the offence or otherfactors affecting personal circumstances)should influence the proportionality of thereactions (for example by having regard tothe offender’s endeavour to indemnify thevictim or to her or his willingness to turnto wholesome and useful life).By the same token, reactions aiming toensure the welfare of the young offendermay go beyond necessity and thereforeinfringe upon the fundamental rights of theyoung individual, as has been observed insome juvenile justice systems. Here, too, theproportionality of the reaction to thecircumstances of both the offender and theoffence, including the victim, should besafeguarded.In essence, rule 5 calls for no less and nomore than a fair reaction in any given casesof juvenile delinquency and crime. Theissues combined in the rule may help tostimulate development in both regards: newand innovative types of reactions are asdesirable as precautions against any unduewidening of the net of formal social controlover juveniles.6. Scope of discretion6.1 In view of the varying special needs of

juveniles as well as the variety ofmeasures available, appropriate scopefor discretion shall be allowed at allstages of proceedings and at the

different levels of juvenile justiceadministration, including investigation,prosecution, adjudication and thefollow-up of dispositions.

6.2 Efforts shall be made, however, toensure sufficient accountability at allstages and levels in the exercise of anysuch discretion.

6.3 Those who exercise discretion shall bespecially qualified or trained to exerciseit judiciously and in accordance withtheir functions and mandates.

CommentaryRules 6.1, 6.2 and 6.3 combine severalimportant features of effective, fair andhumane juvenile justice administration: theneed to permit the exercise of discretionarypower at all significant levels of processingso that those who make determinations cantake the actions deemed to be mostappropriate in each individual case; and theneed to provide checks and balances inorder to curb any abuses of discretionarypower and to safeguard the rights of theyoung offender. Accountability andprofessionalism are instruments best apt tocurb broad discretion. Thus, professionalqualifications and expert training areemphasized here as a valuable means ofensuring the judicious exercise of discretionin matters of juvenile offenders. (See alsorules 1.6 and 2.2.) The formulation ofspecific guidelines on the exercise ofdiscretion and the provision of systems ofreview, appeal and the like in order topermit scrutiny of decisions andaccountability are emphasized in thiscontext. Such mechanisms are not specifiedhere, as they do not easily lend themselvesto incorporation into internationalstandard minimum rules, which cannotpossibly cover all differences in justicesystems.7. Rights of juveniles7.1 Basic procedural safeguards such as the

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presumption of innocence, the right tobe notified of the charges, the right toremain silent, the right to counsel, theright to the presence of a parent orguardian, the right to confront andcross-examine witnesses and the rightto appeal to a higher authority shall beguaranteed at all stages of proceedings.

CommentaryRule 7.1 emphasizes some important pointsthat represent essential elements for a fairand just trial and that are internationallyrecognized in existing human rightsinstruments (See also rule 14.). Thepresumption of innocence, for instance, isalso to be found in article 11 of theUniversal Declaration of Human rights andin article 14, paragraph 2, of theInternational Covenant on Civil andPolitical Rights. Rules 14 seq. of theseStandard Minimum Rules specify issuesthat are important for proceedings injuvenile cases, in particular, while rule 7.1affirms the most basic procedural safeguardsin a general way.8. Protection of privacy8.1 The juvenile’s right to privacy shall be

respected at all stages in order to avoidharm being caused to her or him byundue publicity or by the process oflabelling.

8.2 In principle, no information that maylead to the identification of a juvenileoffender shall be published.

CommentaryRule 8 stresses the importance of theprotection of the juvenile’s right to privacy.Young persons are particularly susceptibleto stigmatization. Criminological researchinto labelling processes has providedevidence of the detrimental effects (ofdifferent kinds) resulting from thepermanent identification of young personsas “delinquent” or “criminal”.Rule 8 stresses the importance of protecting

the juvenile from the adverse effects thatmay result from the publication in the massmedia of information about the case (forexample the names of young offenders,alleged or convicted). The interest of theindividual should be protected and upheld,at least in principle (The general contentsof rule 8 are further specified in rule 2 1.).9. Saving clause9.1 Nothing in these Rules shall be

interpreted as precluding theapplication of the Standard MinimumRules for the Treatment of Prisonersadopted by the United Nations andother human rights instruments andstandards recognized by theinternational community that relate tothe care and protection of the young.

CommentaryRule 9 is meant to avoid anymisunderstanding in interpreting andimplementing the present Rules inconformity with principles contained inrelevant existing or emerging internationalhuman rights instruments and standards-such as the Universal Declaration of HumanRights, the International Covenant onEconomic, Social and Cultural Rights andthe International Covenant on Civil andPolitical Rights, and the Declaration of theRights of the Child and the draft conventionon the rights of the child. It should beunderstood that the application of thepresent Rules is without prejudice to anysuch international instruments which maycontain provisions of wider application (Seealso rule 27.).

PART TWOINVESTIGATION AND

PROSECUTION10. Initial contact10.1Upon the apprehension of a juvenile,

her or his parents or guardian shall be

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immediately notified of suchapprehension, and, where suchimmediate notification is not possible,the parents or guardian shall be notifiedwithin the shortest possible timethereafter.

10.2A judge or other competent official orbody shall, without delay, consider theissue of release.

10.3Contacts between the law enforcementagencies and a juvenile offender shallbe managed in such a way as to respectthe legal status of the juvenile, promotethe well-being of the juvenile and avoidharm to her or hi m, with due regardto the circumstances of the case.

CommentaryRule 10.1 is in principle contained in rule92 of the Standard Minimum Rules for theTreatment of Prisoners.The question of release (rule 10.2) shall beconsidered without delay by a judge orother competent official. The latter refersto any person or institution in the broadestsense of the term, including communityboards or police authorities having powerto release an arrested person. (See also theInternational Covenant on Civil andPolitical Rights, article 9, paragraph 3.)Rule 10.3 deals with some fundamentalaspects of the procedures and behaviour onthe part of the police and other lawenforcement officials in cases of juvenilecrime. To “avoid harm” admittedly isflexible wording and covers many featuresof possible interaction (for example the useof harsh language, physical violence orexposure to the environment). Involvementin juvenile justice processes in itself can be“harmful” to juveniles; the term “avoidharm” should be broadly interpreted,therefore, as doing the least harm possibleto the juvenile in the first instance, as wellas any additional or undue harm. This isespecially important in the initial contact

with law enforcement agencies, which mightprofoundly influence the juvenile’s attitudetowards the State and society. Moreover,the success of any further intervention islargely dependent on such initial contacts.Compassion and kind firmness areimportant in these situations.11. Diversion11.1Consideration shall be given, wherever

appropriate, to dealing with juvenileoffenders without resorting to formaltrial by the competent authority,referred to in rule 14.1 below.

11.2The police, the prosecution or otheragencies dealing with juvenile cases shallbe empowered to dispose of such cases,at their discretion, without recourse toformal hearings, in accordance with thecriteria laid down for that purpose inthe respective legal system and also inaccordance with the principlescontained in these Rules.

11.3Any diversion involving referral toappropriate community or otherservices shall require the consent of thejuvenile, or her or his parents orguardian, provided that such decisionto refer a case shall be subject to reviewby a competent authority, uponapplication.

11.4In order to facilitate the discretionarydisposition of juvenile cases, efforts shallbe made to provide for communityprogrammes, such as temporarysupervision and guidance, restitution,and compensation of victims.

CommentaryDiversion, involving removal from criminaljustice processing and, frequently,redirection to community support services,is commonly practised on a formal andinformal basis in many legal systems. Thispractice serves to hinder the negative effectsof subsequent proceedings in juvenile justiceadministration (for example the stigma of

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conviction and sentence). In many cases,non-intervention would be the bestresponse. Thus, diversion at the outset andwithout referral to alternative (social)services may be the optimal response. Thisis especially the case where the offence is ofa non-serious nature and where the family,the school or other informal social controlinstitutions have already reacted, or arelikely to react, in an appropriate andconstructive manner.As stated in rule 11.2, diversion may be usedat any point of decision-making-by thepolice, the prosecution or other agenciessuch as the courts, tribunals, boards orcouncils. It may be exercised by oneauthority or several or all authorities,according to the rules and policies of therespective systems and in line with thepresent Rules. It need not necessarily belimited to petty cases, thus renderingdiversion an important instrument.Rule 11.3 stresses the importantrequirement of securing the consent of theyoung offender (or the parent or guardian)to the recommended diversionarymeasure(s). (Diversion to communityservice without such consent wouldcontradict the Abolition of Forced LabourConvention.) However, this consent shouldnot be left unchallengeable, since it mightsometimes be given out of sheer desperationon the part of the juvenile. The ruleunderlines that care should be taken tominimize the potential for coercion andintimidation at all levels in the diversionprocess. Juveniles should not feel pressured(for example in order to avoid courtappearance) or be pressured into consentingto diversion programmes. Thus, it isadvocated that provision should be madefor an objective appraisal of theappropriateness of dispositions involvingyoung offenders by a “competent authorityupon application”. (The “competentauthority,’ may be different from that

referred to in rule 14.)Rule 11.4 recommends the provision ofviable alternatives to juvenile justiceprocessing in the form of community-baseddiversion. Programmes that involvesettlement by victim restitution and thosethat seek to avoid future conflict with thelaw through temporary supervision andguidance are especially commended. Themerits of individual cases would makediversion appropriate, even when moreserious offences have been committed (forexample first offence, the act having beencommitted under peer pressure, etc.).12. Specialization within the police12.1In order to best fulfil their functions,

police officers who frequently orexclusively deal with juveniles or whoare primarily engaged in the preventionof juvenile crime shall be speciallyinstructed and trained. In large cities,special police units should beestablished for that purpose.

CommentaryRule 12 draws attention to the need forspecialized training for all law enforcementofficials who are involved in theadministration of juvenile justice. As policeare the first point of contact with thejuvenile justice system, it is most importantthat they act in an informed and appropriatemanner.While the relationship betweenurbanization and crime is clearly complex,an increase in juvenile crime has beenassociated with the growth of large cities,particularly with rapid and unplannedgrowth. Specialized police units wouldtherefore be indispensable, not only in theinterest of implementing specific principlescontained in the present instrument (suchas rule 1.6) but more generally forimproving the prevention and control ofjuvenile crime and the handling of juvenileoffenders.

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13. Detention pending trial13.1Detention pending trial shall be used

only as a measure of last resort and forthe shortest possible period of time.

13.2Whenever possible, detention pendingtrial shall be replaced by alternativemeasures, such as close supervision,intensive care or placement with afamily or in an educational setting orhome.

13.3Juveniles under detention pending trialshall be entitled to all rights andguarantees of the Standard MinimumRules for the Treatment of Prisonersadopted by the United Nations.

13.4Juveniles under detention pending trialshall be kept separate from adults andshall be detained in a separateinstitution or in a separate part of aninstitution also holding adults.

13.5While in custody, juveniles shall receivecare, protection and all necessaryindividual assistance-social, educational,vocational, psychological, medical andphysical-that they may require in viewof their age, sex and personality.

CommentaryThe danger to juveniles of”criminalcontamination” while in detention pendingtrial must not be underestimated. It istherefore important to stress the need foralternative measures. By doing so, rule 13.1encourages the devising of new andinnovative measures to avoid such detentionin the interest of the well-being of thejuvenile. Juveniles under detention pendingtrial are entitled to all the rights andguarantees of the Standard Minimum Rulesfor the Treatment of Prisoners as well asthe International Covenant on Civil andPolitical Rights, especially article 9 andarticle 10, paragraphs 2 (b) and 3.Rule 13.4 does not prevent States fromtaking other measures against the negative

influences of adult offenders which are atleast as effective as the measures mentionedin the rule.Different forms of assistance that maybecome necessary have been enumerated todraw attention to the broad range ofparticular needs of young detainees to beaddressed (for example females or males,drug addicts, alcoholics, mentally illjuveniles, young persons suffering from thetrauma, for example, of arrest, etc.).Varying physical and psychologicalcharacteristics of young detainees maywarrant classification measures by whichsome are kept separate while in detentionpending trial, thus contributing to theavoidance of victimization and renderingmore appropriate assistance.The Sixth United Nations Congress on thePrevention of Crime and the Treatment ofOffenders, in its resolution 4 on juvenilejustice standards, specified that the Rules,inter alia, should reflect the basic principlethat pre-trial detention should be used onlyas a last resort, that no minors should beheld in a facility where they are vulnerableto the negative influences of adult detaineesand that account should always be taken ofthe needs particular to their stage ofdevelopment.

PART THREEADJUDICATION AND

DISPOSITION14. Competent authority to adjudicate14.1Where the case of a juvenile offender

has not been diverted (under rule 11),she or he shall be dealt with by thecompetent authority (court, tribunal,board, council, etc.) according to theprinciples of a fair and just trial.

14.2The proceedings shall be conducive tothe best interests of the juvenile and shallbe conducted in an atmosphere of

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understanding, which shall allow thejuvenile to participate therein and toexpress herself or himself freely.

CommentaryIt is difficult to formulate a definition ofthe competent body or person that woulduniversally describe an adjudicatingauthority. “Competent authority” is meantto include those who preside over courtsor tribunals (composed of a single judge orof several members), including professionaland lay magistrates as well as administrativeboards (for example the Scottish andScandinavian systems) or other moreinformal community and conflictresolution agencies of an adjudicatorynature.The procedure for dealing with juvenileoffenders shall in any case follow theminimum standards that are applied almostuniversally for any criminal defendantunder the procedure known as “due processof law”. In accordance with due process, a“fair and just trial” includes such basicsafeguards as the presumption of innocence,the presentation and examination ofwitnesses, the common legal defences, theright to remain silent, the right to have thelast word in a hearing, the right to appeal,etc. (See also rule 7.1.)15. Legal counsel, parents and guardians15.1Throughout the proceedings the

juvenile shall have the right to berepresented by a legal adviser or toapply for free legal aid where there isprovision for such aid in the country.

15.2The parents or the guardian shall beentitled to participate in the proceedingsand may be required by the competentauthority to attend them in the interestof the juvenile. They may, however, bedenied participation by the competentauthority if there are reasons to assumethat such exclusion is necessary in theinterest of the juvenile.

CommentaryRule 15.1 uses terminology similar to thatfound in rule 93 of the Standard MinimumRules for the Treatment of Prisoners.Whereas legal counsel and free legal aid areneeded to assure the juvenile legal assistance,the right of the parents or guardian toparticipate as stated in rule 15.2 should beviewed as general psychological andemotional assistance to the juvenile-afunction extending throughout theprocedure.The competent authority’s search for anadequate disposition of the case may profit, in particular, fro m the co-operation ofthe legal representatives of the juvenile (or,for that matter, some other personalassistant who the juvenile can and doesreally trust). Such concern can be thwartedif the presence of parents or guardians atthe hearings plays a negative role, forinstance, if they display a hostile attitudetowards the juvenile, hence, the possibilityof their exclusion must be provided for.16. Social inquiry reports16.1In all cases except those involving

minor offences, before the competentauthority renders a final dispositionprior to sentencing, the backgroundand circumstances in which the juvenileis living or the conditions under whichthe offence has been committed shallbe properly investigated so as tofacilitate judicious adjudication of thecase by the competent authority.

CommentarySocial inquiry reports (social reports or pre-sentence reports) are an indispensable aidin most legal proceedings involvingjuveniles. The competent authority shouldbe informed of relevant facts about thejuvenile, such as social an d familybackground, school career, educationalexperiences, etc. For this purpose, somejurisdictions use special social services or

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personnel attached to the court or board.Other personnel, including probationofficers, may serve the same function. Therule therefore requires that adequate socialservices should be available to deliver socialinquiry reports of a qualified nature.17. Guiding principles in adjudication

and disposition17.1The disposition of the competent

authority shall be guided by thefollowing principles:(a) The reaction taken shall always be

in proportion not only to thecircumstances and the gravity of theoffence but also to thecircumstances and the needs of thejuvenile as well as to the needs ofthe society;

(b) Restrictions on the personal libertyof the juvenile shall be imposedonly after careful consideration andshall be limited to the possibleminimum;

(c) Deprivation of personal liberty shallnot be imposed unless the juvenileis adjudicated of a serious actinvolving violence against anotherperson or of persistence incommitting other serious offencesand unless there is no otherappropriate response;

(d) The well-being of the juvenile shallbe the guiding factor in theconsideration of her or his case. 17.2Capital punishment shall not beimposed for any crime committedby juveniles.

17.3Juveniles shall not be subject tocorporal punishment.

17.4The competent authority shall have thepower to discontinue the proceedingsat any time.

CommentaryThe main difficulty in formulating

guidelines for the adjudication of youngpersons stems from the fact that there areunresolved conflicts of a philosophicalnature, such as the following:(a) Rehabilitation versus just desert;(b) Assistance versus repression and

punishment;(c) Reaction according to the singular

merits of an individual case versusreaction according to the protection ofsociety in general;

(d) General deterrence versus individualincapacitation.

The conflict between these approaches ismore pronounced in juvenile cases than inadult cases. With the variety of causes andreactions characterizing juvenile cases, thesealternatives become intricately interwoven.It is not the function of the StandardMinimum Rules for the Administration ofJuvenile Justice to prescribe which approachis to be followed but rather to identify onethat is most closely in consonance withinternationally accepted principles.Therefore the essential elements as laiddown in rule 17.1 , in particular insubparagraphs (a) and (c), are mainly to beunderstood as practical guidelines thatshould ensure a common starting point; ifheeded by the concerned authorities (see alsorule 5), they could contribute considerablyto ensuring that the fundamental rights ofjuvenile offenders are protected, especiallythe fundamental rights of personaldevelopment and education.Rule 17.1 (b) implies that strictly punitiveapproaches are not appropriate. Whereasin adult cases, and possibly also in cases ofsevere offences by juveniles, just desert andretributive sanctions might be consideredto have some merit, in juvenile cases suchconsiderations should always be outweighedby the interest of safeguarding the well-being and the future of the young person.In line with resolution 8 of the Sixth United

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Nations Congress, rule 17.1 (b) encouragesthe use of alternatives to institutionalizationto the maximum extent possible, bearingin mind the need to respond to the specificrequirements of the young. Thus, full useshould be made of the range of existingalternative sanctions and new alternativesanctions should be developed, bearing thepublic safety in mind. Probation should begranted to the greatest possible extent viasuspended sentences, conditional sentences,board orders and other dispositions.Rule 17.1 (c) corresponds to one of theguiding principles in resolution 4 of theSixth Congress which aims at avoidingincarceration in the case of juveniles unlessthere is no other appropriate response thatwill protect the public safety.The provision prohibiting capitalpunishment in rule 17.2 is in accordancewith article 6, paragraph 5, of theInternational Covenant on Civil andPolitical Rights.The provision against corporal punishmentis in line with article 7 of the InternationalCovenant on Civil and Political Rights andthe Declaration on the Protection of AllPersons from Being Subjected to Tortureand Other Cruel, Inhuman or DegradingTreatment or Punishment, as well as theConvention against Torture and OtherCruel, Inhuman or Degrading Treatmentor Punishment and the draft convention onthe rights of the child.The power to discontinue the proceedingsat any time (rule 17.4) is a characteristicinherent in the handling of juvenileoffenders as opposed to adults. At any time,circumstances may become known to thecompetent authority which would make acomplete cessation of the interventionappear to be the best disposition of the case.18. Various disposition measures18.1A large variety of disposition measures

shall be made available to the competent

authority, allowing for flexibility so asto avoid institutionalization to thegreatest extent possible. Such measures,some of which may be combined,include:(a) Care, guidance and supervision

orders;(b) Probation;(c) Community service orders;(d) Financial penalties, compensation

and restitution;(e) Intermediate treatment and other

treatment orders;(f) Orders to participate in group

counselling and similar activities;(g) Orders concerning foster care,

living communities or othereducational settings;

(h) Other relevant orders.18.2No juvenile shall be removed from

parental supervision, whether partly orentire l y, unless the circumstances ofher or his case make this necessary.

CommentaryRule 18.1 attempts to enumerate some ofthe important reactions and sanctions thathave been practised and proved successfulthus far, in different legal systems. On thewhole they represent promising opinionsthat deserve replication and furtherdevelopment. The rule does not enumeratestaffing requirements because of possibleshortages of adequate staff in some regions;in those regions measures requiring less staffmay be tried or developed.The examples given in rule 18.1 have incommon, above all, a reliance on and anappeal to the community for the effectiveimplementation of alternative dispositions.Community-based correction is atraditional measure that has taken on manyaspects. On that basis, relevant authoritiesshould be encouraged to offer community-based services.

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Rule 18.2 points to the importance of thefamily which, according to article 10,paragraph l, of the International Covenanton Economic, Social and Cultural Rights,is “the natural and fundamental group unitof society”. Within the family, the parentshave not only the right but also theresponsibility to care for and supervise theirchildren. Rule 18.2, therefore, requires thatthe separation of children from theirparents is a measure of last resort. It maybe resorted to only when the facts of thecase clearly warrant this grave step (forexample child abuse).19. Least possible use of

institutionalization19.1The placement of a juvenile in an

institution shall always be a dispositionof last resort and for the minimumnecessary period.

CommentaryProgressive criminology advocates the useof non-institutional over institutionaltreatment. Little or no difference has beenfound in terms of the success ofinstitutionalization as compared to non-institutionalization. The many adverseinfluences on an individual that seemunavoidable within any institutional settingevidently cannot be outbalanced bytreatment efforts. This is especially the casefor juveniles, who are vulnerable to negativeinfluences. Moreover, the negative effects,not only of loss of liberty but also ofseparation from the usual socialenvironment, are certainly more acute forjuveniles than for adults because of theirearly stage of development.Rule 19 aims at restrictinginstitutionalization in two regards: inquantity (“last resort,,) and in time(“minimum necessary period”). Rule 19reflects one of the basic guiding principlesof resolution 4 of the Sixth United NationsCongress: a juvenile offender should not

be incarcerated unless there is no otherappropriate response. The rule, therefore,makes the appeal that if a juvenile must beinstitutionalized, the loss of liberty shouldbe restricted to the least possible degree,with special institutional arrangements forconfinement and bearing in mind thedifferences in kinds of offenders, offencesand institutions. In fact, priority should begiven to “open” over “closed” institutions.Furthermore, any facility should be of acorrectional or educational rather than ofa prison type.20. Avoidance of unnecessary delay20.1Each case shall from the outset be

handled expeditiously, without anyunnecessary delay.

CommentaryThe speedy conduct of formal proceduresin juvenile cases is a paramount concern.Otherwise whatever good may be achievedby the procedure and the disposition is atrisk. As time passes, the juvenile will find itincreasingly difficult, if not impossible, torelate the procedure and disposition to theoffence, both intellectually andpsychologically.21. Records21.1Records of juvenile offenders shall be

kept strictly confidential and closed tothird parties. Access to such recordsshall be limited to persons directlyconcerned with the disposition of thecase at hand or other duly authorizedpersons.

21.2Records of juvenile offenders shall notbe used in adult proceedings insubsequent cases involving the sameoffender.

CommentaryThe rule attempts to achieve a balancebetween conflicting interests connectedwith records or files: those of the police,prosecution and other authorities in

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improving control versus the interests ofthe juvenile offender. (See also rule 8.)“Other duly authorized persons” wouldgenerally include among others, researchers.22. Need for professionalism and

training22.1Professional education, in-service

training, refresher courses and otherappropriate modes of instruction shallbe utilized to establish and maintain thenecessary professional competence of allpersonnel dealing with juvenile cases.

22.2Juvenile justice personnel shall reflectthe diversity of juveniles who come intocontact with the juvenile justice system.Efforts shall be made to ensure the fairrepresentation of women andminorities in juvenile justice agencies.

CommentaryThe authorities competent for dispositionmay be persons with very differentbackgrounds (magistrates in the UnitedKingdom of Great Britain and NorthernIreland and in regions influenced by thecommon law system; legally trained judgesin countries using Roman law and inregions influenced by them; and elsewhereelected or appointed laymen or jurists,members of community-based boards, etc.).For all these authorities, a minimumtraining in law, sociology, psychology,criminology and behavioural scienceswould be required. This is considered asimportant as the organizationalspecialization and independence of thecompetent authority.For social workers and probation officers,it might not be feasible to requireprofessional specialization as a prerequisitefor taking over any function dealing withjuvenile offenders. Thus, professional on-the job instruction would be minimumqualifications.Professional qualifications are an essentialelement in ensuring the impartial and

effective administration of juvenile justice.Accordingly, it is necessary to improve therecruitment, advancement and professionaltraining of personnel and to provide themwith the necessary means to enable them toproperly fulfil their functions.All political, social, sexual, racial, religious,cultural or any other kind of discriminationin the selection, appointment andadvancement of juvenile justice personnelshould be avoided in order to achieveimpartiality in the administration ofjuvenile justice. This was recommended bythe Sixth Congress. Furthermore, the SixthCongress called on Member States to ensurethe fair and equal treatment of women ascriminal justice personnel andrecommended that special measures shouldbe taken to recruit, train and facilitate theadvancement of female personnel in juvenilejustice administration.

PART FOURNON-INSTITUTIONAL

TREATMENT23. Effective implementation of

disposition23.1Appropriate provisions shall be made

for the implementation of orders of thecompetent authority, as referred to inrule 14.1 above, by that authority itselfor by some other authority ascircumstances may require

23.2Such provisions shall include the powerto modify the orders as the competentauthority may deem necessary fromtime to time, provided that suchmodification shall be determined inaccordance with the principlescontained in these Rules.

CommentaryDisposition in juvenile cases, more so thanin adult cases, tends to influence theoffender’s life for a long period of time.

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Thus, it is important that the competentauthority or an independent body (paroleboard, probation office, youth welfareinstitutions or others) with qualificationsequal to those of the competent authoritythat originally disposed of the case shouldmonitor the implementation of thedisposition. In some countries, a juge del’execution des peines has been installed forthis purpose.The composition, powers and functions ofthe authority must be flexible; they aredescribed in general terms in rule 23 inorder to ensure wide acceptability.24. Provision of needed assistance24.1Efforts shall be made to provide

juveniles, at all stages of theproceedings, with necessary assistancesuch as lodging, education or vocationaltraining, employment or any otherassistance, helpful and practical, inorder to facilitate the rehabilitativeprocess.

CommentaryThe promotion of the well-being of thejuvenile is of paramount consideration.Thus, rule 24 emphasizes the importanceof providing requisite facilities, services andother necessary assistance as may further thebest interests of the juvenile throughout therehabilitative process.25. Mobilization of volunteers and

other community services25.1Volunteers, voluntary organizations,

local institutions and other communityresources shall be called upon tocontribute effectively to therehabilitation of the juvenile in acommunity setting and, as far aspossible, within the family unit.

CommentaryThis rule reflects the need for a rehabilitativeorientation of all work with juvenileoffenders. Co-operation with the

community is indispensable if the directivesof the competent authority are to be carriedout effectively. Volunteers and voluntaryservices, in particular, have proved to bevaluable resources but are at presentunderutilized. In some instances, the co-operation of ex-offenders (including ex-addicts) can be of considerable assistance.Rule 25 emanates from the principles laiddown in rules 1.1 to 1.6 and follows therelevant provisions of the InternationalCovenant on Civil and Political Rights.

PART FIVEINSTITUTIONAL TREATMENT

26. Objectives of institutionaltreatment

26.1The objective of training and treatmentof juveniles placed in institutions is toprovide care, protection, education andvocational skills, with a view to assistingthem to assume socially constructiveand productive roles in society.

26.2Juveniles in institutions shall receivecare, protection and all necessaryassistance-social, educational,vocational, psychological, medical andphysical-that they may require becauseof their age, sex, and personality andin the interest of their wholesomedevelopment .

26.3Juveniles in institutions shall be keptseparate from adults and shall bedetained in a separate institution or ina separate part of an institution alsoholding adults.

26.4Young female offenders placed in aninstitution deserve special attention asto their personal needs and problems.They shall by no means receive less care,protection, assistance, treatment andtraining than young male offenders.Their fair treatment shall be ensured.

26.5In the interest and well-being of the

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institutionalized juvenile, the parentsor guardians shall have a right of access.

26.6Inter-ministerial and inter-departmental co-operation shall befostered for the purpose of providingadequate academic or, as appropriate,vocational training to institutionalizedjuveniles, with a view to ensuring thatthey do no leave the institution at aneducational disadvantage.

CommentaryThe objectives of institutional treatment asstipulated in rules 26.1 and 26.2 would beacceptable to any system and culture.However, they have not yet been attainedeverywhere, and much more has to be donein this respect.Medical and psychological assistance, inparticular, are extremely important forinstitutionalized drug addicts, violent andmentally ill young persons.The avoidance of negative influencesthrough adult offenders and thesafeguarding of the well-being of juvenilesin an institutional setting, as stipulated inrule 26.3, are in line with one of the basicguiding principles of the Rules, as set outby the Sixth Congress in its resolution 4.The rule does not prevent States fromtaking other measures against the negativeinfluences of adult offenders, which are atleast as effective as the measures mentionedin the rule. (See also rule 13.4)Rule 26.4 addresses the fact that femaleoffenders normally receive less attentionthan their male counterparts. as pointed outby the Sixth Congress. In particular,resolution 9 of the Sixth Congress calls forthe fair treatment of female offenders atevery stage of criminal justice processes andfor special attention to their particularproblems and needs while in custody.Moreover, this rule should also beconsidered in the light of the CaracasDeclaration of the Sixth Congress, which,

inter alia, calls for equal treatment incriminal justice administration, and againstthe background of the Declaration on theElimination of Discrimination againstWomen and the Convention on theElimination of All Forms of Discriminationagainst Women.The right of access (rule 26.5) follows fromthe provisions of rules 7.1, 10.1, 15.2 and18.2. Inter-ministerial and inter-departmental co-operation (rule 26.6) are ofparticular importance in the interest ofgenerally enhancing the quality ofinstitutional treatment and training.27. Application of the Standard

Minimum Rules for the Treatmentof Prisoners adopted by the UnitedNations

27.1The Standard Minimum Rules for theTreatment of Prisoners and relatedrecommendations shall be applicable asfar as relevant to the treatment ofjuvenile offenders in institutions,including those in detention pendingadjudication.

27.2Efforts shall be made to implement therelevant principles laid down in theStandard Minimum Rules for theTreatment of Prisoners to the largestpossible extent so as to meet the varyingneeds of juveniles specific to their age,sex and personality.

CommentaryThe Standard Minimum Rules for theTreatment of Prisoners were among thefirst instruments of this kind to bepromulgated by the United Nations. It isgenerally agreed that they have had a world-wide impact. Although there are stillcountries where implementation is more anaspiration than a fact, those StandardMinimum Rules continue to be animportant influence in the humane andequitable administration of correctionalinstitutions.

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Some essential protections covering juvenileoffenders in institutions are contained inthe Standard Minimum Rules for theTreatment of Prisoners (accommodation,architecture, bedding, clothing, complaintsand requests, contact with the outsideworld, food, medical care, religious service,separation of ages, staffing, work, etc.) asare provisions concerning punishment anddiscipline, and restraint for dangerousoffenders. It would not be appropriate tomodify those Standard Minimum Rulesaccording to the particular characteristicsof institutions for juvenile offenders withinthe scope of the Standard Minimum Rulesfor the Administration of Juvenile Justice.Rule 27 focuses on the necessaryrequirements for juveniles in institutions(rule 27.1) as well as on the varying needsspecific to their age, sex and personality(rule 27.2). Thus, the objectives and contentof the rule interrelate to the relevantprovisions of the Standard Minimum Rulesfor the Treatment of Prisoners.28. Frequent and early recourse to

conditional release28.1Conditional release from an institution

shall be used by the appropriateauthority to the greatest possibleextent, and shall be granted at theearliest possible time.

28.2Juveniles released conditionally froman institution shall be assisted andsupervised by an appropriate authorityand shall receive full support by thecommunity.

CommentaryThe power to order conditional release mayrest with the competent authority, asmentioned in rule 14.1 or with some otherauthority. In view of this, it is adequate torefer here to the “appropriate,’ rather thanto the “competent” authority.Circumstances permitting, conditional

release shall be preferred to serving a fullsentence. Upon evidence of satisfactoryprogress towards rehabilitation, evenoffenders who had been deemed dangerousat the time of their institutionalization canbe conditionally released whenever feasible.Like probation , such release may beconditional on the satisfactory fulfilmentof the requirements specified by therelevant authorities for a period of timeestablished in the decision, for examplerelating to “good behaviour” of theoffender, attendance in communityprogrammes, residence in half-way houses,etc.In the case of offenders conditionallyreleased from an institution, assistance andsupervision by a probation or other officer(particularly where probation has not yetbeen adopted) should be provided andcommunity support should be encouraged.29. Semi-institutional arrangements29.1Efforts shall be made to provide semi-

institutional arrangements, such as half-way houses, educational homes, day-time training centres and other suchappropriate arrangements that mayassist juveniles in their properreintegration into society.

CommentaryThe importance of care following a periodof institutionalization should not beunderestimated. This rule emphasizes thenecessity of forming a net of semi-institutional arrangements.This rule also emphasizes the need for adiverse range of facilities and servicesdesigned to meet the different needs ofyoung offenders re-entering thecommunity and to provide guidance andstructural support as an important steptowards successful reintegration intosociety.

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PART SIXRESEARCH, PLANNING, POLICY

FORMULATION ANDEVALUATION

30. Research as a basis for planning,policy formulation and evaluation

30.1Efforts shall be made to organize andpromote necessary research as a basisfor effective planning and policyformulation.

30.2Efforts shall be made to review andappraise periodically the trends,problems and causes of juveniledelinquency and crime as well as thevarying particular needs of juveniles incustody.

30.3Efforts shall be made to establish aregular evaluative research mechanismbuilt into the system of juvenile justiceadministration and to collect andanalyse relevant data and informationfor appropriate assessment and futureimprovement and reform of theadministration.

30.4The delivery of services in juvenilejustice administration shall besystematically planned andimplemented as an integral part ofnational development efforts.

CommentaryThe utilization of research as a basis for aninformed juvenile justice policy is widelyacknowledged as an important mechanismfor keeping practices abreast of advances inknowledge and the continuing developmentand improvement of the juvenile justicesystem. The mutual feedback betweenresearch and policy is especially importantin juvenile justice. With rapid and oftendrastic changes in the life-styles of the

young and in the forms and dimensions ofjuvenile crime, the societal and justiceresponses to juvenile crime and delinquencyquickly become outmoded and inadequate.Rule 30 thus establishes standards forintegrating research into the process ofpolicy formulation and application injuvenile justice administration. The ruledraws particular attention to the need forregular review and evaluation of existingprogrammes and measures and for planningwithin the broader context of overalldevelopment objectives.A constant appraisal of the needs ofjuveniles, as well as the trends and problemsof delinquency, is a prerequisite forimproving the methods of formulatingappropriate policies and establishingadequate interventions, at both formal andinformal levels. In this context, research byindependent persons and bodies should befacilitated by responsible agencies, and itmay be valuable to obtain and to take intoaccount the views of juveniles themselves,not only those who come into contact withthe system.The process of planning must particularlyemphasize a more effective and equitablesystem for the delivery of necessary services.Towards that end, there should be acomprehensive and regular assessment of thewide-ranging, particular needs and problemsof juveniles and an identification of clear-cut priori ties. In that connection, thereshould also be a co-ordination in the use ofexisting resources, including alternatives andcommunity support that would be suitablein setting up specific procedures designedto implement and monitor establishedprogrammes.

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1. Fundamental aims1.1 The present Standard Minimum Rules

provide a set of basic principles topromote the use of non-custodialmeasures, as well as minimumsafeguards for persons subject toalternatives to imprisonment.

1.2 The Rules are intended to promotegreater community involvement in themanagement of criminal justice,specifically in the treatment ofoffenders, as well as to promote amongoffenders a sense of responsibilitytowards society.

1.3 The Rules shall be implemented takinginto account the political, economic,social and cultural conditions of eachcountry and the aims and objectivesof its criminal justice system.

1.4 When implementing the Rules,Member States shall endeavour toensure a proper balance between therights of individual offenders, therights of victims, and the concern ofsociety for public safety and crimeprevention.

1.5 Member States shall develop non-custodial measures within their legalsystems to provide other options, thusreducing the use of imprisonment, andto rationalize criminal justice policies,taking into account the observance ofhuman rights, the requirements ofsocial justice and the rehabilitation

Annex E

United Nations Standard MinimumRules for Non-custodial Measures

(The Tokyo Rules)Adopted by General Assembly resolution 45/110of 14 December 1990

I. GENERAL PRINCIPLES

needs of the offender.2. The scope of non-custodial

measures2.1 The relevant provisions of the present

Rules shall be applied to all personssubject to prosecution, trial or theexecution of a sentence, at all stages ofthe administration of criminal justice.For the purposes of the Rules, thesepersons are referred to as “offenders”,irrespective of whether they aresuspected, accused or sentenced.

2.2 The Rules shall be applied without anydiscrimination on the grounds of race,colour, sex, age, language, religion,political or other opinion, national orsocial origin, property, birth or otherstatus.

2.3 In order to provide greater flexibilityconsistent with the nature and gravityof the offence, with the personalityand background of the offender andwith the protection of society and toavoid unnecessary use ofimprisonment, the criminal justicesystem should provide a wide range ofnon-custodial measures, from pre-trialto post-sentencing dispositions. Thenumber and types of non-custodialmeasures available should bedetermined in such a way so thatconsistent sentencing remains possible.

2.4 The development of new non-custodialmeasures should be encouraged and

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closely monitored and their usesystematically evaluated.

2.5 Consideration shall be given to dealingwith offenders in the communityavoiding as far as possible resort toformal proceedings or trial by a court,in accordance with legal safeguards andthe rule of law.

2.6 Non-custodial measures should beused in accordance with the principleof minimum intervention.

2.7 The use of non-custodial measuresshould be part of the movementtowards depenalization anddecriminalization instead of interferingwith or delaying efforts in thatdirection.

3. Legal safeguards3.1 The introduction, definition and

application of non-custodial measuresshall be prescribed by law.

3.2 The selection of a non-custodialmeasure shall be based on an assessmentof established criteria in respect ofboth the nature and gravity of theoffence and the personality,background of the offender, thepurposes of sentencing and the rightsof victims.

3.3 Discretion by the judicial or othercompetent independent authority shallbe exercised at all stages of theproceedings by ensuring fullaccountability and only in accordancewith the rule of law.

3.4 Non-custodial measures imposing anobligation on the offender, appliedbefore or instead of formalproceedings or trial , shall require theoffender’s consent.

3.5 Decisions on the imposition of non-custodial measures shall be subject toreview by a judicial or other competentindependent authority, uponapplication by the offender.

3.6 The offender shall be entitled to makea request or complaint to a judicial orother competent independentauthority on matters affecting his orher individual rights in theimplementation of non-custodialmeasures.

3.7 Appropriate machinery shall beprovided for the recourse and, ifpossible, redress of any grievancerelated to non-compliance withinternationally recognized humanrights.

3.8 Non-custodial measures shall notinvolve medical or psychologicalexperimentation on, or undue risk ofphysical or mental injury to, theoffender.

3.9 The dignity of the offender subject tonon-custodial measures shall beprotected at all times.

3.10 In the implementation of non-custodial measures, the offender’srights shall not be restricted furtherthan was authorized by the competentauthority that rendered the originaldecision.

3.11 In the application of non-custodialmeasures, the offender’s right toprivacy shall be respected, as shall bethe right to privacy of the offender’sfamily.

3.12 The offender’s personal records shallbe kept strictly confidential and closedto third parties. Access to such recordsshall be limited to persons directlyconcerned with the disposition of theoffender’s case or to other dulyauthorized persons.

4. Saving clause4.1 Nothing in these Rules shall be

interpreted as precluding theapplication of the Standard MinimumRules for the Treatment of Prisoners,the United Nations Standard

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Minimum Rules for theAdministration of Juvenile Justice, theBody of Principles for the Protectionof All Persons under Any Form ofDetention or Imprisonment or anyother human rights instruments andstandards recognized by theinternational community and relatingto the treatment of offenders and theprotection of their basic human rights.

II. PRE-TRIAL STAGE5. Pre-trial dispositions5.1 Where appropriate and compatible

with the legal system, the police, theprosecution service or other agenciesdealing with criminal cases should beempowered to discharge the offenderif they consider that it is not necessaryto proceed with the case for theprotection of society, crime preventionor the promotion of respect for thelaw and the rights of victims. For thepurpose of deciding upon theappropriateness of discharge ordetermination of proceedings, a set ofestablished criteria shall be developedwithin each legal system. For minorcases the prosecutor may imposesuitable noncustodial measures, asappropriate.

6. Avoidance of pre-trial detention6.1 Pre-trial detention shall be used as a

means of last resort in criminalproceedings, with due regard for theinvestigation of the alleged offence andfor the protection of society and thevictim.

6.2 Alternatives to pre-trial detention shallbe employed at as early a stage aspossible. Pre-trial detention shall lastno longer than necessary to achieve theobjectives stated under rule 5.1 andshall be administered humanely andwith respect for the inherent dignity

of human beings.6.3 The offender shall have the right to

appeal to a judicial or other competentindependent authority in cases wherepre-trial detention is employed.

III. TRIAL AND SENTENCINGSTAGE7. Social inquiry reports7.1 If the possibility of social inquiry

reports exists, the judicial authoritymay avail itself of a report preparedby a competent, authorized official oragency . The report should containsocial information on the offender thatis relevant to the person’s pattern ofoffending and current offences. Itshould also contain information andrecommendations that are relevant tothe sentencing procedure. The reportshall be factual, objective and unbiased,with any expression of opinion clearlyidentified.

8. Sentencing dispositions8.1 The judicial authority, having at its

disposal a range of noncustodialmeasures, should take intoconsideration in making its decision therehabilitative needs of the offender, theprotection of society and the interestsof the victim, who should be consultedwhenever appropriate.

8.2 Sentencing authorities may dispose ofcases in the following ways:(a) Verbal sanctions, such as

admonition, reprimand andwarning;

(b) Conditional discharge;(c) Status penalties;(d) Economic sanctions and monetary

penalties, such as fines and day-fines;

(e) Confiscation or an expropriationorder;

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(f) Restitution to the victim or acompensation order;

(g) Suspended or deferred sentence;(h) Probation and judicial supervision;(i) A community service order;(j) Referral to an attendance centre;(k) House arrest;(l) Any other mode of non-

institutional treatment;(m)Some combination of the measures

listed above.

IV. POST-SENTENCING STAGE9. Post-sentencing dispositions9.1 The competent authority shall have at

its disposal a wide range of post-sentencing alternatives in order toavoid institutionalization and to assistoffenders in their early reintegrationinto society.

9.2 Post-sentencing dispositions mayinclude:(a) Furlough and half-way houses;(b) Work or education release;(c) Various forms of parole;(d) Remission;(e) Pardon.

9.3 The decision on post-sentencingdispositions, except in the case ofpardon, shall be subject to review by ajudicial or other competentindependent authority, uponapplication of the offender.

9.4 Any form of release from an institutionto a non-custodial programme shall beconsidered at the earliest possible stage.

V. IMPLEMENTATION OF NON-CUSTODIAL MEASURES10. Supervision10.1 The purpose of supervision is to reduce

reoffending and to assist the offender’s

integration into society in a way whichminimizes the likelihood of a returnto crime.

10.2 If a non-custodial measure entailssupervision, the latter shall be carriedout by a competent authority underthe specific conditions prescribed bylaw.

10.3 Within the framework of a given non-custodial measure, the most suitabletype of supervision and treatmentshould be determined for eachindividual case aimed at assisting theoffender to work on his or heroffending. Supervision and treatmentshould be periodically reviewed andadjusted as necessary.

10.4 Offenders should, when needed, beprovided with psychological, social andmaterial assistance and withopportunities to strengthen links withthe community and facilitate theirreintegration into society.

11. Duration11.1 The duration of a non-custodial

measure shall not exceed the periodestablished by the competent authorityin accordance with the law.

11.2 Provision may be made for earlytermination of the measure if theoffender has responded favourably toit.

12. Conditions12.1 If the competent authority shall

determine the conditions to beobserved by the offender, it shouldtake into account both the needs ofsociety and the needs and rights of theoffender and the victim.

12.2 The conditions to be observed shall bepractical, precise and as few as possible,and be aimed at reducing the likelihoodof an offender relapsing into criminalbehaviour and of increasing theoffender’s chances of social integration,

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taking into account the needs of thevictim.

12.3 At the beginning of the application ofa non-custodial measure, the offendershall receive an explanation, orally andin writing, of the conditions governingthe application of the measure,including the offender’s obligationsand rights.

12.4 The conditions may be modified bythe competent authority under theestablished statutory provisions, inaccordance with the progress made bythe offender.

13. Treatment process13.1 Within the framework of a given non-

custodial measure, in appropriate cases,various schemes, such as case-work,group therapy, residentialprogrammes and the special izedtreatment of various categories ofoffenders, should be developed to meetthe needs of offenders moreeffectively.

13.2 Treatment should be conducted byprofessionals who have suitabletraining and practical experience.

13.3 When it is decided that treatment isnecessary, efforts should be made tounderstand the offender’s background,personality, aptitude, intelligence,values and, especially, thecircumstances leading to thecommission of the offence.

13.4 The competent authority may involvethe community and social supportsystems in the application of non-custodial measures.

13.5 Case-load assignments shall bemaintained as far as practicable at amanageable level to ensure the effectiveimplementation of treatmentprogrammes.

13.6 For each offender, a case record shallbe established and maintained by the

competent authority.14. Discipline and breach of conditions14.1 A breach of the conditions to be

observed by the offender may resultin a modification or revocation of thenon-custodial measure.

14.2 The modification or revocation of thenon-custodial measure shall be madeby the competent authority; this shallbe done only after a carefulexamination of the facts adduced byboth the supervising officer and theoffender.

14.3 The failure of a non-custodial measureshould not automatically lead to theimposition of a custodial measure.

14.4 In the event of a modification orrevocation of the non-custodialmeasure, the competent authority shallattempt to establish a suitablealternative non-custodial measure. Asentence of imprisonment may beimposed only in the absence of othersuitable alternatives.

14.5 The power to arrest and detain theoffender under supervision in caseswhere there is a breach of theconditions shall be prescribed by law.

14.6 Upon modification or revocation ofthe non-custodial measure, theoffender shall have the right to appealto a judicial or other competentindependent authority.

VI. STAFF15. Recruitment15.1 There shall be no discrimination in the

recruitment of staff on the grounds ofrace, colour, sex, age, language, religion,political or other opinion, national orsocial origin, property, birth or otherstatus. The policy regarding staffrecruitment should take intoconsideration national policies ofaffirmative action and reflect thediversity of the offenders to be

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supervised.15.2 Persons appointed to apply non-

custodial measures should bepersonally suitable and, wheneverpossible, have appropriate professionaltraining and practical experience. Suchqualifications shall be clearly specified.

15.3 To secure and retain qualifiedprofessional staff, appropriate servicestatus, adequate salary and benefitscommensurate with the nature of thework should be ensured and ampleopportunities should be provided forprofessional growth and careerdevelopment.

16. Staff training16.1 The objective of training shall be to

make clear to staff their responsibilitieswith regard to rehabilitating theoffender, ensuring the offender’s rightsand protecting society. Trainingshould also give staff an understandingof the need to cooperate in andcoordinate activities with the agenciesconcerned.

16.2 Before entering duty, staff shall begiven training that includes instructionon the nature of non-custodialmeasures, the purposes of supervisionand the various modalities of theapplication of non-custodial measures.

16.3 After entering duty, staff shallmaintain and improve their knowledgeand professional capacity by attendingin-service training and refreshercourses. Adequate facilities shall bemade available for that purpose.

VII. VOLUNTEERS AND OTHERCOMMUNITY RESOURCES17. Public participation17.1 Public participation should be

encouraged as it is a major resource andone of the most important factors inimproving ties between offenders

undergoing non-custodial measuresand the family and community. Itshould complement the efforts of thecriminal justice administration.

17.2 Public participation should beregarded as an opportunity formembers of the community tocontribute to the protection of theirsociety.

18. Public understanding andcooperation

18.1 Government agencies, the privatesector and the general public shouldbe encouraged to support voluntaryorganizations that promotenoncustodial measures.

18.2 Conferences, seminars, symposia andother activities should be regularlyorganized to stimulate awareness ofthe need for public participation in theapplication of non-custodial measures.

18.3 All forms of the mass media should beutilized to help to create a constructivepublic attitude, leading to activitiesconducive to a broader application ofnon-custodial treatment and the socialintegration of offenders.

18.4 Every effort should be made toinform the public of the importanceof its role in the implementation ofnon-custodial measures.

19. Volunteers19.1 Volunteers shall be carefully screened

and recruited on the basis of theiraptitude for and interest in the workinvolved. They shall be properlytrained for the specific responsibilitiesto be discharged by them and shall haveaccess to support and counselling from,and the opportunity to consult with,the competent authority.

19.2 Volunteers should encourageoffenders and their families to developmeaningful ties with the communityand a broader sphere of contact by

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providing counselling and otherappropriate forms of assistanceaccording to their capacity and theoffenders’ needs.

19.3 Volunteers shall be insured againstaccident, injury and public liabilitywhen carrying out their duties. Theyshall be reimbursed for authorizedexpenditures incurred in the course oftheir work. Public recognition shouldbe extended to them for the servicesthey render for the well-being of thecommunity.

VIII. RESEARCH, PLANNING,POLICY FORMULATION ANDEVALUATION20. Research and planning20.1 As an essential aspect of the planning

process, efforts should be made toinvolve both public and private bodiesin the organization and promotion ofresearch on the non-custodialtreatment of offenders.

20.2 Research on the problems thatconfront clients, practitioners, thecommunity and policy-makers shouldbe carried out on a regular basis. 20.3Research and information mechanismsshould be built into the criminal justicesystem for the collection and analysisof data and statistics on theimplementation of non-custodialtreatment for offenders.

21. Policy formulation and programmedevelopment

21.1 Programmes for non-custodialmeasures should be systematicallyplanned and implemented as an integralpart of the criminal justice systemwithin the national developmentprocess.

21.2 Regular evaluations should be carriedout with a view to implementing non-

custodial measures more effectively .21.3 Periodic reviews should be concluded

to assess the objectives, functioningand effectiveness of non-custodialmeasures.

22. Linkages with relevant agencies andactivities

22.1 Suitable mechanisms should be evolvedat various levels to facilitate theestablishment of linkages betweenservices responsible for noncustodialmeasures, other branches of the criminaljustice system, social development andwelfare agencies, both governmental andnon-governmental, in such fields ashealth, housing, education and labour,and the mass media.

23. International cooperation23.1 Efforts shall be made to promote

scientific cooperation betweencountries in the field of non-institutional treatment. Research,training, technical assistance and theexchange of information amongMember States on non-custodialmeasures should be strengthened,through the United Nations institutesfor the prevention of crime and thetreatment of offenders, in closecollaboration with the CrimePrevention and Criminal JusticeBranch of the Centre for SocialDevelopment and HumanitarianAffairs of the United NationsSecretariat.

23.2 Comparative studies and theharmonization of legislative provisionsshould be furthered to expand therange of non-institutional options andfacilitate their application acrossnational frontiers, in accordance withthe Model Treaty on the Transfer ofSupervision of OffendersConditionally Sentenced orConditionally Released.

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I. FUNDAMENTAL PRINCIPLES1. The prevention of juvenile delinquency

is an essential part of crime preventionin society. By engaging in lawful,socially useful activities and adopting ahumanistic orientation towards societyand outlook on life, young persons candevelop non-criminogenic attitudes.

2. The successful prevention of juveniledelinquency requires efforts on the partof the entire society to ensure theharmonious development ofadolescents, with respect for andpromotion of their personality fromearly childhood.

3. For the purposes of the interpretationof the present Guidelines, a child-centred orientation should be pursued.Young persons should have an activerole and partnership within society andshould not be considered as mereobjects of socialization or control.

4. In the implementation of the presentGuidelines, in accordance with nationallegal systems, the well-being of youngpersons from their early childhoodshould be the focus of any preventiveprogramme.

5. The need for and importance ofprogressive delinquency preventionpolicies and the systematic study andthe elaboration of measures should berecognized. These should avoidcriminalizing and penalizing a child for

United Nations Guidelines for thePrevention of Juvenile Delinquency

(The Riyadh Guidelines)Adopted and proclaimed by General Assembly resolution 45/112 of 14 December 1990

Annex F

behaviour that does not cause seriousdamage to the development of the childor harm to others. Such policies andmeasures should involve:(a) The provision of opportunities, in

particular educationalopportunities, to meet the varyingneeds of young persons and to serveas a supportive framework forsafeguarding the personaldevelopment of all young persons,particularly those who aredemonstrably endangered or atsocial risk and are in need of specialcare and protection;

(b) Specialized philosophies andapproaches for delinquencyprevention, on the basis of laws,processes, institutions, facilities anda service delivery network aimed atreducing the motivation, need andopportunity for, or conditionsgiving rise to, the commission ofinfractions;

(c) Official intervention to be pursuedprimarily in the overall interest ofthe young person and guided byfairness and equity;

(d) Safeguarding the well-being,development, rights and interests ofall young persons;

(e) Consideration that youthfulbehaviour or conduct that does not

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conform to overall social normsand values is often part of thematuration and growth process andtends to disappear spontaneously inmost individuals with the transitionto adulthood;

(f) Awareness that, in the predominantopinion of experts, labelling ayoung person as “deviant’’,“delinquent” or “pre-delinquent”often contributes to thedevelopment of a consistent patternof undesirable behaviour by youngpersons.

6. Community-based services andprogrammes should be developed forthe prevention of juvenile delinquency,particularly where no agencies have yetbeen established. Formal agencies ofsocial control should only be utilizedas a means of last resort.

II. SCOPE OF THE GUIDELINES7. The present Guidelines should be

interpreted and implemented withinthe broad framework of the UniversalDeclaration of Human Rights, theInternational Covenant on Economic,Social and Cultural Rights, theInternational Covenant on Civil andPolitical Rights, the Declaration of theRights of the Child and the Conventionon the Rights of the Child, and in thecontext of the United Nations StandardMinimum Rules for theAdministration of Juvenile Justice (TheBeij ing Rules), as well as otherinstruments and norms relating to therights, interests and well-being of allchildren and young persons.

8. The present Guidelines should also beimplemented in the context of theeconomic, social and culturalconditions prevailing in each MemberState.

III. GENERAL PREVENTION9. Comprehensive prevention plans

should be instituted at every level ofGovernment and include thefollowing:(a) In-depth analyses of the problem and

inventories of programmes, services,facilities and resources available;

(b) Well-defined responsibilities for thequalified agencies, institutions andpersonnel involved in preventiveefforts;

(c) Mechanisms for the appropriate co-ordination of prevention effortsbetween governmental and non-governmental agencies;

(d) Policies, programmes and strategiesbased on prognostic studies to becontinuously monitored andcarefully evaluated in the course ofimplementation;

(e) Methods for effectively reducingthe opportunity to commitdelinquent acts;

(f) Community involvement througha wide range of services andprogrammes;

(g) Close interdisciplinary co-operationbetween national, State, provincialand local governments, with theinvolvement of the private sectorrepresentative citizens of thecommunity to be served, and labour,child-care, health education, social,law enforcement and judicial agenciesin taking concerted action to preventjuvenile delinquency and youth crime;

(h) Youth participation in delinquencyprevention policies and processes,including recourse to communityresources, youth self-help, andvictim compensation and assistanceprogrammes;

(i) Specialized personnel at all levels.

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IV. SOCIALIZATION PROCESSES10. Emphasis should be placed on

preventive policies facilitating thesuccessful socialization and integrationof all children and young persons, inparticular through the family, thecommunity, peer groups, schools,vocational training and the world ofwork, as well as through voluntaryorganizations. Due respect should begiven to the proper personaldevelopment of children and youngpersons, and they should be acceptedas full and equal partners insocialization and integration processes.

A. Family11. Every society should place a high

priority on the needs and well-being ofthe family and of all its members.

12. Since the family is the central unitresponsible for the primarysocialization of children, governmentaland social efforts to preserve theintegrity of the family, including theextended family, should be pursued.The society has a responsibility to assistthe family in providing care andprotection and in ensuring the physicaland mental well-being of children.Adequate arrangements including day-care should be provided.

13. Governments should establish policiesthat are conducive to the bringing upof children in stable and settled familyenvironments. Families in need ofassistance in the resolution ofconditions of instability or conflictshould be provided with requisiteservices.

14. Where a stable and settled familyenvironment is lacking and whencommunity efforts to assist parents inthis regard have failed and the extendedfamily cannot fulfil this role, alternativeplacements, including foster care and

adoption, should be considered. Suchplacements should replicate, to theextent possible, a stable and settledfamily environment, while, at the sametime, establishing a sense of permanencyfor children, thus avoiding problemsassociated with “foster drift”.

15. Special attention should be given tochildren of families affected byproblems brought about by rapid anduneven economic, social and culturalchange, in particular the children ofindigenous, migrant and refugeefamilies. As such changes may disruptthe social capacity of the family tosecure the traditional rearing andnurturing of children, often as a resultof role and culture conflict, innovativeand socially constructive modalities forthe socialization of children have to bedesigned.

16. Measures should be taken andprogrammes developed to providefamilies with the opportunity to learnabout parental roles and obligations asregards child development and childcare, promoting positive parent-childrelationships, sensitizing parents to theproblems of children and youngpersons and encouraging theirinvolvement in family and community-based activities.

17. Governments should take measures topromote family cohesion and harmonyand to discourage the separation ofchildren from their parents, unlesscircumstances affecting the welfare andfuture of the child leave no viablealternative.

18. It is important to emphasize thesocialization function of the family andextended family; it is also equallyimportant to recognize the future role,responsibilities, participation andpartnership of young persons in society.

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19. In ensuring the right of the child toproper socialization, Governments andother agencies should rely on existingsocial and legal agencies, but, whenevertraditional institutions and customs areno longer effective, they should alsoprovide and allow for innovativemeasures.

B. Education20. Governments are under an obligation

to make public education accessible toall young persons.

21. Education systems should, in additionto their academic and vocationaltraining activities, devote particularattention to the following:(a) Teaching of basic values and

developing respect for the child’sown cultural identity and patterns,for the social values of the countryin which the child is living, forcivilizations different from thechild’s own and for human rightsand fundamental freedoms;

(b) Promotion and development of thepersonality, talents and mental andphysical abilities of young peopleto their fullest potential;

(c) Involvement of young persons asactive and effective participants in,rather than mere objects of, theeducational process;

(d) Undertaking activities that foster asense of identity with and ofbelonging to the school and thecommunity;

(e) Encouragement of young personsto understand and respect diverseviews and opinions, as well ascultural and other differences;

(f) Provision of information andguidance regarding vocationaltraining, employmentopportunities and career

development;(g) Provision of positive emotional

support to young persons and theavoidance of psychologicalmaltreatment;

(h) Avoidance of harsh disciplinarymeasures, particularly corporalpunishment.

22. Educational systems should seek towork together with parents,community organizations and agenciesconcerned with the activities of youngpersons.

23. Young persons and their familiesshould be informed about the law andtheir rights and responsibilities underthe law, as well as the universal valuesystem, including United Nationsinstruments.

24. Educational systems should extendparticular care and attention to youngpersons who are at social risk.Specialized prevention programmesand educational materials, curricula,approaches and tools should bedeveloped and fully utilized.

25. Special attention should be given tocomprehensive policies and strategiesfor the prevention of alcohol, drug andother substance abuse by youngpersons. Teachers and otherprofessionals should be equipped andtrained to prevent and deal with theseproblems. Information on the use andabuse of drugs, including alcohol,should be made available to the studentbody.

26. Schools should serve as resource andreferral centres for the provision ofmedical, counselling and other servicesto young persons, particularly thosewith special needs and suffering fromabuse, neglect, victimization andexploitation.

27. Through a variety of educational

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programmes, teachers and other adultsand the student body should besensitized to the problems, needs andperceptions of young persons,particularly those belonging tounderprivileged, disadvantaged, ethnicor other minority and low-incomegroups.

28. School systems should attempt to meetand promote the highest professionaland educational standards with respectto curricula, teaching and learningmethods and approaches, and therecruitment and training of qualifiedteachers. Regular monitoring andassessment of performance by theappropriate professional organizationsand authorities should be ensured.

29. School systems should plan, developand implement extracurricular activitiesof interest to young persons, in co-operation with community groups.

30. Special assistance should be given tochildren and young persons who findit difficult to comply with attendancecodes, and to “drop-outs”.

31. Schools should promote policies andrules that are fair and just; studentsshould be represented in bodiesformulating school policy, includingpolicy on discipline, and decision-making.

C. Community32. Community-based services and

programmes which respond to thespecial needs, problems, interests andconcerns of young persons and whichoffer appropriate counselling andguidance to young persons and theirfamilies should be developed, orstrengthened where they exist.

33. Communities should provide, orstrengthen where they exist, a widerange of community-based supportmeasures for young persons, including

community development centres,recreational facilities and services torespond to the special problems ofchildren who are at social risk. Inproviding these helping measures,respect for individual rights should beensured.

34. Special facilities should be set up toprovide adequate shelter for youngpersons who are no longer able to liveat home or who do not have homes tolive in.

35. A range of services and helpingmeasures should be provided to dealwith the difficulties experienced byyoung persons in the transition toadulthood. Such services should includespecial programmes for young drugabusers which emphasize care,counselling, assistance and therapy-oriented interventions.

36. Voluntary organizations providingservices for young persons should begiven financial and other support byGovernments and other institutions.

37. Youth organizations should be createdor strengthened at the local level andgiven full participatory status in themanagement of community affairs.These organizations should encourageyouth to organize collective andvoluntary projects, particularlyprojects aimed at helping youngpersons in need of assistance.

38. Government agencies should takespecial responsibility and providenecessary services for homeless or streetchildren; information about localfacilities, accommodation, employmentand other forms and sources of helpshould be made readily available toyoung persons.

39. A wide range of recreational facilitiesand services of particular interest toyoung persons should be established

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and made easily accessible to them.D. Mass media40. The mass media should be encouraged

to ensure that young persons have accessto information and material from adiversity of national and internationalsources.

41. The mass media should be encouragedto portray the positive contribution ofyoung persons to society.

42. The mass media should be encouragedto disseminate information on theexistence of services, facilities andopportunities for young persons insociety.

43. The mass media generally, and thetelevision and film media in particular,should be encouraged to minimize thelevel of pornography, drugs andviolence portrayed and to displayviolence and exploitationdisfavourably, as well as to avoiddemeaning and degrading presentations,especially of children, women andinterpersonal relations, and to promoteegalitarian principles and roles.

44. The mass media should be aware of itsextensive social role and responsibility,as well as its influence, incommunications relating to youthfuldrug and alcohol abuse. It should useits power for drug abuse prevention byrelaying consistent messages through abalanced approach. Effective drugawareness campaigns at all levels shouldbe promoted.

V. SOCIAL POLICY45. Government agencies should give high

priority to plans and programmes foryoung persons and should providesufficient funds and other resources forthe effective delivery of services,facilities and staff for adequate medical

and mental health care, nutrition,housing and other relevant services,including drug and alcohol abuseprevention and treatment, ensuring thatsuch resources reach and actuallybenefit young persons.

46. The institutionalization of youngpersons should be a measure of lastresort and for the minimum necessaryperiod, and the best interests of theyoung person should be of paramountimportance. Criteria authorizingformal intervention of this type shouldbe strictly defined and limited to thefollowing situations: (a) where the childor young person has suffered harm thathas been inflicted by the parents orguardians; (b) where the child or youngperson has been sexually, physically oremotionally abused by the parents orguardians; (c) where the child or youngperson has been neglected, abandonedor exploited by the parents orguardians; (d) where the child or youngperson is threatened by physical ormoral danger due to the behaviour ofthe parents or guardians; and (e) wherea serious physical or psychologicaldanger to the child or young personhas manifested itself in his or her ownbehaviour and neither the parents, theguardians, the juvenile himself orherself nor non-residential communityservices can meet the danger by meansother than institutionalization.

47. Government agencies should provideyoung persons with the opportunity ofcontinuing in full-time education,funded by the State where parents orguardians are unable to support theyoung persons, and of receiving workexperience.

48. Programmes to prevent delinquencyshould be planned and developed onthe basis of reliable, scientific researchfindings, and periodically monitored,

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evaluated and adjusted accordingly.49. Scientific information should be

disseminated to the professionalcommunity and to the public at largeabout the sort of behaviour or situationwhich indicates or may result inphysical and psychologicalvictimization, harm and abuse, as wellas exploitation, of young persons.

50. Generally, participation in plans andprogrammes should be voluntary.Young persons themselves should beinvolved in their formulation,development and implementation.

51. Government should begin or continueto explore, develop and implementpolicies, measures and strategies withinand outside the criminal justice systemto prevent domestic violence againstand affecting young persons and toensure fair treatment to these victimsof domestic violence.

VI. LEGISLATION AND JUVENILEJUSTICE ADMINISTRATION52. Governments should enact and enforce

specific laws and procedures to promoteand protect the rights and well-beingof all young persons.

53. Legislation preventing thevictimization, abuse, exploitation andthe use for criminal activities of childrenand young persons should be enactedand enforced.

54. No child or young person should besubjected to harsh or degradingcorrection or punishment measures athome, in schools or in any otherinstitutions.

55. Legislation and enforcement aimed atrestricting and controlling accessibilityof weapons of any sort to children andyoung persons should be pursued.

56. In order to prevent further

stigmatization, victimization andcriminalization of young persons,legislation should be enacted to ensurethat any conduct not considered anoffence or not penalized if committedby an adult is not considered an offenceand not penalized if committed by ayoung person.

57. Consideration should be given to theestablishment of an office of ombudsmanor similar independent organ, whichwould ensure that the status, rights andinterests of young persons are upheldand that proper referral to availableservices is made. The ombudsman orother organ designated would alsosupervise the implementation of theRiyadh Guidelines, the Beijing Rulesand the Rules for the Protection ofJuveniles Deprived of their Liberty. Theombudsman or other organ would, atregular intervals, publish a report on theprogress made and on the difficultiesencountered in the implementation ofthe instrument. Child advocacy servicesshould also be established.

58. Law enforcement and other relevantpersonnel, of both sexes, should betrained to respond to the special needsof young persons and should be familiarwith and use, to the maximum extentpossible, programmes and referralpossibilities for the diversion of youngpersons from the justice system.

59. Legislation should be enacted andstrictly enforced to protect childrenand young persons from drug abuseand drug traffickers.

VII. RESEARCH, POLICYDEVELOPMENT AND CO-ORDINATION60. Efforts should be made and

appropriate mechanisms established topromote, on both a multidisciplinary

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and an intradisciplinary basis,interaction and co-ordination betweeneconomic, social, education and healthagencies and services, the justice system,youth, community and developmentagencies and other relevant institutions.

61. The exchange of information,experience and expertise gained throughprojects, programmes, practices andinitiatives relating to youth crime,delinquency prevention and juvenilejustice should be intensified at thenational, regional and internationallevels.

62. Regional and international co-operation on matters of youth crime,delinquency prevention and juvenilejustice involving practitioners, expertsand decision makers should be furtherdeveloped and strengthened.

63. Technical and scientific co-operation onpractical and policy-related matters,particularly in training, pilot anddemonstration projects, and on specificissues concerning the prevention ofyouth crime and juvenile delinquencyshould be strongly supported by allGovernments, the United Nations

system and other concernedorganizations.

64. Collaboration should be encouraged inundertaking scientific research withrespect to effective modalities for youthcrime and juvenile delinquencyprevention and the findings of suchresearch should be widely disseminatedand evaluated.

65. Appropriate United Nations bodies,institutes, agencies and offices shouldpursue close collaboration and co-ordination on various questions relatedto children juvenile justice and youthcrime and juvenile delinquencyprevention.

66. On the basis of the present Guidelines,the United Nations Secretariat, in co-operation with interested institutions,should play an active role in the conductof research, scientific collaboration, theformulation of policy options and thereview and monitoring of theirimplementation, and should serve as asource of reliable information oneffective modalities for delinquencyprevention.

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Annex G

Decision of Supreme Court of NepalCases Related to Juvenile Justice

Annex G.1. Bablu GodiaAnnex G.2. Keshav Khadka – IAnnex G.3. Keshav Khadka- IIAnnex G.4. Ashish AdhikariAnnex G.5. Pode TamangAnnex G.6. Shyam Krishna PahariAnnex G.7. Sarita TamangAnnex G.8. Raj Kumar RaiAnnex G.9. Shiva NyhemafukiAnnex G.10. Santosh Kumar MahatoAnnex G.11. Kalyan K.CAnnex G.12. Kumar RaiAnnex G.13 Ganesh ShyantanAnnex G.14. Devendra Ale, CVICTAnnex G.15. Kumar ChaudharyAnnex G.16. Ka’ Bahadur Darji

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Official Translation

From The Supreme CourtTo provide this Photostat copy of this judgment to the Legal Practitioner Mr. AshishAdhikari having charged necessary fee therefore as he has made the copy on his own. Thefee of Rs. 8/- Charged for four pages at the rate of Rs. 2.00 per page.

Sd.Section officer

Supreme CourtHon’ble justice Rajendraraj NakhwaHon’ble Justice Gopal Prasad Khatri

OrderWrit No. 3390 of 2057 Vikram Samvat (2000)

Subject :- Habeas Corpus

Advocate Mr. Ashish Adhikari on behalf of Mr. Bablu Godia, a permanent resident ofWard No. 1 of Nepalgunj municipality, Banke District, and currently having beenimprisoned at the central prisons section, Banke………................................................…Petitioner

Versus1) Banke District Court, Nepalgunj .......................................................................…12) Appellate Court, Nepalgunj …………….......................................................………..13) His Majesty’s Government, Ministry of Home Affairs, ………................…………....14) District Administration office, Nepalgunj …..........................................................15) Central Prisons Section, Banke Nepalgunj … .................................……Respondents

Annex G.1. Bablu Godia

The facts in brief of this writ petition whichhas been filed in this court pursuant toarticles 23 and 88(2) of the constitution ofthe Kingdom of Nepal, 2047 (1990) anddecision made thereon are as follows :-Whereas, it has been contended in the writpertain that on 2057/7/22 B.S. (Nov. 7,2000 A.D), a charge sheet was filed againstthe petitioner Mr. Bablu Godia and otherpersons for having committed an offencereferred to in No. 6 of the country code

chapter on theft and it was claimed in thewrit petition to for the punishment referredto in No. 14(4) of the same and to be as persection 11 (3) of the children’s Act. TheBanke District court has demanded him tojudicial custody under clause 2 (b) of No.118. of the country code chapter on courtproceedings having provided him the foodsbelonging to class B and he is in prison todate accordingly.Whereas, the petitioner has stated that he

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is a citizen of Nepal by descent and his ageat present is 14 years. Though he is entitledto be kept in Juvenile Reform home if hehas to be kept prison at all by virtue ofsection 42(a) of the children’s Act, 1991, theBanke District Court remanded him tojudicial custody and as that order waschallenged in the Appellate court,Nepalgunj by an applicant under No. 17of the country code chapter on courtproceedings, the court issued an order todo as per laws. Thus, this petition has beenfiled to overrule the orders of the bothcourts as those orders are unlawful anderroneous.Whereas, the petitioner also contended thateven if his guilt is established, he is liableonly to half of the punishment to a personof age of majority, that is only three years,and under clauses (3) and (4) of No. 118 ofthe country code chapter on courtproceedings, he is not needed to beremanded to judicial custody rather maybe granted a bail on guarantee or security.Even if he needed to be remanded to thecustody, section 42 (2) (a) of the children’sAct, 1991 requires his to be kept in thejuvenile reform home, but the act of therespondents to keep him in the centralprisons section, Banke has violated theconstitutional rights guaranteed underarticles 11 and 12 (1) of the constitution ofthe kingdom of Nepal, 1990. Thus, thepetitioner requested to release him from theunlawful detention having overruled theorders of the respondents.Whereas, this court has issued an order inthe names of the respondents requiring themto submit written reply within three daysas to why the order so requested has not beissued.Whereas, the district administration office,Banke stated, in its written reply that asthere is no reason to make the office as awell respondent is said the writ petition equashed.

Whereas, the prisons section, Nepalgunjstated, in its written reply, that thepetitioner has been kept imprison as per theletter of the Banke District Court and asthat office has done nothing more on thisregard, the writ petition should be quashed.Whereas the Banke District Court statedin its written reply that a charge sheet wasfiled in this court against the petitioner forcommission of the offence of robberyreferred to in No. 6 of the country codechapter on theft and with the claim ofpunishment referred to in NO. 6 of thecountry code chapter on Theft and withthe claim of punishment referred to in No.14(4) of the same, and while considering toremand and bail the valuation of theevidences available at that time did suggestthe existence of the circumstance referredto in clause (2) of No. 118 of the countrycode chapter on court proceedings, he hasbeen remanded to judicial remand tojudicial custody and as the appellate court,Nepalgunj has, in a petition filed againstthe said order in that court, therefore, thewrit petition should be quashed.Whereas, His majesty’s Government,Ministry of Home Affairs has, in its writtenreply, stated that as the Ministry has issuedno order to arrest or to detain the petitionerand as none of his rights have been violated,the writ petition has to be quashed.Whereas, it has stated in the written replyof the Appellate court, Nepalgunj that apetition was made before court against theorder of remand for judicial custody issuedbuy the Banke District Court under No.17 of the country Code Chapter on Courtproceedings, and report has asked to bemade to the District court and while it wassubmitted to the bench for decision, it hasbeen decided to do as per laws as in the caseof Bablu Godia, he has his age quoted as 15years in the investigation and as 14 years inthe court, it needs not be considered undersection 11(3) of the children’s Act, thus no

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change has been made in the order of thecourt, therefore, the writ petition shouldbe quashed.Whereas, in this case which has been dulysubmitted before the bench having beenenlisted in the daily and weekly cause lists,Advocate Mr. Ashish Adhikari, AdvocateMr. Kishore Silwal and Advocate Mr.Sudeep Gautam, appearing on behalf of thepetitioner, pleaded that as the petitioner inonly of 14 years of age, he is liable only tohalf of the punishment to a person of ageof majority if he is convicted, and undersection 42(2) (a) of the children’s Act, 1991,he is entitled to be kept in a juvenile reformhome if he has to be remanded at all,however, in this case, the legal andconstitutional rights of the petitioner havebeen violated by having committed him inthe prison section the learned advocates alsopleaded that as there are various types ofoffenders in the prison section, and evenprofessional offenders there are,committing minors in the prisons alongwith the hardcare offenders, may result intheir mental and physical threats and theyhave to suffer a huge loss. Therefore, theadvocates pleaded, an order has to be issuedin the name of his majesty’ s Government,ministry of home affairs to release thepetitioner from the prison and to keep himin the juvenile reform home as required bythe law having overruled the impugnedorders of the district court and appellatecourt.Whereas, on behalf of the respondents, Mr.Raj Narayan Pathak, a Joint Governmentattorney at the office of the attorneygeneral, pleaded that the court has remandedthe petitioner to judicial custody as it hasbeen justified from the evidences that thepetitioner has committed the allegedoffence. the petitioner Mr. Bablu Godia has,in his statement before the authorizedofficial, stated his age as 15 years and in thecourt as 14 years. Though there is a legal

provision that his majesty’s governmentmay establish juvenile reform homes as maybe necessary, however, no such home hasbeen established to date thus the writpetition should be quashed.Whereas, it appears from the aforesaidpleading that the issue to be decided iswhether or not to issue the order asdemanded by the petitioner.Whereas, having considered to the decision,the petitioner has contended that he is of14 years only and while remanding him tocustody in charge of robbery by the BankeDistrict court and others, he has been keptin the juvenile reform home but he has beencommitted to prison section, and this orderis unlawful, thus, he requested for issuingan order of habeas corpus in the name ofthe respondents to release him from theprison and to keep him the juvenile reformhome. The respondent Banke District courthas stated in its written reply that as it hasbeen found from the evidences available atthe moment that he has committed theoffence of robbery as per the claims in thecharge sheet, thus, he has been remandedto custody and has been committed to theprison.Whereas, it appears that the charge sheetwas framed against the petitioner Mr. BabluGodia for commission of the offencereferred to in No. 6 of the chapter on theftand demanding for punishing himaccording to No. 14(4) of the same, andwhile making the order for remand or bail,the circumstances referred to in clause (2)of No. 118 of the country code chapter oncourt proceedings are present, thepetitioner is found to have been committedto the prison section for judicial custodyhaving his entitled to the food of category‘B’.Whereas, No. 4 of the chapter onpreliminary in the country code providesthat so far as there are specific laws onspecific subject matters, it shall be as per

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those specific laws and with regard to thematters not provided for in such laws, itshall be done in accordance with thecountry code.Whereas, according to the provisions madein the children’s Act, 1991, the Act isapplicable with regard to the minors belowthe age of 16 years. Sub section (2)(a) ofsection 42 of the children’s Act, 1991provides that the minor who has to beremanded to custody as per the laws in forcefor awaiting the trail having been accusedof an offence, such minor has to be kept inthe juvenile reform home, thus, it is notlawful to commit such minor in the prisonsection pursuant to No. 118(2) of the saidchapter.Now, therefore, this writ of habeas corpusis hereby issued to the effect of releasingMr. Bablu Godia from the central prisonsection, Nepalgunj as the order of the BankeDistrict court dated 2057/7/27 B.S. (Nov.12, 2000 A.D) for committing him to theprison as an under trial by invoking anirrelevant law and the order of the AppellateCourt, Nepalgunj upholding the said orderof the district court are not lawful.Moreover, as section 42(1) of the Children’sAct provides that his Majesty’sGovernment has to establish Juvenilereform home as may be necessary andsection 42(3) of the same provides that unless

the juvenile reform home is established, hismajesty’s Government may temporarily usethe juvenile welfare homes, orphanage orcenter established and operated by otherpersons or bodies as the juvenile reformhome, with the approval of such personsor bodies, therefore, the order ofMandamus is also here by issued in thenames of the respondents viz. the Bankedistrict court and his majesty’sGovernment, Ministry of Home affairs, ifthe petitioner has to be remanded to custodyfor final in a charge of an offence inaccordance with the prevailing laws, he bekept in the juvenile reform home asreferred to in section 42(3) of the said Act.As a separate order has already been maderequiring the release of the petitioner fromthe prison section, the order and a copy ofthe judgement be forwarded to his majesty’sGovernment, Ministry of Home Affairs aswell for information and implementationthereof, and the file be handed over as perrules.

Sd.Justice

I concur with the aboveSdjusticeDone on this Thursday, the 2nd day ofChaitra of the year 2057 (March 15, 2001A.D.)

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Annex G.2. Keshav Khadka – I

Official TranslationFrom The Supreme Court

Do provide this Photostat copy of this judgement to the Legal Practitioner Mr. AshishAdhikari having charged necessary fee therefor as he has made the copy on his own. Thefee of Rs. 8/- Charged for four pages at the rate of Rs. 2.00 per page.

Sd.Section officer

Supreme CourtDivision Bench

Hon’ble justice Laxman Prasad AryalHon’ble Justice Kedarnath Acharya

OrderWrit No. 3685 of 2057 Vikram Samvat (2000 AD)

Subject :- Habeas CorpusOn behalf of Mr. Keshav Khadka, aged 14, a resident of ward No. 1 of Dada Bazar VillageDevelopment Committee (V.D.C.), Dhankuta District, and currently having beenimprisoned in prison Branch, Dhankuta, Advocate Mr. Ashish Adhikari, a resident ofNaxal, Kathmandu Municipal Corporation ward No. 1, Kathmandu District, and workingin the Free Legal Aid project for prisoners being run under the center for legal researchand resource development …………...................................................writ petitioner

Versus1) Dhankuta District Court, Dhankuta ……..........................................................…12) Appellate Court, Dhankuta …..............................................................................13) His Majesty’s Government, Ministry of Home Affairs, Singhdurbar …............… 14) District Administration Office, Dhankuta .......................................................... 1

The facts in brief and decision made in thiscase which has been filed in this courtpursuant to articles 23 and 88(2) of theConstitution of Kingdom of Nepal, 2047(1991) are as follows :-Whereas, a writ petition has been filedstating that a charge-sheet was filed againstMr. Keshav Khadka and others for theoffence referred to in Nos. 1 and 3 of thechapter on Theft of the country code witha claim of punishment referred to in No.11(3) of the same and the Kit was demanded

to be as per section 11 (3) of the children’sAct, 2048 (1991) and that Mr. Ram KrishnaKhanal, the District Judge of DhankutaDistrict Court decided on 2057/3/6 B.S.(June, 2000 A.D.) that the defendant Mr.Keshav Khadka is liable to a punishment ofan imprisonment of 22 days and a fine ofRs. 29,379.00 pursuant to 11(3) of thechildren’s Act, 2048 (1991), and that if theconvicted person could pay the fine, hewould be released from prison but as hecould not, he has to be imprisoned even in

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lieu of the fine, thus he be imprisoned upto 2060/2/14 B.S. (April 27, 2003 A.D). Thepetitioner also contended that according tothe decision, the prisons section was orderedaccordingly and he has been in prison now.An appeal has been filed against the saidjudgement, and it is a sub-Judice matter.Whereas, the petitioner has also contendedthat he is a citizen of Nepal and he hasattained 14 years of age. he is legally entitledto be kept in a juvenile reform homepursuant to section 42(2)(b) of the children’sAct, if he has to be imprisoned at all,however, the said decision of DhankutaDistrict Court has forced him to live alongwith professional and cruel accused personsand convicts. The court has held him liablefor only half of punishment pursuant tosection 11(3) of the Children’s Act,however, it is erroneous to commit him tothe prison without paying attention tosection 42(2)(b) of the children Act whichrequires no provision of punishment.Whereas, the petitioner further continuedthat the decision of Dhankuta District courtrequiring him to pay the fine of Rs.26604.00 if he could pay that amount andto release him from prison but if he couldnot pay the fine, requiring him to imprisonfor a term of three years and three months,that is from 2056/11/15 B.S. (Feb. 27, 2000A.D.) to 2060/2/14 B.S. (May 28, 2003A.D.) and giving the record of the same toprisons Branch, Dhankuta for execution ofthe judgement is erroneous and unlawful,and it has violated the fundamental rightguaranteed under articles 11 and 12 (1) ofthe constitution of the kingdom of Nepal2047 (1991). Thus the petitioner prayed forissuance of an order or slip including thewrit of habeas corpus in order to releasehim from an unlawful imprisonment.Whereas, a single Bench of this court on2057/12/23 B.S. (April 5, 2001 A.D.) Issuedan order requiring to submit written replywithin three days form the date of receipt

of the order as to what has happened to inthis matter and why, and to submit forhearing after the written reply is filed orafter the time limit to file the reply is over.Whereas, it has been stated in the writtenreply submitted by the Ministry of HomeAffairs that the ministry of Home Affairsthat the ministry has not make any orderto arrest and imprison that petitioner andnone of his rights has been violated, thewrit petition be quashed.Whereas, it has been stated in the writtenreply of Dhankuta District Court that tillthe date of the decision there is no JuvenileReform Home established by His Majesty’sGovernment and no other type of provisionhad the government made as alternate tothis, therefore, the petitioner was referredto the prisons section, Dhankuta, bycommitting his to imprisonment to executethe judgement as the petitioner could notpay the fine that the petitioner could nothave made a claim that such reform homewas established at the time and even thenhe has committed to imprisonment and thatas the same petitioner has also filed appealto the appellate court, Dhankuta and it issub-judice, thus the writ petition is liableto be quashed.Whereas, it has been stated in the writtenreply of prisons section Dhankuta ,that thepetitioner was committed to the prisonaccording to the letter of Dhankuta Districtcourt the writ petition in its name bequashed.Where, it has been stated in the writtenreply of the District Administration office,Dhankuta that though the petitioner hasmade office also as one of the respondents,the name of that office is now wherementioned and that the office has not causedthe petitioner to imprison, and it is clearfrom the judgement of the district courtthat he has been subjected to the prisonaccording to that judgement.

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Whereas, it has been stated in the writtenreply of the appellate court Dhankuta, thatthough another defendant of the same caseMandakini alias Sukhrani Yakha has madethe appeal through he prison section,Morang and an order to call the parties ofthe case has been made under No. 202 ofthe country code chapter on courtproceedings, and that in case of thepetitioner Mr. Keshav Khadka, no appealhas ever been filed, and that as no order,decision of judgement of this court hascaused his imprisonment, the writ petitionis liable to be quashed,In this writ petition which has been dulysubmitted for hearing having been enlistedin the daily and weekly cause lists, thelearned Advocates Mr. Kishore Silwal,Ashish Adhikari and Sudeep Gautampleaded that the decision of the Districtcourt in the theft case requires the petitionerMr. Keshav Khadka, a minor of just 14, bekept in prison and be mingled with thehardcore and cruel accused persons andconvicts. This decision, the learned advocatepleaded, has not only violated section42(2)(b) of the children’s Act. 1991. Whichrequires that the minors getting thepunishment of imprisonment in accordancewith the prevailing laws have to be kept injuvenile reform homes, but it is also againstthe child right convention, 1989. On thesimilar fact situations, the learnt advocatescontinued, an order has been made requiringto release a minor from prison and to keephim in juvenile reform home in AshishAdhikari on behalf of Bablu Godia v. BankeDistrict Court a case of habeas corpus, writNo. 3390 of 2057 B.S. (2000 A.D.) thus theadvocates pleaded that the said decisionrequiring the petitioner to be kept in prisonitself is unlawful, and such decision bequashed and the petitioner be released fromsuch unlawful imprisonment. On behalfrespondent prisons section as well, thelearned deputy-Government. On behalf

respondent prisons section as well, thelearned deputy Government attorney Mr.Rishi Prasad Dawadi pleaded that it couldnot have been claimed in the petitioner hasbeen kept in prison even in availability ofJuvenile reform home, and he has beenimprisoned as per the judgement of thecourt, the writ petition be quashed.Whereas, while considering as to thedecision, it has been learnt that in theft incase of which his Majesty’s Government is,by the first information of Durgal DeviLimbu, is plaintiff and the petitioner isdefendant, as the defendant is found guiltyof theft, he shall be liable to animprisonment of 22 days and to a fine ofRs. 29379.00 and in the judgement executionportion, it has been stipulated that if hecould not pay the fine refer to the prisonsBranch Dhankuta for getting himimprisoned even in lieu of the amount offine, and the main contention of thepetitioner is that subjecting a minor of 14years to imprisonment is contrary to section42(2)(b) of the children’s Act, 1991 suchhaving issued a writ of Habeas Corpus. Itappears from both, the writ petitioner andthe judgement of Dhankuta District court,the writ petitioner is a minor. It also appearsthat the petitioner has been convicted oftheft from Dhankuta District court andpunished with imprisonment and fine andas he could not pay the fine, he has beensent to the prison for imprisonment evenin lieu of the fine, where the convict minorhas to live along with grown up convictsand under trails.Where as, Article 10(3) of the InternationalCovenant on Civil and political Rights,1966 adopted by the United Nations andto which Nepal is also one of the parties,provides that juvenile offenders shall besegregated from adults and be accordedtreatment appropriate to their age and legalstatus.This shows that convicted minors have to

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be kept separately from the adult prisoners.Similarly clause (a) of Article 37 of theChild’s Rights Convention, adopted bythe………….. General Assembly and Nov.20, 1989 provides that state parties shallensure that no child shall be subjected totorture or other cruel, inhuman ordegrading treatment or punishment andclause (c) of the same provides that the stateparties shall ensure that in particular everychild best interest not to do so. Section 15of the children’s Act, 1991 provides that aminor who is found to have committed anoffence shall not be kept along with grownup prisoners, and section 42(b) of the sameprovides that a child found guilty of anoffence and punished with imprisonmentshall be kept in Juvenile Reform home. Ina similar case of habeas corpus with similarfact situation, that is Ashish Adhikari onbehalf of Bablu Godia, the petitioner versusHis Majesty’s Government, the respondent,writ No. 3390 of 2057 Bikram Samvat, inwhich the petitioner was kept in the prisonas an under trial, an order of habeas corpuswas issued from this court in the name ofrespondent i.e. Ministry of Home Affairsthat as it is unlawful to imprison a minorin prison as under trail, the petitioner bereleased from prison and writ of mandamuswas issued requiring him to kept in JuvenileReform Home even during the stage ofawaiting the trial. In accordance with thesaid International Conventions, theChildren’s Act and the precedent laiddown, it is not appropriate to keep a minorin custody or prison together with the adultprisoners.Whereas, section 42(1) of the children’s Actprovides that His Majesty’s Governmenthas to establish juvenile reform home asmay be necessary and section 42(3) of the

same provides that unless the juvenile reformhome is established, his majesty’sgovernment may temporarily use thejuvenile welfare home, orphanage or centerestablished and operated by other personsor bodies as juvenile reform home with theapproval of such persons or bodies. In suchsituation, it cannot be said to be inaccordance with laws that the petitioner Mr.Keshav Khadka is treated accordingly.Whereas, pursuant to section 42(1) of theChildren’s Act, 1991, Juvenile reform homehas to be established and it has to be donein accordance with sub-section (2) and it isnot available, it has to be done in accordancewith section 42(3), but the judgementexecution portion of the impugnedjudgement of Dhankuta District Courtdated 2057/3/6 B.S. (June 20, 2000 A.D.)Requiring him to imprison in the prison isnot found to be in accordance with the laws.Now, therefore, this order of Mandamusis hereby issued in the name of his majesty’sGovernment, Ministry of Home Affairsand the District Administration office,prison section, Dhankuta to release thepetitioner from the prison and to cause todo pursuant to section 42(10 of thechildren’s Act, 1991 and if that is notavailable, pursuant to section 42(3) of thesame. For information of the respondents,do send a copy of this through the officeof the Attorney General, and handover thecase-file as per rules

Sd.Justice

I concur with the aboveSdJusticeDone on this Friday the 28th day of themonth of Baisakh 2058 (May 11, 2001 A.D.)

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The fact in brief of this writ petition beforethis court under article 23, and 88(2) of theconstitution of the Kingdom of Nepal,1990 and the court’s Judgement on it areaas follows :-The Writ petition reads that petitioner KeshavKhadka was kept in the Juvenile ReformHome Sanothimi, Bhaktapur from a letter ofDistrict Administration office, Dhankuta, asper the order of Honorable Supreme Courtof 2058/1/28 B.S. (11 May 2001) (2000 A.D.).He is studying from the Juvenile ReformHome in a nearby school in grade eight. theannual examination is going to be held in thecoming Chaitra (March/April). His Majesty’sGovernment, Ministry of Home prisonManagement Department’s letter, despatchNo. 2058/59/690, copy of which is given toprison Branch, Kathmandu and Dhankuta,UCEF Nepal, Sanothimi, requested theDistrict Administration Office, Bhaktapur to

Annex G.3. Keshav Khadka- II

Official TranslationCopy of this original order (Judgement) be given to legal practitioner Taradevi Khanalafter receiving the charges payable while getting it copied on her own.

Sd.Section Officer

Rs. 8/- of four pages by the rate of Rs. 2/- per page.An order made by

Supreme Court Division BenchHon’ble Justice Laxman Prasad AryalHon’ble Justice Krishna Kumar Barma

Wirt No. of the year 2058 (2001 A.D.) ………..70Matter :– Habeas Corpus

Advocate Ashish Adhikari, working in the center for Legal Research and Development(CelRRd), on behalf of Keshav Khadka, a resident of Ward No. 1 of Dandabazar V.D.C.Dhankuta District, presently imprisoned in prison Branch, Kathmandu...... Petitioner

Versus1) His Majesty’s Government, Ministry of Home Singhdurbar …....................1

Respondents2) Prison Management Department, Baneshwor .............................…………………….. 13) Prison Branch Jagannath Dewal, Kathmandu ....................................................... 14) Juvenile Reform Home Management Board, Sanothimi, Bhaktapur .......................1

send him with security to the prison BranchJagannath Dewal. Kathmandu as the facilityof Juvenile remand home he was entitled tohas ceased because the department has a noticeof his having attained 17 years of age from2058/9/27 (11 Jan. 2002). As per the letter, hewas shifted from the juvenile Reform Hometo be kept in prison in prison BranchKathmandu. Upon making an inquiry aboutwhy he was shifted to prison, he was repliedthat he was shifted as per article 4 of anagreement letter concluded for keepingchildren in Juvenile reform home. In thecontext that section 12 of the Children’s Act,2048 (1991 A.D.) prohibits to disqualify andmake counts, the agreement to return backwith security to the concerned prison if theterm of imprisonment is not expired uponcompletion of sixteen years of age, which isnot provided for in the children’s Act, is illegaland against the reformative theory of

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punishment and spirit of the Children’s Act,2048 (1991 A.D.). The decision to send himto prison at a time when the honorableSupreme Court has already held that an orderof mandamus against the Ministry of Homein issuable is against the Constitution and theprovisions of the children’s Act. Petitionerthereby requests to release him from the illegalimprisonment by annulling by an order ofcertiorari article 4 of the agreement concludedbetween the respondents, the letter writtenon that basis and the act and decision ofkeeping him in prison on the basis of thatletter and to have his constitutional and legalright to live in juvenile reform home protectedand enforced.A single bench of this court ordered to servea notice to the respondents to submit thestatement of reply as to what has happenedin this matter and to present the detaineeon 2058/11/20 (4 March 2002) and topresent as per rule.The statement of reply submitted by theprison Management Department requestsfor dismissal of writ petition as animprisonment letter was issued by theDhankuta District Court in a suit ofburglary to imprison him from 2056/11/15 (27 Feb.2000) to 2060/2/14 (28 May2003) for the sentence of 22 daysimprisonment and a fine of Rs. 29379 andto release thereafter. His age is stated 14years in the imprisonment letter. Since hecompleted sixteen years of age on 2058/11/13 (25 Feb. 2002) the ipso facto does notfall under the definition of child of thechildren’s Act, 2048 (1991 A.D.). PetitionerKeshav Khadka was kept in child reformhome pursuant to section 42 of thechildren’s Act. 2048 (1991 A.D.) until hecompleted 16 years of age and then an orderwas issued to shift him to the central prisonKathmandu, only on the ground ofcompletion of the age. The agreement is notin contravention of law.The statement of reply submitted by the

prison Branch, Jagannath Dewal, requestsfor the dismissal of the writ petition sinceof the prison Management Department hadordered that Branch through a letter toreceive Keshav Khadka as and when he wasbrought to be delivered and he was broughtto be delivered with letter of the AreaPolice office, Thimi, and presently he isimprisoned in Bhadra Bandi GrihaThis court made an order on 2058/11/20(4 March 2002) to the prison Branch,Jagannath Dewal to inquire in detail aboutthe facts stated by him and his learned legalpractitioners to the effect that KeshavKhadka is studying in class eight and hisexamination is going to be conducted from23rd of Phalgun 2058 (7 March 2002) andif they are true then to make arrangementfor his participation in the examination andto submit the petition as per rule uponreceipt of the reply.The statement of reply submitted by theHome Ministry requests for dismissal ofthe writ petition as that Ministry has notordered to arrest and imprison him and hasnot violated any of his right and interest.Prison Branch Katmandu’s letter of 2058/11/27 (11 March 2002) informs this courtof having made an arrangement forparticipation in examination of KeshavKhadka imprisoned in Bhadra Bandi Grihaunder that branch to be conducted in thatprison from 2058/12/4 (17 March 2002).In this suit presented after being dulyenlisted in the daily cause list learnedAdvocate Ashish Adhikari appeared onbehalf of petitioner Keshav Khadkarequested for issuance of writ contendingthat as his party has been appearing inschool work in pursuance of the sprit ofchildren’s Act were being carried out. Theprison Branch has failed to show the lawthat requires to send a minor kept in ajuvenile reform home to prison upon hisbecoming an adult. Imprisoning a child keptin juvenile reform home upon his becoming

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adult violates the reformative principle ofpunishment. Section 16 of the Children Actprovides for that no count shall be made ofan offence committed before completion of16 years of age. In neighboring India, a childkept in a juvenile reform home may be keptfurther two years in it even after hisbecoming an adult. On the basis of it thecourts also of India have been maintainingthe norms that a person living in juvenilereform home should not be send to prison.The prison branch has no right to ascertainthe age and to conclude an agreementbeyond the purview of the Act. Similarlyon behalf of the government JointGovernment Attorney Narendra PrasadPathak requested for dismissal of the writcontending that the judgement of theHonorable Supreme Court has stated onlythat a minor should not be kept in prisonbut should be kept in a juvenile reformhome. Section 2 of the Act has defined achild. A child is to be kept in juvenile homereform so long as he is a minor. should aminor be kept in a juvenile reform homeeven after he becomes adult it will turn intoan adult reform home. In this condition aminor too is deprived of that facility. Theprison Act, 2019 (1962 A.D.) requires tokeep persons have those under theChildren’s Act, 2048 (1991 A.D.) in prison.When the Act is not clear an adult personmust be kept in prison. As the agreementwas concluded under the prison Act it islawful and valid. In such condition the actof sending to prison is lawful.The issue to be adjudged from the abovecontentions and from the study of thedocuments attached with the file of the suitseems to be whether a writ of habeas Corpusis to be issued as per the request of thepetitioner or not? on considering over thatmatter the writ petition requests forannulling the acts of imprisoning KeshavKhadka who was kept in a juvenile reformhome under the Children’s Act and the order

as well of Supreme Court for issuance of writof habeas Corpus as they contravene theconstitution, the Act and the order of thecourt. The statement of reply requests forthe dismissal of the writ petition as the actof keeping a child kept in juvenile reformhome in prison upon his becoming adult oncompletion of sixteen years of age of lawful. The part ‘following’ of the judgement ofDhankuta District court delivered on 2057/03/06 (20 June 2000) reads that petitionerKeshav Khadka having been under the policecustody since 2056/10/23 (6 Feb. 2000) is inprison for having failed to provide deposit.That part orders to imprison him 22 daysfor sentence of imprisonment and three yearsthree months for fine. No. 38 of the Chapteron punishment provides for that if a minoris to be imprisoned for fine he shall beimprisoned for a term not exceeding half theterm a manor is required to be imprisoned.The said no provides for that imprisonmentfor fine shall not exceed four years. Viewedfrom this point, as the petitioner wasimprisoned from 2056/10/23 (6 Feb. 2000)he has already served two years and onemonth from that date to this day in prisonfor fine and is found imprisoned even afterthe expiry of a term in excess of theimprisonment term to be served as per law.The imprisonment of petitioner, KeshavKhadka is found to be unlawful. Therefore,a writ of habeas Corpus is hereby issued.Copy of the order be send to the AttorneyGeneral’s office for its notice and the file ofthe petition be delivered as per Rule.

Sd.Justice

I concur with the opinion.Sd. JusticeDone on the 13th day of the Month ofChaitra of the year 2058 B.S. (26 March2002).

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Annex G.4. Ashish Adhikari

Unofficial TranslationFrom the Supreme Court

Copy of this Judgement be given Mr Ashish Adhikary upon receipt of the charges payablewhile getting it copied on his own

Sd.059/4/30 ( August 15, 2002)

Rs. 10/- of five pages by the rate of Rs. 2/- per page.Sd.

Supreme Court, Division BenchHon’ble Justice Hari Prasad SharmaHon’ble Justice Kedar prasad Giri

OrderWrite no of the year 2057 (2001) …………………. 3391

Matter : MandamusAshish Adhikari, a resident of Naxal Bhagawati Bahal, Ward no. 1 of the KathmanduMetropolitan city, Kathmandu district, working in the Free Legal Aid Programme forprisoners conducted under the Center for Legal Research and Resources Development.......................................................................... petitioner.

Versus1) His Majesty’s Government Cabinet Secretariat, Singhadarbar Kathmandu .............12) His Majesty’s Government, Ministry of Woman, Children and Social Welfare

Singhdurbar Kathmandu. ......................................................................................13) His Majesty’s Government, Ministry of Home, Singhdurbar,Kathmandu .............1

The facts in brief of this petition filed beforethis court under article 23, 88(2) of theconstitution of the kingdom of Nepal andthe order made over it are as follows:The Writ petition reads that the Children’sAct 2048 (1991) Came into force to providefor a timely legal order for children’sPhysical, mental and intellectualdevelopment by protecting their rights andinterests. This Act came into forceincorporating the universal principles alsoof the reformative system of punishment.Because the respondents have failed toestablish and operate juvenile reform homestipulated by section 42 of the Act, Children

such as Bablu Godia of 14/15 years age,detained under the order of the BankeDistrict Court of 2057/7/27 (Nov, 12,2000) have been compelled to live with crueland habitual natured, adult and maturedprisoners and detainees; works as per theletter and spirit of the children’s Act 2048(1991) are failed to be carried out becausethe respondents that have to discharge theliability and responsibility under theChildren’s Act 2048 (1991) have not formedcentral and district juvenile welfare Board,provided for in section 32 of the Act, havenot appointed welfare officer under section33 of the Act, have not established and

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operated juvenile reform home undersection 42 of the Act, have not establishedand operated orphanage and mentallyretarded children’s home under section 43of the Act. Therefore, a request is therebymade for issuance in the name of therespondents of whatever order includingmandamus is needed to protect and causeto protected children’s right by formingwithout any delay juvenile welfare board,appointing juvenile welfare officer,establishing and operating juvenile welfarehome, orphanage and mentally retardchildren’s home. This court ordered on2057/10/12 ( Feb 25, 2001) to duly presentthe petition after submission by therespondents of the statement of reply to anorder what has happened in this matter,why an order as per the request of thepetitioner should not be issued, within 15days except the time of journey of thereceipt of the said order or upon expiry ofthe period to submit such reply and topresent the petition as per rule by giving itpriority since having regard to thesensitiveness of the matter it wasappropriate to give priority for dating inthe matter.The statement of reply filed by the Ministryof Woman, Children and social welfarereads that off the issue by the petitioner acentral juvenile welfare board in centrallevel and a district juvenile welfare boardhas already been formed in all seventy fivedistricts of the kingdom the Assistant ChiefDistrict officer of each district has beendesignated juvenile welfare officer a juvenilereform home is under construction inSanothimi Bhaktapur at the initiative of theministry and is about to come intooperation from the fiscal year 2057 (2001)therefore, the writ petition of the petitioneris liable to be dismissed; be dismissed.The statement of reply of the CabinetSecretariat reads that, for the protection ofthe right of child there has already been

formed a central juvenile welfare board incentral level and district juvenile welfareboard in all seventy five districts, AssistantChief District Officer of the concernedDistrict Administration office is designatedthe juvenile welfare officer and juvenilereform homes are operated in some districts.Nepal children’s organisation (Bal Manadir)is established in some districts a building ofjuvenile reform home is under constructionin Sanothimi, Bhaktapur and is about to beoperated. Therefore, since no right of thepetitioner has been violated the writpetition is liable to be dismissed.The statement of reply of the Ministry ofHome requests for dismissal of the writpetition because the issues raised by thepetitioner are nor related to that ministry.From the Study of the documents includingthe writ petition and contention of learnedAdvocate Ashish Adhikari appeared onbehalf of the petitioner who contended forissuance of an appropriate order includingthat of mandamus in the name of HisMajesty’s Government as children aredeprived of their rights because the juvenilereform home and juvenile welfare homeunder the Children’s Act, 2048 (1991) whichwere to be established as ordered by thishonorable court have not been establishedyet and the contention of BrajeshPyakurael, deputy government attorney,appeared on behalf of the respondentgovernment that since a central juvenilewelfare board in central level and districtjuvenile welfare committee in all seventy fivedistrict has already been formed, a processhas been initiated for establishment ofjuvenile reform home, the writ is liable tobe dismissed the issue to the adjudged inthis writ petition presented before thisbench upon being enlisted on the daily causelist as per rule seems to whether the writshould be issued as per the request of thepetitioner or not.On considering towards judgement, the

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writ petition prays for issuance of a writ ofmandamus including whatsoever order isneeded against the respondents to establishjuvenile welfare institutions as stipulated bythe law because as the respondents that haveto undertake the liability and responsibilityunder the Children’s Act 2048 (1991) in thecontext of the Act having come into forceincorporating universal principle ofreformative system of punishment have notestablished central and district juvenilewelfare board under section 32 of the Acthave not established and operated juvenilereform home it is clear that the Act is notimplemented in letter and spirit, as juvenilewelfare institutions have not been formedand established accordingly children suchas Bablu Godia are being deprived of theirrights.The fact that legal provision as to child rightand treatment to be accorded to them hasalready been provided for throughinternational treaty and agreement as wellis proved from the provision set forth inarticle 10(3) of convention on the civil andpolitical rights, 1966 passed by the unitednations which reds as follows” Juvenile shallbe segregated from adult and be accordedtreatment according to their age and legalstatus. Nepal is a party to the convention.Thereafter, the United Nations generalassembly passed the convention on therights of child 1989, on 20th November1989 and Nepal ratified the convention on14th September 1990. Since a child’sphysical and mental condition is not fullydeveloped until he becomes an adult, he cannot understand well the act and consequenceas well of an offence committed during thattime. It can not be denied that lack ofproper consultation, association, educationand maintenance in such immature age canlead to a painful life in future. Therefore,the child rights convention, 1989 has laiddown a liability upon the party state toadopt appropriate legal administrative and

other measures necessary to provide forproper consultation to, maintenance of,education and vocational training to anorphan or a child accused of having violatedcriminal law to ensure that his future life isnot painful. The Children’s Act 2048 (1991)came into force from 2050.1.1 (April 13,1993) with the objective of providing for atimely. Legal order for children’s physical,mental and intellectual development byprotecting their right and interests. In thecontext of Nepal having become a party tothe convention chapter 2 of the said Acthas set forth different types of child rightsand in order to materialize these rightssection 42(1) of the Act requires Hismajesty’s Government to establish a juvenilereform home, similarly section 34 of theAct provides for juvenile welfare home tohouse neglected child and section 43provides for an orphanage and mentallyretard children’s center to house orphanand mentally retard children. Similarly, anorder is found to have been issued by thiscourt over a petition field before this courtclaiming that the right to live in juvenilereform home guaranteed by the act wasviolated when a child as defined by section2(a) of the children’s Act, 2048 (1991) waskept in prison like other prisoners in thecourse of the trial of a suit of after havingbeen convicted by a court of law in anoffence.The aforesaid legal provision commitmenttowards international treaty and thejudgement delivered by court over variouswrit petitions as well shows that there is nodispute in the matter that his Majesty’sGovernment is liable to establish juvenilereform home and juvenile welfare home.In this context the initiation takenaccordingly by His Majesty’s Governmenttowards reformation by forming a centralchild welfare board on 2052/8/4 (Nov 20,1995) and designing assistant chief districtofficer of each district as juvenile welfare

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officer on 2055/3/8 (1998/6/26) until achild welfare officer is appointed can notbe ignored. However, in the context thatsuch board was formed and officer wasdesignated for the purpose of inspecting thejuvenile welfare home, juvenile reformhome and orphanage etc provided for bythe children’s Act and that all type ofjuvenile welfare institutions, as aforesaid,stipulated by the Act haven not beenestablished, it can not be said that theobjective set out by the Act is fulfilled bymerely publishing a notification afterdesignation the juvenile welfare officer andforming juvenile welfare board as statedabove.Thus, in the context of the state havingexpressed its commitment in internationallevel by ratifying the Child RightsConvention, 1989, and having enacted theChildren’s Act 2048 (1991) accordingly,which came into force on 2050.1.1 (May

13, 1991) and of the is court having issuedon order to carryout the work pursuant tothe Act, a directive order is hereby issuedin the name of His Majesty’s GovernmentCabinet Secretariat to make necessaryarrangements towards establishment andoperation of juvenile welfare institutes likeorphanage and mentally retard children’scenter under section 42, Juvenile welfarehome under section 34 juvenile reformhome under section 43 according to thecapacity.

SdJustice

I concur with the opinionSdJusticeDone on this twenty third day of themonth of Chaitra of the year 2058( April15, 2002)

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Official TranslationDo provide this Photostat copy of this order to the Legal Practitioner Mr. Ashish Adhikarihaving charged necessary fee therefor as he has made the copy on his own. Fee of Rs. 8.00charged for four pages at the rate of Rs. 2.00 per page

Sd.2058/6/3 B.S.

(Sept. 19, 2001 A.D.)Supreme Court

Hon’ble Justice Meen bahadur RayamajhiHon’ble Justice Ram Nagina Singh

OrderWrit No. 4022 of Vikrak Samvat 2058 (2001)

Advocate Mr. Ashish Adhikari on behalf of minor Mr. Pode Tamang, age 12, a residentof Dhadauni, Ward No. 1 of Seaul Village Development Committee, SindhupalchowkDistrict and currently being imprisoned in the prisons section, Sindupalchowk..................................................................Writ Petitioner

Versus1) Sindhupalchowk District Court, Chautara ............................................................12) His Majestu’s Government (H.M.G.) Ministry of Home Affaris, Singhadurbar .....13) District Administration Office, Chautara ........................................1 Respondents4) District prisons Section, Sindhupalchowk ........................................1

Subject: Habeas Corpus

Annex G.5. Pode Tamang

The facts in brief of this writ petition whichhas been filed in this court pursuant toArticles 23 and 88(2) of the constitution ofthe kingdom of Nepal 2047 (1990) and theorder made thereon are as follows :-Whereas, the writ petitioner filed thepetition stating that a charge sheet was filedon 9th Phalgun 2057 B.S. (Feb. 20, 2001A.D.) against the petitioner and otherpersons having claimed the punishmentreferred to in No. 13(4) of the Chapter onHomicide and to be in accordance withSection 13(3) of the Children’s Act,2048(1991). On the same date, the judgementExecutor, who was also taking charge of

the District Court Judge ofSindhupalchowk for the time being,remanded the petitioner and other personsto judicial custody pursuant to No. 118(2)of the country code chapter on courtproceedings and ordered for sending himto the respondent No. 4 for the same, andHon’ble District Judge made the order on2058/02/19 (June 1, 2001 A.D.) upholdingthe order of the judgement Executor takingchare of the Judge dated 205711/19 B.S.(Feb. 20, 2001 A.D.);Whereas, the petitioner contended thatunder section 42(2)(a) of the Children’s Act,2048 (1991), he is entitled to be kept in a

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juvenile reform home but the order of theSindhupalchowk District Court requiringhim to be kept in the District prisonssection, Sindhupalchowk, is erroneous andunlawful and contrary to child rights andthe universal principle of reformative systemof punishment whereby the fundamentalrights guaranteed under articles 11 and 12(1) of the constitution of the kingdom ofNepal, 1990 have been violated. Moreover,this is also contrary to the values and spiritenshrined in the children’s Act, 2048(1991)and against the provisions of sections 15 and42 of the same Act. The petitioner alsocontended that minors like him have beenkept in prisons throughout the Kingdomof Nepal along with cruel and habitualoffenders, thus, a judicial stricture be issuedto all the Appellate Courts, District Courtsand the District administration offices tothe effect that in case any minor has to beimprisoned in connection with investigationof accusation of an offence or in connectionwith found guilty in any offence, he/ shebe kept not in prison like grown up personsrather he/she be kept in juvenile reformhome.Whereas, a single bench of this court issuedan order requiring to submit written replywithin three days from the date of receiptof the order as to what has happened to inthis matter and why, and to submit the casefor hearing after the written reply is filedor after the time limit to file the reply isover.Whereas, the HMG Ministry of HomeAffairs stated in its written reply that thewrit petitioner has been subjected to judicialcustody by a judicial authority inaccordance with the law in connection withhearing of a case, the baseless wit petitionbe quashed.Whereas, it is stated in the written of theSindhupalchowk District Court that thereis legal provision for judicial custody withregard to both, the minors and the persons

with age of majority, as per the degree ofthe offence, thus, the writ petition, filednot following the legal remedy providedunder No. 17 of the country code chapteron court proceedings but invoking the writJurisdiction is liable to be quashed, thus,the petition be quashed.Whereas, the prison section,Sindhupalchowk stated, in its written replythat the petitioner has been committed tothe prison as per the letter of theSindhupalchowk District court bearing itsDispatch No 904 dated 2057/11/9 B.S. (Feb.20, 2001 A.D.). The contention that iscommitted to prison in an unlawful manneris false, thus, the writ petition be quashed.Whereas, the District Administrationoffice, Sindhupalchowk stated, in itswritten reply, that as the petitioner has notbeen committed to the prison in anunlawful manner from this office, the writpetition filed having made this office as oneof the respondents be quashed.In this writ petition which has been dulysubmitted for hearing having been enlistedin the weekly and daily cause list, thedocuments and evidences including thepetition included in the case-file have beenstudied.In This case, the two learned Advocates Mr.Ashish Adhikari and Ram Prasad Aryal,appointed on behalf of the writ petitioner,pleaded that Mr. Pode Tamang who is inprison is learnt to be a minor from thecharge-sheet itself, and whenever one isfound to be a minor, section 42 of theChildren’s Act, 1991 requires his to be keptin a juvenile reform home and section 15of the same Act provides that if a minor isconvicted and punished withimprisonment, such convicted minor shouldnot be kept along with the prisoners of ageof majority. The learned advocates alsopleaded that having considered the age ofthe minor accused of the offence, if theauthority hearing the case deems it not

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appropriate to keep the accused in prison,the authority may, under section 50 of theact, order to investigate in the case by havinghanded over such minor to his/her parents,relatives or guardians or a socialorganization or juvenile reform home witha condition to cause to appear such minorwhenever required. Thus, as it is unlawfuland erroneous to order such minor to besubjected to prison, a judicial stricturealong with an order to release such minorfrom prison have to be issued. Whereas, thelearned Deputy Government Attorney Mr.Rishiram Dawadi, appearing and defendingon behalf of the respondents, pleaded thatMr. Pode Tamang has been subjected toprison as per the order of theSindhupalchowk District Court which hasmade an order to that effect when the chargesheet of murder was framed and filed byHis Majesty’s Government on the basis ofthe first information report of Mr. DorjeTamang in which defendants are Mr. SonamTamang and others, and Mr. Pode Tamangis charged of catching the eceased Mr.Buddha Tamang and of facilitating for hismurder. Mr. Pode Tamang has beencommitted to prison as theSindhupalchowk District Court hasremanded him to the judicial custody. Healso pleaded that as provision under section42 of the Children’s Act, 1991 have yet tobe made; the writ of Habeas Corpus neednot be issued.Whereas, having considered to whether ornot is it necessary to issue the order, it islearnt that Mr. Pode Tamang has beencommitted to prison as he is remandedjudicial custody by an order of theSindhupalchowk District Court dated2057/11/9 B.S. (Feb. 20, 2001 A.D.) in acase of murder in which the plaintiff is HisMajesty’s Government on the firstinformation report of Dorje Tamang andthe defendant is Mr. Sonam Tamang andothers. It appears from the charge sheet

itself that the age of Pode Tamang isstipulated as 15 years, and by virtue of hisage being of 15years, it has been claimed incharge sheet to invoke section 11(3) of thechildren’s Act, 1991, thus, the provisionsof the Children’s Act, 1991 are attracted asthe accused person is below the age of 16.Section 42 (1)of The children’s Act, 1991provides that His Majesty’s Governmentshall establish Juvenile Reform Homes asmay be necessary. After the enforcementof the Act, it appears as a mandatory dutyof Him Majesty’s Government to establishjuvenile Reform Homes provided for in theAct. During the course of pleadings on thewrit petition, the government attorneyinformed the Bench that so far no JuvenileReform Home is established as providedfor in the Act. Because of non-establishmentof the juvenile reform home even passageof a long time after the enforcement of thechildren’s Act, Which is mandatoryprovision in the Act, it cannot be said HisMajesty’s Government has given properattention toward the rights and interests ofthe children. Section 42(2) of the children’sAct, 1991 provides that the followingchildren shall be kept in the juvenile reformhomes established under sub-section (1)thereof and section 42(2) (a) has prescribedthe minors accused of any offence and tobe remanded to judicial custody forinvestigation under the prevailing laws. Itis stipulated in the required to be kept inthe juvenile reform home as provided inthe Act and not in prisons on the on thehand, it is not lawful to keep a minor inprisons who is entitled to be kept in ajuvenile reform home, and on the otherhand, such action could not fulfil theobjectives of the Act. It has been learnt fromthe pleading that though a Division Benchof this Court has already issued on an orderof Mandamus 2058/1/28 B.S. (May 11, 2001A.D. ) in a petition of habeas corpus filedby Mr. Ashish Adhikari on behalf of the

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petitioner Keshav Khadka against hisMajesty’s Government, Ministry of HomeAffairs requiring the respondent, theMinistry of Home Affairs, to do inaccordance with Section 42(1) and (3) of theChildren’s Act, 1991, however, as per thestatement of the government attorney, theJuvenile Reform Home to be constitutedunder section 42(1) of the Act have not beenestablished even after the Supreme Courtissued an order of Mandamus to that effect.Now, therefore, we do hereby issue thisorder of Habeas Corpus to release Mr. PodeTamang from the prison as he is only 15years old and it is contrary to section 42(2)(a)of the children’s Act, 1991 and also againstchild rights and interests.It is also hereby issued an order ofMandamus in the names of His Majesty’s

Government, Ministry of Home Affairs,District Administration office,Sindhupalchowk and the District prisonssection, Sindhupalchowk to establish thejuvenile reform home pursuant to section42(1) of the children’s Act, 1991, to keepMr. Pode Tamang in the Juvenile ReformHome for awaiting trial pursuant to section42 (2) (a) of the Children’s Act, 2048, andto provide information thereof to thiscourt. Hand-over the case file as per rules.

Sd.Justice

I concur with the above.SdJusticeDone on this Wednesday, 10th of Shrawanof the year 2058 B.S. (July 25, 2001 A.D).

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Annex G.6. Shyam Krishna Pahari


Copy of this order be given to advocate Hom upon receipt of the charges payable whilegetting it copied on his own.

Sd058.0.5( )

An order made by Supreme courtDivision Bench

Hon’ble Justice Hari Prasad SharmaHon’ble justice Dilip Kumar Poudel

Writ no of the year 2058 (2001/2) ……………….. 4061Suit: - Habeas corpus

Advocate Ashish Adhikari, on behalf of Shyam Krishna Pahari, a resident of Pachama,ward no 8 Badikhel VDC, Lalitpur district, presently imprisoned in prison Branch, Nakhu,Lalitpur .......................................................................... Petitioner

Versus1) District Police office, Lalitpur ...............................................................................12) His Majesty’s Government Ministry of Home Affaris Singhadarbar ......................13) District Administration office, Lalitpur .................................................................14) Prison Branch, Nakhu ..........................................................................................1

The fact in brief of this writ petition filedbefore this court under article 23,88 (2) ofthe constitution of the Kingdom of Nepaland order made over it are as follows : -The writ petition reads that a charge sheetwas filed before the Lalitpur District courtagainst the petitioner Shyam Krishna Paharion 2058/2/5 (May 18 2001) with a claimfor punishment under No 3 of the chapteron Rape pursuant to section 11(3) of theChildren’s Act, 2048 (1991) the LalitpurDistrict court ordered on 2058/2/8 (may21, 2001), subject to the findings as wouldbe reached in the course of collection ofevidence, to keep him in the concernedjuvenile home pursuant to section 42(2) ofthe children’s Act through the Districtpolice office, as the evidences available at

the time of the order indicated him of beingan offender and there existed conditions ofno. 118(2) of the chapter on the courtManagement of the Muluki Ain (Code ofthe Realm) however, he has been compelledto live with major, habitual and cruelaccused, which has violated his fundamentalright conferred by article 11 and 12 (2) ofthe Constitution of the Kingdom of Nepaland the right conferred by section 15 and42 of the children’s Act 2048 (1991)therefore, the Home Ministry’s decision of2058/2/12 (May 25, 2001) and all act andactivities order carried out by the DistrictAdministration office and district policeoffice on the basis of that decision beannulled by an order of certiorari , thepetitioner be released from the prison by

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an order of habeas corpus and whateverorder is required be issued in the name ofthe respondents under article 88(2) of theconstitution of the kingdom of Nepal tokeep him in a juvenile reform home as perthe order of the Lalitpur District Court.A single Justice’s Bench of this court madean order on 2058/4/3 (July 18, 2001) to dulysubmit the writ petition upon receipt ofthe statement of reply to filed by therespondents within three days except thetime for journey to an order what hashappened in that matter? Why an order asper the request of the petitioner should notbe issued? Or after the expiry of the period.The statement of reply submitted by theHome Ministry reads that that Ministry hasnot given any order to apprehend anddetain the defendant ShyamKrishna Pahariand has not violated any of his right,therefore, the writ petition be dismissed.The statement of reply submitted by theprison Branch reads that sinceShyamkrishna Pahari has been kept in aseparate room inside the prison building toensure that he is not compelled to live withthe major, habitual and cruel offender asper the letter of the District police, officeLalitpur, dated 2058/3/2 (June 16, 2001),dispatch no. 4174, the writ petition bedismissed..The statement of reply submitted by theDistrict Administration office Lalitpurreads that as no arrangements were madefor separate juvenile home to keep minorShyamkrishna Pahari, a direction wassought from the Home Ministry to use aroom of the Nakhu prison under thisdistrict as a juvenile home untilarrangements for separate juvenile home aremade and to keep him in that room and hewas send to be kept in that room throughthe district police office Lalitpur, as thatoffice (District Administration) has notviolated his constitutional and legal right

the writ petition be dismissed.The statement of reply submitted by theDistrict Police office, Lalitpur requests fordismissal of the writ petition as defendantShyam Krishna Pahari, a minor, was keptin a separate room of the prison treating itas a juvenile home as per a decision made toutilize a room of the Nakhu prison as ajuvenile home and to keep him and othersimilar juvenile prisoners unti l anarrangement for separate juvenile home ismade or he attains 16 years of age, he is notkept with habitual and cruel criminal butis kept systematically in a separate roominside the compound of the Nakhu prison.In this writ petition presented upon beingduly enlisted in today’s daily cause list,learned Advocate Ashish Adhikaricontented on behalf of the petitioner forissuance of an order to keep his in a juvenilehome after releasing him from detentionthrough an order of habeas corpus since thepetitioner is forcefully compelled to livewith habitual and cruel offender whensection 42(2) (a) and 15 as well of theChildren’s Act, 2048 (1991) have prohibitedto keep children in prison, and learneddeputy government attorney Bharat ManiKhanal contended on behalf of the HomeMinistry and others for dismissal of the writpetition as the petitioner is kept in a roomof prison which has been used a s a juvenilehome until an arrangement is made for aseparate juvenile home. From the study ofthe documents, file, including the writpetition and the contentions of the learnedadvocates the issue to be adjudged in thispetition seems to be whether the writshould be issued as per the request of thepetitioner or not.On considering towards judgement thewrit petition was filed with a request forissuance of a writ of habeas corpus to releasethe petitioner from the custody and a writof mandamus to keep him in a juvenilereform home as per the order of the district

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court as his fundamental rights guaranteedby article 11 and 12 (1) of the Constitutionand the legal rights provided for by section15 and 42 of the children’s Act, 2048 (1991)have been violated by keeping him in a roomof prison treating it as a juvenile homewhereas the Lalitpur District Court in acharge sheet filed before the court againsthim as well with a claim for punishmentunder no. 3 of the chapter on Rape hadordered, stating the existence of thecondition of no. 118(2) of the chapter oncourt management, to make anarrangements for keeping him in a juvenilehome pursuant to section 42(2) of thechildren’s Act 2048 (1991).Statement ofreply reads that District Administrationoffice Lalitpur’s letter, dated 2058/3/7(June 21, 2001), had requested to makearrangements for juvenile home as requestedby the Home Ministry, vide a letter of theMinistry, Border, Immigration and LocalAdministration Section, letter no. 1801,issued as per a decision made by it on 2058/2/12 (May 25, 2001) to make arrangementfor keeping juvenile prisoners and that aroom of prison has been used as a juvenilehome until an arrangement is made forseparate juvenile home. The petitioner isfound kept in custody until he completessixteen years of age as per a decision to keepjuvenile prisoners in a room of prisontreating it as a juvenile home, under adetention order of the Lalitpur DistrictCourt of 2058/2/8 (May 21, 2001) in a rapecase which ordered the District police officeto make arrangements for keeping the writpetitioner in the concerned juvenile homepursuant to section 42(2) of the children’sAct 2048 (1991). There is no dispute in thefact that the suit is under the consideration

of the district court. The petition does notclaim that petitioner is kept in custody byan unauthorized body. Petitioner is keptin custody by an order of a competentbody on completion of legal process. Thepetitioner, required to be kept in a juvenilehome, is kept in a room of prison treatingit as a juvenile home as the arrangementsfor juvenile home have not been made.Keeping him in a room of the prison bytreating it as a juvenile home instead ofkeeping in a separate juvenile home can notbe termed as an illegal custody since it isclear that he has been kept in custody oncompletion of the process prescribed bylaw. When the custody is not found to bean illegal custody such custody must be saida legal custody. When a person is under alegal custody the order of habeas corpus isnot issued. The act of Keeping the petitionerin a separate room of prison by treating itas a juvenile home on the basis of a letter ofthe Home Ministry which directed to usea room of the prison as juvenile home untilan arrangement for a separate juvenile homeis made can not be said to be illegal custodyAs His fundamental right guaranteed byarticle 11 and 12 (1) of the constitution ofthe Kingdom of Nepal and the legal rightprovided for by the children’s Act 2048(1991) are not violated by merely keepinghim in a room of prison an order as per therequest of the petitioner need not be issued.The writ petition is liable to be dismissed.The file be delivered as per rule.JusticeI concur with the opinionJusticeMade on this twenty ninth of the monthof Shrawan of the year two thousand andfifty eight (Aug 13, 2001)

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Annex G.7. Sarita Tamang


Copy of this judgement order be given to advocate Ashish Adhikari upon receipt of thecharges payable while getting it copied on his own

Sd058/9/28

(Jan 12, 2002)Rs. 8/- of four pates by the rate of Rs. 2/- per page

SdAn order made by Supreme Court,

Division BenchRight Hon’ble Chief Justice Keshav Prasad Upadhyaya

Hon’ble Justice Kedar Prasad GiriWrit no of the year 2058 (2001/2)………21

Matter: Habeas CorpusPleader Tara Devi Khanal, a resident of Maitidevi, ward no. 32 of the KathmanduMetropolitan city,Kathmandu district, working in Free Legal Aid Programme for prisonersconducted by Center for Legal Research and Resource Development, on bahalf of SaritaTamang, a resident of Ward No. 9 of Syang VDC of Ilam district, presently imprisonedin prison Branch Ilam ....................................................Petitioner.

Versus1) Ilam District Court, Ilam ......................................................................................12) His Majesty’s Government, Ministry of Home, Singhadarbar .............................. 13) District Administration office, Ilam ......................................................................14) District Prison Branch, Ilam .................................................................................1

The fact in brief of the present writ petitionfiled before this court under article 23, and8892) of the constitution of the kingdomof Nepal and the order made over it are asfollows :The writ petition reads that petitioner SaritaTamang is imprisoned in prison BranchIlam under the Ilam district Courtsjudgment of 2057/10/22 (Feb 4, 2001) thatawarded her a sentence of 10 yearsimprisonment pursuant to section 11(3) ofthe children’s Act 2048 (1991), one half ofthe imprisonment awarded to otherdefendants under no. 13(3) of chapter onMurder of the Muluki Ain (code of theRealm) on grounds of her age being 14years, for having committed an offence

under no. 1 of the same chapter : Appellatecourt Ilam has confirmed the district courts’judgment on 2058/3/21 (July 5, 2001);Article 11 of the constitution of thekingdom of Nepal, 1990, guarantees theright to equality and the children’s Act2048(1991), which has enacted in pursuanceof the provison of article 11(3) of theconstitution, provides for that a specialprovision may be made for the right andinterests of child; section 42(20 of the Acthas clearly provided for that a child who isrequired to be imprisoned under a sentenceof imprisonment as per prevailing law shallbe kept in juvenile reform home; thejudgment to keep her in prison as otherdefendants, instead of sending her to

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juvenile reform home as is required underthe said act has violated her fundamentalright conferred by article 11, 12 (1) of theconstitution and the legal rights providedfor by section 42(2) (b) of the children’s Act2048 (1991). Therefore as the part followingof the judgment of the Ilam District courtof 2057/10/22 (Feb 4, 2001) which reads asfollows as the defendant is liable for 10 yearsimprisonment a record be maintained toand a letter specifying prison term be issuedin the name of the defendant, who havingbeen in police custody from 2057/3/31(July 15, 20000, is in prison by the order ofthe this court of 057/4/24 (Aug 8, 2000) toimprison her up to 2067/3/30 (2010/7/15)with effective from the date of her policecustody and to release on next day thereofbe annulled by an order of certiorari as thatpart is illegal and erroneous and anappropriate order including habeas corpusbe issued under article 88(2) of theconstitutionA single bench of this court made an orderon 2058/5/18 (Sept 3, 2001) to submit thepetition as per rule upon receipt of thestatement of reply from the respondent asto why an order as per the request of thepetitioner should not be issued?The statement of reply submitted by theHome Ministry prays for dismissal of thewrit petition as the writ petition shows thatthe petitioner is kept in judicial custody byan order under an act of a competentjudicial body in the course of hearing of asuit.The statement of reply submitted by theIlam district court reads that His Majesty’sGovernment has not established juvenilereform homes which are required to beestablished according to necessity undersection 42(1) of the children’s Act 2048(1991) nor has that court notice of HisMajesty’s Government having madealternative arrangements therefore asstipulated in sub section (3) of the same

section. In such condition under theprevailing law the defendant was not to beleft un imprisoned and there was noalternate to sending her to in prison; ajudgment was , therefore, made to issue aletter specifying the term of imprisonmentawarded upon her, the act of having issueda letter accordingly is not illegal, thereforethe writ petition be dismissed.The statement of reply submitted by thedistrict administration office, Ilam.Requests for dismissal of the writ petitionas Sarita Tamang was imprisoned underjudgment of Ilam district court.In the present writ petition submitted asper rule learned Advocate Ashish Adhikariappeared on behalf of the petitionercontended that petitioners statement readsthat her age is thirteen years, the plaintiffside has not been able to submit anyevidence that rebuts it, in such conditionthe judgment of keeping in prison as otherdefendants the petitioner who is requiredto be kept pursuant to section 42(10 of thechildren’s Act, 2048 (1991) in a juvenilereform home established by his Majesty’sGovernment or in the absence of such homein a juvenile reform home operated byprivate sector is erroneous therefore, anorder including that of mandamus be issuedas per the request of petition to annual thatjudgment and to keep the petitioner injuvenile home and the learned joint attorneyof government Narendra Prasad Pathakappeared on behalf of the respondentspleaded that there will be no objection ifan order to keep the petitioner in juvenilereform home pursuant to section 42 of theChildren’s Act is issued. On consideringtowards judgment from the contentions aswell of the learned advocates the issue to beadjudged in the present writ petition seemto be whether an order as per the requestof the petition should be issued or not.The petition mainly prays for issuance ofan order of mandamus to annual Ilam

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District Court’s judgment of 057/10/22(Feb 5, 2001) of keeping the petitioner inprison as other defendants which is incontravention of the legal provision ofsection 42(2) of the children’s Act whichprovides for that a child to whom a sentenceof imprisonment is awarded underprevailing law shall be required to be keptin a juvenile home established by HisMajesty’s Government or in the absence ofsuch home in a juvenile reform homeestablished by other person on body andto release the petitioner from imprisonmentand to keep her in a juvenile reform home.The part ‘following’ of the judgment of IlamDistrict court of 057/10/22 (Feb 5, 2001)in a murder suit to which His Majesty’sGovernment is plaintiff and writ petitionerand others are defendants reads that as thedefendant is found to be a child belowsixteen years of age she is liable for a sentenceof 10 years imprisonment pursuant tosection 11(3)of the children’s Act 2048(1991), one half of the sentence awardableto other defendants therefore , a record bemaintained to and a letter be issuedspecifying the term of imprisonment toimprison her up to 067/3/30 (2010/7/15)with effective from the date of her policecustody 057/3/31 ( July 15, 2000) and torelease her on next day thereof.Section 15 of the children’s Act 2048 (1991)provides for that if a child below sixteenyears of age is sentenced with imprisonmentfor having committed an offence he shallnot be kept with major convicts paragraph(b) of section 42(2) of the same Act providesfor that a child required to be imprisonedunder sentence of imprisonment awardedpursuant to prevailing law shall be required,under sub-section (1) of the same section,to be kept in a juvenile reform homeestablished by His majesty’s Governmentand where such homes have not beenestablished by His majesty’s Government,it may utilize provisionally a juvenile

welfare home, orphanage or center operatedby other person or body with the approvalof such person or body as a juvenile reformhome. When the writ petitioner SaritaTamang’s age is found below sixteen years,part ‘following’ of Ilam district court’sjudgment of keeping in prison as otherdefendants the petitioner required to bekept pursuant to the said legal provision ina juvenile reform home established by Hismajesty’s Government or in the absence ofsuch home in juvenile home operated byother person or body is not in agreementwith law, that portion is therefore, herbyannulled by an order of certiorari.In Ashish Adhikari on behalf of KeshavKhadka Vs His Majesty’s GovernmentMinistry of Home Affairs and others. Writ,the No. 3685 of the year 2057(2000)Division Bench of this court had issued anorder on 2048/1/28 (May 11, 1991) in thename His Majesty’s Government to releasethe petitioner Keshav Khadka of the age ofbelow sixteen years from prison and to makearrangement pursuant to section 42(1) or(3) of the Children’s Act 2048 (1991) and inthis petition there does not exit a groundto disagree with that order. Therefore, anorder of mandamus as well is hereby issuedin the name of the respondent Ministry ofHome and District Administration office,prison Branch Ilam to release the petitionerSarita Tamang from the prison and to keepher in a juvenile reform home of section42(1) of the same Act. Copy of this orderbe sent to the Attorney General’s office forthe respondents’ notice and file be handedover as per rule.

Chief JusticeI concur with the opinion

JusticeMade on this twenty tow day of the monthof Marga of the year two thousand fiftyeight. (Nov 17, 2002)

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Annex G.8. Raj Kumar Rai


Copy of this order be given to advocate Hom Bahadur upon receipt of the charges payablewhile getting it copied on his own.

SdSection office

2058/11/16 (Feb 28, 2002)Rs. 8 of four pages by the rate of Rs 2/- per page Sd

An order made bySupreme Court Division Bench

Hon’ble Justice Laxman Prasad AryalHob’ble justice Chandra Prasad Parajuli

Writ number of the year 2058 (2001/2) .....................25

Matter: Habeas Corpus

Pleader Tara Devi Khanal (Certificate no. 10561) , a resident of Maitidevi, KathmanduMetropolitan city, ward no. 32, Kathmandu district, working in the Free Legal AidProgramme for Prisoners conducted under center for Legal Research and ResourceDevelopment (CeLRRd) on behalf of Raj Kumar Rai, aged 12, a resident of NamabudhaVillage development committee of Kavrepalanchowk district, living in rental house inward no. 15 of the Kathmandu Metropolitan city, Kathmandu district, presently imprisonedin prison section, Kathmandu ...........................................................................Petitioner

Versus1) Kathmandu District Court, Kathmandu ...........................................Respondents 12) His Majesty’s Government, Ministry of Home Singhadarbar ................................13) His Majesty’s Government, Ministry of Home, Prison Branch Kathmandu ...........14) His Majesty’s Government, Ministry of Woman, Children and Social welfare

Kathmandu ...........................................................................................................1

The fact in brief of this writ petition filedbefore this court under article 23, 88(2) ofthe constitution of the kingdom of Nepaland the order made over it are as follows:The writ petition reads that petitioner RajKumar Rai is a descendant Nepalese citizen;he has completed twelve years of age; even

though he is to be detained it is clear that islegal right to live in juvenile reform homeunder section 42(2) of the Children’s Act2048(1991) is violated; a charge sheet wasfiled before the Kathmandu District Courton the fifteenth day of the month ofShrawan of the year 2058 (July 30, 2001)

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against him and others for punishmentunder no 17(2) of the chapter on Murderwith a statement that he accused Raj KumarRai is punishable under section 11(3) of thechildren’s Act 2048 (1991) with half thepunishment awardable to a major person.On 058/4/16 (July 31, 2001) Hon’ble judgeGirish Kumar Sharma of the KathmanduDistrict court made a detention orderhaving regard to the condition of no. 118(5)and (10) of the chapter on court managementto keep the accused on dating if he provideda cash deposit of Rs. 15000/- or assetsguarantee and to send him to prison BranchKathmandu upon his failure to provide thesame the children’s Act 2048 (1991) cameinto force to provide for a timely legal orderfor physical, mental and intellectualdevelopment of children’s below 15 yearsby protecting their rights and interestssection 42(2)(a) of the Act clearly providesfor that a child required to be detained asper prevailing law for the investigation ortrial of a charge of an offence shall be keptin juvenile reform home; article 11 of theconstitution of the Kingdom of Nepal1990, guarantees equality of all citizenbefore the law and provision to article 11(3)provides for that special provision may bemade for the right and interest of children;asking deposit from the petitioner, a minor,itself is injustice; to imprison on groundsof failure to provide deposit is furtherinjustice and illegal, as the KathmanduDistrict Court order of 2058/4/16 (July 31,2001) of detaining a child required to bekept in juvenile reform home is illegal anderroneous, the writ petitioner thereby praysfor protection and enforcement of hisconstitutional and legal right to live injuvenile reform home by annulling theorder by issuance of a writ of certiorariunder article 88(2) of the constitution ofthe kingdom of Nepal and that of habeascorpus to release from the illegal detention.This court made an order to serve time as

per law and to submit the petition uponreceipt of the statement of reply or afterexpiry of the time to submit the statementof reply; the court further ordered to callfor the report from the hospital of theexamination of the age of petitioner RajKumar Rai carried out as per the order ofthe court to have his examined and a recordof birth date from the school in which thepetitioner studied maintained when he wasadmitted into the school and to present asper rule.The statement of reply by the HomeMinistry requests for the dismissal of thewrit petition because the respondent’spetition itself makes it clear that hew hasbeen detained as per the order of thecompetent authority of the Kathmandudistrict court to detain in the course ofjudicial trial of a suit and because thepetition is baseless as the respondent is underjudicial custody by an order of a competentbody as per law in the course of the hearingof the suit.The statement of reply submitted by theKathmandu District Court requests fordismissal of writ petition as the defendantis found records file to have been detainedas per the order of 2058.4.24 (Aug 8, 2002)to proceed the trial of the suit at then bydetaining the defendants, subject to thefindings as would be reached whilecollecting evidence, under no. 118(2) of theChapter on court management giving thema detention letter as per no. 121 of theChapter on court management andproviding the ration of ‘B’ category as thereexists evidence of the defendants havingcommitted offence.In this writ petition presented upon beingduly enlisted in the cause list learnedadvocate Ashish Adhikari and Ram PrasadAryal appeared on behalf of the petitionercontended that the Kathmandu DistrictCourt’s order, in contravention of clause(d) of section 42(2) of the children’s Act 2048

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(1991, of asking deposit from the defendantRaj Kumar Rai, a minor, and imprisoningupon his failure to provide deposit in thesuit in which His Majesty’s Government isplaintiff and Rajkumar Rai is defendant iserroneous; a person’s personal freedom canbe deprived according to law only; thepetitioner has been imprisoned in violationof the Act the legal principle enunciated bythis court here therefore the respondentshave violated this court’s order to keep aminor accused or convict in juvenile reformhome in suits of such nature therefore, herequested for issuance of a judicial strictureas well against the respondents. LearnedGovernment advocate Tika Bahadur Hamalappeared on behalf of his Majesty’sGovernment contended that the petitionerwas kept in custody for trial by the orderof the district court after he failed toprovide deposit in the suit of murder, noclear ground, evidence was produced in thecourse of the order of detention to showthat he was below the age of fourteen years;therefore the writ petition should bedismissed.On considering towards judgment afterhearing the above stated contentions, in asuit of murder in which His Majesty’sGovernment is plaintiff by the firstinformation report of Mr. ShermanMaharjan and defendants are Raj KumarRai and others a charge sheet is found filedbefore the Kathmandu District courtagainst the petitioner for imposition of halfthe punishment provided for in no. 17(2)of the chapter on murder of the MulukiAin (code of the Realm) as defendant’s ageis found below 14 years of age.In the course of detention order in that suit,Kathmandu District court made an orderto place him under dating if he provided adeposit of Rs. 15000/- (fifteen thousand)or provided assets guarantee equal to thatamount and to detain him in prison sectionKathmandu if failed to provide the deposit

or guarantee as the defendant was foundguilty from the evidences available at thetime of the order. The defendant is founddetained in prison section Kathmandu afterhe failed to provide the deposit under thatorder, the present writ petition is foundfiled claiming that the said order and actand activities are in contravention of section42(2) as well of the children’s Act 20-48(1991). In the statement made by thedefendant before the court his age ismentioned 14 years in a letter of theGeetamata Higher secondary SchoolBijayeswari Kathmandu, dated 2058.9.6(Dec 21, 2002), where the defendant studied,his birth date, according to record, is stated2044.12.18 (April 31, 1988) and in a letterof the institute of Medical Sciences,Maharajgunj, dated 2058/9/18 ( Jan 2, 2002)it is stated that petitioner Raj Kumar Rai isbelow 14 years of age. Section 2(a) of theChildren’s Act 2048 (1991) has defined achild as a person who has not attainedsixteen years of age and section 11(2)provides for that where a child of 10 yearsor above but below 14 years of age commitsan offence punishable with imprisonmentshall be punished having regard to theoffence with an imprisonment up to sixmonths; Kathmandu District court hasasked a deposit of Rs. 15,000/- from thepetitioner on the basis that he may besentenced with 2.5 years imprisonment, onebehalf of the imprisonment sentenceawardable under no. 17(2) of the chapteron Murder and the petitioner is found tohave been sent to prison upon his failure toprovide the deposit. The petitioner wasapprehended on 2058/3/25 (June 9, 2001)and has already served six months in prisonwhich is a maximum sentence ofimprisonment if he is held guilty of theoffence charged. Furthermore, undersection 42(2) (a) of the children’s Act 2048(1991), petitioner Raj Kumar Rai, who isfound to be a child, has to be kept in juvenile

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reform home and in a habeas corpus/mandamus petition (judgment), writ No.3685 of the year 2057 (2001/2) in AshishAdhikary on behalf of Keshav Khadka v.Dhankuta District court and other; a writof mandamus was issued by this court on2058/1/28 (April 11, 2001) to keep a childin a juvenile reform home in the course oftrial of a suit or imprisonment or detentionand a habeas corpus order was issued onthe grounds that the order of keeping inprison was erroneous.As Kathmandu District court’s order madeon 2058/4/16 (July 30, 2001) to keep inprison the petitioner if he failed to providedeposit is in contravention of section 11(2)

and section 42 (2) (a) of the Children’s Actas well, the order and the act and activitiesensued from the order are therefore, herebyannulled by an order of Certiorari and thepetitioner Raj Kumar Rai shall be releasedfrom the detention as well. As a separateorder has been sent today to release himfrom the suit no further order is necessary;the file record be handed over as per rule.

SdJustice

I concur with the opinionJustice

Made in this 2nd day of the month ofMagh of the yar 2058 (Jan 15, 2002) .

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On 2059/6/25 at daytime, taking chance ofour whole family being at workfield, aresident of Bhaktapur District Tathali VDCward no. 8, Shiva Nyhemafuki raped my 9year old daughter (Naina) who was foundin a fainted condition and recently gettingtreatment at the Teaching Hospital. AnF.I.R. registered to arrest and taken actionagainst the accused.The mismanagement of the bed sheet andthe blood stain on the mat in front of thebed are the deed of recognizance ofrecovery of crime scene.On 2059/6/25 at daytime I took NainaChauk to the upper floor of my house,made her sleep on the mat and raped her.While doing so the girl started bleeding andfainted was the statement of the defendant.Due to rape the hymen of victim got forcestated examination report of the TeachingHospital.On 2059/6/25 Shiva Nyhemafuki showed

Annex G.9. Shiva Nyhemafuki

Unofficial Translation

Supreme Court, Division BenchHonourable Chief Justice Khilraj RegmiHonourable Chief Justice Sarada Shrestha

Division2061 B.S.No. 3830

Case: RapeDefendant : Father Haribhakta Nyhemafuki of Shiva Nyhemafuki (Name change),

resident of tathali VDC, Bhaktapur District, Recently Child reform centerat Sanothami, Bhaktapur

VersusApplicant : HMG

Chief Justice of District Court : Hon. Prem Prasad SilwalChief Justice of Appellate court: Hon. Rajendra Prasad KoiralaHon. Madhusudan Lal Shrestha

me greed of guava and took me in his roomat the upper floor. He gave me a guava andmade me sleep on the mat and while rapingme, my hymen started bleeding and I faintedreported, 9 year old victim Nain Chuka.On 2059/6/25 while I was at my shop atChymasingh, Bhaktapur at 2:30 daytimeseeing 9 year old Naina Chuka in faintedcondition with bleeding hymen, was beingcarried, I suspected of her being raped. Atevening, after closing my shop when I wenthome, I heard Naina Chuka was taken toTeaching Hospital of Kathmandu as she wasfound in a fainted condition after beingraped was the statement given by ChandraBahadur.According to vicitim Naina’s statementapplicant and others’ statement and healthexamination report as seen that on 2059/6/25 Shiva Nyhemafuki showed guava greedto victim Naina Chuka, took her to theupper floor, gave a guava, made her sleepon the mat and raped her. The defendant’s

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such work falls under offences of section 1of Chapter Rape, he should be punishedunder section 3 of same chapter and halfpartition of the property of the defendantshould be given to victim Naina Chuka asper section 10 of same Chapter was claimed.Victim Naina Chuka came to me to take“Khurpa” and I gave it and sent her. Nainaand Shradha were picking guava, I also wentto the place where they were picking guava.They asked me to pick guava. I answered Icouldn’t, an ate few guavas. I had headacheso I went to sleep on the upper floor. After10 minutes, Naina and Sujan came to upperfloor, I scolded and sent them away, since Ihad headache I bought and had medicine. Ihave not raped Naina Chuka. I am just 15years old. I don’t know for what reasonvictim and her family accused me was thestatement given by defendant ShivaNyhemafuki at the court.The defendant to be kept in detention fortrail as per the decision was the court’sorder.The written statements in F.I.R. is true, thesignature on F.I.R is mine while I was busycutting paddy at the field, my daughter wasraped by Shiva Nyhemafuki so I registeredF.I.R. was the statement given by applicantin the court.I was raped at Shiva Nyhemafuki’s houseon 2059/7/6. The statement at the police istrue and the signature in the paper is minewas statement given by victim NainaChuka.Nain Chuka’s father carried Naina Chukain stretcher in fainted condition and Nainawas full of blood was Chandra Bahadur’sstatement at the court who had also givenstatement to the police.The statement at the court by KrishnaPrasad who had signed report at policementioning that at hospital when he wentto meet Naina Chuka, the patient had statedShiva Nyhemafuki had raped her.

On 2059/6/25 the defendant ShivaNyhemafuki had not reached 14 yrs andcompleted 13 years was report prepared byTeaching Hospital, Kathmandu.As per the order of Bhaktapur DistrictCourt’s order letter, the findings from sceneof crime as the straw mat and blood fromvictim Naina Chuka’s body was sent forblood. examination. According to CentralPolice Scientific Labrotary’s report showedblood to be human blood of ‘O’ group and“it could not be confirmed due toinconclusive result” was mentioned.There was no agreement on the discussionof defendant to be 16 years among thejudge. Hence as defendant raped NainaChuka of 9 years, for the offense accordingto section 1 of Chapter Rape, punishmentwould be 10 yrs according to section 3; sincedefendant is below 16 years and above 14yrs; the defendant would be liable for 5years of imprisonment as per section 11(3)of Children’s Act, 2048. As per section 10of Chapter Rape, half of the property fromdefendant should be provided to the victim.Naina Chuka was decided by Bhaktapurdistrict court on 2060/5/15/2. Instead ofpunishing defendant as claimed; themitigated punishment to defendant was notsatisfied. Hence, to punish the defendantas initial claim applicant His Majesty’sGovernment for appeal.I am not satisfied on decision of districtcourt as 5 years imprisonment and partitionof half property. I have not raped Naina. Icant be judge as criminal on the basis ofstatement in front of police. That statementis not true and willful as it was stated dueto police pressure. Since the case isgovernmental criminal case, the burden ofproof lies on applicant. Mentioning theinitial decision should be dismisseddefendant’s appeal.Here, both parties have come for appellateso, its notice to be given to Appellate

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Governmental Attorney Office, pant andrepresentatives of defendant.Here, the decision given by BhaktapurDistrict Court for the crime of section 1 of‘Rape’ chapter, defendant as could get 10years imprisonment according to section 3;as per section 11(3) of Children’s Act 2048,the decision was for 5 years ofimprisonment and according to ‘rape’chapter section 10 to provide victim. NainaChuka with half property of the defendantseems fair and upheld the decision of districtcourt by Patan Appellate Court on 2061/1/24.The decision as culprit on the basis ofstatement given to police is against section9 of Evidence Act, 2031, unfavorabledecision as case not heard in Juvenile courtaccording to section 55 of Children’s Act2048, decision on basis of the lack ofevidence by defendant whereby burden ofproof lies on applicant in criminal case, asit could not be confirmed rape due toinconclusive result and my age is below 14years where instead of according to section11(2) of Childrens’ Act, 2048 punishmentinfl iction of maximum 6 monthsimprisonment, the decision of appellatecourt has flows and should be terminatedwas defendants pleading.Here, defendant’s age, proof has differenceand as per the order of District Court on2059/8/24 in the situation whereexamination report prepared by TeachingHospital, Maharajgunj on 2059/9/15mentions defendant’s age has crossed 13 buthasn’t crossed 14; instead of 6 monthsimprisonment of defendant according tosection 11(2) of Children’ Act, 2048punishment was inflicted for 5 years andpartition of half property according toSection 11(3) of same act seems unfair,hence, according to chapter on CourtManagement no. 202 for the discussionproviding notice to Attorney Generalaccording to rule was court’s order on

2061/12/19/6.Presented as per law given case of Rape washeard in juvenile according to section 10(b)of Rape chapter of Muluki Ain, Section49(1) of Children’ Act 2064(a) of SupremeCourt Regulation, In the given case,Advocates Ashish Adhikari and Ram PrasadAryal form defendant’s side litigated thatdue to reasons as examination report formTeaching Hospital couldn’t give conclusionof rape, on signs were found fromexamination of defendant, defendant’s agehas completed 13 years but not crossed 14so the upheld decision of Appellate Courton District Court’s decision to inflict 5years of imprisonment should beterminated.Similarly, from applicant His MajestyGovernment’s side Assistant AttorneyGeneral Sparasd Gautam, put forward thatthe statement of applicant in front of policewas proof from applicant’s side and thedefendant can’t get free of offense on thebasis of disagreement of committing thecrime, the defendant himself mentioned hisage to be 15 years, which is also proved byhis school certificate. Hence, the decisionshould be upheld. After listening to thediscussion and pleading of both parties andanalyzing the evidences, it had to be seenwhether justice has been done or not byuphelding decision of appellate court ofPatan by inflicting 5 years of imprisonmentpunishment for the offence according tosection 1 of chapter Rape, inflictingpunishment for 5 years according to section11(3) of children’s’ Act 2048.Viewing upon the decision it is seen thatF.I.R. has been filed by applicant and thevictim has reported against defendant ShivaNyhemafuki that the defendant tookvictim, Nina Chuka to his home, made hersleep on the mat at the upper floor of thehouse and raped her which had causedbleeding from vagina and had fainted. It is

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also viewed that Applicant and victim hadsupported the statement in police and at thetime of giving testimony in the court. Onthe other side, defendant’s statement inform of police and victim’s healthexamination report and deed ofrecognizance of recovery of crime scene andproof of blood stain to be human blood allsum up as proof of the crime scene asmentioned in the F.I.R. Althoughdefendant disagreed in offense of rape, nosuch proof has found but defendant’sstatement in front of police proves thestatement of applicant and victim in frontof police and also in court testimony.Similarly, in the case of defendant haspersonal conflict with applicant and victim,there’s no reason not to consider theirstatement. Additionally, healthexamination, deed of recognizance ofrecovery of crime scene and ChandraBahadur’s statement and testimony supportsclaim of offense of applicant and the victim.In this condition it is seen that defendantcommitted crime as per section 1 of ChapterRape of Muluki Ain.As for as to consider age on the basis ofexamination report defendant has reached13 years but hasn’t crossed 14 years; has ageshould be established is the appellatepleading. The School Certificate presented

by defendant is states his age ongoing 16years and while giving statement to court,he has mentioned his age to be 15 years. Inthis situation, it cannot be said thatdefendant hasn’t reached 14 years.Hence, on the basis that defendant’s age isin between 14 to 16 years, for the offensecommitted under Section 1 of ChapterRape, 5 years of imprisonment as perSection 11(3) of Children’s’ Act 2048 isattracted instead of 10 years imprisonmentaccording to section 3 of chapter ‘Rape’with partition of half property to victimNaina Chuka as per Section 10 of ChapterRape seems fair so the decision is upheld.Defendants pleading of appeal cannot takeplace. The notice of decision should begiven to the defendant. Reports of the caseif are asked for, given them as per Rule 67(a)of Supreme Court Regulation, 2049.

JusticeAgrees on presented view.Justice

Rajendra ThapaCash Officer

2062 Jestha 30th

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Annex G.10. Santosh Kumar Mahato

2061 BS writ no. 60

Sub: MandamusSantosh Kumar Mahato, permanent address Mahotari District, SuyaVawani Palti VDC

ward no. 6,residing in Kathmandu District, Kathmandu Municipality ward no.10…………………………………………………petitioner

Vs.Prime minister and Council of Ministry

Ministry of Women, children and social welfareMinistry of law, justice and parliamentary management

Decision follow up department of Supreme Court

Children Act 2048 and ChildrenRegulation 2051 were enacted as a speciallaw from 2050-1-1 and 2051-10-2respectively for the safeguard of children’sright and for physical and mentaldevelopment of the children. Section 55 hasmentioned about the procedure of hearingand the officer who hears the case wherechildren are parties. Section 55(1) dealsabout the establishment of Juvenile Courtas per the necessity by publishing notice onNepal gazette, and sub section 2 deals aboutJuvenile court’s authority to initiate anddecide the case in which there a child as aparty. Sub-section 3 mentions that until ajuvenile court is established cases relatingto juveniles shall be tried and decided bydistrict court. Subsection 4 mentions thateach district court should have a juvenilebench to proceed and decide the cases inwhich child is a party. Subsection 5mentions that while forming the juvenilebench consultation should be taken fromSupreme Court and there should be socialworker and a child psychologist or specialistalong with district judge in the juvenilebench.A notice was published by the respondent,

Ministry of Women , Children and SocialWelfare in Nepal gazette on 2056-12-28mentioning that since Juvenile Court hadnot been established as per sec 55(1), ajuvenile Bench compresing district judgeshall be established in all district court asper subsection 4 and 5 and will come ineffect from 2057-1-1.That notice is contradictory to Article 11(3)of constitution of Nepal 2047, Section 55(5)of Children Act 2048 and Article 12 and 40of Convention on Rights of Children so asper Article 88 (1) of Constitution 2047 thenotice is to be declared null and void andgive mandamus order to establish JuvenileCourt as per section 55 (1) of Children Act2048.A constitutional protection andfundamental right of establishment ofspecial procedure for the protection anddevelopment of children is given to childrenthrough the explanatory clause of article11(3) of the constitution. As per section 55(5) of Children Act 2048, while forming ajuvenile Bench, a social worker and a childpsychologist or a specialist along withdistrict judge would be appointed but asper the notice of 2056-12-28 only district

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judge will be there in the juvenile benchthus the notice is clearly contradictory toexplanatory clause of article 11(3) ofconstitution, section 55 of Children Act2048. As per section 9 (1) of Treaty Act2047, CRC 1989 is applied as per thedomestic law of the nation since Nepal hasratified CRC on 14th September 1990. Thenotice is against the provision of article 12and article 40(3) of CRC which mentionthat the children shall in particular beprovided the opportunity to be heard inany judicial and administrative proceedingsaffecting the child, either directly ;orthrough a representative or an appropriatebody, in a manner consistent with theprocedural rules of national law and stateparties shall seek to promote theestablishment of laws procedures,authorities and institutions specificallyapplicable to children alleged as, accused of,or recognized as having infringed the penallaw respectively. Thus notice ofestablishment of juvenile Bench should bedeclared null and void as per article 88 (1)of the constitution.The writ filed by petitioner AdvocateBalkrishna Neupane against Ministry ofWomen,Children and social welfare andothers in 2054; writ no. 2982 to givemandamus order to form juvenile courtwas dismissed since respondent Ministry ofWomen, Children and Social Welfare gavea written response on 2055\1\6 mentioningthat juvenile court is about to be establishedand court decided that as the fulfillmentof required infrastructure and humanresources the process of establishing juvenilecourt will proceed rapidly on 2057-2-3.As per the written response of Ministry ofWomen , Children and Social Welfareorder of supreme court juvenile courtwould have already been established but 6years had passed juvenile court had not beenestablished as per section 55 (1) thus it showsthat respondent is reluctant towards

responsibility. Similarly, Decision Followup Committee was established to promoteexecution of the decision made by SupremeCourt. This committee not only executesthe decisions but also do study on the reasonfor the dismissal of the writ petition. If thefollow up committee would have been ableto follow up the decision made by SupremeCourt on 2057-02-3, writ petition wouldnot have been filed.Thus as per mentioned above, noticepublished on Nepal gazette on 2056-12-28about the establishment would be declarednull and void under article 88 (1) ofConstitution 2047. In the same way thiswrit petition is filed for mandamus orderto establish juvenile court to rest of therespondents other than Decision Follow upCommittee. Since the writtencommentment of respondent and ordermade by the court was not fulfilled tilltoday, juvenile bench including childspecialist or child psychologist and a socialworker would be established under section55 until juvenile court is established.Similarly in the name of Follow upCommittee an order of mandamus toexecute decisions made by supreme court.Court gave an order to present case withright to priority in Special Csourt afterrespondent give their written responsewithin 15 days or on the completion of thetime duration.As per the claim of the petitioner in thepetition, this committee has not vsiolatedany rights of the petitioner and thiscommittee has been properly working onthe execution of the decision as per the law,thus there is no ground to make thecommittee respondent. Thus this writpetition would be dismissed was the writtenresponse of Decision Follow upCommittee.Petitioner is not able to clearly mentionwhat type of right has been curtailed by

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this ministry thus the writ petition is to bedismissed was the written response of Primeminister and council of ministry.Juvenile court has been established byrespecting the spirit and essence of section55 of Children Act 2048. On the requestletter made by ministry of law and justiceto Supreme Court, full meeting of SupremeCourt held on 2055-9-22 gave approval cometo notice by letter of letter no: 681 of 2055-10-3 of ministry of law and justice. As perthe consent of Supreme Court, juvenilebench is being established in 75 districts forthe cases in which children are parties withdue respect to the essence and spirit ofConvention on Rights of Children 1989.A writ petitioner is not clearly whichconstitutional and legal rights are violatedbecause of the procedure relating to theestablishment of juvenile bench. Thus writfiled being based on unreasonable argumentis to be dismissed was the written responseof ministry of women, children and socialwelfare.All subsections of sec. 55 of Children Act2048 should not be dealt separately; theyought to be studied in whole. The mainobjective of this section is to establishjuvenile court and until such courts areestablished , cases of children parties is tobe proceed and decided by the district courtwith separate juvenile bench ought to beestablished for that purpose. Similarly, insubsection 5 there is provision mentioningthat juvenile bench would be establishedwith the consultation of Supreme Courtand while forming juvenile bench socialworker and child psychologist or childspecialist can be included along with districtjudge and it is compulsory until juvenilecourt is established. Since the provisionrelating to social worker, child psychologistor specialist is not mandatory their presencedepends upon the condition andcircumstance. Notice to form juvenile benchis not permanent it is temporary in nature.

If we see from practical point of view thenavailability of social workers; childpsychologists or child specialist in alldistricts is not always possible so it issuitable to establish juvenile bench withdistrict judge. Ministry of women, childrenand social welfare from the juvenile benchfor hearing of the cases in which childrenare parties and that bench hear the case asper the law, this provision does not violetthe rights of children thus they argue thatthe provision is against the constitution, lawand CRC is baseless. Hence the writpetition is to be dismissed was the writtenresponse of ministry of law, justice andparliamentary management.Advocate Madav Kumar Basent along withthe writ petitioner gave followingarguments:CRC 1989 was prevailed in Nepal afterNepal ratified the convention. Along withother matters this convention in article 12and 40 deals about the provisions of juvenilecourt. Especially in article 12(2) it ismentioned that the child in particular beprovided the opportunity to be heard inany judicial and administrative proceedingaffecting in the child directly or through arepresentative or an appropriate body in amanner consistent with the proceduralrules of national law. And in article 49(3)state parties shall seek to promote theestablishment of laws procedures authoritiesand institutions specifically applicable tochildren, alleged as accused of or recognizedas having infringed the penal law eventhough Children Act 2048 section 55guaranteed the establishment of separatecourt for the cases with children parties ,till today no juvenile court is established.Even the juvenile bench has been establishedby publishing notice in gazette in 2056-12-28, no social workers and child specialistor psychologists are introduced in thosejuvenile bench. So the formation of thisbench is error worthy. Convention

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mentioned that a separate depart andseparate procedure should be implementedfor cases relating to children but applyingsame traditional procedure foraccomplishing the children cases is againstthe international convention. Process offorming juvenile court is initiated from2050 BS but still no any juvenile court hasbeen established. The writ petition filed on2054 was dismissed on the basis of writtenresponse of respondent to form a juvenilecourt as soon as possible but till today noany step is taken thus it can be said that therespondent are being irresponsible towardstheir duty. Even a Follow up Committeeof Supreme Court is not being able to takeappropriate step to execute the decision.Thus, since the notice published on 2056-12-28 about formation of juvenile court isagainst explanatory clause of article 11(3)of constitution, article 12(2) and 40(3) ofCRC and section 55 of Children Act 2048,it should be declared null and void. And toexecute to the decision made by SupremeCourt mandamus order is to given to theFollow-up Committees of Supreme Court.Respondent, Ad. NarendraPrasad PathakChildren Act 2048 is for the fulfillment ofthe motive to explanatory clause of Article11(3) matter relating to how the noticepublished by ministry of women, childrenand social welfare on 2056-12-28 iscontradictory to the proviso is not clearlymentioned by the petitioner. Juvenile benchhave been established as per the essence ofseparate depart mentioned in CRC.Establishment of juvenile bench in itself ispro convention. Issue relating toestablishment of juvenile court had alreadybeen decided by Supreme Court on 2057-2-3. Juvenile bench is established undersection 55 with counsel of Supreme Courtuntil the juvenile court is established. Thereis no legal compulsion that there should bepresence of child psychologist, childspecialist and social worker in juvenile

bench. HMG is making effort for theestablishment of juvenile court. Thus theprovision of forming juvenile bench on thechairmanship of district judge is suitableand as per the law. Hence writ petition isto be dismissed.After studying the memorial, writtenresponse, related laws, notice relating toforming juvenile bench and decision of thecourt decided before; following questionsare to be decided by the court.

a) Whether the notice published inNepal gazette relating to formationof juvenile bench on 2056-12-28 iscontrary to constitution 2047,Children Act 2048, CRC 1989?

b) Do mandamus is to be declared asper the claim of the petitioner?

First of all considering the 1st questionpetitioner plea that the notice published on2056-12-28 on gazette is contradictory toexplanatory clause of article 11(3) ofconstitution 2047, Section 55 of ChildrenAct 2048, Article 12 (2) and 40(3) of CRC1898, thus the notice ought to be declaredvoid as per article 88(1) of Constitution2047.In the explanatory clause of article 11 (3) ofthe 2047 Constitution, there is provisionfor the special legal procedure for theupliftment of women, children, old aged,and physical and mentally disable people.It is clearly mentioned in the preamble ofthe Children Act 2048 that this act is formedfor the safeguard of rights of the childrenand for the physical and mentaldevelopment of children as per the changeon time. Similarly, CRC 1989, ratified byNepal on 1990 mention about the specialprotection of rights of children. Similarlythere is no doubt that the provisionmentioned in constitution, Children Act2048 and CRC 1989 are for the specialprotection of children.Section 55 of children Act 2048 mention

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about the procedure relating to hearing ofthe case and officer who hears the case. Insubsection 1 there is provision that as perrequirement Juvenile court is formed bypublishing notice in Nepal gazette. Insubsection 3 there mentioned that area ofsuch court would be as per the notice, insubsection 4 and it is mentioned that casewith children parties will be proceed anddecided by district court until juvenilecourt is established and as juvenile court isestablished all cases relating to children willtransfer to juvenile court. And a juvenilebench would be established as per thecounsel of the Supreme Court and whileforming juvenile bench social worker, childspecialist or child psychologist can beinvolved is mentioned. Subsection 6 of thesame section mention that procedure toproceed and decide case would be as permentioned and if the specific procedure isnot mentioned then Procedure of SummaryProcedure Act. 2028 is to be followed.The issue raised by petitioner related toconstitutional and legal provision is notirrelevant. All the provisions seem to be forthe special protection and development ofchildren. There is no issue to debate in it.Notice published in 2056-12-28 seems to befor enactment of sec. 55 of Children Act2048. The primary aim of this provision isestablishment of juvenile court forproceeding and deciding cases of children.Until the juvenile court is not establishedcases in which children are parties are to beproceed in juvenile bench is mentioned inmandate of same section and as per theprocedure published juvenile bench isformed all over 75 districts thus notice toestablish juvenile bench is not seems to becontrary to constitutional and legalprovisions.Considering above explanation the noticeto form juvenile bench is as per the rightgiven by HMG thus the notice cannot besaid to be contradictory to explanatory

clause of art. 11(3) of 2047 Constitution,art.12(2) and 40(3) of CRC 1989 and section55 of Children Act 2048.While considering second questionpetitioner mentioned that respondent hadto establish juvenile court as per sec. 55(1)and had to fulfill the promise made throughwritten response in the writ of 2054 andhad to establish juvenile court. Juvenilebench with social worker, childpsychologist or specialist ought to beestablished but till today the decision hasnot been executed thus order of mandamusis to be given to Follow up Committee ofSupreme Court.In section 55 (1) of Children Act 2048 it ismentioned that juvenile court would beestablished by publishing notice in Nepalgazette. The aim of the act is to establishjuvenile court. A writ petition 2982 wasfiled on 2054 by advocate BalkrishnaNeupane mentioned that the provision wasnot implemented and the writ petition wasdismissed on the ground of written responseof ministry of women, children and socialwelfare and council of ministry. In writtenresponse it was mentioned that as therequired physical infrastructure and humanresources will be fulfilled the process offorming juvenile court will be done withprime effort. Similarly another ground wasthat, juvenile bench has been establishedthus the writ was dismissed. The promisemade by HMG has not been fulfilled tilltoday. Certain facility provided by act doesnot mean that it could be practicedpermanently. HMG cannot be apart fromthis responsibility. Privilege of HMG is toform juvenile court as per need but it doesnot mean that HMG need not establishjuvenile court. Juvenile bench establishedfor the time duration until juvenile courtis not established is not a permanent body.Establishment of juvenile bench only is notthe accomplishment of duty of the HMG.HMG has to think about it. Children act

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give prime importance to the establishmentof juvenile court and before 5 years awritten acceptance had been made for theestablishment of juvenile court thus in thiscontext it cannot be said that HMG hasfulfilled it’s duty. In the same way,responsibility of Follow up Committee isto supervise either the decisions made bySupreme Court is complemented or not,to keep record of cases decided. Such actsare now under the execution and supervisedepart as per the rule 115 of Supreme Courtregulation 2049. Petitioner had pleaded thatwrit petition has been filed since theexecution depart has not follow up thedecision made by Supreme Court to formjuvenile court. In this matter court decisionexecution has to give concentration.Similarly alternative plea of petitioner is toform juvenile bench including childpsychologist or specialist and social workerincluding district judge. As per sec. 55 (5)of Children Act 2048, it is mentioned thatappointment of social worker, childpsychologist or specialist can be done whileforming juvenile bench. Thus appointingthe social worker and child psychologist or

specialist seems to be of discretionary natureand they ought to be appointed as per theavailability of human resource. Thusnothing to say regarding this question.Thus, a directive order is given to PrimeMinister and council of Minister that asmentioned about the responsibility ofestablishing juvenile court is of HMG so itis to be proceed as early as possible andinformation about it is to be given toDecision Follow up committee under Courtfollow up and Supervise Department.Similarly a directive order is given toDecision Follow up Committee underCourt Follow up and SuperviseDepartment for effective follow up of theprocess to establish juvenile court. Do sendthe copies of the decision to the respondent.Send the copies through the AttorneyGeneral Office to other respondents andsend directly the copy to the DecisionFollow up Committee and hand over thecase file as per the rules.JusticeWe concur the aforesaid opinionJusticeDone on 9th Magh 2065

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Saroj Rai is 14 years old boy. According tothe Children Act, 2048, Section 2 (a) he is aminor. Under section 42(2)(f) of theChildren Act, A child for the investigationor proceeding of the case should be kept inthe Child Rehabilitation home or underSection 50 should be handover in thecustody of his/her parents. Section 55(2) ofthe same Act restrict Chief District Officerfor hearing case related to child and SarojRai is kept in the prison with the adultdetainees. So the imprisonment pursuant tothe order of CDO is illegal.Metropolitan Police Unit, Maharajgunjarrested Saroj on 2066-6-10 and detained till2066-6-16 reasoning that there was DashainFestival leave. Later, he was presentedbefore the defendant no.1 in the process oftrail. He was ordered to be kept on theChild Reform Home though the defendanthas no jurisdiction to hear the case.However, he was detained in police custodyand was charged of Public offence was filedagainst him. After all statement andproceeding defendant no.2 ordered him tobail amount of Rs. 5000 or the propertyequivalent, whereas Saroj not able to paythe said bail amount was ordered to sendChild Reform Home, Bhaktapur, by theletter on 2066-6-20. But, the particularreform home showing the reason ofunavailability of the space return him andmeanwhile, not handing him to the parentscustody he was send to the defendant no.3and is kept with the adult prisoners.Section 55(2) of the Child Act clearly

Annex G.11. Kalyan K.C

Kalyan K.C vs. Central District Office, Kathmandu, et. al, (2066 B.S)The fact, in brief of the writ petition filed before this court under Article 32, 107(2) of

the Interim Constitution of Nepal and order made over it are as follows:The writ petition reads that-

provides that, “Except in the case in whicha child is involved along with the adultperson, the juvenile court constitutedpursuant to sub-section(1) shall have thepower to hear and decide the case of firstinstance in which the child is a plaintiff.”Children’s Act, 2048’ came into force verylater than ‘Some Public Offence ControlAct, 2027’. Children’s Act has limited theCDO only as child welfare officer or thepresident or member of District ChildWelfare Committee. As provided in Article24(3) of Constitution one shall be presentedbefore competent authority within 24hours, beside this not presenting Saroj underSection 55(2), (3), and (4) in Juvenile courtor Juvenile bench he was imprisoned underthe order of CDO which manifestly defyArticle 12(2), 22(2), (3), 24(5), (9) of theconstitution, Section 15, 50, 50(1), 55(2) ofChildren’s Act, 2048, Rule 31, 32, 33, 34,35, 36, of the Supreme Court Regulation,2049, Article 3(1), 37(b), (d), 40(2)(b)(1)(3)of Child Rights Convention. So under thesame basis on behalf of Saroj Rai the writpetition is filed for issuing the order ofHabeas Corpus and other necessary ordersin the supreme court of Nepal. Beside, thewrit also request for issuing interim orderunder Rule no. 32 of the Supreme CourtRegulation for releasing accused and fixingthe date of hearing.A division Bench of this court made anorder on 2066-6-26 in the name ofrespondent, for submitting the reason as towhy an order as per the request of thepetitioner should not be issued and also

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present the juvenile before the court.All three defendants pray for the dismissalof the writ petition as the ordered is madeby the competent authority and the juvenileis kept in the prison as there is no space inthe Juvenile Reform Home.In this writ petition which has been dulysubmitted for hearing have been enlisted inthe daily and weekly cause list, thedocuments and evidences including thepetition in this case file have been dulystudied. The two learned advocates, Mr.Pawan Kumar Jaiswal and Advocate Mr.Kalyan K.C, pleaded that, section 55(2) ofthe Children’s Act, 2048 provides thatExcept in the case in which a child isinvolved along with the major person, thejuvenile court constituted pursuant to sub-section (1) shall have the power to hear anddecide the case of first instance in whichthe child is a plaintiff.” So CDO cannotinvestigate and hear this case where his dutyis to protect the child. In this case, thespecial Act related with the juvenile isviolated heavily. Thus it is unlawful anderroneous to order such minor to besubjected to imprisonment withoutjurisdiction; an order of habeas corpus torelease Saroj should be issued. Whereas, thelearned deputy Government Attorney,appearing and defending on behalf of therespondent, District Administrative Office,Kathmandu, pleaded that, ‘case of the publicoffence is the state party case as it is underthe appendix of the State Cases Act, 2049and the jurisdiction of hearing and decidingsuch case is on the CDO in accordance withSome Public Offence Control andPunishment Act, 2027. So, Saroj Rai wasdemanded a bail amount of Rs. 5000,subsequently, he could not pay and was sendto the Child Reform Home, as because ofspace constraint it could not keep him overthere and send to the prison. Thefundamental duty of the CDO is tomaintain peace and order in the District and

the society, so Saroj Rai was send to prisonconditionally. Hence, the writ petitionshould be quashed on the basis of abovefacts.

Whereas, having heard the pleadingand while considering upon thedecisions, the decision should begiven on the following questions:

Whether the CDO has the right tohear and decide in a case in whichthe Nepal Government is plaintiffand Saroj Rai is defendant?

Whether the order shall be issuedto release Saroj Rai from the Prisonas requested by the petitioner?

Whether any other order shall beissued in this case or for the case ofsame nature?

Considering upon the first question it isseen that the plaintiff is charged of PublicOffence Control Act, 2027. It seems thatCDO ordered to pay the bail amount ofRs. 5000 for investigation but there is nopayment of the bail. It is seen that theplaintiff Saroj Rai is juvenile of 14 years. Itis seen that the plaintiff is subjected toimprisonment upon the non payment ofthe bail amount Rs.5000 that has beenordered by the CDO as section (5) of theSome Public (Offence Control) Act, 2027provides that the right of initial hearing anddeciding of the case under the act shall beon the CDO.The cases under the Some Public OffenceControl Act, 2027 are state partycognizable offence. In the case filed undersame Act upon the writ petitioner was thecase stating him alone as the defendant.Now here come the question that canordinary court hear the case where a juvenileis charged of the criminal offence. Beside,another important question that need to beanswer is, can CDO have jurisdiction underthe Some Public (Offence Control) Act,2027 to hear the case of juvenile.

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Considering these question, we have to gothrough the section 55(1), (2), (3), (4),provision made under the Children’s Act,2048:

(1) Government of Nepal shall, bypublishing a notification in theNepal Gazette, constitute aJuvenile Court as may be necessary.The territorial jurisdiction and seatof such Court shall be as prescribedin the same notice.

(2) Except in the situation of Section20, the Juvenile Court constitutedpursuant to sub-section (1) shallhave power to first initiate anddecide cases in which a Child iseither a plaintiff or defendant .Provided that , the Juvenile Courtshall not hear and decide a case inwhich a Child is involved alongwith a person having attained theage o f majority.

(3) The concerned District Court shallhave power to hear and decide thecase pursuant to sub-section (2)until a Juvenile Court pursuant tosub-sect ion (1) is constituted, andafter the constitution of theJuvenile Court, cases filed in theDistrict Court shall be transferredto the Juvenile Court.

(4) There shall be a Juvenile Bench ineach District Court for hearing anddeciding the case to be heard fromthe District Court pursuant to sub-section (3).

It can be noticed that Some Public (offenceControl) Act, 2027 came in force since 2027/06/18. Under Section 5 of same Act CDOis liaison for hearing cases related to publicoffences. Even not stipulating about the‘notice to be published in Gazette’ the thenlegislative gave authority for hearing thecases directly to CDO. When the Act cameinto force including Convention on the

Rights of the Child, 1989, Nepal has notbecome party to human rights coreconvention. Similarly, at that time, NepalTreaty Act, 2047 and Children’s Act 2048even was not enforced.When Public (offence Control) Act, 2027came in force there was Constitution ofNepal, 2019 B.S was in practice. Thoughpart 3 of that constitution provides thefundamental Rights and Article 71 providesthe extraordinary jurisdiction, Article 17provide that for the shake of Public Welfareany provision of the fundamental rights canbe restricted and suspended. Moreimportantly, under same constitution inArticle 68 provision regarding SupremeCourt and in Article 71 regarding the extraOrdinary Jurisdiction, however as providedin the present Interim Constitution inArticle 107(1), especially the provisionregarding the Judicial Review of theLegislation and in Article 100 for applyingthe recognized principle of Justice was notprovided in written in that constitution.Beside these constitutional absentees, Nepalwas not Party to ICCPR, 1966 and CRC1989 which are regarded as core humanrights convention and even Treaty Act, 2047was not introduced. Hence at that time therewas no any treaty obligation under theconstitutional arrangements and upon theInternational Community. At thatjuncture, the hearing of juvenile cases bythe CDO under the Some Public (OffenceControl) Act, 2027 became valid legislationbut in the present context, the juvenile casescannot be heard by the CDO. Nepalratified Convention on the Rights of Child,1989 on 14th September, 1990. After theratification under the section 9 of the NepalTreaty Act, 2047, the provision of theconvention is applicable as of the Municipallaws in the territory of Nepal. Even, thesub section of the same provision of TreatyAct provides if there is only conflictbetween the provision of the municipal laws

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and Nepal ratified treaties, Internationaltreaties supercede the municipal laws. Forhearing the case of the Juvenile involved inthe criminal offence, the Convention on theRights of Child, 1989 (CRC) in Article40(2), (b) (ii) (iii) have made importantprovision regarding the authority hearingJuvenile cases. The provision is as below:(ii) To be informed promptly and directlyof the charges against him or her, and tohave legal or other appropriate assistancein the preparation and presentation of hisor her defense.(iii) To have the matter determined withoutdelay by a competent, independent andimpartial authority or judicial body in afair hearing according to law, in thepresence of legal assistance and, unless it isconsidered not to be in the best interest ofthe child, in particular, taking into accounthis or her age or situation, his or her parentsor legal guardians.In this regard, Part (iii) is very important.It is clearly stated that for hearing the caseof juvenile there shall be competent,independent and impartial authority orjudicial body. CDO is civil servant ofNepalese administration. The civil servantsof Nepalese government are constitutedunder Article 153 of the InterimConstitution and are the member of civilservice. Talking constitutionally, civilservant is regarded as permanent executive.The functions of civil servants are to advisecouncil of Ministers, which are calledpolitical executive and to enforce the policiesmade by them. And, civil servants not onlyin Nepal but also in England where ourlegacy came are also not regarded asindependent rather neutral. As manypolitical parties formed government so civilservants shall be neutral.Any Act is amended for removing theambiguity or for renovating or foradjusting newly introduced system or for

making special arrangement or forprotecting interest of special class and oftenfor same purpose new Acts arepromulgated. These new laws/acts givecompletion to uncovered areas and subjectsby the existing laws or as per necessityintroduce new system. These new laws aimsfor removing the existing wrongs andeveryone to duty bound to follow theselaws. Unless any Acts provide specialprotection and immunitie others do not getexemption for not following laws. This iswidely accepted principal of rule of law.Nepal has shown its commitment tointernational community for the specialprotection of children’s and the ratificationstatus on CRC by Nepal and for thebetterment of the children; Nepaleselegislature have enacted and enforcedspecific Children’s Act, 2048. The Act havegiven special priority for the betterment andprotection of children and have madeprovision for establishing special juvenilecourt, unless those juvenile court areestablished, provision is made that everyDistrict Court shall constitute a juvenilebench under Section 55(2) and cases in whichjuveniles only are involved. In the provisonof same section, it is specifically stated thatonly the case where juveniles are involvedshall be prosecuted and the cases where adultare also involved shall not be entertained injuvenile bench or court.Hearing criminal cases are purely judicialfunction. One should follow the principleof fair trail, should examine all evidencesand interpret the case/facts independentlyand neutrally. And so far, where the Statehave written constitution guaranteeingfundamental rights and also the parties ofinternational conventions like ICCPR andCRC, where criminal cases can not bedecided by civil servant. According to theconstitutional system the laws which werevalid earlier, after the change of theconstitutional system itself cannot be valid

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anymore. Section 5 of Public (OffenceControl) Act, 2027 regarding the minorunder the age of16 is one example of this.So from above discussion, section 5 of samePublic (Offence Control) Act, 2027whereby CDO hearing the case where aminor alone is defendant is in contravenewith Article 40 (2) (ii) and (iii) of CRC andsection 55 of the Children’s Act 2048 andcannot be accepted anymore from today’sdate and hereby done prospective ruling.In this writ, in the public offence case theapplicant Saroj Rai alone was defendant andhe is 14 years old boy. So according to thedefinition part of Children’s Act, 2048, heis recognized as juvenile. As juvenile aloneis defendant in the above case. Accordingto the provision of the Childrens’ Act, thecase of first instance of juvenile shall beheard in juvenile bench or court only. Soin this particular case Saroj Rai is juvenileand CDO cannot hear the case. There isprovision that in the case where juvenilesonly are involved as plaintiff and defendant,there is authorized to be heard by juvenilecourt or bench, so CDO do not haveauthority to hear the case.So hereby the case of public offence whereplaintiff is Nepal Government anddefendant is Saroj Rai where CDO orderedfor Rs. 5000 (five thousand) bail amount isdeclare void. As the juvenile cases cannotbe heard by CDO so the case has beentransferred from today’s date toKathmandu District Court.Now, regarding second question, if anyprovision of Act provide the way out forredressing case, taking it positively andregarding effective shall be undergone in

same manner. In the existing law, provideeffective remedies then no one shall invokeArticle 107(2) of the Interim Constitutionand enter into the extraordinary jurisdictionof Supreme Court. However, If any lawdoes not provide effective remedy, if thereis encroachment in the exercise offundamental rights guaranteed in theconstitution or if the minimum standardof international human rights treaties orrights are violated then for redressing onecan enter into the extra jurisdiction ofSupreme Court. In the given case theapplicant was charge of Public Offence andas dealt above while answering firstquestion, in the given case applicant SarojRai alone is defendant and the case issupposed to be decided by the district courtas the court of first instance. Hence, nointervention is needed through this writ.So as demanded by applicant the detaineecannot be freed and to this extent the Writis quashed.Similarly regarding the third and the lastquestion, in all district where juvenilebenches are formed, from today, in the casewhere juvenile are only involved (major arenot involved), as there is possibility that suchcase may be in pending under the CDOs.If so found that should be immediatelytransferred to district court for further trail.And also for transferring this bench directNepal Government, Home Ministry forissuing circular to the concern CDO office.Inform the verdict of the writ to therespondent and Home Ministry, NepalGovernment through Attorneys office anddo filing accordingly.Date: 2066-06-26, Monday.

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The fact and the order of the writ petitionfiled under the jurisdiction of this courtaccording to Article 23, Article 88(2) of theConstitution of Kingdom of Nepal 2047are as follows:I the applicant and Kumar Rai, is adescendent Nepalese Citizen. I am 12 yearsold and even if I am to be subjected toimprisonment, Children Act 2048 in itsClause 42(2)(a), I have a right to remain in achild reform home. We have been chargedfor the offence of homicide under clause17(2) of chapter on Homicide and aresubjected to punishment as per the sameclause. I and Kumar Rai has been halved inpunishment to that of an adult accordingto Clause Cheet this need to be uniform11(2) of the Children Act in the charge sheetfiled in the Kathmandu District Court inShrawan 5 2058. Honb’l Justice GhirishKumar Giri of Kathmandu District Courtwhile issuing order for detention in 2058/04/16 had used Clause 188, 5 and 10 ofMuluki Ain and with those grounds hadordered to give due date to the defendant

Annex G.12. Kumar Rai

Supreme Court, Division BenchHonb’l Justice Shree Laxman Prasad Aryal

Honb’l Justice Shree Chandra Prasad Parajuli

Order

Writ No. 25 of 2058 B.S.

Subject:Habeas Corpus

District Kavre Palanchowk , Namabuddha V.D.C, currently living at KathmanduMunicipality Ward No. 15 as permanent and presently in prison in Kathmandu, age 12 andon behalf of Kumar Rai, Advocate Tara Devi Poudel currently working on free legal aid

and Kumar Rai by submitting Rs. 15000 assecurity and remain in Prison SectionKathmandu.Children Act 2048 has been promulgatedfor the protection of rights and interests ofthe children forbid physical, mental as wellas intellectual violence against them. Thusthe state should effort time to time for theoverall development of children. ChildrenAct 2048 in its Clause 42(2)(a) has clearlystated that if any children are supposed toremain in prison for trial purpose for anycharge, they should be kept in the ChildReform Homes. Article 11 of theConstitution of Kingdom of Nepal hasguaranteed that all citizens are equal in theeye of law and the restrictive Article 11(2)has stated that state can take special stepsfor the good of children. It is unlawful thatsecurity has been demanded from a minorlike me. And sending me in jail for notsubmitting the security amount is alsounlawful. And also, in spite of sending orderto the Child Reform Home, theKathmandu District Court in 2058/04/16

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decided to send me in prison. Thus the writpetition pleads that such a decision of thecourt is unlawful and doubtful and suchdecision should be repelled according to theArticle 88(2) of the Constitution ofKingdom of Nepal by the order ofcertiorari. And also it pleads for the orderof Habeas Corpus to release the accusedfrom illegal imprisonment and ensure theirconstitutional right to remain in childreform home.The court ordered to the respondent tosubmit their response to the petition inwritten way within 15 days or as per therules after the time limitation is exceeded.The court also ordered to check the actualdate of birth of the applicant from thehospital as well as from their school recordsand submit as per rule.The Ministry of Home Affairs replies thatit is clear from the application of theapplicant that the accused is put in prisonas per the decision from the competentcourt in its own jurisdiction for trialpurpose. And also the ministry claims thatthe writ petition has no ground at all as theapplicant is under judicial custody as perthe order of the competent court.The Kathmandu District Court replies thatthe writ petition should be rejected as theapplicant is taken into custody for trialpurpose as by giving warrant as stated by121 no. of Court Management of MulukiAin. Besides, the applicant is also providedwith food of ‘B’ standard in the jail as statedby no 118(2) of Court Management ofMuluki Ain.The Ministry of Women, Children andSocial Welfare also replies that the writpetition should be rejected as the age of theaccused is still doubtful and concreteevidence explaining the actual age of theaccused has not so far been found.In the writ petition as published in the dailyschedule of the court, two advocates Ashish

Adhikari and Ram Prasad Aryal put theirarguments that the applicant and Kumar Raihad been accused of intentional homicideby the Kathmandu District Court in whichMinistry of Home Affairs was the applicant.But as the applicant and Kumar Rai wereminor, the court demanded security andwhen they were unable to deposit theamount, they were sent to prison. This isstrictly against the Clause 42(2)(a) of theChildren Act 2048. The liberty of anyperson can be curtailed only according tothe law and it has been made clear by thelaws and the opinions from the court aswell. But this principle of sending juveniledeliquents to the child reform home isstrictly disobeyed by the respondents andthus the court also should issuse a judicialstricture in the name of the respondents.Government Attorney Tika BahadurHamal on behalf of the respondents HisMajesty’s Government put his argumentsthat the applicant has been kept into prisonwith the order of the court when theapplicant was unable to pay the securitydeposit. No clear grounds have been seenwhich proves that the accused is under 14years of age. Thus the writ peitition shouldbe rejected.On the basis of the arguments, the case ofintentional homicide where His Majesty’sGovernment on behalf of Sher ManMajarjan versus the applicant and KumarRai has been filed a charge sheet to be theoffence of Clause 17(2) of chapter ofHomicide of Muluki Ain. In the actualpunishment provided by the clause, it hadbeen halved as the accused were minors.Kathmandu District Court, on the basis ofevidences found so far had declared theaccused guilty of homicide and thusordered for Rs. 15000 as security forbailment and if they are unable to depositthe security amount, would be kept inprison in 2058/04/16. And when theaccused were not able to deposit the

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security amount, are found to have beenliving in prison. And the writ petition isfiled to declare such decision of court to beagainst clause 42(2)(a) of the Children Act2048. And in the hearing the accused arefound to have told their age to be 12. Asper the order of this court, the date of birthof the applicant is 2044/12/18 as per theschoold record of Thitamata HigherSecondary School, Bijayshwori,Kathmandu. And also the age of theapplicant and Kumar Rai is found to bebelow 14 as per the letter received byInstitute of Medicine, Maharajgunj in2058/09/18. Clause 2(a) of the Children Act2048 defines children to be below that ageof 16 and clause 11(2) of the same act statesthat if the children is above the age 10 andbelow 14, an imprisonment up to 6 monthscan be done according to the nature andgravity of the offence they have committed.Kathmandu District Court demanded thesecurity amount of Rs.15000 as the 5 yearsof imprisonment as per 17(2) of the chapterof Homicide if halved becomes equivalentto such amount to get released on bailment.And as a result the applicant and KumarRai became unable to submit the security

deposit, were sent in prison. And theapplicant, on the charge of homicide isfound to have remained in prison for almost6 months from the date of arrest on 2058/03/25 which is maximum imprisonment forhim as per law. And it is found in the caselaw that in writ no 3685 of 2057B.S(Decision Date2058/01/28). AshishAdhikari on belalf of applicant KeshavKhadka, an order of mandamus was issuedwhich included that the children should bekept in child reform home as per clause42(2)(a) of the Children Act 2048. Thus, theorder of Kathmandu District Court in2058/04/16 for imprisoning the childrenfor not being able to deposit the securityamount is contrary to the clauses 11(2) and42(2)(a) of the Children Act 2048 and thatorder is declared void by the order ofcertiorari. And also the applicant andKumar Rai are to be freed from prisonfrom the order of Habeas Corpus. Thereis no necessity to mention otherinformation when the applicants areordered to be set free from prison. Submitthe file as per rule.2058/10/02 (Tuesday)

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The fact of the case with reference to thewrit petition thus filed under Article 32 and107(2) of the Interim Constitution of Nepal2063 is as follows:Ganesh Shyantan of age 12, the defendantwas charged of stealing three Panas fromChundevi Mandir and was charged of theoffence committed according to Clauses2(h) and 2(i) of the Some Public (Offenceand Punishment) Act 2027. And alsoaccording to no. 118(5) of CourtManagement chapter of Muluki Ain, he wasordered by Chief District OfficeKathmandu to deposit Rs.2000 as securityotherwise remain in prison in 2065/05/18.The defendant couldn’t deposit the requiredamount of security and thus he was kept inthe Child Reform Home at SanothimiBhaktapur. Such an act is against the rightto liberty as guaranteed by the InterimConstitution of Nepal 2063, proprietaryrights as ensured by Clause 12 of Citizen’sRights Act 2012 and Clause 11(2) of

Annex G.13 Ganesh Shyantan

Supreme Court, Division BenchHonb’l Justice Shree Khil Raj RegmiHonb’l Justice Shree Kalyan Shrestha

Order

Writ No. ………2065-WH-007

Subject:Habeas Corpus

Sindhuli District, currently living in Child Reform Home, Sanothimi Bhaktapur, SaubhagyaShah on behalf of Ganesh Shyantan (name changed) of age 12…………………………….1

V.Chief District Office, Babarmahal,Kathmandu……………………………………………1Child Reform Home, Sanothimi, Bhaktapur………………………………………………1

Children Act 2048 which ensures that incase if a minor below the age 14 is chargedof any offence that requires financial penaltyis unsealed or scolded and according to thegravity of the offence s/he has done, issubjected to imprisonment not exceedingsix months. Thus the act of imprisoningGanesh Shyantan for not being able todeposit the security amount isunconstitutional and thus an order ofHabeas Corpus or any other suitable ordershould be issued by the court according toArticle 107(2) of the Interim Constitutionof Nepal 2063 and set Ganesh Shyantan freefrom prison.What has happened in this case? Why theorder of Habeas Corpus should not beissued as per the applicant’s claim? Thesingle bench ordered a written response tothese questions from the office of AttorneyGeneral within three days from receivingthe notice from court excluding the timeof journey.

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The Chief District Office Kathmanduresponded that Ganesh Shyantan , thedefendant including others was charged ofstealing three Panas from Chundevi MandirKathmandu Metropolitan City Ward No.4 and was charged of the offence committedaccording to Clauses 2(h) and 2(i) of theSome Public(Offence and Punishment) Act2027 and a punishment as provided byClause 6(1) of the same act was demanded.He was ordered by Chief District OfficeKathmandu to deposit Rs.2000 for trailpurpose as security otherwise remain inprison in 2065/05/18. Thus the writpetition should be rejected.Child Reform Home responded in writtenforms that the applicant has not made itclear by what activities of the Child ReformHome what types of constitutional rightsof them has been violated so that it is madethe respondent. So the writ petition isvoidable. The Child Reform Home is runby USEP Nepal according to the agreementbetween Nepal Government Ministry ofWomen, Children and Social Welfare andPrison Management Department and thoseminor who are likely to remain is prisonare kept in Child Reform Home and withthe same reason the defendant is kept therewith reference to File No. 463 receivedfrom the Chief District Office Kathmanduin 2065/05/018 with respect to the legalprovision i.e. Rule 4(b) of the PrisonRegulations 2020.The case has been under hearing as per therule of daily schedule in which on behalfof applicant two advocates Ram PrasadAryal and Yamuna Bhattarai argued thatChildren Act 2048 which ensures that incase if a minor below the age 14 is chargedof any offence that requires financial penaltyis unsealed or scolded and according to thegravity of the offence s/he has done, issubjected to imprisonment not exceedingsix months. Thus the act of imprisoningGanesh Shyantan in Child Reform Home

for not being able to deposit the securityamount is unlawful. So the applicantspleaded that the accused should be releasedfrom such illegal detention. While on theother side, the respondent Under-AttorneyShree Lok Jung Shah the accused has beenkept into prison for stealing Panas which isan offence according to Some Public(Offences and Punishment) Act and also fornot being able to deposit the securityamount for bail.So the court is to give decision whether ornot to issue an order as per the applicant’sdemand.The applicant of this writ petition is a minorof 12 years of age and the Children Act hasprovided that for the simple theftscommitted by minors, should be counseledor scolded. But the applicant in this case ischarged of offence as per Clause 6(1) ofSome Public (Offences and Punishment)Act 2027. Such an act of the minor wasdeclared an offence and was demanded Rs.2000 as security amount otherwise he wouldbe kept in Child Reform Home. But theminor couldn’t afford such an amount andwas kept in Child Reform Home. Theapplicants argue that the act of imprisoningGanesh Shyantan for not being able todeposit the security amount isunconstitutional and thus an order ofHabeas Corpus or any other suitable ordershould be issued by the court set GaneshShyantan free from prison. On the otherhand, the written response from The ChiefDistrict Office Kathmandu includes thatGanesh Shyantan, was charged of stealingthree Panas from Panchakanya Mandir inChundevi and was charged of the offencecommitted according to Clauses 2(h) and2(i) of the Some Public(Offence andPunishment) Act 2027 and a punishment asprovided by Clause 6(1) of the same act wasdemanded. He was ordered by ChiefDistrict Office Kathmandu to depositRs.2000 for trail purpose as security

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otherwise remain in prison. As the offendercould not deposit the required securityamount was kept in Child Reform Homeat Sanothimi, Bhaktapur.There arises no question on the facts thatthe applicants has stolen 3 Panas and ischarged according to Some Public(Offenceand Punishment) Act and the age of theapplicant is below 14. Clause 11(2) of theChildren Act 2048 ensures that in case if aminor above 10 years of age below the age14 is charged of any offence that requiresfinancial penalty is convinced or scolded andaccording to the gravity of the offence s/he has done, is subjected to imprisonmentnot exceeding six months. Due to physicalas well as mental immaturity, childrenmight have been engaged in doing criminalactivities. So the child delinquency shouldbe inspected very seriously by specialmechanisms and protect their rights andinterests for their physical as well as mentaland intellectual development. It is under theresponsibility of the state. Article 12(2) ofthe Interim Constitution of Nepal 2063 hassubstantive guarantee that no one would besubjected to the unlawful curtailment ofher/his proprietary rights. Article 3(1) ofthe Convention on Rights of Child 1989has ensured that the highest degree of theinterest of children should be taken intoconsideration in dealing the matters relatedto children in any public places, welfareactivities, social institutions, courts,administrative wings etc. So the state

mechanism should strongly follow theconstitutional provisions and the mandateof international treaties and conventions.The procedures set by the Children Act2048, which has been promulgated fordevelopment of physical, mental andintellectual development of children whichis not seen to have followed by therespondents rather it was seen that theminor was sent to Child Reform Home asa prisoner with a charge of theft for notbeing able to deposit the security amountas per Some Public (Offence andPunishment) Act.Clause 50 of the Children Act 2048 basicallydeals with the processes and the proceduresto be followed by the authority to decideon a case related to children whileimprisoning them for trial purpose. Therearises no question what if the child is unableto deposit the security amount or s/hewould be sent to the Child Reform Home.Thus there is no provision where thedisability of a child to deposit securityamount should be kept in prison in the nameof trial. So such an imprisonment of thechild in Child Reform Home is declared asan illegal imprisonment by the order ofHabeas Corpus and the child should bereleased from the Child Reform Home andhanded to his Guardians. Send a copy ofthe order to the respective office and submitthe file as per law.Date: 2065/07/18 (Monday)

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The fact and the order of the writ petitionfiled under the jurisdiction of this courtaccording to Article 23, Article 88(1)(2) ofthe Constitution of Kingdom of Nepal2047 are as follows:I, Devendra Ale, one of the applicant hasbeen working actively in order to ensurethe right against torture (CVICT) in……….., two advocates Shyam Babu Kafleand Satyanarayan Adhikari have beenpractising legal profession for eight yearsspecially working to ensure the right

Annex G.14. Devendra Ale, CVICT

Supreme Court, Special BenchHonb’l Justice Shree Chandra Prasad ParajuliHonb’l Justice Shree Min Bahadur Rayamajhi

Honb’l Justice Shree Rajendra Kumar Bhandari

Order

Writ no 57 of 2061 B.S.

Subject: For the issuance of order of Certiorari with Mandamus or other favourableorder as per Articles 23, 88(1) , 88(2) of the Constitution of Kingdom of Nepal 2047.Kathmandu District, Chapali Bhadrakali V.D.C, Ward No. 2, working in CVICT Nepal,Devendra Ale of age 52 ………………………….……................…………………………………….1Dhankuta District, Murti Dhunga V.D.C. Ward NO. 5 , Living at KathmanduMetropolitan City Ward No. 3, Advocate Shyambabu Kafle of age 31…................…….1Kathmandu District, Mahakal V.D.C. Ward No. 4, Dr. Bidur Oli of age 43……………..1Sindhuli District, Dudhauli V.D.C. Ward No. 4, currently living at Kathmandu DistrictKathmandu Metropolitan City, Ward No.3, Advocate Shatyanarayan Adhikari…………1

V.His Majesty’s Government, Prime Minister and the Cabinet of Ministers, Singha Durbar,Kathmandu………………………………………...............................…………………………………1His Majesty’s Government, Ministry of Education and Sporty, Kathmandu……........…1His Majesty’s Government, Ministry of Law, Justice and Parliamentary Management…..1

against torture and Dr. Bidur Osti who isworking in the treatment of the childrenwho are the victim of torture. Thus withthese instances it is clear that we theapplicants possess the direct relationregarding the torture and misbehavioragainst children and thus are present beforethe court in order to address this issue oflegal and constitutional question.The preamble of the Constitution ofKingdom of Nepal 2047 has ensured thehuman rights of every Nepalese citizens

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which also includes the school children ofNepal. Article 2 (k) (8) of the constitutionhas made state obliged to take necessaryactions to protect the interest of chidren.Article 14(4) has ensured that no one wouldbe subjected to physical or mental torturenor behaved in and insulting manner.Children Act 2048 in its clause 7 has statedthat no one should torture children and alsoprovided some immunity to the children.But the Education Act 2028 and itsregulation of 2059 which provides for theduty and responsibilities of teachers hasn’tgot any of the provision that barres theinhuman activities, torture and insultingactivities against children. Similarly, Article19 of the Child Rights Convention 1989which acts as law as per the clause 9 of theTreaty Act 2047, states that the state shouldtake necessary actions to protect childrenfrom any type of misbehavior andexploitation in spite of the the careprovided to them from their parents orguardians. Article 28(2) of the sameConvention also states that children shouldbe imposed the disciplinary rules as per torespect the human dignity in schools. Andaccording to article 37 of the Convention,children shouldn’t be treated and punishedin brutal and inhuman manner nor in aninsulting manner. Similarly, Article 37 ofInternational Covenant on Civil andPolitical Rights (ICCPR) 1966, Article 5 ofUniversal Declaration of Human Rights1948, Convection against Torture andOther Cruel, Inhuman or DegardingTreatment or Punishment, ... also haveclearly stated that no one can torture norapply inhuman activities to any person norbehave in and insulting way. But thechildren who are studying in schools aredeprived from using these rights.It is the responsibility of the respondentsto maintain the school as the sacred templeto gain education by eliminating all kindsof torture and misbehavior to children in

the name of discipline. The school childrenare in the state of rapid physical and mentaldevelopment. But the torture given to themin that stage can create very long lastingnegative impacts in their minds which canresult to a massive problem to both thefamilies and the nation. In the schools, inthe name of punishment, it is found thatteacher are involved committing inhumanand insulting activities like making studentbe as if a cock stands, do up and downcatching ears, feeding grass, making femalestudents naked etc. In a study done by theorganization in which the applicant isinvolved in, it was found that the schoolspunish their student for not doing theirhomework by beating until the student’shand is broken, hanging in ceiling fan,inserting stick in anus, closing students intoilets and god awns etc. These activities inthe schools were largely responsible formaking students leave the schools. Apartfrom this, the Human Development Insouth Asia, 1998 published by OxfordUniversity Press Karachi, in its pagenumber 81 also shows that 14% of thestudents leave their schools due to the fearof their teachers. In the Second and ThirdJoint Term National Report in its SerialNumber 292 of Nepal submitted to theUnited Nations Child Rights Committee,Nepal has also agreed that students of Nepalare subjected to physical torture from theirteachers in schools. Clause 7 of the ChildrenAct 2048 has incorporated a sentence havingrestriction which states that the mother,father, guardians and teachers can givesimple physical punishment for the goodof their children. Our neighboringcountries like some states of Pakistan andIndia, Sweden, Philippines, Uganda, Figi,Kenya etc have been restricting the tortureand misbehavior against children in theschools. However, the respondents havemerely applied any of the measures to stopthe brutal and inhuman activities to the

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children who are studying in schools.Thus, on the basis of abovementioned factsit is clear that due to the restrictive clause 7of the Children Act 2048 which is contraryto the Constitution of the Kingdom ofNepal 2047 as well as other internationaltreaties and conventions in which Nepal hasbeen a part of. This can result to theviolation of the right of children againsttorture and misbehavior in the future. Suchprovision of the Children Act 2048 cannotbe repelled through any effective legal aswell as constitutional provision. Thus, theapplicant pleads that such restrictiveprovision should be repelled by issuing theorder of Certiorari under the jurisdictionof the Supreme Court guaranteed by theArticle 88(1) Constitution of the Kingdomof Nepal 2047. Along with it, a Mandamusor other favourable order was pleaded forabolishing all kinds of cruel and inhumanactivities that happens with the childreninside as well as outside the schools by therespondents by implementing effectivemeasures through the writ petition.The Show Cause Order of the court to therespondent in written way within 15 daysor as per the rules after the time limitationis exceeded.The applicant is not able to mention thereason and ground why the Secretariat ismade the respondent in this writ petition.Thus such writ petition is itself unclear andillusive and is voidable in its prima facieobservation. This Secretariat is limitedwithin helping in order to regulate the dailyactivities of the legislature. Thus theSecretariat pleads that the applicant’spetition against the Secretariat is anunnecessary because the act is drafted bythe legislature following all the proceduresas per the law and such writ petition isvoidable.What types of rights of the applicants areencroached by which type of activities ofthis office? The applicant is not clear on

this matter and without any ground theoffice is made the respondent, thus is proneto rejection. The respondent also repliedin written application that this writpetition is voidable as it is under thejurisdiction of the legislature parliament topromulgate or amend laws and thus thereis no ground where the secretariat can alsobe made the respondent.In the Children Act 2048, Clause 7 statesthat no one should behave with children ina cruel manner nor torture them. Alongwith this, it also consists of a restrictiveclause that for the good of childrenthemselves if the father, mother, familymembers, guardians or teachers simply scoldor apply simple physical force against thechildren doesn’t result to the violation ofthe provision. Thus it cannot be justifiedthat that the core provision of the clauseitself can be underestimated and the father,mother, guardian or teachers are free totorture, beat, insult children in the nameof scolding or applying simple physicalforce against them. In Children Act 2048,chapter 2 states the rights of the children,chapter 2 includes the provision related totheir protection, chapter 4 includes thewelfare activities for them, chapter 2 statesthe time for work and rest for the childrenand is sincere to stop all kinds of torture,inhuman activities against children and inthe case when such rights of children areviolated by any one the clause 53 to 57provides for the punishment to them andalso states the provision for that. So on thebasis of these provisions in the act, the claimof the applicant that no measures are takenin promulgating laws which abolishes thetorture and misbehavior doesn’t seem tohave relied on the fact. Thus the respondentpleade that the claim of the applicant thatrestrictive clause 7 of the Children Act 2048which is contrary to the Constitution ofthe Kingdom of Nepal 2047 as well as otherinternational treaties and conventions in

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which Nepal has been a part of is not suchand thus the petition should be rejected.The Educational Regulation 2059 in its rule133 states the code of conduct that shouldbe followed by the teachers. It is stated thatthe teachers should make their main aim ofthe obedience, discipline, co-operation,assistance, sympathy, patience and virtuous.Thus in order to eliminate all types ofviolence against school children, thepromulgation of law is not sufficient initself rather the help of students, teachers,civil society and guardians is indispensible.The subject matters highlighted by theapplicant in the petition are valid. In orderto enhance the educational standards of theschools the practice of establishingcommunity schools, transference schoolmanagement to the community, local bodiesor other organizations has been started andthis practice is also found be decreasing suchtype of violent activities against schoolchildren in the schools. The subject mattersraised by the applicant are of gravious innature and also prevails some schools inpractice. Article 5 of the UniversalDeclaration of Human Rights 1948, Article7 of International Covenant on Civil andPolitical Rights 1966, Convention AgainstTorture 1984, Child Rights Convention1989 in which Nepal has also been asignatory of also prohibits any type ofinhuman activities and tortures. Thus theMinistry of Education and Sports presentedthe written reply that the Ministry hasestablished the School Invigilation office,has speeded up the school invigilation andwork for the relevant amendments on theEducation Act and Regulation time to timein order to control such incident in theschools.From the abovementioned condition of lawsand practice it is seen that the state has notbeen able to stop all kinds of physical andmental torture against the children. TheEducation Act along with its Regulation and

also the Teachers’ Code of Conduct also isnot seen to be able to forbid the inhumanactivities and torture against children.Torture is not a compulsory method ofteaching. So it is argued by the applicantthat if the restrictive provision from clause7 of the Children Act 2048 is declared voidand is repelled by the order of certiorari, itnot only effectively forbid can all kinds ofphysical and mental torture against childreninside as well as outside schools but also itstands no contrary with the internationaltreaties and conventions regarding the rightsof child in which Nepal has been a part of.Also, the order of Mandamus or otherfavorable order if any, should be issued inorder to take effective measures to controlsuch activities against children. Twoadvocates, Shyambabu Kafle and RajendraGhimire, on behalf of applicant submittedmemorial including the elaboratedinformation regarding the issue. Under-Attorney Brajesh Pyakurel on behalf ofdefendant presented that promulgation oflaws of forbidding the practice is not onlysufficient rather what is necessary iswhether the court declares the situation ofpracticability of any laws is right or wrong.In fact, it is the prerogative of today’sjurisprudence. Thus the court shouldobserve very seriously whether or not theactivity that the applicant claims to getforbidden is possible practically or not.There is the separate punishment for thosewho engage themselves in torturing andinsulting others. From clause 53 to 57 ofChildren Act 2048, there is provision ofpunishment and also its procedures. Therestrictive clause 7 of the act is put byconsidering the practical aspect of RakshaSikchya. It is also provided that in the nameof Raksha Sikchya if it results to the deathof victim, the principle of criminal lawadvocates for relief of the offender. So inthis case there is no ground in arguing thatsimple scolding or physical punishmentshould be forbidden. The petition can be

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filed that the provision stood inconsistentwith the Article 88(1) of the Constitutionof Kingdom of Nepal 2047 but cannot beclaimed that the restrictive clause 7 of theChildren Act 2048 is contrary with theTreaty Act 2047. The court has alsopresented the similar type of thoughts inprevious issues as well. He then advocatedand presented the memorial with thearguments that the claim of the applicant isprincipally and practically not according tothe law thus is not necessary to be addressedby any orders rather it should be rejected.In the day of decision giving by the courtwith respect to the writ petition, argumentspresented by the applicant and respondentalong with the memorials submitted by theboth parties and other information, thecourt is to decide on the followingquestions:1. Whether or not the restrictive clause 7

of the children Act 2048 is contrary tothe Constitution of Kingdom of Nepal2047 and the international treaties andconventions in which Nepal has beena part of?

2. Whether or not the order should beissued by the court as per theapplicant’s claim?

In the response to the first question, it isseen that the in order to forbid all kinds ofphysical and mental torture against childrenas per time, Children Act 2048 ispromulgated. And the clause 7 of theChildren Act 2048 forbid such types ofactivities but it doesn’t forbid to theparents, teachers and family members toapply simple scolding or little physical forcefor the good of the children themselves. Theapplicant argues that restrictive clause 7 ofthe Children Act 2048 doesn’t define thephysical and mental torture against childrenby their parents, guardians, teachers and thefamily members as an offence which iscontrary to the Constitution of theKingdom of Nepal 2047 as well as other

international treaties and conventions inwhich Nepal has been a part of, and thisprovision should be declared void. TheConstitution of Kingdom of Nepal 2047in its Article 11(3) has provision thateffective laws can be made in order toprotect and develop the condition ofwomen, children, physically or mentallychallenged, people backward due toeconomic, social or educational constraints.And according to Article 25(8) of theconstitution, with a view to stop all kindsof violence against children, Children Act2048 was promulgated in 2048 and was madeeffective from 2050/01/01. The preambleof the act consists that the act was necessaryto protect the rights and interests ofchildren for their physical and mentaldevelopment. The Constitution ofKingdom of Nepal 2047 Article 14(4) hasforbidden physical as well as torture againstany person who is charged of any criminaloffence in the period of investigation ortrial. Those who involve themselves in suchkind of activities are subjected topunishment and the victim is provided withcompensation. So there arises no questionwhere the person not charged of criminaloffence can be subjected to torture.Constitution, being the fundamental law ofthe nation also guarantees to shape up adignified life of every citizen and immunityagainst torture in the state. Laws or anyactivities inconsistent with the constitutionbecome void according to Article 1 of theconstitution itself.Along with it, the Treaty Act 2049 clause 9increased the liability of the state. In clause9(1) of the act, it is stated that any prevalentlaws which is promulgated by the legislatureparliament following all procedures remaincontrary to the international treaties andconventions in which Nepal has been a partof, are declared void to the extent of thecontradiction and the provisions in thetreaties exist as the prevalent laws. Universal

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Declaration of Human Rights 1948 Article5, International Covenant on Civil andPolitical Rights 1966 Article 7, Conventionon Rights of Child 1989 Article 19, 28(2)and 37 and Convaction against Torture andOther Cruel, Inhuman or DegardingTreatment or Punishment, has forbiddenall types of torture against person. So inthis situation, it is not lawful that theNepalese laws stand contrary to theinternational instruments against torture.Children are the future of tomorrow andthey need favorable environment withoutany sort of torture (either physical ormental) for their overall development andit is the prerogative of the state. This facthas been accepted by the respondents also.Thus it is clear from the applicants’arguments that the torture given by theteachers and guardians in the name ofdiscipline that is given to the children inschools creates a negative impact to them.So it is not rational and lawful to torturechildren.From the references as presented by theapplicants it is also known that theelimination of physical torture againstchildren in the name of discipline has beenunder practice worldwide. Up to 15th April2003, 15 states of the United States ofAmerica have forbidden the physicaltorture to children in schools. Similarlysame practice has prevailed in manycountries like Australia(1989),Croatia(1999), Cyprus(1994),Denmark(1997), Finland(1983),Germany(2000), Latvia(1998),Norway(1987), Sweden(1979),Zimbabwe(1999). Similarly such practicewas made through the order of SupremeCourts of Israel(2000), Italy(1998) and

Canada(2004) . The High Courts ofZambia(2000) and West Bengal of India alsoensured such practice. Thus there is noground where the worldwide movement inorder to eliminate torture against schoolchildren should not be followed in Nepal.In the response to the second and the finalquestion, the commitment of Article 14(4)and 25(8) of the Constitution of Kingdomof Nepal 2047 is due to Nepal’s ratificationin the international treaties and conventionsto forbid all types of violence and tortureagainst children for their overalldevelopment. State must take effectivemeasures in order to enhance the physicaland mental development of the children.So the statement “……….. or simplebeating…..” of restrictive clause 7 of theChildren Act 2048 is against the spirit ofArticle 14(4) and 25(8) of the Constitutionof Kingdom of Nepal 2047 and is declarednull and void from this date according toArticle 88(1) of the Constitution. And alsoa directive order is given to the respondentsi.e., the Prime Minister and the Office ofthe Cabinet of Ministers to take necessaryactions in order to stop the cruel andinhuman behavior against children. For theinformation to the respondent, send a copyof the order of the court to the Office ofthe Attorney General and submit thedocument as per law.

JudgeWe are agreed in this opinion.

JudgeJugdeCourt Officer Nerishwor Bhandari() Date:2061/09/22 (Thursday)

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The summarized fact and claim, accordingto Judicial Administration Act, 2048Section 9(1) upon the case decided by theAppellate Court of Biratnagar on date2058/10/7, now registered in this court isas following:-On date 2055/1/24, at around 13:00 p.m.,Kumar Chaudhary told me that my goatwas eating the seeds in the field so I wentabout 500 feet towards the field. As I waschasing the goat away from the field, Ireached a lonely place near the bushes andbamboos and Kumar Chaudhary hold meand covered my face with a towel, hit meon my cheeks and threatened me not tomake any sound else he would kill me. Thenhe pushed me into the ground and startedbeating me as I fainted and raped me whichwas seen by Ishwarwati Tharuni who madenoise because of which he left the towel andthe book, which I realized as I came backto consciousness. Kumar Chaudhary is my

Annex G.15. Kumar Chaudhary

Supreme Court Division BenchHonourable Judge Kedar Prasad Giri

Honourable Judge Gauri Dhakal

Decision2059 B.S. Appeal No. ……2715

Case:- Incest

District Sunsari, Auravani VDC, Ward No. 7 residing A Kumar Chaudhary......................................................................................................................Appellant

PlaintiffV

District Sunsari, Auravani VDC, Ward No. 7 residing B Kumari Khan Chaudhary’sFIR through Nepal Governement ..........................................................Respondent

Defendant

cousin brother who falls within threegenerations of my family and I am hisunderage sister so in accordance to lawpunish the accused on the ground of incest,the report registered on 2055/1/31.Ishwarwati Tharuni further said that on2055/1/24, in the afternoon when the cattlewere left for grazing, she found that nearthe bushes which lies in ward no. 7, the sonof Tularam, Kumar Chaudhary was rapingthe daughter of Natilal, Kumari Khanlaying in the ground. After seeing this shefelt ashamed to scream so she went to theshop of Shalikram Chaudhary which wasnear to the scene of crime and told thepeople present there. From there shegathered a few boys and girls and went tothe crime scene where Kumar Chaudharyhad already fleed and Kumari Khan was fullof tears. This was present in the writtenstatement of Ishwarwati Tharuni. According to the Crime Scene Report ,

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Kumar Chaudhary had dragged the victimfrom the paddy field to the bushes situatedin Aurabani VDC, ward no. 7, co-ownedby Panalal Chaudhary and RaghulalChaudhary, at around 1 p.m. and rapedher.The document of the police station ofAurabani states that the accused of incest,residing in Sunsari District, Aurabani VDC,ward no. 7, the son of Tularam, KumarChaudhary is not found after looking aftersearching.The investigation report stated that duringthe specified date of the FIR, which was2055/1/24 at around 1 p.m. the victimKumari Khan was indeed being raped bythe accused Kumar Chaudhary which wasseen by Raudi Khan. The accused and thevictim fall within three generations of thefamily.The chargesheet claimed that on 2055/1/24 at around 1 p.m. Kumar Chaudhary hadtold the victim to chase her goat from thefield who was eating the seeds and as shewas chasing the goat the accused caught holdof the victim and closed her mouth andthreatened to kill her if she made any noise,and raped her pushing her into the ground.Eye witness Ishwarwati Tharuni whilegrazing her cattle saw the accused rapingthe victim on the ground and felt ashamedto scream so went to the nearby shop togather people and as they returned to thescene of crime Kumar Chaudhary hadalready escaped. Moreover, the accused andthe victim are brothers and sisters who fallwithin three generations of their familiesand the victim is underage which wasaffirmed by Siyaram Chaudhary in writtenstatement and there was red mark in thesexual organ of the victim as proven bymedical tests. Hence, the accused MaheshKumar Chaudhary to be convicted for thecrime of rape according to the chapter ofrape’s no. 1 and 2, as well as for incest

according to chapter of incest’s no. 2 (1).Also additional punishment to be givenaccording to no. 3 of chapter of rape andno. 2 of chapter of incest and also to providehalf of the inheritance property of theaccused to the victim according to no. 10of the act.According to the statement of KumarChaudhary in front of the court during the70 day time limitation on 2055/4/28 hedenied that he raped the victim. During thespecified day he claimed he attended hisschool, Saraswati Higher Secondary SchoolAurabani and at 11 a.m. returned home andstayed home the whole day. He furtherclaimed that the victim’s uncle had injuredhis grandfather and with a threat that theaccused might report to the police regardingthis matter, the victim had made a falsereport. He did not have any idea whySiyaram and Ishwarwati gave falsestatements. His birth date is 2042/11/10 andhe also presented the certificate of his schoolto prove it. Hence, he claimed that neitherdid he rape the victim nor he is the brotherof the victim.According to the order of the registrar ofthe district court on 2055/5/19, the firstinformation report claimed that there wasbattery as well as rape but absence of injurymarks, the denial of the accused, thecontradiction of opinions of the victim, eyewitness and the investigated people, the ageof the accused being only 13 and theacquired proofs not being sufficient toprove guilty of the crime enabled the courtto adopt Adalati Bandobasti 118 no. 5according to which the accused had to payRs.22,000 for bail to be kept for fair trialor be kept in prison if not being able topay the amount.In accordance with the court order theaccused paid the amount of bail and waitedfor the hearing in court.The judge of the district court saw no reason

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to go against the order of the registrar givenon 2055/5/19 and hence affirmed to theformer’s order on 2055/7/27.In accordance with the order of the court,statements were taken from the victimKumari Khan Tharu, Ishwarwati Tharuni,Raudi Khan, Siyaram Chaudhary,Shyamprasad Chaudhary and TikaramChaudhary including the witnesses of thedefense Galakram, Karilal and ParshuramKhan. Investigation was undertaken toestablish the relation of the accused and thevictim and was included in the file on 2056/7/26.On 2056/7/26 after the investigation in thevillage the case of plaintiff HMG againstthe defendant Kumar Chaudhary wasestablished.The district court’s decision on 2057/3/5was as following. The FIR towards theaccused was filed by the victim herself andwas also present during the hearing in thecourt to support the report. Congestion andredness over Volvo vaginal post and slightlyoozing was found in the medical report andas the medical test was taken after 7 days ofthe incident sperm was not found, whichproves that the victim was raped by theaccused. According to the district healthoffice the age of the accused during theincident was from 12 -14 which attractedChildren’s Act 2048 according to which,via section 11(2) the accused would beimprisoned for 6 months, and according tosection 11(ka)(2) of Punishment chapter ofMuluki Ain the accused if agreed wouldhave to pay Rs. 45,000 in 1 month time atthe rate of Rs. 750 per day to remove thepunishment of imprisonment. As the ageof the accused was less than 14 no additionalpunishment could not be given to theaccused so the claim of getting half theproperty of accused could be given.The plaintiff, Government of Nepalappealed in the following way. The

defendant committed incest which wasaffirmed by the initial court decision whichis a heinous offence in the society soadopting section 11(ka) of chapter ofPunishment of Muluki Ain is not right.Though section 11(2) of Children’s Act,2048 has provided less punishment for theoffence but it has not immuned the offenderfrom compensation liabilities. Section 10 ofchapter of rape has mentioned the provisionof relief and compensation so half of theproperty of the accused should be givencompulsorily and the initial decision hasignored this fact so the decision to berejected by the Appellate court.The appellate court of Biratnagar gave theorder on 2057/11/8 to seek the defendantsaccording to Abam 202 and Regulation ofAppellate Court, 2048 as it found legal faultin the decision of the district court ofSunsari citing that in the given decision thesection 11(2) of Children’s act had beenrelated to no. 10 of chapter of rape and halfthe property of accused in the name ofcompensation was not given.The Appellate Court of Biratnagar gave itsdecision in the following way. First of allthere was no appeal arguing if the rape wascommitted by the offender or not, hencethis has been proven final by the firstdecision. When a woman has been rapedhalf the property of the offender must begiven to the accused which is a bindingliability of the offender after the proof ofrape citing section 10 of Chapter of rape.The decision of the district court whichrelated section 10 of chapter of rape withChildren’s Act, 2048 and immuned theoffender to give half of his property to thevictim, cannot be considered acceptable.Hence, the appellate court has inversedsome of the decision of the initial court andhas punished the offender to give half hisproperty to the victim as compensation.The defendant appealed to the Supreme

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Court in the following way. The decisionof the Appellate court is full of legalloopholes as it addressed no. 10 of chapterof rape in a manner inconsistent to theprinciples of legal interpretation. Section11(2) which provides some immunity fromthe criminal liabilities of rape in case of theoffender being a child, has been interpretedin a way that this provision appliesunequally to state and person. But lawapplies in the same manner. Though lawhas given some immunity but this isdifferent from the intention of thelawmakers. The provision of chapter of rapeof Muluki Ain is a simple legal provisionwhereas the legal provision of Children’sact is a special act. When the provision ofspecial act is very clear, the present caseshould not just address simple legalprovision. Children’s Act does not mentionany legal provision which states that thisact would not be addressed in case of thevictim also being a child. The emotionalinterpretation of Children’s Act by theAppellate Court which led to the decisionis not right. Hence, the offender wants tobe immune from the liability of providinghalf his property as compensation which isbeyond the law and get justice.The Supreme Court gave the order on2061/12/4 in the following way. Thedefendant Kumar Chaudhary wasunsatisfied with the decision of AppellateCourt to provide half his property to thevictim according to section 10 of chapterof rape and has appealed to this court. Theage of the offender was 12 to 14 during theincident which has been proven by medicalexaminations. Section 11 of the Children’sAct ,2048 clearly states that the offencecommitted by children should be dealt inaccordance to this act. In chapter 1 of theMuluki Ain also it is mentioned that in caseof specific laws made for specific issues theyshould be dealt by those special laws.Moreover, Nepal has ratified Child Rights’

Convention has already implemented it sothe decision made by the Appellate Courtaccording to section 10 of chapter of rapecan differ. Hence, the plaintiff has beenordered to visit the office of the AttorneyGeneral for discussion in accordance withlaw.During the discussion between the advocatesof defense, Rewat Prasad Kharel andMaheshwor Prasad Chaudhary and DeputyAttorney General Amrit Bahadur Basnetfrom the plaintiff, it was ended with aconclusion that the underage victim couldhave further repercussions from theincident and the decision of the AppellateCourt to order the offender to provide halfof his property to the victim is inaccordance to law and is right so should beapproved.Today this case has come to court for thedecision after analyzing the document ofthe case file and would decide whether thedecision of the appellate court was justifiedor not.While considering about the final decisionof this case, it has been found that on 2055/1/24 at around 1 p.m. Kumar Chaudharythe elder brother of underage Kumari Khanhad raped and committed incest on KumariKhan which was written in the FIR. Inaccordance with the report investigationwas carried out and it was found thatKumar Chaudhary falls within threegeneration of the family of Kumari Khanand is the elder brother, and had raped herso addressing no. 1 and 2 of chapter of rape,no. 2 of chapter of incest, no. 3 of chapterof rape, no. 10 of chapter of rape whichaccounted for further punishment, thechargesheet was made. Based on thechargesheet the district court proved thatthe accused has indeed raped the victim butmade its decision based on Section 11(2) ofthe Children’s Act, 2048 which wassomewhat inversed by the appellate courtand made it compulsory for the offender

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to provide half of his property to thevictim. This decision was felt unjust to thedefense so they appealed to this court.Regarding the doubt if the accused hadcommitted rape on the victim there wouldbe no further debate as the district courtgave the verdict that the accused had indeedraped the victim and there was no furtherappeal from the defense about this verdict,and moreover the appellate court alsoaffirmed this decision of the district court.Adding to that, the defense has not claimedto this court regarding the denial of rapetowards the victim.The appellant has admitted to the crime ofrape and has no objections towards thecriminal liability but has appealed againstthe civil liability of providing half of hisproperty in the name of compensation.According to the doctor’s certificate andthe school’s record the age of the offenderif only 14 so the doubt regarding whetherthe decision should prioritize the Children’sAct or the Chapter of Rape of Muluki Ain,it has been found out that chapter 1 ofMuluki Ain no. 4 says “issues that areseparately dealt by specific acts should bydealt by them and if not mentioned thenonly should be dealt by the Muluki Ain”and hence should be dealt by the specificlaw. In the given case both the accused andvictim are children so should be dealt bythe Children’s Act, 2048. section 2(ka)mentions that children fall under the ageof 16 so in this case no. 10 of chapter ofrape can not be addressed and section 11(2)of the Children’s Act should be addressed.The decision of the appellate court to punishthe offender by ordering him to providehalf of his property to the victim ascompensation can be argued as to whethergiving away half of one’s property is a wayof providing compensation or not. Theother thing to be argued is that the specialpriviledge provided to children by the statefalls under this act or not. In relation to

this debate the social scientists and theprinciple of criminal law says that thepunishment of any crime against the societyshould be in accordance to the vision of thesociety towards the crime. Though intoday’s world there are different kinds ofpunishment system, uniformity cannot befound. By studying the punishment systemof any country, the society’s grievancetowards crime can be understood. Crimecontrol activity of the state involves twosignificant roles. First is to control the crimeeffective laws should be made and secondlythe one who breaks those laws should bepunished.Among the different types of punishment,fine and compensation is one of them. Thispunishment makes the offender pay theamount equivalent to the crime committedwhich is economic sanction. The economicliability performed by the offender towardsthe victim is called compensation. Providinghalf of the property to the victim is also atype of economic sanction orcompensation. This punishment has beenwidely used in context of reckless youthact (with strict liability) and cases relatingto properties. This is also a kind ofeconomic sanction. Generally, this kind ofpunishment enables the state to capture allof the offender’s properties. This type ofpunishment creates economic pressure andhumiliation to the offender due to whichthis form of punishment has started to loseits popularity in the society.The present society is quite liberal towardscrime and criminals. Mistake is everyhuman’s habit. Opportunity to reformshould be provided. Every person is notharmful to the society all the time in equalmanner. Society includes children, youthas well as elderly people so the incidence ofchild offence is abundant in both developedand undeveloped countries. Child offenceis directly related to the thinking of parentsand their activities, the economic condition,

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the education so acquired, the neighbours,and the effect of peer pressure. Any offencecommitted by a child against the law is achild offence. If these definition is appliedthere seems no difference between anyoffence committed by an adult and a child.The offence committed by an adult ifbecomes a crime, the same offencecommitted by a child also becomes a crimebut the system of punishment is not thesame for both of them. To determine thecriminal liability of children, section 11 ofthe Children’s Act ,2048 has dividedchildren into three categories. Sub section(1) of the specified section states that if anyoffender is under the age of 10 then nopunishment can be given. Similarly 11(2) ofthe act states that if any offender is betweenthe age of 10 and 14, he/she should beexempted from all kinds of civil liabilitiesand counseled properly by scolding and incase of criminal liabilities he/she can be putto prison for not more than 6 months. Tillthis age the children have not acquired thewisdom to understand what is right andwhat is wrong. So punishing a child whodoes not understand the consequences ofone’s action in an equivalent manner to theadults cannot be acceptable so to providereformative punishment to those childrenthe Children’s Act, 2048 has come toexistence. . Section 11(2) of the act clearlystates that if any offender is between theage of 10 and 14, he/she should be exemptedfrom all kinds of civil liabilities andcounseled properly by scolding and in caseof criminal liabilities he/she can be put toprison for not more than 6 months, andthe age of the offender was between 12 to14 according to the medical reports hence,the offender cannot be subjected toeconomic sanction though the offence ofrape has been proven.While thinking upon the decision of theappellate court to make the offenderprovide half his property to the victim

citing section 10 of the chapter of rape afterproving guilty of the offence, this courtdecides that the age of the offender is between12 to 14 so to provide economic sanction inthe name of providing half the property ascompensation towards the victim is notacceptable. Giving away half the propertyto the victim is also a kind of economicsanction. Generally, economic sanction is notwidely used in criminal justice system.Therefore, the decision to imprison theoffender Kumar Chaudhary for 6 months ongrounds of rape on Kumari Khan is suitable.The decision to make the offender pay halfhis property to the victim in accordance tono. 10 of chapter of rape seems contradictoryto section 11(2) of the Children’s Act, 2048.Hence, the decision of the Appellate Courtof Biratnagar to punish the offender KumarChaudhary with the crime of rape on thevictim Kumari Khan has been accepted bythis court. But the decision of the AppellateCourt to order the offender KumarChaudhary to provide half his property tothe victim as Kumari Khan as compensationin accordance with no. 10 of chapter of rapeis found to be contradictory to section 11(2)of the Children’s Act, 2048 so has beeninversed. Other activities to be doneaccording to the annex.

AnnexIn the justice part above the decision of theAppellate Court has been inversed in someparts so the (1) and (2) of the annex part ofthe decision of the Appellate court shouldbe ended so to be given to the District courtand the Appellate court……………............1To be received in accordance with thelaw…........................................................2

JudgeAgreement towards the given decision

Judge2064 B.S. Jestha 28 Roj 2Shubham…………

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In accordance to Judicial AdministrationAct, 2048, section 7, Children’s Act, 2048,section 55(3) and (4), Muliki Ain, 2020(Country Code), Chapter on CourtManagement no.29 this case fall under thejurisdiction of Juvenile Bench of this courtand its brief fact and decision is as follow:An application was filed on 2063-2-10 byChhatra Bahadur Darji stating his 3 yearsold child was raped by 15 years old ‘ka’Bahadur Darji on 2063-2-09.A FIR was filed on 2063-2-11 by ChhatraBdr. Darji stating- That day my wife wentto work in field and I was looking after mygranddaughter who was sleeping insidehouse in ground floor and staying outsidehouse sewing. Meanwhile, defendant cameand asked where niece is. I told she wassleeping inside. Then, he went inside andafter a while I heard child crying. I alsowent inside to see after her where delinquent

Annex G.16. Ka’ Bahadur Darji

Illam District CourtJuvenile Bench

Honorable District Justice Umesh Paudel’s DecisionAttended By,

Social Worker- Mr. Uttam PoudelJuvenile Delinquent of 2066 B.S

No. 64 and 19-065-00676Verdict Number

Case: Juvenile Delinquency with respect to rape

Applicant: From the information of Chhatra Bahadur Darji of Illam District, GodakVDC-6, Governemnt of NepalJuvenile Delinquent: ‘Ka’ Bahadur Darji of Illam District, Godak VDC-1From the side of applicant: District Attorney Krishna Mohan KoiralaFrom the side of defendant: Advocate Yam Prasad Limbu

was raping my kid and asked for help toneighbors. After that, defendant ran awayfrom scene.A report of scene of crime on 2066-2-11states- In the house of Chhatra Bdr. Darji,Illam District, Godak VDC-6, a child of 3years old when sleeping in the cot on 2066-2-09 was raped by ‘Ka’ Bdr. Darji.A police report of A.S.I Lila Bdr. Gurungon 2066-2-09 along with the arrest warrantin case file states- Defendant ‘Ka’ Bdr. Darjiwas arrested in accordance to law whilehiding in the village house.Medical Test Report of Illam Hospital on2066-2-12 states- no any such symptomswere found while medically examining ‘ka’Bdr. Darji and general signs of rape werefound in the medical examination of victim.The statement of delinquent on 2066-2-17in the presence of his father Daak Bdr. Darjistates- I have desire to sex and getting exited

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I dragged the child towards me when I wentto her where she was sleeping in cot. Ifirstly, open her black under garment andstarted playing with her genital organ andforceful intercourse. Meanwhile, she startedcrying and her grandfather came inside andcaught my genital organ and startedassaulting me elsewhere. Before, I have donebestiality with a calf.A circumstantial Report states- We haveheard that defendant have frequentbestiality with cow and buffalo. As in theFIR filed by the victim’s grandfather thather 3 years old granddaughter was rapedwhile sleeping in cot and he caught thedefendant’s genital organ and it got red andstretched. Similarly, Victim crying andbleeding of blood of victim at the time ofurinating too can be concluded that she wasraped by the defendant.From the case file, a letter from the localofficer of Godak VDC office, Illam dated2063-09-26, entry no. 394 and letter fromShree Naryan Secondary School dated2066-3-03, it is seen that the date of birth ofdefendant who is in conflict with the law is2053-07-28.The Charge Sheet states- According to theprocedure of Muliki Ain, Rape Chapter,no.5 and no.1, the defendant who is 12 years5 months 11 days old have committed rap.Hence, was supposed to be sentencedaccording to section 3(1) of same Chapter.However, according to the provision section11 (2) of Children’s Act, 2048, any childabove 10 and who haven’t attained 14 yearsif commits a crime (delinquency) seeing thegravity of offence shall be imprisoned upto six months and according to no.10 ofRape Chapter, Muluki Ain the victim shallbe compensated from the defendant.The statement of the defendant ‘Ka’ Bdr.Darji states- Both of parents of victimweren’t present in their home and theyasked me to look after their daughter. While

doing so, I pulled her to me and openedher under garment and started playing withher genital organ by my sex organ.However, I haven’t penetrated upon hergenital organ. Meanwhile, Chhatra unclecame and caught my pennies and startedbeating me elsewhere. The statement madeearlier in front of Attorney officer is true.As the trial held that no any legal guardianwas present in the court during trial soCourt ordered to send him to District ChildWelfare Committee and if his protectorcame in search of him let the defendant behanded to his protector with the conditionthat to be presented before the court at thetime of call.The victim’s father Arjun Babu Subba gavewitness statement- after my daughter beingraped by the defendant I took my daughterto hospital for treatment and examination.Still she is telling that she I suffering fromstomach ache and her genital organ isswollen. Beside, defendant himself had toldthat he had raped and I came to know fromthat.Chhatra Bdr. Darji who filed FIR gavewitness statement- the information of FIRis true. When I saw defendant, he was rapingmy granddaughter and had covered hisfaces by cloths. I caught his pennies andcalled neighbors and after that they tookhim.Rajendra Bhurtel signing circumstantialreport gave witness statement- I reachedscene of crime after crime has occurred anddefendant has confessed about thecommission of crime.The social worker Uttam Poudel gave awritten advisory opinion- Even though itis established through the case file that thedefendant have committed the delinquencyand while imposing liability to delinquencythe defendant socio economic condition,family activities, he being unaware aboutthe consequences of his did, etc, shall be

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considered. Even while entering into theprocedure established by law correctivemeasures shall be the legal process and hisfamily communication shall not be impairedand informal sectors support can be calledand victim shall be compensated from thedefendant.The child psychologist Sarmila Sharma gavewritten advisory opinion- though it isestablished that defendant ‘Ka’ Bdr. Darjihas committed delinquency, the study andanalysis of the circumstances before andafter the commission of delinquency by thedefendant, his physical, mental andpsychological condition, familybackground, his upbringing history, theperception of family and society towardschild, his desire, psycho-social problem,influencing element and his economic, socialcondition we can infer that all above elementhave played role for the occurrence ofdelinquency. However, juvenilecommitting delinquency was not muchaware of consequences so it would be betterto adopt corrective measures than imposingimprisonment. Beside, atmosphere shall becreated so that he could get education insound environment.In the given case, both delinquent andvictim’s privacy to their real name shall bekept. However, it was not maintainedearlier from today’s order the delinquentname will be ‘Ka’ Bdr. Darji and victimshall be called victim or child and thedecision of case is prepared as below:As all the require procedure being fulfilled,hearing the pleading of both advocateKrishna Mohan Koirala and Yam Bdr.Limbu from the side of GovernmentAttorney and defendant respectively,hearing the discussion with the parents ofjuvenile, seeing all the evidences enclosedwith the case file and seeing all national lawsand international treaties, conventions andalso studying the advisory opinion of thecompetent bench members psychologist

Sarmila Sharma and social worker UttamPoudel coming towards the decision makingfollowing question are pertinent, whetherthe accused juvenile have committeddelinquency? If yes how much should bethe punishment and to what extent thevictim shall be compensated?On analyzing the juvenile conflict in law,as per the charge sheet filed by the plaintiffgovernment attorney, at the time ofcommitting delinquency defendant was 12years 5 months 12 days and he should besentenced according to the provision ofsection 11(2) of Children’s Act 2048 andcompensated according to no. 10 of Chapteron Rape of Muluki Ain. At the time ofgiving statement by the accused child inconflict with law to Attorney Officer inpresence of his father and in court in thepresence of defense council Advocate YamBdr. Limbu both, he confessed the chargeof delinquency. The eye witness ChhatraBdr. Darji on filing FIR on spot and givingstatement before court counted the accused.Likewise, the father Arjun Subba andmother Santa Subba of victim has alsoimposed same, likewise the testi fiedstatement of Rajendra Bhurtel in the courtstates that child ‘Ka’ has accepted thecharge. The medical examination of thevictim at chance also reveals that her vaginawas swollen and it had become red. So, allthese show that the victim was raped bythe accused in this way child in conflict withlaw is found to have done delinquencyaccording to the number 1 of Rape Chapterof Muluki Ain.Now thinking regarding the extent ofpunishment to the delinquent, theprosecutor side government of Nepalthrough the charge sheet have claimedpunishment under section 11(2) ofChildren’s Act 2048 which states ‘If childis above 10 and below 14 years and commitsany delinquency where punishment isimprisonment he/she shall be imprisoned

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up to 6 months.’ Competent benchmember and child psychologist SarmilaSharma gave an opinion that delinquent‘Ka’ Bdr. Darji having weak family andeconomic condition left school and wasworking as child labor in shrestha hotel inGodak where he could not got chance tolearn good behavior and was influenced bybad environment and for fulfilling his childexcitement committed delinquency. Soadopting corrective measure, theenvironment where he could get goodeducation shall be created rather thanimposing imprisonment stated in law.Similarly, next competent member ofJuvenile bench and social worker UttamPoudel gave opinion that child mind cannotremember and analyze the consequences ofparticular event and laws believing thempardonable have adopted corrective remedysystem. As imposing the punishment inaccordance to law to delinquent ‘Ka’ Bdr.Darji we should think about his utmostbenefit, with regard to family and societyhis connection shall not be broken andmanaged so forth. So support oforganization working in the field of childmust be taken and the victim shall becompensated from the delinquent.Child Rights Convention, 1989, Article 3(1)have made compulsory provision that in allactions concerning children, whetherundertaken by public or private socialwelfare institutions, courts of law,administrative authorities or legislativebodies, the best interests of the child shallbe a primary consideration. SimilarlyArticle 8 (1) (g) of Optional Protocol ofthe Convention on the Rights of the Childon the Sale of Children, Child Prostitutionand Child Pornography states that theverdict in case of child should not be delayedand for justice too criminal system shouldprovide maximum benefit to them.Similarly, the UN standard MinimumRules for the Administration of Juvenile

Justice (Beijing Rules) states under rule 14(2) that the prosecution shall be conductedin a atmosphere of understanding, whichshall allow the juvenile to participate theirinand to express himself or herself freely.Nepal has ratified Child Rights Convention1989 on 14th September 1990 and accordingto section 9 of Treaty Act of Nepal 2047any treaty or convention ratified or accededby Nepal are treated as municipal law andany municipal law if is in contravention tosuch connections then it supersedes thedomestic law.In this context, this bench of court whileconcluding this case to see how maximumwelfare for both delinquent and victim canbe achieved? And at this juncture thepunishment and compensation shall beaffixed in accordance with national andinternational law. In Article 37(b) of ChildRights Convention (CRC), it has provisionthat, no child be deprived of his or herliberty unlawfully or arbitrarily and thearrest, detention and imprisonment of achild shall be in conformity with the lawand shall be used only as a measure of lastresort and for the shortest appropriatemeasure is to be taken. Similarly, Article9(1) of the same convention have provisionthat states parties shall ensure that a childwill not be separated from their parentsagainst their will, expect when competentauthorities subject to judicial reviewdetermine, in accordance with applicablelaw and procedures that such separation isnecessary for the best interests of the child.Viewing these provision of internationalconventions and treaties, with section 11 ofChildren’s Act of Nepal 2048 B.S states, Ifthe child is below 10 years commits ffenceis immune from criminal liability and if thechild is above 10 years and below 14 yearsand commits offence punishable withimprisonment shall be punished withimprisonment for a term which may extendto six months depending upon offence and

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if above 14 and below 16 years s/he shall bepunished with half of the penalty to beimposed under law. The juvenile delinquentof this offence who have been convicted ifwas major shall be punished for 10 to 15years of imprisoned according to section3(1) of Rape Chapter of Muluki Ain.However, the delinquent is below 14 yearsand if he is kept far away from his parentfor long period then, that would be againsthis maximum welfare, so the juvenile whois in conflict with law in accordance withsection 11(2) of Children’s Act may bepunished up to six months. At the time ofdiscussion with the father of delinquent andchild Psychologist, it can be inferred thatthe mind set and attitude of this delinquenthave improved to considerable extent. Inthe process of trial, the court has sent thechild to the custody to his father. Similarly,according to the competent benchmembers, during this time the effort tochange the attitude and behavior throughthe District Child welfare Committee underthe supervision of psychologist has beenaccomplished. It is also seen that the childhave already started continuing hiseducation. So, in this situation, it is notreasonable to separate the child from hisfather and impairs from the education andalso will be against the maximum benefitand best interest of child. So consideringall these positive changes upon child, thepurpose of justice, the provision of CRCand Nepalese law can be respected by fixingthe detention same as he has spend in PoliceCustody. So the punishment to juveniledelinquent ‘Ka’ Bdr Darji in accordance tosection 11(2) of Children’s Act 2048 is fixedfor 25 days.In the charge sheet filed by plaintiff NepalGovernment, according to section 10 ofRape Chapter of Muluki Ain, it has beenclaimed that victim shall also becompensated from the delinquent. Thecompetent bench members in their written

opinion have suggested that victim shall becompensated considering her psychologicalcondition. Viewing the provision of section10 of the Rape Chapter it has provided that;if any one commits rape court consideringthe physical and mental loss shall effectivelycompensate her from the delinquent side.The provision of CRC, 1989, otherinternational measures regarding juveniles,the provision of Children’s Act, 2048 etc,does not seem to give impunity andcompensation to be paid by child for beingchild. However, in this case, the child isminor below 14 years. The testimony ofchild in court has shown that there is nosuch property with the child’s father forpaying compensation. According to ChildLabor ( Prohibition and Regulation) Act2056 the child being below 14 years of agecannot compensate the victim throughdoing labor as there is provision that thechild should compensate even by doinglabor. So if the court orders to compensatethe victim according to section 10 of RapeChapter it would be meaningless andcannot be executed.According to Article 22(3) of InterimConstitution of Nepal 2063, every childshall have the right not to be subjected tophysical, mental or any other form ofexploitation. Any such an act ofexploitation shall be punishable by law andany child so treated shall be compensatedas determined by law. The provisions ofInterim Constitution have protected theright of child to be compensated againstphysical, mental or any other exploitation.Safeguard Child from Trafficking, ChildProstitution and Pronography OptionalProtocol to the Convention of ChildRights, 2000, Article 8(1) (g) have provisionthat disposition of cases and execution oforder or decrees granting compensation tovictim child avoiding unnecessary delay. Sofrom the constitution, internationalconvention and treaties, other laws, statutes,

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it is clear that the victim child shall becompensated adequately. However, fromthe above analysis if the delinquent is orderto compensate the juvenile that won’t favorher maximum welfare and which would beagainst the notion of Child RightsConvention.Interim Constitution of Nepal, 2063,Article 33 (m) recognizes the stateresponsibilities to implement internationaltreaties and agreement effectively to whichthe state is party. Hence, NepalGovernment is obliged for the effectiveimplementation of CRC, 1989, being partyto this particular international convention.Interim Constitution has ensured theprovision of compensation to the victimchild for the exploitation upon her.However, it’s not possible and rationalefrom delinquent side and carryoutefficiently with the notion of CRC, Theobligation comes under the NepalGovernment. So for doing Justice to victimaccording to the constitution, law andinternational conventions and for thedelinquent fulfilling his obligation to paycompensation can only be meet through thesupport of Nepal Government to

delinquent. This court have pre knowledgethat Nepal Government form the beginningis providing various package, economicsupport and compensation to the people inconflict and vulnerable Act. InterimConstitution Article 92 (e) has provisionthat any sum required to be paid for anyjudgment or decree against the governmentof Nepal shall be charged through theconsolidated fund. Separate budgetaryannouncement is not required. Therefore,considering the age, situation, mental andphysical condition of the delinquent andvictimized child both, delinquent is heldliable to pay compensation of Rs. 10, 000under section 10 of Rape Chapter ofMuluki Ain.So the child in conflict with laws who isliable to pay Rs 10,000 as compensation tovictim to be paid as far as possible, thegovernment have obligation to support thedelinquent. Thus, Nepal Government, onbehalf of child in conflict with laws have tomanage and pay it which has to be depositedto the account of this court by FinanceMinistry of Nepal Government for thevictim child.

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1. Short title and commencement:(1) These Rules may be cited as the

“Juvenile Justice (Procedures)Rules, 2063 (2006)”.

(2) These Rules shall come into forceat once.

2. Definitions:Unless the subject or the contextotherwise requires, in these Rules:(a) “Act” means the Act Relating to

Children, 2048 (1991 ).(b) “Juvenile Court” means the

juvenile court formed pursuant tosub-section (1) of Section 55 of theAct.

(c) “Juvenile Bench” means the benchformed pursuant to sub-section (3)of Section 55 of the Act.

(d) “Investigation Officer” means dieofficer authorized to investigateand inquire into offences pursuantto Rule 3.

(e) “Charge sheet “ means the chargesheet prepared pursuant to theState Cases Act, 2049 (1992).

(f) “Association” means an associationregistered accordance with theprevailing laws.

(g) “Service providing person orassociation” means. a person orassociation enlisted pursuant toRule 21.

3. Separate unit or police employee tobe designated:There shall be a. separate unitcomprising, a police employee in

Annex H

Juvenile Justice (Procedures) Rules, 2063

In exercise of the power conferred by Section 58 of the Children Act, 2048 (1991),the Government of Nepal has framed the following Rules.

possession of the qualification pursuantto the prevailing laws in each policeoffice in order to investigate andinquire into offences committed bychildren. The Police Headquarters maydesignate any police employee to dothat act pending the establishment ofsuch unit.

4. Provision relating to investigation:The police unit or police personnelas referred to in Rule 3 shall, whileinvestigating and inquiring into anyoffence committed by the children,follow the following provisions, inaddition to the provisions set forthin the prevailing laws:(a) The police employee shall put on

plain clothes instead of policeuniform,

(b) While arresting the child, he or sheshall give his or her introduction,show the document thereof andmention the reason for arrest,

(c) He or she shall inform the arrestedchild about his or herconstitutional a legal rights i na: language understandable him orher,

(d) He or she shall give a notice ofdelinquency committed by thechild to both father and mother,if available, or at least one out ofthem and to the guardian if thereare no parents of the child,

(e) Physical and mental health of thechild shall be examinedimmediately either in the nearby

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government hospital or by thedoctor.

(f) In executing the deed of enquiry,it is required to execute it inpresence of both father andmother, if available, or at least oneout of them and the guardian ifthere are no parents of the child,

(g) To request the service providingperson or association for thepreparation of social study reportrelating, to the concerned child inaccordance with the format asprescribed in the Schedule.

5. Interrogation:(1) The investigation officer shall,

while making interrogation withthe child, ask the questions in aneasy manner upon creating such achildren friendly environmentwhere he or she can answer thequestions asked.

(2) Interrogation may be madepursuant to sub-rule (1) . inpresence of the father: mother,guardian, legal practitioner orrepresentative of the child welfarehome or orphanage, if the child hasbeen held in such home.

(3) The investigation officer may,while making interrogationpursuant to sub-rule (1), askquestions relating to the concernedoffence, family and socialbackground of the child and othernecessary matters.

(4) No interrogation shall be madewith the child for more than onehour at a time and during nighttime.

6. Procedures for formation ofJuvenile Bench:(1) The shall be formed in each

district a Juvenile Bench

comprising a social worker, childspecialist or child psychologist inaddition to the District Judge.

(2) In a court where there are morethan one district judge; the .judge

designated by the Chief Justiceshall serve as a judge for theJuvenile Bench.

7. Information to be provided:(1) Upon filing a chare sheet against

the child, the Juvenile Court orJuvenile Bench shall forward acopy of the charge sheet andconcerned documents immediatelyto the father, mother or guardianof such child.

(2) While furnishing a notice pursuantto sub-rule (1), such notice shall begiven to the legal practitioner ofthe said child if the father, motherand guardian of the child are notfound out or if they refuse toacknowledge the same.

(3) Notwithstanding anythingcontained in sub-rule (1) or (2), thefather, mother or guardian of thechild, being present in personbefore the Juvenile Court orJuvenile Bench, may receive suchnotice.

8. Qualification of social worker, childspecialist or child psychologist:The person to be involved in theJuvenile Court or Juvenile Bench asa social worker, child specialist orchild psychologist, shall possess thefollowing qualification:(a) Having obtained training on child

rights or child welfare or childpsychology,

(b) Not being punished in criminaloffence,

(c) Having passed at least proficiencycertificate level or equivalent

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thereto.9. Selection of social worker, child

specialist or child psychologist:(1) The District Court shall, for the

purpose of selecting the socialworker, child specialist or childpsychologist to be seated in eachJuvenile Beach, invite applicationsfrom amongst the persons whohave attained the qualification asreferred to in Rule 8.

(2) “The District Court shall screenthe applications submittedpursuant to sub-rule (1), prepare alist of suitable persons and forwardit to the ministry of Women,Children and Social Welfare.

(3) The Ministry of Women Childrenand Social Welfare shall , inaccordance with the provisions ofsub-section (5) of Section 55 of theAct, forward the names ofappropriate persons. from the listobtained pursuant to sub-rule (2)to the Supreme Court for itsadvice.

(4) The Ministry of Women.Children and Social Welfare maydesignate Separate names of socialworkers, children specialists orchildren psychologists for eachDistrict Court, from the list ofsocial workers, child specialists orchild psychologists obtained fromthe Supreme Court.

(5) The social worker, child specialistor child psychologist to be seatedin Juvenile Bench may receive suchfacilities as may be prescribed bythe Government of Nepal.

(6) Notwithstanding anythingcontained elsewhere in this Rule,if any social worker, childspecialist or child psychologist isnot entitled to or refuses to try any

case, the social worker, childspecialist or child psychologistdesignated by the concernedDistrict Judge from among thoseincluded in the. list preparedpursuant- to sub-rule (3) may takepart in the proceedings anddisposal of such case.

10. Social worker, child specialist orchild psychologist may be removed:(1) If the social worker, child specialist

or child psychologist, mentionedin the list prescribed pursuant toRule 9, commits misbehavior oris not able to work due toincompetence or abuses authorityor fails to sit in the Juvenile Courtor Juvenile Bench for threeconsecutive times despite notifyinghim or her to that effect, theconcerned District Court mayremove his or her name from thelist. .

(2) If any social worker, childspecialist or child psychologist,whose name has been maintainedin the list pursuant to Rule (9),submits an application forremoving his or her name from thelist, the District Court shall, uponremoving his or her name from thelist, give a notice thereof to theSupreme Court and the Ministryof Women, Children and SocialWelfare.

(3) The concerned District Courtshall, prior to removing the namefrom the list pursuant to sub-rule(1), give an opportunity to him orher for hearing.

11. Exercise of the Jurisdiction:(1) The Judge, social worker, child

specialist or child psychologistshall collectively hear cases in theJuvenile Court or Juvenile Bench.

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Provided that the proceedingsmade by the judge in the JuvenileBench in the absence of any or eachof the social worker. childspecialist or child psychologistshall not be invalid.

(2) The social worker, child specialistand child psychologist shall presenttheir opinion in writing to theJudge.

(3) The Judge shall, upon receiving theopinion pursuant to sub-rule (2),decide the case.

12. Hearing of case:(1) The Juvenile Court or Juvenile

Bench shall hear cases in a childfriendly environment.

(2) The Juvenile Court or JuvenileBench shall use the language whichthe child can understand or whichis suitable for the physical andmental development of the child.

(3) While hearing the case, theJuvenile Court or Juvenile Benchshall give information to theconvicted child as to the nature ofthe offence and received evidence.

(4) Provisions may be made that thechild is interrogated in a separateroom of the Juvenile Court orDistrict Court, in which a camerais attached, and that suchinterrogation is visible in the screenof the Bench.

(5) The Juvenile Court or JuvenileBench may, in order to makeinterrogation pursuant to sub-rule(4), designate a person who caneasily communicate or talk withthe child psychologist or the child.

(6) While making interrogationpursuant to sub-rule (4), the father,mother, guardian or legalpractitioner of the child may sit

along with the child.13. Examination of the evidence:

(1) If the social study report has notbeen submitted along with thecharge sheet filed against the child,the Juvenile Court or JuvenileBench may issue an order to thename of service providing personor association or other associationformed in accordance with theprevailing laws to prepare andsubmit such report with a view toprotecting the rights and interestsof the child.

(2) If any person has any evidencerefuting the charge made againstthe child, such person may submitan application to the JuvenileCourt or Juvenile Benchrequesting for the examination ofsuch evidence.

(3) The Juvenile Court or Juvenile Benchmay, upon receiving an applicationpursuant to sub-rule (2), givepermission to submit such evidence.

14. Examination of witnesses:(1) If the child wants to produce his

or her witnesses on his or her ownaccord, the Juvenile Court orJuvenile Bench may give permissionto so produce such witnesses.

(2) The witnesses produced pursuantto sub-rule (1) shall receive suchfacilities as prescribed by the StateCases Regulation, 2055(1999).

15. Determination of age :If there is a dispute as to the age of achild, the Juvenile Court or JuvenileBench shall, on the basis of thefollowing documents, determine theage of the child:(a) The date of birth mentioned in the

birth certificate issued by anyhospital,

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(b) If there is no birth certificatereferred to in clause (a), the dateof birth mentioned in the birthregistration certificate issued bythe Local Registrar’s Office,

(c) The date of birth mentioned in theschool character certificate ormentioned at the time of admissionto the school, if there is no birthregistration certificate as referredto in clause (b).

(d) The date of birth certified by agovernment hospital, if there isno certificate as referred to inclause (c).

16. Judgment:The Juvenile Court or Juvenile Benchshall adjudge the case within onehundred twenty days after the filingof such case.

17. Contents to be mentioned injudgment:The judgment referred to in Rule 16shall contain the following matters, inaddition to the matters set forth in theprevailing laws:(a) Brief description of the charge

sheet,(b) Evidences submitted and examined,(c) Brief description of the social

worker, child specialist or childpsychologist seated in the JuvenileCourt or Juvenile Bench,

(d) Pleading of the legal practitioner,(e) Relevant precedents,(f) Grounds of whether the offence

has been proved or not,(g) Bases and reasons underpinning

judgment,(h) Measures to be taken for

correcting the child,(i) Statement of the compensation or

fine to be paid, if any.

18. Provision relating to execution ofjudgment:Any judgment made pursuant to thisRegulation shall be executed inaccordance with the prevailing laws.

19. Provision of duplicate copies free ofcost:The Juvenile Court or Juvenile Benchshall provide a duplicate copy of thejudgment free or cost to the concernedchild.

20. Assistance may be received:The investigation officer may, inconnection with the investigation, andthe Juvenile Court or Juvenile Benchmay, in connection with theproceedings and disposal of cases mayreceive assistance of a local body, police,local administration and social or non-government organization, as well, itshall be the duty of all the concernedto provide such assistance.

21. List of service providing persons orinstitutions:(1) The District Children Welfare

Committee shall prepare a separatelist of the persons or institutionsdesirous to carry out social studyof the child, who has been allegedin any offence, or to providepsycho-counseling service, legalassistance, correction relatedservice and other necessaryassistance to the child.

(2) Any Nepali citizen, who haspossessed the followingqualification and is desirous to beincluded in the list as referred toin cub rule (1), may submit anapplication to the DistrictChildren Welfare Committee:

(a) Having gained experience of fiveyears in the field of the rights ofthe child or welfare of the child.

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(b) Not having been punished in acriminal case by the court,

(c) Having been residing in theconcerned district since at least twoyears ago.

(3) An institution, which is desirousto be included in the list referredto in sub-rule (1), shall attach thecertificate of associationregistration, statute, name list ofthe members, service to beprovided and such otherdocuments as prescribed by theChildren Welfare Committee.

(4) While making enquiry into anapplication submitted pursuant tosub-rules (2) and (3), the DistrictChildren Welfare Committee mayenlist any person or institution asservice providing person orinstitution if the Committeeconsiders that such person orinstitution is competent to providesuch services.

(5) If any person or institution enlistedpursuant to sub-rule (4) commits

misconduct or if the quality ofservice rendered by that person orinstitution could not meet thestandard prescribed by the DistrictChildren Welfare Committee, theCommittee may remove his or hername from the list.

(6) While removing the name pursuantto sub-rule (5), the serviceproviding person or institutionshall be provided with anopportunity to be heard.

(7) The District Children WelfareCommittee shall forward a copyof the list prepared referred to insub-rule (1) to the Juvenile Courtor Juvenile Bench.

22. Juvenile Justice CoordinationCommittee:(1) In order to make coordination

between different bodiesconcerned with juvenile justice,there shall be a Juvenile JusticeCoordination Committee asfollows:

(a) A judge of the Supreme Court as designated by the Chief Justice Chairperson

(b) Deputy Attorney General, Office of the Attorney General Member (c) Secretary at the Ministry of Law, Justice and Parliamentary

Affairs or a Gazette First Class Representative Designated by him or her

Member

(d) Secretary at the Ministry of Home Affairs or a Gazette first class representative designated by him or her

Member

(e) Secretary at the Ministry of Women, Children or Social Welfare or a Gazette First Class representative Designated by him or her

Member

(f) Additional Inspector General of Police, Police Headquarters Member (g) Executive Director, Central Children Welfare Committee Member (h) A representative of the institution nominated by the Central

Children Welfare Committee from amongst the Institution working in the field of children

Member

(i) Registrar, Supreme Court Member Secretary

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(a) A judge of the Supreme Courtas designated by the ChiefJustice Chairperson

(b) Deputy Attorney General,Office of the AttorneyGeneral Member

(c) Secretary at the Ministry ofLaw, Justice andParliamentary Affairs or aGazette First ClassRepresentative Designated byhim or her Member

(d) Secretary at the Ministry ofHome Affairs or a Gazettefirst class representativedesignated by him or herMember

(e) Secretary at the Ministry ofWomen, Children or SocialWelfare or a Gazette FirstClass representativeDesignated by him or herMember

(f) Additional Inspector Generalof Police, PoliceHeadquarters Member

(g) Executive Director, CentralChildren Welfare CommitteeMember

(h) A representative of theinstitution nominated by theCentral Children WelfareCommittee from amongst theInstitution working in thefield of children Member

(i) Registrar, Supreme CourtMember Secretary

(2) The term of office of the membernominated pursuant to clause (h)of Sub-rule (1) shall be two years,and he or she shall be eligible forre-appointment.

(3) Other procedures relating to themeeting of the committee shall be

as determined by the committeeitself.

(4) The committee formed pursuantto sub-rule (1) may, as required,invite any persons who are relatedwith juvenile justice in its meeting.

(5) The functions, duties and powersof the juvenile justice coordinationcommittee shall be as follows:(a) To give suggestion and advices

to the Government of Nepalon such legal and policymatters as may be required tostrengthen and developjuvenile justice system.

(b) To coordinate, or cause to becoordinated, the programsbeing conducted by nationaland internationalorganizations in the field ofthe rights of the child andjuvenile justice.

(c) In order to impart juvenilejustice effectively andpromptly, to lunch capacityenhancement program forgovernmental or nongovernmental personsinvolved in bodies andinstitutions engaged in thedispensation of juvenilejustice, with a view to makingthem informed about newapproaches and programsdeveloped in the field ofjuvenile justice system.

(d) To request the Governmentof Nepal for the inclusion ofthe subject of the rights of thechild and juvenile justice incurricula of schools,universities and academicinstitutions of Nepal.

(e) To carry out, or cause to becarried out, management and

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supervision of the standards ofservices and acts performed bythe bodies involved in thedispensation of juvenile justice.

(6) In order to smoothly carry out theactivities of the committee, theGovernment of Nepal may, onrecommendation of the judicialservice Commission, designate anofficer level employee of theJudicial Service to work at thesecretariat of the committee. Theemployee so designated shallperform the works relating to theadministration of juvenile justice,and the other functions, dutiespowers and facilities of suchemployee shall be as prescribed bythe committee.

23. Secretariat:The Secretariat of the Juvenile JusticeCoordination Committee shall belocated at the Central ChildrenWelfare Committee.

24. Interpreter may be kept:The District Court and the

investigation officer may, whileinterrogating a child, provide thefacility of interpreter, if so required

25. Direction may be given:In order to smoothly carry out theactivities set forth in this Regulation,the Supreme Court, Office of theAttorney General ; PoliceHeadquarters, Ministry of Women,Children and Social Welfare andCentral Children Welfare Committeemay give direction to theirsubordinate offices.

26. Other matters to be governed inaccordance with prevailing laws:The matters contained herein shall begoverned by this Regulation, and theother matters shall be governed bythe prevailing 1 laws.

27. Alteration and addition or deletionmay be made in schedule:The Government of Nepal may, bynotification in Nepal Gazette makealteration or addition or deletion inthe schedule.

Schedule(Relating to clause (g) of Rule 4)

SOCIAL STUDY REPORT

................ Juvenile Court or Juvenile Bench/Police Unit/Employee

................ (Address)

PART A : DESCRIPTION OF CHARGE MADE AGAINST THE CHILD,AND PERSONAL AND FAMILY DETAILS:

Description of charge against the child:……………………………………..

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Personal details:Name, surname:Age :Sex:Permanent address:Temporary address:Description of the association joined before, if any:

Family details:Father’s:

Name:Occupation:Address:

Mother’s:Name:Occupation:Address:

Step mother’s, if any:Name:Occupation:Address:

Name, occupation and address of the guardian, if anyOther person involved in care-taking, if any

Brother’s:Sister’s:

Other relatives living together:Social and economic condition:Whether or not any other member of the family has been involved in any criminalactivities:Standard of livelihood:Mutual relation with the father, mother and other family member:Other necessary matters:

PART B: DETAILS OF THE CHILDMental condition:Physical condition:

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Habit, hobby, interest:Special characteristics or personal nature:Relationship with friends and their impression:Whether he or she has abandoned home, description thereof-.School and academic description:Nature of the work done, if any: .If work has been left, reason therefor:Statement of the neighbors:Attitude towards discipline at home and school:Other matters, if any:

PART C : CONCLUSION OF ENQUIRY/STUDY:Emotional fact :Psychical condition:Intellectual capacity or standard:Social and economic factors:Reason for the problem:Reason for increasing criminal behavior:Suggestions for reform of the child:Plan of service providing person or association:

Of report preparing person:Signature:Name, Surname:Name of the association preparing study report:Symbol Number:Date:

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Annex I Questionnaires

Question No. 1:

Question to Juvenile in custody

Personal Info : Name/Surname Age Sex Ethnicity Educational Status

Real Symbolic

Address District VDC/Municipality Ward No. Tole

Family Info :

Family Member No.

Relation Occupation Presently residing Place Father Mother

Economic Condition :a. Poor b. Medium c.High

Accusation or case :1. Who arrest you ?

a. Police b. Guardian c. Other People 2. While Police arrested you, what dress did he/she wear ?

a. Police Uniform b. Civil Dress 3. While arresting you, do police have carried weapons ?

a. Yes, have carried b. Not carried 4. The reason for arresting you is,

a. told b. not told 5. At what time you were arrested ?

a. At morning while I was sleeping b. At day time c. At night time

6. From which place you were arrested ?a. School b. Home c. Road d. Playing field e. Friends home f. Mention, if any other……………………………

7. While arresting you your parents were,a. Called b. Not called

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7.a. If parents were called, at what time they knew about your arrest ?a. Same Day b.Next day c. Two days after d. after ….. day

8. How do parents came to know about your arrest ?a. From Friends b. They come searching c. Police Inform them d. From Neighbors

9. In custody, your health check up was,a. Done b. Not done

10. Do Police in custody inform you about your rights ?a. Yes b. No

10.a. If yes, what do they inform ?a. RIght to remain silence before beginning statement b. Right to legal counsel c. If couldn’t afford lawyer state should provide legal aid d. While statement is being taken, right to remain silence in between

11. After you are arrested, you are kept with,a. Only with children b. With adult c. with police in their room

12. After you are arrested have signed you any document ?a. yes b. no c. don’t know

12.a. If yes before signing they acknowledge you orally,a. yes b. no

12.b. If yes, did you understand ?a. yes b. no

13. Who took your statement ?a. Police b. Government attorney c. Police, Government attorney both

14. Where your statement was taken ?a. Police office b.District government attorney office

15. How many time your statement was taken ?a. One time b. Two times c. Three times d. Many times e. Don’t Know

16. Before taking statement did government attorney,a. say something b. Said nothing

16.a. If said, what did he/she say ?a. You have right to silence b. Any thing you said may be taken as evidence against you (Right against self

incrimination) c. You can remain silence at anytime in between statement d. You have right to legal counsel e. If you cann’t afford lawyer state will provide free of cost f. Above all

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17. Who were present while giving statement ?a. Police and lawyer both b. Government Attorney c. All above d. Mention if any other…………………….

18. While your statement was taken police was ina. Police Uniform b. Civil dress

19. After you were arrested when do police took you before court for takingpermission of investigation ?a. On the same arrested day b. Next day c. Two days after d. ………. days

20. At that time of taking permission for investigation do judge ask,a. something b. Nothing

20.a. If asked, what does he/she ask ?a. Tortured on not in custody b. Foods were given or not c. Reason for being arrested d. If not willing to give statement right to remain silence e. Have hired lawyer or not f. Family condition g. Right against self incrimination h. State liability to provide legal aid i. All above

21. At the time of summan (taking permission of Investigation) in what they took youwith hand cuff.a. yes b. No

22. If you were hand cuffed did judge or other court officer order to open cuffinga. yes b. No

23. While taking you to courta. Everyone can see b. No one can see

23.a. If everyone can see how you were taken ?………………………………………………………………………………………..

24. Was you arrested in any other delinquent behavior earlier ?a. Yes b. No

25. In which offence ?……………………………………………………………………………………………..26. Did you get facility to meet your relative and friends ?

a. Yes b. No 27. At custody do they give facility to study ?

a. Yes b. No 28. At the time when you were in custody if there was exam schedule and you were

permitted to givea. Yes b. No c. No exam schedule in between

29. If any suggestions : …………………………………………………………………………30. Surveyors Note : ……………………………………………………………………………

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Question No. 2

Question for Investigation/Custody Office

Officer’s Name :Post :Concern Custody Center :1. In what sort of cases juveniles are being arrested ? (List in accordance with)

a. Homicide b. Theft c. Narcotic Drugs d. Assult Battery e. Public Offence f. Rape g. Arms and ammunition h. Mention, If any other…………………………………

2. Which uniform do you wear while arresting Juveniles ?a. Police Uniform b. Civil Dress

3. While arresting girls, women Police is,a. Sent b. As per availability c. Not send d. Not possible

4. Generally, form which place juveniles are arrested ?a. Home b. school c. Road d. Hotel e. Scene of Crime f. Mention if any other place………………

5. At the time of arrest, Juvenile are handcuffed?a. Yes, handicraft is done b. No c . If necessary

6. After arrest when do you provide arrest warrant?a. At the times of arrest b. With 24 hours c. Next day d. after getting permission form court e. mention, if any …………

7. Relatives, Family member or lawyer are provided with the copy of arrest warrant?a. Yes, given b. No, Not given

8. After juvenile are arrested, there medical checkup isa. Done b. Not done

8(a). If yes, when?a. Soon after taken in custody b. After taken into custody c. Before going court for taking permission for investigation

d. After taking permission for investigation form court 9. After what time do you allow the juvenile to meet their lawyers.

a. Soon after taken into custody b. After 24 hours

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c. After 2 days d. After taking permission for Juvenile system from court

10. While arresting juvenile, do police is carry weapons?a. Yes b. No

c. As per the nature of offence 11. While arresting juvenile, parents are :

a. Kept before b. Are not kept c. As far as possible 12. Juvenile in custody can privately take with their lawyers:

a. Yes b. No 12(a). If yes, who is it arranged?

a. There is separate room b. they are allowed to talk in group 13. What do you think as the main case of Juvenile Delinquency?

causative factors preference no.sa. Poverty b. Ignorance c. Broker Home d. Lack of family intimacy e. To fulfill new inquisitive f. Entertainment g. friends company h. other incitements i. For showing different from other

14. Generally, what type of social background you have found of arresteddelinquency?a. Street child b. Broken home c. General family d. Elitist family

15. What do you say while addressing the child who is said to be Juveniledelinquent?a. Brothers/sisters b. Boy/Girls c. Accused

d. Mention, if any other ……..16. Who do you keep while talking statement of Juvenile?

a. Father/Mother b. Guardian/Protector c. His/Her Lawyers d. No one is kept

17. What many things do you inform before taking statement of Juvenile?a. Right to remain silence before the beginning of statement b. Right against self-incrimination c. Right to legal counsel

d. If could not afford lawyer state should provide legal aid e. during the course of statement right to remain silence in between f. Reason for what he/she is accused and possible sentencing g. Above all

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18. In course of investigation and during trial, one who cannot hered lawyer or notdon’t have lawyer, legal representation isa. Done b. Not done

18(a). If done how?a. through alternative lawyer by District Court b. Through District Legal Aid committee c. Through lawyers of NGO’s d. Mention if any other……

19. How the age of juvenile is determined ?a. On the basis of parents saying b. On the basis of Birth Registration Certificate c. On the basis of School Admission Record d. On the basis of Medical Examination e. On the basis of FIR f. Mention, If any other…………………………….

20. Is there separate unit for investigating cases related to juvenile delinquencya. Yes b. No

20.a. Whether police of separate unit is provided with training ?a. Yes b. No

21. In course of investigation, In section 50 (i) of child act 2048, there is provisionfor providing juvenile delinquent to parents and NGO with the condition ofpresenting of the said time. Have this been followed :a. Yes b. No

21.a. If yes in which sorts of cases this process is followed ?…………………………………………………………………………………………

22. To make juvenile justice officient and effective what is needed to be done ?a. Strictly implementing child act 2048, Juvenile Justice Rules 2063 b. Implementing international standards that Nepal is party c. Making separate law with the subject matters of Juvenile justice only d. There should be separate authority for hearing and executing cases

related to juvenile e. Mention if any other,

23. Have you been possibility of diversion in juvenile casesa. Yes b. No

23.a. If yesa. In which case :b. At which stage:c. Through which process

24. If any suggestions :25. Surveyors Note :

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Question No. 3

Question for the children in child reform home

Personal Info :

Name/Surname Age Sex Ethnicity Educational Status

Real Symbolic

Address District VDC/Municipality Ward No. Tole

Family Info :

Family Member No.

Relation Occupation Presently residing Place

Father

Mother

1. Case :2. Why you are kept in child reform Home ?

a. For Investigation b. I am not able to pay bail amount c. For trial d. For sentence adjudication

3. Through which institution/body or officer’s ordered you are send here ?a. CDO b. DFO c. Court d. Police Office e. Mention, if any

4. How do you feel while staying at child reform home ?a. I am innocent but still staying here b. Regreting for what I did c. Chance to reform d. Feeling revenge e. Mention if any

5. How do you feel about the behavior of staffs of this child reform home ?a. Lovely/Helpful b. Fine c. Not good

6. Have you got opportunity to get formal education in child reform home ?a. Yes b. No

6.a. Are you getting skill development training ?a. Yes b. No

6.b. Are you getting chance to observe T.V., entertainment, playing sports etc?a. Yes b. No

7. As you are sitting in child reform home, who come here to meet you ?a. Family b. Relative

8. According to your religions nituals, can you celebrate your main festivals?a. Yes b. No

9. Hove you felt torture while staying here ?a. Yes b. No

9.a. If yes, from whom,a. Security personnel b. Teacher c. Officer/management

10. If any recommendation :11. Surveyers Note :

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Question No. 4

Question Made for the concerned officer of child reformhome or the home used for keeping child evolved in

juvenile delinquency

Name of Juvenile Home :Capacity of Juvenile Home :Currently staying children’s Nos:Boyes: Girls :Number of staffs : Security Personnel : Helper:Teacher: Psychiatrist counselor: Social facilitator :1. From which authorities juveniles are send to this home ?

a. CDO b. District Court c. District forest office d. Police e. Jail f. mention if any other

2. Medical check up while entering juvenile is,a. done b. Not done

3. Health service is managed in this home:a. Yes b. No

3.a. If not, how are they treated when they feel sick ?a. Private clinic b. Private Hospital c. Government Hospital d. Mention if any other

4. There is school inside this reform home area ?a. Yes b. No

4.a. If not, how education to children is managed ?a. Government School b. Private School teachers free of cost c. Family pays the fee d. If any other mention

5. Is there library in this home :a. Yes b. No

6. What are the arrangements for sports to children ?a. Football b. Volley Ball c. Chess d. Badmintion e. All above

7. How security system is managed here ?a. Government have arranged police b. Security personnel are brought in contract c. Through other staff

7.a. If security is provided by police, how it is arranged ?a. Police in uniform b. Police in civil dress

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8. How legal representative are provided to children who needs lawyer and thosewho can’t afford lawyer ?a. Through alternative lawyer by district court b. Through district legal aid committee c. Through lawyers of NGO’s d. Not done d. Mention if any

9. Juvenile can talk privately to lawyersa. Yes b. No

10. Juvenile can talk privately to family membersa. Yes b. No

10.a. If yes, how it is arranged ?a. Separate room is provided b. Conversation facility in group

11. What are the program focused for child reform ?a. Technical education b. Psychological education c. Moral education d. Mention if any other:

12. Are children whose case are running in court taken in court ?a. Yes b. No

13. Children who are send far away from child home are they taken to concerncourt during there hearing ?a. Yes b. No

13.a. If yes, how are they taken to concerned courts ?……………………………………………………………………….

14. Where do you put those children who cross 16 years age ?a. In child reform home itself b. Send to jail

15. To make juvenile justice efficient and effective what is needed to be done ?a. Strictly implementing child act 2048, juvenile justice procedure, 2063 b. Making separate law with the subject matters of juvenile justice only c. Implementing international standard that Nepal is partly d. There should be separate authority for hearing and executing cases

related to juvenile e. Mention if any other

16. Have you seen possibility of diversion in juvenile casesa. Yes No.

16.a. If yesa. In which case :b. In which stage :c. Through which process

17. If any suggestion :18. Surveyers Note :

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Question No. 5

Question for Judge

Name of Judge :1. From which place the accused of juvenile delinquent are bought to the bench

for the time extention -Dofb yk_a. Reform home b. custody

2. In which way the accused of juvenile delinquent are brought to the court ?a. By wearing handcuff b. By parent’s protection c. With police

2.a. If found wearing handcuff, have you order to open it ?a. Yes b. No

3. In the process of investigation, have you found that the time extention havebeen done as demanded ?a. Yes b. No

3.a. If yes, what questioned are askeda. Whether torture is given or not. b. Whether food is given or not c. Whether kept together with other aged accused or not d. Whether have lawyer or not e. Economic social situation of child f. Family background g. Age h. The reason to be accused in offence of child delinquent i. Whether health check-up is done or not j. All of the above

4. In which court do you provide hearing while dealing the case of accused ofchild delinquent.a. Open bench b. Closed Bench c. Own chamber

5. While taking statement of child in court, have you been present there ?a. Yes b. Court Officer c. No

6. On whose presence the statement of child is taken in juvenile bench ?a. Judges b. Child psychiatrist c. Member of family d. Police e. Social worker f. All of the above g. If other, then mention

7. Which right are been informed to juvenile before taking the statementa. Accused have to right to remain silence b. Accused have right against self incrimination c. Accused have/can remain silent in the middle, while giving the statement

d. State will arrange the lawyer, in case of no lawyer e. Above all f. Mention if any other

8. What kind of economic situation of the juvenile delinquent have you found ?

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a. Poor b.Lower middle class c. Middle class d. Prosperous

9. What kind of educational status of the accused of juvenile delinquent case havebeen found ?a. Illiterate b. Literate c. Educated

10. If they are literate then in which level they are being studying, have been found ?a. Primary school level b. Lower Primary level c. Secondary level d. Not known

11. While hearing the cases of accused of juvenile delinquent, which document arebeen looked for immediate hearing ?a. Serial background report b. Family economic situation c. Cultural situation d. Report of child psychiatrist e. Above all f. Mention, if any other

12. Have you ever given decision of suspended sentence as per the child Act, 2048,sec 50 (2), to the accused of juvenile delinquents ?a. Yes b. No

12.a. If yes, for how many juvenile have you given decision from the date 2063,Bhadra, 20 to till today ?…………………………………………………

12.b. Have you ever been found that the juvenile who have got suspended sentence,being involved in delinquent again ?a. Yes b. No

12.c. If yes, where have you sent to those juvenile ?a. Child reform home b. Jail c. Mention, if any other institution

13. After supreme court’s directive of 2063.06.26 regarding the cases related tojuvenile delinquency, within the jurisdiction of CDO to be transfer to thejuvenile bench of district court, whether any cases related to delinquent is beenfileda. Yes b. No

13.a. If yes, how many cases has been filed till date ? (in no)………………………………………………………..

14. Have you seen possibility of diversion in juvenile cases ?a. Yes b. No

14.a. If yesa. In which cases :b. In which stage :c. Through which process

15. If any recommendation :16. Surveyor’s note :

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Question No. 6

Observation sheet for the observationof child reform home

Observer: Observed date:Name of the observed institution:Address:1. Are the girls and boys kept separately:-

a) Yes b) No 2. Conditions of cleanliness of the reform home:-

a) Good b) Normal c) Problematic 3. Water facility:-

a) Enough b) Normal c) Insufficient d) Mention, if any:-

4. Condition of drinking water:-a) Tap b) Well c) Tube well d) Mention, if any ……………………………………..

5. If well, tube well or tap, then is there water purification method:-a) Yes b) No

6. Conditions of toilet:-a) Good b) Normal c) Problematic

7. Is there separate toilet for boys and the girls:-a) Yes b) No

8. Library facility:-a) Yes b) No

9. First aid check up facility:-a) Yes b) No

10. Sports facility:-a) Available b) Not Available

10 (1) If available,a) Football b) Volley ball c) Badminton d) Chess e) All Above f) Mention, if anyother……………..

11. Juvenile are being addressed:-a) Politely b) Normally c) Rudely

12. Juveniles were engaged in works:a) Yes b) No

13. How security system is managed:-a) Police with civil dress b) Police in uniform c) Police with weapons

14. Situation of compound wall of reform home:-a) Having compound wall b) No compound wall c) Having compound but easy passes

15. Surveyer’s note:

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Survey Report

Question No. 7

Question for the observation of Juvenile Bench

Observer:Observed Juvenile Bench/ Name of Court:Address:1. Physical infrastructure:

a. Round table b. General 2. Camera court hearing

a. Yes b. No 3. Who were present during the hearing of Juvenile Delinquency?

a. Judge b. Child psychiatrist or Child expert c. Social worker d. All of the above e. Mention if any other…

4. At the time of Hearing, defense lawyer was:a. Present b. Not present

5. Child friendly environment:a. Yes b. No

5a If Yes then,a. Playing facility b. Drinking water facility c. Sitting arrangements d. Mention if any other…

6. Is there placement of camera in child friendly room for inquiry?a. Yes b. No

7. Was the language used helpful for mental and physical development of thechildren and easily understandable by them?a. Yes b. No

8. How was the language used during the legal proceedings?a. Polite b. Usual/Fair c. Impolite/Humiliating

9. Was there a provision of translator or facilitator in case if the child doesn’tunderstand the language?a. Yes b. No

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10. Was inquiry done to child keeping in witness-box?a. Yes b. No

11. While bringing Juveniles to court, were the Police in their uniform?a. Yes b. No

12. While bringing Juveniles to court, were they handcuffed?a. Yes b. No

13. While bringing Juveniles to court, did the Police carry weapons?a. Yes b. No

14. What kinds of questions are asked to the child?a. About Torture b. Legal Representation c. Knowledge of language d. Family conditions e. Economic Status f. Educational Status g. All of the Above

15. Surveyor’s note:…

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Survey Report

Questionnaire No. 8

Question for Government Attorney

Name of Government Attorney: Level/Post:District:

1) Since 2063/05/20, how many cases related to juvenile have been filed in thedistrict?………………

2) What sorts of cases have come?Cases Preference No1. Homicide

2. Theft

3. Narcotic drugs

4. Assault, Battery

5. Public offence

6. Rape

7. Arms and ammunition

8. If any other mention ……………………………………………………

3) What do you think as the main cause of Juvenile Delinquency?Causative Factors Preference No1. Poverty

2. Ignorance

3. Broken Home

4. Lack of family intimacy

5. To fulfill new inquisitive

6. Recreation/Entertainment

7. Friends’ company

8. Other incitements

9. For showing difference from others…………………………………………

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4) Generally, what type of social backgrounds do the arrested delinquents have?a. Street Child b. Broken Home

c. General Family d. Elitist family

5) What do you say while addressing the child who is said to be juveniledelinquent?a. Brother/Sister b. Boy/Girl

c. Accused d. Mention if any other……………

6) Who do you keep while taking statement of juvenile?a. Father-Mother b. Guardian/Protectorc. His/Her Lawyer d. No one is kept

7) What things do you inform before taking statement of Juvenile?a) Right to remain silent before the beginning of statement b) Right against self incrimination

c) Right to legal counsel

d) If can not afford lawyer, state should provide legal aid

e) Right to remain silent during the course of statement

f) Reason for what s/he is accused and possible sentencing

g) All of the above

8) In course of investigation and during trial, one who cannot hire lawyer orwho does not have a lawyer, legal representation is…a. Done b. Not Done

8(a) If done how?a) Through alternative lawyer by district court

b) Through District Legal Aid Committee

c) Through Lawyer’s of NGO’s

d) Mention if any other,………………………………………………………

9) How the age of juvenile is determined?a) On the basis of Parents saying

b) On the basis of Birth Registration certificate

c) On the basis of School admission Record

d) On the basis of Medical Examination

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e) On the basis of FIR

f) Mention, If any other………………………………………………………

10) In your office, is there any separate room to talk with lawyer?a. Yes b. No

10 a) If yes, how it has been arranged?a) Separate room is provided

b) They discuss in group

11) To make Juvenile Justice efficient and effective what is needed to be done?a) Strictly implementing Child Act 2048, Juvenile Justice Procedure, 2063 b) Implementing international standard that Nepal is party c) Making separate law with the subject matters of Juvenile justice only d) There should be separate authority for hearing and executing cases related to

Juvenile e) Mention if any other………………………………………………………….

12) In course of investigation in section 50(1) of the child act 2048, there is theprovision for providing juvenile delinquent to prevent and NGO with thecondition of presenting at the said time. Have this been followed?a) Yes b) No

12 a) If yes, in which sorts of cases this process are followed?

13) Have you seen possibility of Diverson in Juvenile casesa. Yes b. No

13 a) If yesi) In which cases :ii) In which stage :iii) Through which process:

14) If any suggestions: -

15) Surveyors note: -

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Questionnaire No. 9

Record sheet

Authority where the record is taken:- District:-C.D.O. / District Police Office or unit/Jail/District Attorney Office/Court, at date2063, Bhadra 20 to 2066, Falgun 29, record to be note.1) Number of cases relating to Juvenile filed within this period………………..2) Number of involved Juveniles………………………….3) Number of running case………………………….4) Number of decided case………………………5) 120 days procedure applied:a) Number of cases…………… b) Number of cases (not applied)………...6) Number of cases having ………………………….7) Number of cases transferred to Juvenile bench (CDO): ……………..8) Number of cases been acquitted………………….9) Number of cases been sentenced………………….10) Types of punishment:-

Fine: - minimum………… maximum…………Imprisonment: - minimum………… maximum…………

11) Where they were kept during trail:-a) Jail (no.)………………. Reform home (no.)………..c) Other (no.)………………

12) Where they were kept under trail:-a) Jail (no.)………………. Reform home (no.)………..c) Other (no.)………………

13) How the care of the juvenile was determined:-a) Birth Certificate from hospital (no.):-………….b) Certificate of school, V.D.C’s recommendation or similar certificate (no.):-……………………c) Doctor’s opinion (no.):- …………..d) X ray (no.):-…………..e) DNA (NO.):-……………f)

14) If other then mention it:-………………15) Surverior’s note: - ……………………

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Survey Report

Question No. 12

Questionnaires to be asked to the juvenile in Jail

Personal Detail

Name Age Sex Caste Educational

Status Address District V.D.C./ Municipality Dis. Street

Real Symbolic

Family Details

Family no. Relation Occupation Temporary Father/Mother

Economic status: (a) Poor (b) Middle (c) Elite

1) Case Details:

2) Why were you kept in the Jail?a. For investigation b. Not being able to pay Bailc. For trail

3) From which sector/Authority you were sent here?a. C.D.O. b. District Forest Officec. Court d. Police e. Mention if any other

4) How do you feel being in the jail?a. Staying, still being innocentb. Regretting on own actc. Chance of reformd. Feeling of Revengee. Mention, if any other….

5) How do you feel the behavior of the employees?a. Lovely/Helpful b. Fair c. Rude

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6) In the Jail, do you have thea. Chance to have the formal education

I) Yes II) Nob. Chance to learn skill development training

I) Yes II) Noc. Chance to involve in refreshment program like T.V., Dance,

Entertainment, Sports, etc.?I) Yes II) No

7) Who comes to visit you in the jail?a. Family b. Relative’s c. Other

8) Whether you are allowed to celebrate religious ritual festivals?a. Yes b. No

9) Whether you are tortured in the jail?a. Yes b. No

10) If yes, then who?a. Security personalb. Teacherc. Jailer

11) Other recommendations : -

12) Surveyor’s note : -

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Survey Report

Questionnaire No. 13

Question for Jailer

Jail:Jailer’s name:Post:Present no. of children in Jail: Boy: Girl:No. of staff: Security: Helper: Teacher:

1. From which bodies/institutions are sent to this jail?a. CDO b. District Court c. DFOd. Police Station e. Jail f. Mention if any other…

2. While juvenile are sent to jail, medical check up is…a. Done b. Not Done

3. Is there any kind of health facility/service provided in this jail?a. Yes b. No

3a. If not, how are they treated when they feel sick?a. Private Clinic b. Private Hospital c. Government Hospitald. Mention if any other…

4. Is there any school inside the jail compound?a. Yes b. No

4a. If not, how is juvenile education arranged?a. Government School b. Private school teaches free of costc. Family pay for it d. Mention, if any other…

5. Is there library in this home :a. Yes b. No

6. Is there facility of sport in Prisona. Yes b. No

6.1. What are the arrangements for sports to children ?a. Football b. Volley Ball c. Chess d. Badmintion e. All above f. if any,mention other………

7. How legal representative are provided to children who needs lawyer and thosewho can’t afford lawyer ?a. Through alternative lawyer by district court b. Through district legal aid committee c. Through lawyers of NGO’s d. Mention if any

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8. Juvenile can talk privately to lawyersa. Yes b. No

8.1. If yes, how it is arranged ?a. Separate room is provided b. Conversation facility in group

9. What things are told to Children after their entrance in the Prisona. Rules to be followedb. About facilitiesc. If any,mention

10 What are the program focused for child reform ?a. Technical education b. Psychological education c. Moral education c. Mention if any other:

11. Is there facility of Psychological councilinga. Yes b. No

12. Children who are send far away from child home are they taken to concerncourt during there hearing ?a. Yes b. No

13. If yes, how are they taken to concerned courts ?……………………………………………………………………….

14. To make juvenile justice efficient and effective what is needed to be done ?a. Strictly implementing child act 2048, juvenile justice procedure, 2063 b. Making separate law with the subject matters of juvenile justice only c. Implementing international standard that Nepal is partly d. There should be separate authority for hearing and executing cases

related to juvenile e. Mention if any other

15. As per child act 2048 children should be kept in child reform home,why arethey here?

16. Did you tried to send juvenile in reform homea. Yes No.

17. Have you seen possibility of diversion in juvenile casesa. Yes No.

18. If yesa. In which case :b. In which stage :c. Through which process

19. If any suggestion :20. Surveyers Note :

Baseline Survey on JUVENILE JUSTICE SYSTEM IN NEPAL

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