Right to a fair trial: No compromise
Every criminal trial tests the State’s commitment to respect for human rights. The test is even more severe when the accused is a political prisoner; when the authorities suspect the person of being a threat to those in power
The right to a fair trial is a cornerstone of democratic societies. How a person is treated, when accused of a crime, provides a concrete demonstration of how far a State respects human rights.
Detention is ‘arbitrary’, where there are often grave violations of the right to a fair trial. Detention and imprisonment, which may be lawful under national standards, are considered ‘unlawful’ under international standards.
A fair trial is indispensable for the protection of other rights such as the right to freedom from torture, the right to life, and the right to freedom of expression. This right should never be compromised.
However, throughout the country, people are being detained and imprisoned without fair trial. Many face torture and various forms of ill-treatment.
The continued detention of our client Ram Thapa, (name changed) vice-president of Nepal’s leading human rights organization, should trigger a debate, not only in Birgunj, but all over the country about whether and to what extent the right to a fair trial may be compromised in the name of security.
Thapa was detained on January 14, 2016. Charges were not filed properly for seven months. He was denied bail and kept in solitary confinement for three weeks.
Before the trial began, the presiding judge announced that only one human rights activist could attend the hearing at a time, though he later relented, making the trial public.
In jail, Thapa’s medical conditions were ignored. The prosecution and the police have attempted to intimidate his family members and colleagues.
The police have, so far, not produced any evidence from the materials in its possession, including a computer hard disk they seized from Thapa’s residence and clinic, which came back 10 months ago from the Forensic Science Laboratory Khumaltar, Kathmandu.
On every occasion that Thapa was brought to the Special Court, there was a massive police presence creating an atmosphere of fear and intimidation. Thapa has been charged under several sections of the Crime against State and Punishment Act, 1989, and the Country Code.
Both the Crime against State and Punishment Act, 1989, and the Country Code contain vague and sweeping definitions of ‘unlawful activities’ organizations may be rendered ‘unlawful’ for ‘uttering words…which propound the disobedience of established law and its institutions’.
If convicted, Thapa could be sentenced to three years of imprisonment. Abuse of the criminal process in a trial has a number of different, but related, aspects.
Delay in procedure, loss or destruction of evidence, abuse of power by the executive, use of unlawfully obtained evidence, prosecutor’s improper motives, denial of the rights of victims are some of the concerns raised about the practice of criminal justice system in Nepal.
Further, in criminal cases, the prosecution has a virtual monopoly on investigation. It is, therefore, axiomatic that the prosecution should not be able to evade their duties of disclosure, by suppressing, losing, preventing or destroying evidence.
Prosecutions in various situations, including in conflict zones, result in an abuse of power by the executive, where unlawfulness or breach of law by state agents has made it virtually impossible to give the accused a fair trial.
There are various international human rights standards, national laws and court judgments relevant to fair trials.
Impartial, constitutional bodies exist to give authoritative guidance on how to interpret these standards. Pre-trial rights (the right to liberty, the right of people in custody to information, the right to legal counsel before trial), and rights at trial (a competent, independent and impartial court, a fair hearing, to a public hearing, the presumption of innocence) are many.
The severe shortcomings in our criminal justice system and the unaccountability of the police, administration and judiciary, makes it virtually impossible to establish the right to a fair trial in contemporary Nepal.
Derogations are many, and they are misused to illegitimately deny people their rights, under the cloak of a threat to national security.
Every criminal trial tests the State’s commitment to respect for human rights. The test is even more severe when the accused is a political prisoner; when the authorities suspect the person of being a threat to those in power.
The risk of human rights abuses starts from the moment officials raise suspicions against a person. The human rights community has set out minimum guarantees that all systems should provide.
These should be the basis for a collective agreement amongst the community of state actors, for treating people accused of crimes.
The writer is a practicing lawyer associated with International Legal Foundation Nepal