Skip to contentSkip to left sidebar Skip to footer
Choose language:

Chapter-2 Rights and Duties of the Victims in Criminal Justice Process

 

  1. Right to get fair treatment: The victim shall have the right to enjoy decent, fair, dignified and respectful treatment during the criminal justice process.
  2. Right against discrimination: No discrimination shall be made on the ground of the victim’s religion, colour, gender, caste, ethnicity, origin, language, marital status, age, physical or mental unsoundness, disability or ideology or similar other ground.

Provided that where the particular need of the victim who is a minor, senior citizen or a person with physical or mental disability is to be considered in the course of criminal justice process, it shall not be deemed to prevent from according a special treatment to such a victim as far as possible.

  1. Right to privacy: (1) The victim shall have the right to privacy in the course of investigation, enquiry, prosecution and court proceedings of the following offences:

(a)        Rape,

(b)        Incest,

(c)        Human trafficking,

(d)       Sexual harassment,

(e)        Such other criminal offence as prescribed by the Government of Nepal by publishing a notice in the Nepal Gazette.

(2)  No person shall disclose the identity of the victim in any manner, in the offences referred to in sub-section (1).

(3) Where it is required to have any deed executed by, take statement or deposition of, the victim in the course of investigation, enquiry and court proceedings of the offences referred to in sub-section (1), it shall be done as follows, if the victim so desires:

(a)        By presenting the victim, without disclosing his or her identity,

(b)        By making the victim change his or her actual voice,

(c)        By using the audio-visual dialogue technology in such a way that the accused cannot see and hear,

(d)       By making provision so that the accused cannot see or her or can only hear.

  1. Right to information relating to investigation: (1) Where the victim so demands, the investigating authority or body shall provide him or her with information on the following matters as soon as possible:

(a)     Medical, psychological, psychiatric, social, legal or any other service or counseling to be received by the victim pursuant to this Act or the prevailing law,

(b)     Name and full address of the prosecuting body,

(c)     Name, office and telephone number of the investigation authority,

(d)    Progress report of investigation and enquiry,

(e)     Name, age, address and complexion of the suspect,

(f)     Where the suspect is arrested, description thereof,

(g)     Matters expressed in relation to the offence by the suspect or any other person before the investigating authority,

(h)     Where the suspect has absconded from the custody of the investigating authority or has been arrested again, description thereof,

(i)      Where the investigating authority has released a person remanded in custody or arrested in the course of investigation, upon considering that it is not necessary to keep that person in custody, description,

(j)      General information about the investigation and enquiry processes to be carried out with respect to the offence pursuant to the prevailing law.

(2) Notwithstanding anything contained in clauses (d), (e), (f), (g) and (h) of sub-section (1), in cases where it is likely to adversely affect the investigation into the offence or to pose threat to body, life and property of the suspect or any person associated with him or her if such information is provided to the victim, the investigating authority shall not be compelled to provide such information to the victim, and the authority shall give information thereof, along the reasons why information could not be so provided, to the victim.

  1. Right to information relating to prosecution: The prosecuting body or authority shall provide the victim with the following information as to the offence as soon as possible if the victim so demands:

(a)        Where decision has been made not to institute the case, the ground and reason for making such decision not to institute the case,

(b)        Where decision has been made to institute the case against any person but not to institute the case in the case of any person, the name, surname and address of the person against whom the decision has been made not to institute the case, and the ground and reason for making decision not to so institute the case,

(c)        Where decision is made to institute the case, a certified         copy of the charge-sheet,

(d)       General information relating to the court proceedings that take place pursuant to the prevailing law,

(d)       Where any additional claim has been made pursuant to the prevailing law with respect to the person against whom the case has been instituted or the person against whom the case has not been instituted for the time being, description thereof and the order made by the case trying authority in that respect.

(e)        Where the victim is also an eyewitness of the offence, information relating to the role to be played by him or her as a witness,

(f)        Where the accused who has absconded at the time of filing the charge-sheet is arrested in pursuance of the order of the case trying authority or voluntarily appears, description thereof,

(g)        Where the Government of Nepal has decided to withdraw the case filed in the court in relation the offence, description thereof.

  1. Right to information relating to judicial proceedings: The prosecuting body or authority or court or the concerned body shall provide the victim with the following information as soon as possible if the victim so demands:

(a)        Where the accused has to remain in detention for trial, description thereof,

(b)        Where the accused is not required to remain in detention for trial or the accused wo has been detained is released from detention, description thereof,

(c)        Date, venue and time of hearing to be held by the court,

(d)       Where the accused has made an application that he or she be released on bail, guarantee or on the condition of making appearance on the appointed date pursuant to the prevailing law, information related thereto and the content of the order made on such application,

(e)        Description of the terms and conditions set by the case trying authority while releasing the accused on bail, guarantee or on the condition of making appearance on the appointed date or for the safety of the victim or close relative of the victim,

(f)        Where the accused has filed a petition to the appellate level against the order made by the court of first instance pursuant to the prevailing law that he or she should be released on bail, guarantee or on the condition of making appearance on the appointed date, the notice of the petition and description of the order made on such a petition,

(g)        Where the accused held in detention for trial escapes from the detention has been rearrested or voluntarily appears, description thereof,

(h)        Where the accused or offender has been released from detention or prison on the condition of supervision, the conditions of supervision, and where such conditions are altered, the details relating to the altered conditions and the date on which such alterations come into force,

(i)         Whether the accused or offender released from detention on the condition of supervision has complied with the conditions of supervision or not,

(j)         Where the accused or offender has been transferred from the prison pursuant to the prevailing law, description relating thereto,

(k)        The punishment imposed on the offender and in the case of the sentence of imprisonment, the period when the service of the imprisonment completes,

(l)         Where the offender has absconded prior to the service of the sentence of imprisonment or has been rearrested, description thereof,

(m)       Where the punishment sentenced to the offender is pardoned, postponed, charged or reduced or where the offender gets clemency from the punishment under any legal provision prior to the service of the sentence of imprisonment, description thereof,

(n)        Where the perpetrator against whom the case has not been instituted or who has not been sent to prison or who has been released from detention on the condition of remaining under supervision pursuant to the prevailing law violates the terms and conditions of supervision, the body to which the victim may make a complaint against it and the manner of making such a complaint,

(o)        Name and address of the prison where the offender is serving the sentence,

(p)        Where the offender has got probation, parole or community service or open prison or any other facility of similar type, description relating to this,

(q)        Whether the Government of Nepal has made an appeal or not against the decision made in relation to the offence,

(r)        Where order has been made to summon the presence of the respondent on the appeal, if any, made by the defendant against the judgment, description thereof,

(s)        Decision of the appellate level on the appeal made against the judgment, and its consequence,

(t)        Where the offender has been put under supervision and an application is made by the offender or anyone else to change the terms and conditions of supervision or to revoke the order of supervision pursuant to the prevailing law, the decision made on that application,

(u)        Where the accused or offender has died while in detention or prison, description thereof,

(v)        Where the Government of Nepal sends back a foreign accused or offender out of the territory of the State of Nepal pursuant to the prevailing law or deports him or her to a foreign state or government, description thereof.

  1. Right to become safe: The victim shall have the right to become safe from attack, damage, fears, intimidation or threat likely to be made or exerted by the suspect, accused, offender or person related to him or her or the witness of the accused against the victim or close relative of the victim and person dependent on the victim.
  2. Right to express opinion: (1) The victim shall be entitled to express his or her opinion before the concerned authority on the following matters:

(a)        While making a charge against the suspect for the offence concerned,

(b)        Where it is required to make decision for not instituting the case in relation to the suspect,

(c)        Where it is required to make agreement with the accused by way of plea bargaining as to the charge pursuant to the prevailing law,

(e)        Where request is to be made to the case trying authority for a clemency in the punishment imposable pursuant to the prevailing law,

(f)        Where additional claim is to be made to the charge-sheet filed before the case trying authority pursuant to the prevailing law,

(g)        Where a pre-sentencing report is to be prepared before specification of the sentence for the offender pursuant to the prevailing law,

(h)        While specifying sentence for the offender pursuant to the prevailing law,

(i)         Where investigation is to be carried out pursuant to the prevailing law as to whether the accused has mental or physical capacity to commit the offence,

(j)         Where decision is to be made to send him or her to the service of diversion program in the case of the accused or offender,

(k)        Where decision is to be made to provide probation, parole, suspended sentence, open prison, community service or any other service of similar type to the offender pursuant to the prevailing law,

(l)         While conducting hearing as to whether or not consent is to be granted for withdrawing the case related to the offence that is sub judice in the court pursuant to the prevailing law.

(2)        For expressing an opinion pursuant to sub-section (1), the concerned authority shall provide the victim with a reasonable time.

  1. Right to appoint legal practitioner: The victim may appoint a separate legal practitioner in the criminal justice process if he or she so wishes.
  2. Right of attendance and participation in hearing: (1) Except as otherwise ordered by the court, the victim shall have the right to attend and put forward his or her opinion in the proceedings relating to hearing by the court in relation to the offence.

Provided that where the victim is also a witness of the case, the court may prevent him or her from attending the particular proceeding until he or she makes deposition as the witness.

(2)        The court shall make order or decision, also upon considering the statement expressed by the victim pursuant to sub-section (1).

  1. Right to stay in separate chamber in the course of hearing: (1) In the course of the hearing of the offence, the court may provide a separate chamber for the victim so that he or she can stay separately from the accused, person related to the accused and witness of the accused.

(2)        Where it is not possible and practical to provide a separate chamber pursuant to sub-section (1), the court shall make necessary arrangement for the safety and interest of the victim so that the accused, person related to the accused and witness of the accused cannot contact the victim, except as otherwise ordered by the court.

  1. Right to have property returned: (1) The concerned investigating authority shall return the property of the victim taken under control in the course of investigation or for evidence, immediately after the completion of investigation.

(2)        Where the property taken under control pursuant to sub-section (1) is to be submitted to the court for evidence or there is a dispute as to the ownership or possession of the property, the property shall not be returned before the dispute is settled.

(3)        Notwithstanding anything contained in sub-section (2), the court may, if it so thinks necessary, make an order to return such property before the dispute is settled.

  1. To hold discussion as to the case related to offence: In the following circumstances, the court may, with the consent of both the victim and the accused, hold discussion between the victim and the accused on any matter related to the offence:

(a)        Where the court is satisfied that such discussion would assist in the settlement of the dispute,

(b)        Where the discussion is held under the supervision of the court,

(a)        Where holding discussion is not prejudicial to public interest and justice.

  1. Right to make written application: (1) Where the Government of Nepal has the right to make application or appeal against any order or decision of the court if it is not satisfied with such order of decision, the victim may make a written application to the concerned body or authority, requesting that application or appeal be made against that order or decision.

(2) The application referred to in sub-section (1) has to be made within fifteen days from the date of receipt of information of such an order or decision.

(3) The concerned body or authority that has the right to make application or appeal against the decision, order or decision referred to in sub-section (1) shall make decision by considering such an application.

(4) Information of the decision referred to in sub-section (3) shall be given to the victim.

  1. Right to get information as to compensation: (1) Where the victim is entitled to obtain compensation pursuant to this Act or other prevailing law and the victim seeks information with respect to it, the prosecuting authority shall give the victim information about the action required to be taken in order to obtain compensation.

(2) Where the prosecuting authority has the authority to take action relating to compensation on behalf of the victim pursuant to the prevailing law, the prosecuting authority shall, at the request by the victim, take such necessary action as to be taken on behalf of the victim.

  1. Right of compensation and social rehabilitation: (1) The victim shall have the right to obtain compensation for the damage he or she has sustained, pursuant to this Act.

(2) For the social rehabilitation of the victim, the Government of Nepal, Provincial Government and Local Level may, with mutual coordination, conduct necessary plan and program based on the available resources and means.

  1. Right to make application or appeal: (1) Where the concerned victim is not satisfied with the order or decision made by the court on any offence, the victim may make application or appeal if such application or appeal can be made against such order or decision pursuant to the prevailing law, setting out the ground and reason.

(2) Where no period is specified in the concerned law for making the application or appeal referred to in sub-section (1), such application or appeal has to be made within fifteen days from the date of receipt of information of the order or decision.

(3) The concerned authority has to make decision upon considering the ground and reason mentioned in the application referred to in sub-section (1), and give information of such decision to the applicant as well.

  1. Duties of the victim: For the purposes of this Act, the duties of the victim shall be as follows:

(a)        To make or give inform or notice as to the offence on time to the competent body or authority pursuant to the prevailing law,

(b)        To assist the investigating or prosecuting authority in the course of investigation and prosecution of the offence,

(c)        To refrain from failing to appear before the investigating authority or court in order to save the person involved in the offence, or to refrain from making statement, deposition or submitting any evidence for that purpose even upon being in appearance,

(d)       To provide his or her own real name, surname, address, telephone number, email address and provide information of the change, if any, made therein, as soon as possible.

  1. To respect the right: The authorities who are involved in the process of investigation, prosecution, enquiry of the offence and dispensation of justice shall pay proper attention to respecting and implementing the rights of the victim conferred pursuant to this Act and the prevailing Nepal law.
  2. Application may be made for the enforcement of rights: (1) For the enforcement of the rights conferred by this Chapter, the victim may make an application to High Court concerned.

(2) Where it appears, from the application made pursuant to sub-section (1), that the right of the victim has been encroached or infringed, the High Court may issue an appropriate order for the enforcement of such right.

(3) While issuing an order pursuant to sub-section (2), the High Court may write to the concerned body or authority to take departmental action against the official who has deliberately encroached, infringed or curtailed the rights of the victim, pursuant to the prevailing Nepal law relating to the conditions of his or her service.

(4) Where a correspondence is received pursuant to sub-section (3), the concerned authority shall take departmental action against such official pursuant to the prevailing law.

  1. Action not be invalid: Any decision, order or act already made or done pursuant to the prevailing law, this Act or the Rules framed under this Act shall not be void or invalid for the sole reason that the rights of the victim could not be enjoyed by the victim or have been violated or rejected.