ILF-Nepal Wins Release of Illegally Jailed 14 Year Old Client
ILF-Nepal’s office in Kanchanpur recently won the release of a 14 year old client who was being illegally held in detention with adults. Filing a petition for a writ of habeas corpus with the Appellate Court, advocates submitted two documents that conclusively proved that the client was no older than 14. However, the police maintained that the client was 16. Bewilderingly, the Appellate Court dismissed the petition, but the local newspaper covered the story, laying out the violations of law, and published it on the front page the next day. The client was released to his parents immediately after the article was published.
In Nepal and many other post-conflict countries, young children are prosecuted and detained with adults because there is no official documentation (such as a birth certificate) proving their age. As a result, they are often held in dangerous conditions and tried as adults, facing harsher punishments that are inappropriate for children. The ILF has been working to raise awareness of the problem and defend the rights of accused juveniles worldwide. Congratulations to Advocates Pooja Bhandari and Dev Raj Pant for their hard work and success in obtaining the release of their juvenile client!
The following is a translation of the article published in the Western Nepal Regional News.
Juvenile in Illegal Detention After Quarrel
Habeas Corpus writ dismissed by the Appellate Court, parents ask for support
Western Nepal Correspondent
Mahendranagar, 2068 Mangshir 15 [December 1, 2011]
Upon the case of a quarrel, a juvenile has been illegally held in detention for over a week. The Kanchanpur Chief District Officer, who is also the child welfare officer, issued the order that juvenile Prakash [last name omitted] be illegally kept in detention.
Prakash, a resident of Kanchanpur Bhimdatta Municipality-7 Haldukhal, has been held in illegal detention at the Mahendranagar Ward Police Office and the Kanchanpur District Police Office since Mangshir 7 [November 23]. 13 years old Prakash was arrested during a fight that broke out at a marriage in Haldukhal. He is charged with public disorder and is illegally held in detention after being remanded by the Kanchanpur Chief District Officer. Other participants in the marriage dispute had escaped while he was arrested.
The Nepal Interim Constitution, as well as national and international law related to children, prohibit holding juveniles in detention with adults. Juveniles may only be kept in a child rehabilitation centre. If the child rehabilitation centre is not available, he should be handed over to his parents or guardians during the investigation or trial, provided that he will be present whenever ordered. [Translators note: under Nepalese law, juveniles should be transferred to their guardian in most cases and only held in rehabilitation centers under exceptional circumstances.] Moreover, the Supreme Court ruled in 2065  that the Chief District Officer does not have jurisdiction to try any case where only children are involved. But in the case of this marriage dispute, the Chief District Officer and Child Welfare Officer, Basudev Dahal, has ordered that a 13 years old child be held with other adults in detention.
He has now been kept in Kanchanpur District Police custody for a week. He was the only person arrested after the marriage dispute and was held in detention on charges of public disorder. On Mangshir 8 [November 24], he was remanded by the Kanchanpur Chief District Officer and held in detention with other adults for investigation. His parents have urged the public to support them in asking that he be released from illegal custody. A petition for a writ of habeas corpus, filed on his behalf by the International Legal Foundation in Kanchanpur, has been dismissed by Mahendranagar Appellate Court. Arguing that he was illegally detained, the writ petition was filed by advocates Pooja Bhandari and Dev Raj Pant. The writ was dismissed by the joint bench, led by Chief Judge of Appellate Court Durga Prasad Upreti, saying that he is not a juvenile. In dismissing the writ, the Appellate Court relied on a police report where Kanchanpur District Police Deputy Superintendent Govinda Prasad Acharya claimed that he was 16 years old and not a juvenile.
A letter from Mahakali Janasewa High School, where he is currently studying, states that his age is 13 years and 10 months according to the school’s data. Prakash is currently studying in grade 10. Likewise, a migration certificate issued by Bhimdatta Municipality on 2064 Poush 26 [January 10, 2008], mentions that he was 10 years old at that time. Although there is adequate evidence that proves he is a juvenile, the Appellate Court dismissed the Habeas Corpus writ, causing his parents a great deal of distress. In order to release Prakash from illegal detention, his parents are asking for help from various institution and organizations.