A/HRC/16/23
45.
When prima facie evidence that a crime has been committed exists, the police are
obliged to register a case of caste-based discrimination ex officio, even when no formal
complaint is registered by a victim. However, the police usually require victims to provide
direct testimony before they will consider registering a case, and even when a victim does
come forward, the proper registration of the case by the police remains a challenge. For
example, in September 2010 in Kanchanpur district a “higher caste” man allegedly
subjected a Dalit woman to a serious assault and later burned down her house, destroying
most of her family’s possessions, all because she was Dalit. Rather than investigate the
case, the police sent the victim to the local administration to acquire written confirmation of
the property destruction. The police only registered the case following the return of the
victim’s husband to the village from abroad, and then only on public offence charges and
not the more serious criminal charges of discrimination, arson and attempted rape. In
November 2010, the alleged perpetrator set fire to what remained of the victim’s property,
leaving two of her family members injured.
46.
With regard to gender-based violence, both sexual assault and violence against
women accused of practicing witchcraft are also criminal offences that require the police to
register a case ex officio. However, instances of the police taking proactive steps in this
regard are rare, and even when a victim manages to report a crime to the police, there are
frequent examples of the police delaying the registration process, including by insisting
upon a medical report, even though this is not a legal requirement for the registration of a
case. In February 2010 a 10-year-old Dalit girl was allegedly raped in Kailali district;
although a relative submitted a complaint to the police two days later, the case was not
registered by the police within the 35-day statute of limitations period, and no criminal
action was taken against the alleged perpetrator.
2.
Further shortcomings in the criminal justice system
47.
In the rare instances where investigations or prosecutions are undertaken in
discrimination cases, progress through the criminal justice system tends to be slow and
ineffective. In some instances the shortcomings may be of a technical nature: for example,
the lack of police officers trained to properly assist victims of gender-based violence and
deal with cases involving caste-based discrimination. The actions of law enforcement
officials reveal a lack of gender sensitization and a failure to follow due process of law. In
the Nepali context, where traditional discriminatory practices have been accepted as a
normal aspect of societal life for centuries, clear and detailed instructions and procedures
for handling the issue, whether or not complaints have been submitted, are essential if
progress is to be made.
48.
In the rare instances which have led to a court decision, the perpetrators have rarely
actually served a custodial sentence. This is largely due to the failure of the police to
circulate arrest warrants or to take proactive steps to locate the perpetrators. For example, in
a landmark ruling in January 2009 in Baitadi district, a person was found guilty of
practicing untouchability and was sentenced to two years’ imprisonment and fined.
However, at the time of writing, more than 15 months after the verdict was upheld on
appeal, the perpetrator not only remained at large, with his fine unpaid, but was actually
nominated by a Government ministry to a public position. Two years after the district court
judgment, the district police office had still failed to circulate arrest warrants to the police
in other districts. Another perpetrator found guilty by the Baitadi district court in a similar
case in March 2010 also remained unpunished at the time of writing.
49.
The existence of national human rights institutions with specific mandates to focus
on such issues, including the National Dalit Commission and the National Women
Commission, as well as the National Human Rights Commission, presents additional
possibilities for action to be taken to address issues of discrimination. However, while 2010
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