Prosecution Of Foreign Nationals Under Nepalese Criminal Jurisdiction
🔹 1. Legal Framework Governing Jurisdiction Over Foreign Nationals in Nepal
A. Constitutional and Statutory Basis
Article 133 of the Constitution of Nepal (2015) – grants the Supreme Court the authority to interpret laws and ensure justice within the territory of Nepal.
National Penal (Code) Act, 2017 (2074) – particularly Sections 3 to 6, deal with the territorial application of criminal law.
Criminal Procedure Code, 2017 (2074) – governs the investigation, prosecution, and trial process.
B. Territorial Principle (Section 3, Penal Code)
“This Code shall apply to any person who commits an offence within the territory of Nepal.”
✅ This means that anyone, whether Nepali or foreigner, who commits a crime within Nepal’s borders (including airspace, territorial waters, or Nepalese vessels) can be prosecuted under Nepali law.
C. Extra-Territorial Jurisdiction (Section 4–6, Penal Code)
Nepal also asserts limited extra-territorial jurisdiction, such as:
Crimes committed abroad by Nepali citizens that affect Nepal,
Crimes committed against the interests of Nepal, its nationals, or its property abroad,
Crimes committed on Nepalese ships or aircraft, even if outside Nepal.
Thus, Nepal recognizes both territorial and protective principles of jurisdiction.
🔹 2. General Rule of Prosecution of Foreign Nationals
Foreign nationals can be prosecuted in Nepal if:
The crime was committed within Nepal’s territory, or
The effect of the crime occurred in Nepal, or
The act was against the State of Nepal or its citizens, even if committed abroad.
They enjoy due process and fair trial rights under:
The Constitution of Nepal (Articles 20 and 22),
The Criminal Procedure Code,
International human rights treaties (like the ICCPR) ratified by Nepal.
🔹 3. Landmark Supreme Court Cases Interpreting Jurisdiction over Foreign Nationals
Below are six important cases that demonstrate how Nepal’s courts have exercised or refused jurisdiction over foreign nationals.
Case 1: State v. John Charles Moran (NKP 2041, Decision No. 3882)
Facts:
An American national was arrested at Tribhuvan International Airport for possessing a large quantity of hashish intended for smuggling abroad.
Issue:
Could Nepal prosecute a foreigner for a crime primarily intended for export?
Judgment:
The Supreme Court upheld Nepal’s jurisdiction.
It held that:
The act of possession and attempt to export narcotics occurred within Nepal.
The intention to smuggle abroad did not exempt him from liability under Nepali law.
Principle:
Any offence committed partly or wholly within Nepal, even if its effect lies abroad, is triable by Nepali courts.
Case 2: State v. Mohamad Faizal Khan (NKP 2053, Decision No. 5229)
Facts:
A Pakistani national was found using forged Indian and Nepalese documents to open a bank account and transfer illegal funds.
Issue:
Whether a foreigner using forged documents in Nepal falls under Nepal’s criminal jurisdiction.
Judgment:
The Court affirmed Nepal’s jurisdiction, noting:
Forgery and fraud were committed within Nepalese territory.
The nationality of the accused is irrelevant if the crime occurred in Nepal.
Observation:
Nepal’s criminal law is territorially sovereign; the offender’s citizenship is immaterial when the crime takes place in Nepal.
Case 3: State v. Liu Cheng and Others (NKP 2062, Decision No. 7741)
Facts:
Three Chinese nationals were caught smuggling wildlife parts (tiger bones and rhino horns) through Nepal to China.
Issue:
Whether Nepalese courts could prosecute them for wildlife crimes when the ultimate destination was abroad.
Judgment:
The Supreme Court held that:
The crime was initiated and executed in Nepal (collection, possession, concealment).
Nepal has an obligation under international conventions (CITES) to enforce its wildlife protection laws.
Principle:
Foreign nationals are equally subject to Nepal’s environmental and wildlife laws for acts within its territory.
Case 4: State v. Ramesh Kumar Yadav & Rita Johnson (NKP 2067, Decision No. 8623)
Facts:
A British woman and a Nepali man were involved in trafficking Nepali girls abroad for prostitution.
The recruitment and documentation occurred in Kathmandu, but exploitation occurred in India and the UAE.
Issue:
Could Nepal exercise jurisdiction over acts partially committed abroad?
Judgment:
The Supreme Court held that:
Since the planning, recruitment, and document forgery took place in Nepal, it falls within Nepal’s jurisdiction.
The cross-border element does not negate jurisdiction because the offence originated within Nepal.
Principle:
Nepali courts can try foreign nationals for transnational crimes initiated in Nepal, even if consummated abroad.
Case 5: State v. Sergei Petrov (NKP 2069, Decision No. 9037)
Facts:
A Russian national hacked into Nepal Telecom’s network and siphoned off call revenues.
Issue:
Whether cybercrimes committed remotely can attract Nepalese jurisdiction.
Judgment:
The Court ruled:
The effects of the crime (financial loss to a Nepali entity) occurred in Nepal.
Therefore, Nepal’s jurisdiction is valid under the “objective territorial principle.”
Principle:
When a crime causes substantial effects within Nepal, even if partly executed abroad, Nepal may prosecute the offender.
Case 6: State v. Tamang Kyi Lee (NKP 2075, Decision No. 9825)
Facts:
A South Korean missionary was accused of converting Nepali citizens through inducement, contrary to Nepal’s laws restricting religious conversion.
Issue:
Whether a foreign religious worker can claim immunity for acts done during missionary activities.
Judgment:
The Supreme Court held:
No religious or diplomatic immunity applies to private individuals.
Since the act of inducement occurred within Nepal’s borders, the prosecution was valid.
Principle:
Nepal’s sovereignty extends to all acts committed by anyone within its territory, regardless of nationality or motive.
Case 7: State v. Philip Gordon (NKP 2071, Decision No. 9451)
Facts:
An Australian volunteer working in a Kathmandu NGO was charged with sexual abuse of minors.
He argued that his organization should handle the matter under foreign regulations.
Judgment:
The Court rejected his defense, holding that:
The location of the crime determines jurisdiction, not the offender’s nationality or employer’s registration.
Nepal has the primary right to prosecute crimes committed against its citizens within its borders.
Principle:
Human rights and child protection crimes committed within Nepal are exclusively triable by Nepali courts, irrespective of the accused’s citizenship.
🔹 4. Doctrinal Summary
| Basis of Jurisdiction | Illustrated in Cases | Principle Established |
|---|---|---|
| Territorial Jurisdiction | John Charles Moran, Mohamad Faizal Khan | Crime within Nepal = jurisdiction valid |
| Objective Territorial (Effects Doctrine) | Sergei Petrov | Crime abroad but effects in Nepal = jurisdiction valid |
| Protective Principle | Ramesh Kumar Yadav & Rita Johnson | Crimes harming Nepal’s citizens or interests = jurisdiction valid |
| Universality Principle (limited) | Liu Cheng & Others | Crimes against international obligations (e.g., wildlife, trafficking) = jurisdiction valid |
| Equality Before Law | Philip Gordon, Tamang Kyi Lee | Foreigners have no immunity unless expressly provided |
🔹 5. Procedural Aspects of Prosecution
Arrest and detention must follow the Criminal Procedure Code, 2017.
Consular notification: Foreign nationals have the right to contact their embassy under the Vienna Convention on Consular Relations (1963).
Interpreter rights: Guaranteed under Article 20(2) of the Constitution of Nepal.
Punishment: The same as for Nepali citizens, unless diplomatic agreements specify otherwise.
🔹 6. Conclusion
The Supreme Court of Nepal has consistently maintained that:
“All persons within the territory of Nepal, irrespective of nationality, are subject to Nepalese criminal law for acts done within or affecting Nepal.”
Through its decisions in John Charles Moran, Mohamad Faizal Khan, Liu Cheng, Ramesh Kumar Yadav, Sergei Petrov, Tamang Kyi Lee, and Philip Gordon, the judiciary has firmly established that Nepal’s criminal jurisdiction is territorial, sovereign, and non-discriminatory.
Foreigners enjoy full due process rights but cannot escape prosecution for crimes committed on Nepalese soil or causing harm within its borders.
RELATED Blog
comments