Trafficking in Persons is a grave violation of human rights, which needs to be
addressed and taken earnestly. State officials and NGOs work together in
battling trafficking; NGOs play a foremost role in rescue, investigation,
prosecution and rehabilitation in trafficking cases. The rate and quality of
prosecution for trafficking offences appears to be very low.
There are several
reasons and challenges for inefficient implementation in the investigation and
prosecution that needs to be addressed and improved. The state is under an
obligation to protect the victim-witnesses and especially child witnesses; any
action taken, must be in the best interest of the victims who bravely agree to
testify against their traffickers.
Human Trafficking is a growing concern across the globe. Investigation,
prosecution and punishment is a core aspect for an effective national response
for the prevention of trafficking. The crime of human trafficking frequently has
a major multinational component. Victims, for example, may be recruited,
trafficked, and exploited in another country. Without a solid commitment from
both sides, such cooperation will surely be weak, sporadic, and fruitless.
Strong prosecution serves to reduce traffickers' impunity, which perpetuates the
crime of human trafficking. They can also help to provide justice and access to
remedies for persons who have been trafficked. An effective criminal justice
response to trafficking serves as a deterrent to future trafficking and is thus
a vital component of prevention.
Anti-trafficking measures shall not adversely affect the human rights and
dignity of persons, in particular the rights of those who have been trafficked,
and of migrants, internally displaced persons, refugees and asylum-seekers .
Strong prosecution ensures justice to the victims who have been trafficked
including access to remedies.
States are under similar duty to identify cases of
trafficking and to investigate and prosecute those cases to the required level
of diligence. In order to accomplish their obligation to investigate, prosecute
and adjudicate the crime of trafficking with due diligence, it is indispensable
to construct the aptitude of criminal justice agencies and to address gaps in
their acquaintance, adeptness and optimism among officials.
Training is a crucial element in anti-trafficking strategies. Every official
involved in anti-trafficking must be trained from agencies that encounter
trafficking crimes or victims. Special focus must be on those individual who are
expected to be involved in the investigation, prosecution and adjudication of
Obligations towards victims
As it is evident that the victims are the primary source of evidence, it is
essential that they are protected at all cost, investigation and prosecution is
not possible without victim's testimony. While the Trafficking Protocol makes no
specific reference to this issue, the Legislative Guide to the Protocol states
that: "support and protection shall � not be made conditional upon the victim's
capacity or willingness to cooperate in legal proceedings." The European
trafficking Convention clearly states the need to separate protection and
assistance from legal cooperation of victims.
As mentioned above, victims are hesitant to assist in the
investigation and prosecution out of fear of retaliation by their traffickers.
Victims should be made aware of the protection available to them and limitations
attached; victims must not be lured into cooperating with false promise of
protection. The United Nations Convention of organized crimes and The European
Convention on trafficking, both, state that the state must do all within its
power to ensure the safety of the victims and their families.
The Trafficking Protocol identifies states' need to help in
ensuring that victims can be present during criminal proceedings against
traffickers and have their concerns and perspectives acknowledged. It also recognises that premature repatriation jeopardises this right and hence requires
States Parties of destination to guarantee that "such return is undertaken with
due regard... for the status of any legal proceedings related to the fact that
the person is a victim of trafficking."
Assistance and protection during trial:
As a general rule, states and others
should try to ensure that court processes involving trafficked people do not
violate their rights, dignity, or physical and psychological well-being.
Special assistance to child victims:
It goes without saying that children need
to be handled sensitively especially when they have been through such hell. Best
interest of the child must be of primary consideration if there is a slightest
chance that it might affect them. The right to legal safeguards and effective
protection of child witnesses need to be strongly emphasized during the legal
proceeding. Law enforcement must ensure special protection for the safety of the
children who agree to testify against their traffickers.
Challenges in Investigation and Prosecution:
One of the most common challenges faced by the law
enforcement agents is to get the victims to cooperate in the investigation.
Victims are hesitant to cooperate because of fear, shame and trauma. The fear of
retaliation by their traffickers if they provided evidence or information
Credibility of victim statement:
In most of the cases the victims voluntarily
agree to be smuggled across country to meet their financial needs, there are
chances that the victim must be lured into giving false information, all that
serves to diminish their credibility further as they may be perceived as being
complicit in their victimization. Also, victims of human trafficking may appear
less trustworthy if they are not physically bound and appear free to flee their
predicament. In cases where the victim was free to come and go, law enforcement
officers reported having a considerably more difficult time convincing
prosecutors that the victim is credible.
The traditional goal of the law enforcement is to
investigate cases that end in arrest and prosecution. Sometimes, because of lack
of evidence or credibility of the victim statements, the prosecutors may think
that it's not worth the time and effort. Law enforcement is reluctant to
investigate cases that they think will not be prosecuted. A reluctance to
prosecute human trafficking cases may be the result of lack of prosecutor
awareness or training.
The Law enforcement agencies lack training and the required
skills to deal with such crucial cases. The investigation procedures are not
being conducted efficiently and the officials lack skills as to how to interview
the victim keeping in mind their trauma; all this results in delay and most of
the times doesn't reach to the prosecution stage, as the famous saying goes
"Justice delayed is Justice denied".
Victims being pigeonholed as criminals:
In many cases we see prostitutes being
arrested from hotels, brothels, red-light areas etc. Police officials fail to
consider the fact that these girls might be trafficked and forced into this
dirt. These girls are pigeonholed as a criminal, which adds on to their
suffering. Before labelling them as offenders or taking any action against them
it is necessary that a background check is done in order to differentiate
between the offenders and victims.
Trafficked persons shall not be detained,
charged or prosecuted for the illegality of their entry into or residence in
countries of transit and destination, or for their involvement in unlawful
activities to the extent that such involvement is a direct consequence of their
situation as trafficked persons.
Victims of trafficking are transported from one country to
another for different purposes, when they are rescued; it becomes difficult for
the law enforcement agencies to communicate with them. Sometimes translators are
easily available and sometimes not.
Lack of rehabilitation facilities:
Rehabilitation has a minimal but a
fundamental role in the Investigation & Prosecution of trafficking. Providing
adequate shelter, medical assistance, counselling and financial assistance is a
major challenge. All of this is necessary for the rehabilitation, reintegration
and recovery of the victim; law enforcement are obligated to provide victims all
such facilities in order to empower them and also build a trust and gain
cooperation from the victim for investigation. Mental well-being of the victim
is essential to gain credible information against the trafficker.
Suggestions To Overcome These Challenges
Amending or implementing national legislation in conformity with international
standards, so that the trafficking crime is accurately defined in national law
and specific information on its many criminal parts is supplied. All practises
that fall within the criteria of trafficking, such as debt bondage, forced
labour, and forced prostitution, should be criminalised as well.
States must safeguard trafficked people from further exploitation and suffering
and provide them with proper physical and psychological treatment. Such
protection and care shall not be conditional on the trafficked person's ability
or desire to cooperate in legal proceedings.
It is necessary to design and implement a regular monitoring and auditing
procedure for government-run and sponsored shelters in order to assure proper
care and to rapidly allocate funding to shelters that meet official care
When dealing with victims, law enforcement and non-governmental organisations
must collaborate. In general, law enforcement authorities are unprepared to
provide the resources that victims require, such as shelter and medical and
psychological care. NGOs must assist victims by keeping them secure and
providing therapy services.
Collaboration between non-governmental organisations and other civil society
organisations in countries of origin, transit, and destination is encouraged and
facilitated. This is especially crucial in order to provide support and help to
trafficked individuals who are deported.
To address the issue of language and cultural barrier, having an efficient
interpreter or translator is the key to communicate with foreign national, who
can interview the victims. And also, making effective provision for trafficked
persons to be given legal information and assistance in a language they
Training should be provided to officials involved in the investigation,
prosecution and adjudication of trafficking cases and also to specialist
front-line law enforcement officials, prosecutors and judges.
Training should seek to sensitize participants to the needs of trafficked
persons, in particular those of women and children.
Training should strive to improve criminal justice authorities' ability to
protect victims and respect and advocate their rights.
Training should promote collaboration between criminal justice agencies and
nonprofit organisations, particularly those that assist victims of human
The involvement of relevant non-governmental organisations in such training
should be considered as a means of boosting its relevance and efficacy.
The quality of training should be evaluated. Following training, trainee
performance should be observed, and the training impact should be evaluated.
Providing required investigative capabilities and tactics to law enforcement
authorities to enable successful investigation and prosecution of suspected
traffickers. States should encourage and support the development of proactive
investigative processes that avoid relying too heavily on victim testimony.
There will always be challenges and loopholes in every area; each case is unique
and needs to be handled accordingly. There is a need for an efficient legal
framework and specialized agencies to deal with trafficking cases only. Given
the trauma associated with human trafficking, the victims are less likely to
cooperate with the authorities. Another reason why victims are reluctant to
cooperate is due to the fear of retaliation by their trafficker, fear of
deportation, or victim distrust of police.
In cases that go for trial, victims
are often faced with the difficult duty of testifying against their traffickers.
Law enforcement agents dealing with such cases need to be trained as to how to
interview the victim and build trust, in order to make them cooperate with the
Finally, it is critical to recognise that effective victim-witness support
inevitably necessitates strong and fruitful collaboration between criminal
justice and victim support institutions. In general, police and prosecutors lack
the resources to provide the kind of assistance that a trafficked individual
needed. In other cases, criminal justice authorities' embrace of that duty will
be directly counter-productive.
A number of legal and policy instruments have
stated that criminal justice agencies dealing with trafficking should
collaborate closely with victim support agencies, including non-governmental organisations, to ensure that victims' rights are respected and that they
receive appropriate protection and support.
- Legislative Guide, Part 2.
- Palermo Protocol
- The European Convention of Trafficking
- Trafficking principles and guidelines
- Trafficking protocol
- United Nations Convention on Organised crimes
- The European Convention on trafficking
- Article 28, European Trafficking Convention; Article 24, Organised Crime Convention
- Article 8 (2), Trafficking Protocol
- Legislative guide, part 2, para. 65(b)
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