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Challenges In The Investigation And Prosecution Of Human Trafficking Cases

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 trafficking cases.

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.[1]

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.[2]

Legal Assistance:
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."[3]

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.[4]

Challenges in Investigation and Prosecution:
Victim Cooperation:
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 against them.

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.

Institutional barrier:
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.

Adequate 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.

Language barrier:
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 criteria.

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 understand.

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 trafficking.

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 authorities.

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.

  1. Legislative Guide, Part 2.
  2. Palermo Protocol
  3. The European Convention of Trafficking
  4. Trafficking principles and guidelines
  5. Trafficking protocol
  6. United Nations Convention on Organised crimes
  1. The European Convention on trafficking
  2. Article 28, European Trafficking Convention; Article 24, Organised Crime Convention
  3. Article 8 (2), Trafficking Protocol
  4. Legislative guide, part 2, para. 65(b)

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