Prosecuting human traffickers by mobilizing human rights defenders as victims' advocates.

• Date: 01 January 2016
• Published date: 01 January 2016
• Author: Bang, Naomi Jiyoung
• Record Number: 452881514
• Author: Bang, Naomi Jiyoung

4. Lawyers

   Lawyers in Nepal are classified into three categories: (1) Senior Advocates who are lawyers with a minimum of fifteen years of experience, (2) Advocates who are law graduates or pleaders (182) with a combination of experience with or without a law degree, retired judges and officers of Nepalese Judicial Service, and law teachers who pass the bar entry, and (3) Pleaders who hold an intermediate degree in law or have worked as an agent for a minimum of five years with a successful Bar entry test. (183) Pleaders are those with authority to direct and cross examine witnesses and the complaining witness and to address the court in terms of arguments and statements. The pleaders allowed to plead and practice in all the courts except the Supreme Court. (184)

   In the public sector, the current reality is a defense system "so woefully inadequate that the poor have little chance of receiving any meaningful access to a lawyer." (185) Legal Aid in Nepal is based on a court appointed counsel (Baitanik Wakill) system where one lawyer is appointed to each court to represent all poor persons charged with felonies who appear before that court. (186) These lawyers are also grossly unqualified with scarce knowledge or experience in criminal defense. (187) Since legal aid lawyers do not enter the scene until indictment, involuntary confessions are usually already obtained and pre-trial detention is completed. This is distressing given the fact that many victims of human trafficking are frequently charged with criminal offenses. (188) Attorneys available to combat human trafficking are over worked and underpaid, often making it difficult for them to fully address the cases at hand and nearly impossible to handle cases in remote regions. (189)

   Nepal's Five Year Strategic Plan (190) recognizes the need to institutionalize legal aid services to the poor and disadvantaged groups, providing logistical support to these lawyers by periodically evaluating and maintaining a record of their activities. (191) As noted in Part I, because of the pervasiveness of Hindu culture and values imbedded in their caste system, even attorneys must be trained and educated against inherent discrimination towards their clients who come from these marginalized communities. (192) "Poor, low-caste people who have been accused of crimes do not rate much effort from their more educated, high-caste lawyers," but improvement is seen slowly "as defense attorneys visit their clients more regularly at the jails, and push for release or settlement of their cases within the time limits provided by law." (193)

   A number of recommendations and suggestions, such as the creation of an appointment process of court appointed lawyers, which would include regulations governing practice standards, remuneration, conditions of service, and other privileges, were included in the Supreme Court and District Court Regulations. (194) Furthermore, guidelines had been submitted by the Plan Implementation Committee for discussion at the Full Court. (195) From this, it was decided to establish a Project Implementation Secretariat within the Supreme Court and develop a mechanism for implementing the plan in all courts in order to establish a judiciary capable of executing the obligations set forth in the Constitution. (196) There have also been some strides, mostly notably by NGOs (197) stepping in to provide implementation of these very necessary components to justice.

   In the private sector, the Nepalese Bar has emerged as a relatively credible, strong organization since its beginnings in 1953, and is now administered by the Nepalese Bar Council and headed by the Attorney General of Nepal. (198) The Bar Council administers the bar exam and oversees the professional development of lawyers, including attorney discipline. A professional bar with ethics (199) is "an ornament of independent judiciary," within a greater civil society network with media to disseminate positive aspects of the judiciary and build trust among the people. (200)

   The Five Year Strategic Plan suggests that a mechanism be established where discussions and interactions between the Bar and Bench could be organized. Efforts have been made to ensure the plan is practical, implementable, and achievable by including the Bar in case management and coordination. (201) The Bar could serve as an effective legal model to the justice system to force it to abide by a code of professional conduct that is transparent and responsible. (202)

   4. PROSECUTION OF HUMAN TRAFFICKING CASES IN THE NEPAL JUSTICE SYSTEM

      The two primary objectives of the HTTCA are to prevent/decrease the acts of trafficking-in-persons and to protect and rehabilitate the victims. (203) Although the adoption of the HTTCA in 2007 created a momentum in Nepal's counter-trafficking efforts, the number of human trafficking prosecutions has been on the rise, with the most recent prosecution rates remaining low. "The core purpose of prosecuting violations of human rights abuses is to establish effective rule of law, and to deter future transgressions." (204) In the 2009-10 fiscal year, only 299 human trafficking cases were prosecuted at the district level, i.e., on average, less than four cases per district. Reportedly, in the 2010-11 fiscal year, even less--only about 201 "First Information Reports ("FIRs") (the initial victim statement) (205) were even taken for human trafficking cases. (206) The court process for Human Trafficking cases in Nepal follows:

      The victim or a third party, such as a victim's advocate, can initiate a complaint against a trafficker at the nearest police station. (207) Not surprisingly, the level of reporting remains low since many victims fundamentally misunderstand the crime of human trafficking, and therefore fail to understand that they were exploited. (208) Even among victims with an awareness of legal protections, there is under-reporting because police stations are intimidating, and lack the interest to ensure and protect the victims' privacy and confidentiality. (209) In fact, the fear and intimidation at police stations can be reminiscent of the situation from which the victim just escaped. The police structure also suffers from acute lack of resources and training, especially in light of the overwhelming number of cases-especially at the local level. (210)

      When victims arrive at the police station, they are to receive counseling from the Women and Children Service Centers ("WCSC"). (211) The Nepal police has formed the Women and Children Service Directorate ("WCSD") in Kathmandu as well as WCSCs in the districts. The WCSD and WCSCs are charged with controlling and preventing crimes against women and children, although they face several obstacles in fulfilling this mandate. (212) Few to no victims receive counseling from WCSD, although it is mandated. Some victims have been able to receive counseling from independent NGOs. (213)

      Victims are then referred to the police department's case registration unit charged with taking and filing out the victims' statements or "first information reports," (known as "FIRs") in Nepal's crime registration book. (214) If the complainant is the victim, the police are obligated to take their statement immediately. (215) WCSCs may also be present and counsel female and child victims of crimes when they arrive at initial intake, but do not have the authority to file FIRs, and do not coordinate with the case registration units. (216) While there is no universal system of intake, some districts such as Kanchanpur, have created a uniform victim statement interview protocol with specific questions. (217) Victims can be accompanied to the police station by a person of their choice, e.g., a lawyer, NGO representative, parent, or guardian. If the victim wishes to stay anonymous, the police should maintain his or her confidentiality. (218) Immediately after the FIR is filed, the trafficking victim is directed to report to the nearest district court to certify their account of the facts in a statement. (219) The statement of a human trafficking victim is unique in that it can be used as evidence even if the victim does not appear in court during trial. (220) Also, after the FIR is filed, the police are required to send a preliminary report about the crime to the prosecutor. (221)

      At this stage, the police must commence the investigation without delay. The investigating officer is to take the accused (or defendant's) statement in the presence of the government representative. (222) This may take some time because police are not as proactive as they should be in searching for the suspects or evidence, and the prosecutors provide little guidance on how to conduct the investigation. The prosecutor is then left with a haphazard investigation, compounded by insufficient time to prepare a strong charge sheet. Naturally, this contributes to weak and circumstantial evidence in most human trafficking cases. (223)

      After the police have completed their investigation, the prosecutor will review the police file, make a decision on whether to press charges, and file the charging document sheet with the district court. (224) The charge sheet cannot be amended once it has been lodged with the court. Technically, the Government of Nepal is considered the complaining witness or the plaintiff in trafficking in persons cases. (225) Although there is a controversial clause requiring the accused in human trafficking cases to prove their evidence-i.e. bear the burden of proof (226) -some claim that it serves the public purpose because it helps to raise the prosecution and conviction rates. (227)

      Observers have noted that "each judge hears, on average, 3-4 cases per day." (228) Each prosecutor then "handles, on average, over 1,000 criminal cases per year." (229) "This creates a significant imbalance of power [and advantage to well-heeled traffickers] in the courtroom" against the victim due to the fact that "defense...