Table of Contents
Introduction to Human Trafficking Laws in Nepal
Human trafficking constitutes a serious global issue involving the coercion, deception, or abduction of individuals for recruitment, transportation, and transfer purposes. It also stands as a severe violation of human rights and the right to live with dignity.
Non-governmental organizations (NGOs), international non-governmental organizations (INGOs), governmental bodies, and civil society actively engage in campaigns against human trafficking in Nepal.
Within the context of Nepal, the Human Trafficking and Transportation (Control) Act of 2064 has been enacted to address this concern. The legislation aims to end instances of human trafficking and transportation, while simultaneously safeguarding and rehabilitating trafficking victims.
Acts Classified as Human Trafficking
Section 3 of the Human Trafficking and Transportation (Control) Act of 2064 expressly designates the engagement in, or facilitation of, human trafficking as a criminal offense. According to Section 4 of the same Act, the ensuing acts are considered as human trafficking and transportation:
- The sale or purchase of an individual for any purpose.
- The involvement of an individual in prostitution.
- The illicit extraction of human organs.
- Participation in prostitution.
- The transportation of an individual out of the country for purposes of trade.
- The abduction and detention of an individual through any means, subsequently forcing them into prostitution and exploitation.
Human Trafficking Case Procedure in Nepal
The process regarding human trafficking commences with the reporting of such incidents, followed by the apprehension and investigation of the reported individuals, as well as the subsequent prosecution of cases and victim rehabilitation.
Should any individual suspect or possess credible information pertaining to ongoing or potential instances of human trafficking or transportation, it is imperative to report the matter to the nearest police station. If anonymity is desired, a written request must be submitted.
When reporting a victim, their statement will be recorded by the police. Post-recording, the statement needs to be certified by the nearest district court as expeditiously as possible. Even if the statement falls outside the district court’s jurisdiction, certification remains mandatory.
Arrest and Investigation
In cases where the police suspect or believe there is a risk of human trafficking or transportation, immediate action can be taken. This includes:
- The entry, search, or seizure of property.
- The use of necessary force to enter or search in cases of obstruction.
- Arrests or body searches without a warrant.
- The seizure and retention of found evidence.
Should substantial evidence indicating potential involvement in human trafficking and transportation activities be discovered, the individual can be apprehended. Furthermore, witnesses and property owners must be identified.
Upon the arrest of a suspect, the court is responsible for detaining the accused throughout the prosecution phase.
Burden of Proof
While the prosecution usually bears the responsibility of proving the accused’s guilt in most criminal cases in Nepal, cases concerning human trafficking and transportation require the accused to furnish evidence in their defense.
Right to Legal Representation
In instances where victims come forward, they possess the right to retain separate legal representation during court proceedings related to offenses under this Act.
Protections for Victims
Victims of human trafficking offenses in Nepal are entitled to various privileges encompassing rescue, rehabilitation, and reconciliation.
In accordance with Section 13 of the Human Trafficking and Transportation (Control) Act of 2064, the Nepalese government is mandated to establish rehabilitation centers aimed at the physical, mental, and social recovery of victims. Economic assistance should be provided as necessary, and the center must address the overall needs of victims.
Fund Furthermore, the Government of Nepal is obligated to institute a Rehabilitation Fund to support the operation of rehabilitation centers. This fund will be comprised of contributions from the government, NGOs, INGOs, and half of the fines collected.
According to Section 17 of the Act, the victim is entitled to receive compensation not less than half of the fine imposed as a punishment to the offender.
Punishment for Human Trafficking
Human trafficking is subjected to stringent penalties in Nepal, with a maximum imprisonment term of up to twenty years. The following offenses and their corresponding punishments are outlined by the Human Trafficking and Transportation (Control) Act of 2064:
- Selling or purchasing a human being:
- Punishment: Imprisonment of up to twenty years and a fine of Two Hundred Thousand Rupees.
- Forcing an individual into prostitution (with or without financial benefit):
- Punishment: Imprisonment ranging from ten to five years and a fine between Fifty Thousand Rupees and One Hundred Thousand Rupees.
- Extracting human organs (unless otherwise specified by law):
- Punishment: Imprisonment of ten years and a fine ranging from Two Hundred Thousand to Five Hundred Thousand Rupees.
- Engaging in prostitution:
- Punishment: Imprisonment for one to three months and a fine between Two Thousand Rupees and Five Thousand Rupees.
- Transporting human beings for exploitation:
- Taking a person out of the country:
- Punishment: Imprisonment ranging from ten to fifteen years and a fine between Fifty Thousand Rupees and One Hundred Thousand Rupees.
- Taking a child out of the country:
- Punishment: Imprisonment ranging from fifteen to twenty years and a fine between One Hundred Thousand Rupees and Two Hundred Thousand Rupees.
- Taking a person within the country for exploitation:
- Punishment: Imprisonment of ten years and a fine between Fifty Thousand Rupees and One Hundred Thousand Rupees.
- Taking a child within the country for exploitation:
- Punishment: Imprisonment ranging from ten to twelve years and a fine of One Hundred Thousand Rupees.
- Taking a person for exploitation within or outside the country:
- Punishment: Imprisonment for one to two years within the country, and two to five years imprisonment outside the country.
- Taking a person out of the country:
Other Forms of Punishment
If an individual commits multiple offenses concurrently, they will be held accountable for each relevant offense.
Furthermore, individuals holding public positions who commit offenses as stipulated above will face an additional penalty of 25% in both imprisonment and fines. In cases where the offense is perpetrated against a person under protection, guardianship, or a relative, an additional 10% punishment is prescribed.
In instances of repeated offenses of human trafficking and transportation, an additional one-fourth of the standard punishment is imposed for each subsequent offense. Lastly, providing contradictory statements during the case or failing to appear in court results in a punishment of three months to one year of imprisonment.
Punishment in the National Penal Code
Section 213 of the National Penal Code outlines that engaging in or facilitating any form of act with the intent of human trafficking warrants a prison sentence ranging from seven to ten years, accompanied by a fine of Rs.70,000 to Rs. 100,000, or both.
Exemption from Punishment
If any of the accused cooperates with the police, public prosecutor, or court to gather evidence and apprehend other offenders, the court can mitigate the punishment by up to 25% of the prescribed offense.
To qualify for this exemption, the accused must not be the principal offender, must not have been involved in trafficking or transporting a child, and the exemption must be granted for the first instance.
Seizure of Property
If the offender has acquired any form of property through human trafficking and transportation, it shall be promptly confiscated. Additionally, any property, including houses, land, or vehicles, utilized or provided for such offenses, shall be immediately seized.
Offense against Moral Turpitude
Any form of human trafficking and transportation is considered an offense against moral turpitude. During the framing of charges before the court, the public prosecutor is required to assert that the accused has committed an offense against moral turpitude.
The Human Trafficking and Transportation (Control) Act of 2064 has been enacted in Nepal as the Criminal Law against all forms of crimes and involving trafficking and transportation.
Rigorous rules and regulations have been established for the accused, with the burden of proof resting upon them. Additionally, provisions for victim compensation and rehabilitation have been put in place.