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  • IND013Shiva Ent Udyog v. National Human Rights Commission and Ors
  • 2200,en,/case-law/ind/2011/shiva_ent_udyog_v._national_human_rights_commission_and_ors.html
  • India
    Verdict Date: 2011-01-21

  • The petition was filed for quashing the order dated 10.8.2010 issued by the Assistant Registrar (Law) of the National Human Rights Commission, New Delhi, directing the District Magistrate, Bulandshahr to initiate action against the Petitioner under the provisions of Bonded Labour System (Abolition) Act, 1976; and to send action taken report to the Commission within six weeks. After consideration of the evidence, the writ petition was denied by the appellate court.

    The Petitioner is a firm, engaged in the business of running a brick kiln situated in a village in the State of Uttar Pradesh. Several persons including minor children made a complaint to the National Human Rights Commission (NHRC), alleging that they, along with their family members, were held as bonded labourers by the owners of the brick kiln. The complaint also alleged ill-treatment and misbehaviour with women and non-payment of wages and restrictions placed on their movement. The Commission was requested to rescue them and other persons held as bonded labourers.

    The Director General (Investigation) NHRC was directed by the Commission to carry out an investigation based on which a report was submitted after examining the documents, and the persons available on the spot and the district authorities. The Assistant Registrar (Law) NHRC made several observations regarding action taken by the District Magistrate and the Labour officials. Instead of protecting the interest of the labourers, the NHRC found that all the authorities had protected the brick kiln owner.

    The petitioners contended that no offence was made out under the Bonded Labour System (Abolition) Act, 1976 and that the Protection of Human Rights Act, 1993, does not give powers to the National Human Rights Commission to record findings of violations of law and for taking action under the Bonded Labour Act unless there was sufficient material to arrive at such finding.

    The High Court examined the entire legal framework pertaining to bonded labour and the provisions of the Protection of Human Rights Act, 1993. Based on the powers provided to the NHRC under the Act of 1993, the High Court came to the conclusion that the contentions raised by the petitioner were wholly unfounded.

    The court held that this case included all the elements of bonded labour system as defined under Sub-section (2) (g) of the Bonded Labour Act. The violation of The Bonded Labour System, (Abolition) Act of 1976, is without any doubt a violation of human rights as defined under Section 2(d) and (f) of the Protection of Human Rights Act, 1993 for which the NHRC has the authority conferred by the Protection of Human Rights Act, 1993, to enquire, investigate and to take steps provided under Sections 13, 14 and 16 of the Act. The writ petition was dismissed by the High Court on the above legal reasoning.

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  • IND011Lakshmi Kant Pandey v. Union of India (UOI)
  • 2200,en,/case-law/ind/1984/lakshmi_kant_pandey_v._union_of_india_uoi.html
  • India
    Verdict Date: 1984-02-06

  • This judgment of the Supreme Court was delivered in a Writ Petition which was initiated on the basis of a letter addressed by Laxmi Kant Pandey, an advocate practising in the Supreme Court, complaining of malpractices indulged in by social organizations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents.

    The Indian Council of Child Welfare and the Indian Council of Social Welfare along with eight other institutions or organizations were co-opted by the Supreme Court for assistance in laying down principles and norms which should be followed in determining whether a child should be allowed to be adopted by foreign parents and if so, the procedure to be followed for that purpose, with the object of ensuring that such inter-country adoptions do not lead to abuse maltreatment or exploitation of children and secure to them a healthy, decent family life.

    The Supreme Court discussed relevant provisions from the Constitution of India; the Guardians and Wards Act, 1870;  National Policy for the Welfare of Children; Declaration of the Rights of the Child; the Economic and Social Council Resolution 1925 LVIII; Draft Declaration on ‘social and legal principles relating to the protection and welfare of children with special reference of foster placement and adoption, nationally and internationally’, held in Geneva in 1978; and guidelines formulated at the Regional Conference of Asia and Western Pacific held by the International Council on Social Welfare in Bombay in 1981. The Court further discussed the procedure being followed for inter-country adoption under the Guardians and Wards Act, 1870 and Rules framed by various High Courts in this regard.

    The Court stated that every effort must be made first to see if the child could be rehabilitated by adoption within the country and if that was not possible, then only adoption by foreign parents, or ‘inter country adoption’ should be acceptable. This principle stems from the fact that inter country adoption may involve trans-racial, trans-cultural and trans-national aspects which would not arise in case of adoption within the country and the first alternative should therefore, always be to find adoptive parents for the child within the country.

    The Supreme Court gave an extensive and comprehensive judgment on the issues of inter-country adoption of children by foreigners. The Court laid down the requirements for inter-country adoption by foreigners, whether from social welfare organizations or from biological parents, inter alia to help reduce, if not eliminate altogether the possibility of profiteering and trafficking in children. The Court also mentioned receipt of information pertaining to instances where large amounts were demanded by social or child welfare agencies or individuals in consideration of giving a child in adoption and often this was done under the label of maintenance charges and medical expenses supposed to have been incurred for the child. The Court stated that this was a pernicious practice which was really nothing short of trafficking in children and it was absolutely necessary to put an end to it by introducing adequate safeguards. The Court also gave specific directions to deal with the issue of social or child welfare agencies bringing children from one State and giving in adoption in another State, so as to obviate their indulgence in trafficking of children by offering monetary inducement or persuading indigent parents to part with their children and then give the children to foreigners in adoption by demanding a higher price. Various other directions were issued by the Supreme Court on diverse aspects of trafficking of children by means of inter-country adoption.

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  • UNODC108United States v. Kim et al
  • 2200,en,/case-law/usa/2007/united_states_v._kim_et_al_.html
  • United States of America
    Verdict Date: 2007-11-28

  • Defendants  Ae Soon Cho aka Gina  Kim and Geeho Chae aka Ji Ho Choi were operating a large massage parlor/brothel business in Flushing, NY, including four brothels and a “stash house” in which they stored money and their workers lived.  They used middlemen from which they “ordered” Korean women for their brothels. The victims entered the US illegally, either without visas or with visas that were fraudulently obtained.  Upon arrival in the US, the women were informed of a "debt" they owed the smugglers and forced into prostitution to repay it.

    Defendants Svoronos and Dennis Kim were police officers who accepted bribes from the brothel owners.  Kim and Svoronos permitted Cho and Chae to operate their brothel and directed law enforcement to raid competing brothels in exchange for sexual services, payment of bar bills, and information leading to arrests that could advance the police officers' careers.

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  • IND006Peter v. State of Kerala
  • 2200,en,/case-law/ind/2011/peter_v._state_of_kerala.html
  • India
    Verdict Date: 2011-03-14

  • The prosecution case was that a minor girl was removed from the custody of her parents for the purpose of subjecting her to prostitution by a sex racket and she was sent to various persons for sexual intercourse under threat, coercion and duress and that too without her consent and against her will. Thus, the specific allegation against the Petitioner was that he was one of the customers and on 14.11.1995 he obtained possession of the victim, a minor girl from the restaurant of a hotel. He thereafter, took her to a room of that hotel and committed rape on her without her consent and against her will.

    According to the prosecution, the victim was trapped by offering her job and thus, she was under illegal confinement during which time she was molested by about 124 persons during the period from 21.10.1995 till the time of lodging the F.I.R statement. 23 separate charge sheets were filed against different accused in the Special Court. The Petitioner was the eighth accused in charge sheet No. 13, on the basis of which S.C. No. 89 of 2010 was instituted in the Special Court

    The accused filed Criminal Revision Petition in the High Court of Kerala, against the order dated 16.2.2011 of the court of Additional Sessions Judge (Special), Kottayam in Crl. M. A. No. 249 of 2011 in S.C. No. 89 of 2010, by which the learned Sessions Judge rejected the plea of the Petitioner for a discharge under Section 227 of the Code of Criminal Procedure (hereinafter referred to for short as the ‘Code’).

    The High Court heard in great detail the contentions made by the defence counsel and the Public Prosecutor. The defence counsel contended on several issues, namely; that the victim was not a minor and was a consenting party; that test identification parade was not conducted during investigation; that name of the petitioner was not specifically mentioned in the victim’s statement; etc.

    The High Court held in its judgment that except the framing of charge, the trial had not commenced and the process of recording of evidence was yet to be commenced. It was thereafter only for the Trial Court to consider the question whether there was evidence to connect the Petitioner with the alleged incident. The High Court referred to several Supreme Court judgments which have held time and again that ‘the sole testimony of prosecutrix can be basis for conviction even in the absence of any corroboration from independent source if such evidence of the prosecutrix is free from any infirmities and worthy of credence’. Thus all the contentions raised by the Petitioner were liable to be considered only after the stage of evidence and not at this stage.

    The High Court held that the impugned order of the court of Additional Sessions Judge (Special), Kottayam and the charge framed against the Petitioner required no interference and they were legal, correct and proper and as such, there was no merit in the Revision Petition and the same was liable to be dismissed.

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  • IND008Court on its own Motion v. State
  • 2200,en,/case-law/ind/2004/court_on_its_own_motion_v._state.html
  • India
    Verdict Date: 2004-02-27

  •  

    By this application, the applicant-NGO Prajwala (http://www.prajwalaindia.com/images1/Conviction.pdf) sought direction to Additional Sessions Judge, Tis Hazari Courts, Delhi to record evidence of some of the witnesses in a case arising out of FIR Nos. 144/2002 and 110/2002, registered at Police Station Kamala Market, Delhi under Sections 376 / 365 / 368 / 34 of the Indian Penal Code. The Trial Judge had declined the request of the NGO to record the statement of the witnesses through video conferencing, mainly on the ground that neither the State Government nor his Court had such a facility and therefore, allowing such an application at this juncture would consume a lot of time, with the result that the trial would be delayed.

    The applicant stated that bearing in mind the rehabilitation and reintegration of the victims of trafficking, compelling the said victims, who were to be examined as prosecution witnesses, to come to Delhi from distant places, where they had been rehabilitated, would not only cause immense inconvenience to them, it would also be detrimental to their personal lives. However, the victims were willing to have their statements recorded by means of video conferencing from the stations they were presently residing/rehabilitated.

    After exploring all possibilities for video conferencing and bearing in mind the fact that it would definitely be inconvenient for the witnesses, placed in peculiar circumstances, to come to Delhi for the purpose of recording of their statements, the High Court of Delhi directed the Trial Court to fix a date for recording the statements of the witnesses, based in the State of Andhra Pradesh by video conferencing.

    The High Court in this case referred to the judgment of Supreme Court in State of Maharashtra versus Dr. Praful B. Desai [(2003) 4 SCC 601], and stated that while recording evidence by the said mode the Trial Judge will keep in mind the safeguards, enumerated in the decision of the Supreme Court.

     

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  • FRA011MJ, SA, SM, TT & TY
  • 2200,en,/case-law/fra/2011/mj_sa_sm_tt_ty.html
  • France
    Verdict Date: 2011-12-09

  • French air and border police uncovered a smuggling ring from Eastern Europe to the South of France.

    Romanian and Bulgarian migrants were invited by a Romanian citizen named “Tanase” to travel West for a EUR100 (USD130) fee and were induced by false offers of employment. Once in France, they stopped at a highway rest area where they met members of the “Stroe” family, Romanian migrants already settled near Nîmes. The Stroe family were headed to a field in which a camp had been put in place without the consent of the owner. The new migrants were harboured there in poor conditions, with numerous other migrants coming from eastern Europe. Whilst the conditions were poor, the camp had electricity and water. Subsequent investigations uncovered that the camp and the false offers of employment were managed by a Spanish man named “Martinez".

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  • IND002Guria, Swayam Sevi Sansthan versus State of U.P. and Others
  • 2200,en,/case-law/ind/2009/guria_swayam_sevi_sansthan_versus_state_of_u.p._and_others.html
  • India
    Verdict Date: 2009-07-31

  • Appellant is a Non-Governmental Organization, which came to learn that some children had been detained in the ‘red light area’ at Varanasi. The NGO approached the police for their rescue. More than thirty young girls and children were rescued. A complaint was filed by the appellant. The investigating officer recorded the statement of the girls and on the basis thereof came to the conclusion that many more persons were involved in the racket. Some of them were arrested. The Investigating Officer upon completion of the investigation filed a charge sheet under Sections 5, 6 and 9 of the Immoral Traffic (Prevention) Act, 1956 (for short ITPA, 1956) and Sections 323, 504, 506, 117, 366A and 373 of the Indian Penal Code (for short IPC) against 23 persons. Another charge sheet was filed under Sections 3, 5, 6, 7 and 9 of the ITPA, 1956 and Sections 323, 504 and 506 of the IPC against 13 persons. The respondents filed applications for grant of bail before the Sessions Judge. The learned Sessions Judge rejected the said applications for bail, inter alia, stating:

    “... It is prima facie evident from the investigation carried out in this manner that these people bring the customers to get indulged in forceful immoral traffic with the minor girls and recover the charges in lieu thereof and have made their main business and brought the minor girls at the said place on having purchased them. In this reference only on having conducted the raid by the police and other social service institutions on the stated date 31 minor girls have been recovered… In case the applicants are released, these people would again indulge in these acts because they have no other business. After considering all the facts and circumstances of the case in my opinion no proper ground is found to release the accused persons on bail. Therefore, all the above-stated four bail applications submitted by the applicants/ accused are rejected”.

    The High Court, however, by reason of the impugned judgment, allowed the said applications for bail on furnishing personal bonds with two sureties each.

    Upon the NGO filing an appeal in the Supreme Court, the Court stated in its judgment:

    “It is unfortunate that the Investigating Officers and the Courts ordinarily fail to bear in mind a distinction between the rescued children including girls, on the one hand, and the persons who have been organizing such immoral traffic in a systematic manner and have otherwise been aiding and abetting the commission of offences there under. The Legislature as also the Executive have also failed to draw a well-thought out plan for rehabilitation of the rescued children in the society by bringing in suitable legislations or schemes. The victims of immoral trafficking, most of whom are minor or young girls are let off on bail. They again in most of the cases are forced to go back to the brothels from where they have been recovered and are subjected to prostitution again at the instance of the same persons. Bails are also granted to other accused who are arrested from the brothels without bearing any distinction in mind as to whether they work from behind or may be held to be guilty of offences of higher magnitude. The question as regards grant of bail, therefore, should be considered having regard to the gravity of the offence wherewith the accused had been charged. The High Court, therefore, in our opinion, was not correct in dealing with the matter in such a cursory manner. The High Court has also gone wrong in recording that the statements of the girls have not been recorded under Section 164 of the Code of Criminal Procedure, as the same was not necessary. We would place on record that in a case of this nature, the High Court should have dealt the matter cautiously. As the private Respondents have been granted bail long time back and in some cases trials have also been concluded, it would not be proper to cancel the bail at this stage”.

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  • MLW001Lourenco
  • 2200,en,/case-law/mwi/lourenco.html
  • Malawi
    Verdict Date:

  • In 1999, three destitute girls from Lilongwe, Malawi, were arrested in a police raid at a sex club in Amsterdam, The Netherlands. The girls, aged between 15 and 19, were subsequently deported back to Malawi and a local businesswoman, Ruth Lourenco, was accused of trafficking them. It was alleged that when Ms Lourenco approached the girls they were already working as prostitutes offering sexual services to men in return for money and other material benefits. It was claimed they were working as prostitutes because they were impoverished and needed the money.

    It was alleged that upon recruitment, Ms Lourenco promised the girls a business trip to Holland. She obtained passports for them and travel with them to Holland from Chileka Airport via Johannesburg, London, and Brussels. Once the girls arrived in Amsterdam, Ms Lourenco allegedly sold them to Nigerian traffickers for USD10,000 each. Their passports were confiscated and they were told to say they were from Ghana and Sierra Leone. The Nigerian traffickers forced the girls to work in sex clubs and in some cases resold them to other traffickers.

    The girls were allegedly subjected to numerous abuses; beatings, threats of violence and sexual assault. They were forced to perform strip shows and private dances for clients and their captors. One of the victims was so young (aged 15 at the time) that clients initially refused to sleep with her until she started lying about her age. When the victims protested and demanded to be taken back to Malawi, they were told they had to first repay a debt of USD20,000 spent on their travel expenses.

    Note: These case facts are drawn solely from the ‘Report of the Malawi Law Commission on the Development of Anti-Trafficking in Persons Legislation’ which further cites official case transcripts.

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  • FRA006AA.Z
  • 2200,en,/case-law/fra/2008/aa.z.html
  • France
    Verdict Date: 2008-02-06

  • In 2006, Ms. C.F., supported by a local association from Marseille, filed a complaint against Ms A.A.Z. She alleged that Ms A.A.Z had forced her into prostitution. Ms C.F. explained that she came from the same village in Nigeria as Ms A.A.Z. and that the defendant brought her to France at the end of 2003. Ms A.A.Z. forced her to prostitute next to the railway station in Toulouse. Ms A.A.Z. also taught her several words in French so she could communicate with clients. Every evening Ms A.A.Z. took three quarters of her daily income. In 2004, Ms A.A.Z. transferred Ms C.F. to Marseille where she continued to work as a prostitute at la Canebière. She then fell pregnant and after giving birth was forced to continue working as a prostitute, even though she wanted to leave. In order to coerce Ms C.F. into prostitution, Ms A.A.Z. had practiced 'juju rituals' in Nigeria. Once in France she confiscated Ms C.F.'s passport and threatened her family.

    Ms K.C., a Nigerian national, came to France in 2002 at another woman’s request. She was then resold to Ms A.A.Z. She was also forced to prostitute herself and Ms A.A.Z. collected part of her income.

    Ms A.A.Z. spoke English (but not French) and was also a former prostitute in Toulouse from 1997 to 2001.

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  • FIN001Estonian-Finnish Criminal Organization Case
  • 2200,en,/case-law/fin/2006/estonian-finnish_criminal_organization_case.html
  • Finland
    Verdict Date: 2006-07-20

  • In this case, the members of an Estonian-Finnish criminal organization were accused of compelling an Estonian woman to engage in prostitution in a manner that was considered to meet the statutory definition for an aggravated human trafficking offence.

    A woman, who was being threatened with fines for not repaying a debt, was forced to travel to Finland, where she was locked up in a flat in Helsinki and directed to engage in prostitution as a means by which to pay back the debt. The woman serviced three to fifteen customers a day, but was not allowed to keep any of the money. The members of the criminal organization threatened the woman with violence if she refused to work as a prostitute. The woman’s vulnerability was exacerbated by her inability to speak Finnish. One of the defendants promised to marry the woman if she “worked” well. Fearing detection, the defendants sent the woman back to Estonia via Sweden, and threats were made such that she would not tell anyone. The woman subsequently suffered from mental health problems.

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