Even legal proceedings or to access an

Even
a trafficked person who is unwilling or unable to testify still has a
legitimate interest in the legal proceedings. Victims of trafficking who are
involved—or potentially involved—in legal proceedings have special needs and
vulnerabilities that must be addressed. Obligations that flow from this are in
addition to the protection, assistance and support obligations mandated for all
trafficked persons and discussed above. For example:


Trafficked persons should be provided with legal and other assistance in
relation to any court or administrative proceedings in a language they
understand. This should include keeping victims informed of the scope, timing
and progress of proceedings and of the outcome of their cases.

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Trafficked persons have a right to be present and express their views during
any legal proceedings.

In
summary, trafficked persons should be given a genuine opportunity to consider
their legal options. This requires, at a minimum, the provision of information
of a type and in a manner that will allow them to make an informed choice.
Should trafficked persons be involved in, or otherwise support, any form of
legal action, they have the right to play a meaningful role in that process and
to receive protection and support for the duration of their involvement

 

Non-criminalization
of trafficked persons

In
countries of transit or destination, trafficked persons are often arrested,
detained, charged and even prosecuted for unlawful activities such as entering
illegally, working illegally or engaging in prostitution.

For
example, they may not have the correct migration or work papers; their identity
documents may be forged or have been taken away from them; and the exploitative
activities demanded of a trafficked person, such as prostitution, soliciting or
begging, may be illegal in the country of destination. Criminalization of
trafficked persons is commonplace, even where it would appear obvious that the
victim was an unwilling participant in the illegal act. Such criminalization is
often tied to a related failure to identify the victim correctly. In other
words, trafficked persons are detained and subsequently charged, not as victims
of 18 trafficking, but as smuggled or irregular migrants or undocumented
migrant workers.

Countries
of origin sometimes directly criminalize victims upon their return, penalizing
them for unlawful or unauthorized departure. Criminalization and detention of
victims of trafficking are important issues because they are often tied to a
concurrent or subsequent failure on the part of the State to afford victims the
rights to which they are legally entitled under national and international law.
For example, criminalization will generally result in the deportation of
foreign victims—thereby denying them their right to participate in legal
proceedings or to access an effective remedy. There is growing international
agreement that, in the words of the

Recommended
Principles and Guidelines, “trafficked persons should not be prosecuted for
violations of immigration laws or for the activities they are involved in as a
direct consequence of their situation as trafficked persons” (guideline 2). For
example, the European Trafficking Convention requires State parties, in
accordance with the basic principles of their legal systems, to “provide for
the possibility of not imposing penalties on victims for their involvement in
unlawful activities, to the extent that they have been compelled to do so”
(art. 26).

 While the Trafficking Protocol does not
specifically address prosecution for status-related offences, the body
established to provide recommendations on its effective implementation has
affirmed that “States parties should … consider, in line with their domestic
legislation, not punishing or prosecuting trafficked persons for unlawful acts
committed by them as a direct consequence of their situation as trafficked
persons or where they were compelled to commit such unlawful acts.”1
Human rights treaty bodies as well as both the General Assembly and the Human
Rights Council have confirmed the importance of the non-criminalization
principle.

 

 

No
detention of trafficked persons

 It is not uncommon for victims of trafficking
to be detained, in public or private facilities, even for long periods of time.
The term “detention” is used in this context in accordance with its accepted
meaning in international law: the condition of “any person deprived of personal
liberty except as a result of conviction for an offence”. It can therefore
cover a wide range of situations in which victims of trafficking are held in
prisons, police lock-ups, immigration detention facilities, shelters, child
welfare facilities and hospitals.

In
the context of trafficking, detention most commonly occurs when:


Victims are not correctly identified and are detained as irregular/
undocumented migrants pending deportation;


Victims are identified correctly but are unwilling or unable to cooperate in
criminal investigations (or their cooperation is not considered useful) and are
sent to immigration detention pending deportation

;
• Victims, correctly or incorrectly identified, are detained as a result of
their engagement in illegal activities such as prostitution or unauthorized
work;

 • Victims are identified correctly and placed
in a shelter or other welfare facility which they are unable to leave. Common
justifications offered for this form of detention are the need to provide
shelter and support; the need to protect victims from further harm; and the
need to secure their cooperation in the investigation and prosecution of
traffickers.

International
law and policy support the following conclusions with regard to the detention
of victims of trafficking

First,
routine detention will always be unlawful

.
In evaluating the lawfulness or otherwise of victim detention, it is important
to make a distinction between routine detention, applied generally and as a
matter of policy, law or practice, and case-by-case detention.

Routine
detention of victims or suspected victims of trafficking in public detention
facilities or public/ private shelters violates a number of fundamental
principles of international law. In some circumstances, it violates the right
to freedom of movement and in most, if not all, circumstances the prohibitions
on unlawful deprivation of liberty and arbitrary detention.

 International law absolutely prohibits the
discriminatory detention of victims, including detention that is linked to the
sex of the victim. The practice of routine detention of women and girls in
shelters, for example, is clearly discriminatory and therefore unlawful.
Routine detention of trafficked children is also directly contrary to
international law and cannot be justified under any circumstances.

Second,
individual cases of detention could be defended with reference to necessity,
legality and proportionality.

 A State may be able to successfully defend
victim detention case by case with reference to, for example, criminal justice
imperatives, public order requirements or victim safety needs. The
internationally accepted principles of necessity, legality and proportionality
should be used to assess any such claim.

 They would, most likely, support a claim of
lawful detention only if detention is a last resort and is in response to
credible and specific threats to an individual victim’s safety. Even so, a
range of protections should be in place to ensure that the rights of the
detained person are respected and protected. Such measures would include, but
not be limited to, judicial oversight of the situation to determine its ongoing
legality and necessity as well as an enforceable right to challenge the
detention.

Third,
international law requires special justifications and protections in all cases
of detention of children.

 The detaining authority must be able to
demonstrate that the detention is in the child’s best interests. It must also
be able to demonstrate, in relation to each and every case, that there is no
reasonable alternative available to it. Specific protections, including
judicial or administrative oversight and the right of challenge, must be upheld
in all situations where the detention can be legally justified

Special
measures for trafficked children: identification

 International law requires that child victims
of trafficking should be accorded special measures of protection and support.
The nature of these measures will generally reflect the particular challenges
involved in supporting and protecting children. For example, in relation to
identification, it is important to acknowledge that not all child victims of
trafficking will present as such. They may appear to be 18 or older.

Their
passports may have been destroyed or taken away from them. They may be carrying
false identity papers that misstate their age. Child victims of trafficking may
lie about their age because this is what they have been told to do by their
exploiters. They may lie because they are afraid of being taken into care or
being sent back home. There is growing acceptance of a presumption of age in
the case of children. Under such a presumption, a victim who may be a child is
treated as a child unless or until another determination is made.

 It removes special or additional difficulties
that would otherwise complicate the identification of child victims. The
presumption of age is linked to the presumption of status: that a child who may
be a victim of trafficking is presumed to be a victim unless or until another
determination is made. Regarding the laws, systems and procedures that should
be in place to ensure rapid and accurate identification of child victims, the
UNICEF Guidelines provide important guidance:


States are to establish effective procedures for the rapid identification of
child victims, including procedures to identify child victims at ports of entry
and other locations;

 • Efforts are to be made to share information
between relevant agencies and individuals in order to ensure children are
identified and assisted as early as possible; and

 • Social welfare, health or education
authorities are to contact the relevant law enforcement authority where there
is knowledge or suspicion that a child is being exploited or trafficked or is
at risk of exploitation or trafficking.

Special
measures for trafficked children: protection and support

 International law is clear that the best
interests of child victims of trafficking are to be a primary consideration in
all decisions or actions that affect them. The Recommended Principles and
Guidelines stipulate that child victims of trafficking are to be provided with
appropriate assistance and protection with full account being taken of their
special rights and needs (guideline 8).

 In accordance with the presumptions outlined
above, all persons identified as or reasonably presumed to be victims of
trafficking and identified as or reasonably presumed to be under the age of 18
are entitled to this higher standard of protection and support. Appropriate
assistance and protection would include the provision of immediate support,
such as security, food and safe shelter. It would also include health care, counseling
and social services delivered by trained professionals. The services should be
appropriate for the child’s age and any special needs as well as for the
child’s sex, ethnic or cultural identity.

D.
Obligations related to the return of trafficked persons

 In addition to being arrested and detained,
trafficked persons are routinely deported from countries of transit or
destination. Deportation to the country of origin or to a third country can
have serious consequences for victims: they may be subject to punishment from
the authorities for unauthorized departure or other alleged offences; they may
face social isolation or stigmatization and be rejected by their families and
communities; they may be subjected to violence and intimidation from
traffickers—particularly if they have cooperated with criminal justice agencies
or owe money that cannot be repaid. Those who are forcibly repatriated,
particularly without the benefit of supported reintegration, may be at
significant risk of retrafficking

 

Safe
and preferably voluntary return

International
law supports a standard of “safe and preferably voluntary return” for
trafficked persons, supplemented by a number of important additional
obligations on countries of destination and of origin. The obligation to
provide safe and, as far as possible, voluntary return implies that the
repatriating State will conduct pre-return risk assessments. This is  especially important in the case of children.

 It should preferably be undertaken on an
individual basis and take into account the particular circumstances of each
case. The way in which the victims were trafficked, the extent to which they
have cooperated in the prosecution of their exploiters, whether or not they owe
money to traffickers, their age, their sex and their family situation, and the
capacity of the country of return to provide effective protection are all
important factors when considering whether safe return is possible. It is very
important that decisions on return are not based on unverifiable or highly
generalized situation reports produced by Governments, intergovernmental bodies
or non-governmental organizations

An
entitlement to return

 International human rights law is clear that
all victims of trafficking, children as well as adults, who are not residents
of the country in which they find themselves, are entitled to return to their
country of origin. This right places an obligation on the part of the country
of origin to receive its returning nationals without undue or unreasonable
delay. This is likely to involve the State of origin quickly verifying whether
the victim is indeed a national or has a right of permanent residence and, if
so, ensuring that the individual is in possession of the papers required to
travel to and re-enter its territory.

 The right to return also implies an obligation
on the country in which victims find themselves to permit those who wish to
return to do so—again without undue or unreasonable delay. Detention of
trafficked persons in shelters, prisons or immigration detention facilities is
one way in which the right to return can be interfered with. Compelling victims
to remain for the duration of lengthy criminal proceedings can also constitute
an interference with the right of return. In respect of each individual case,
the State preventing the return must be able to show that its actions are in
accordance with the law and are not arbitrary or unreasonable. The best
interests of the child will again also be a major consideration.

Due
process and the principle of non-refoulement

The
return of trafficked persons may not violate their established rights (see also
sect. H below). This includes the right to due process. Repatriation that is not
voluntary effectively amounts to expulsion from a State. International human
rights law rejects arbitrary expulsion; any non-citizen lawfully within the
country can be expelled only in accordance with the law. A non-citizen lawfully
present is entitled to present reasons why she or he should not be expelled and
these reasons must be reviewed by the competent authority.

For
trafficked persons who are not lawfully in the country, substantive and
procedural guarantees against expulsion are much less clear and States
generally retain a considerable degree of discretion in deciding whether and
when to remove unlawful immigrants. However, one of the most important
protections, potentially applicable to all non-citizens, relates to the
principle of non-refoulement. Under this principle, States are prevented from
returning an individual to a country where there is a serious risk that she or
he will be subject to persecution or abuse. This principle is well established
in international law and the importance of protecting this principle in the
context of measures to deal with trafficking is also widely accepted.

Human
rights treaty bodies and regional human rights courts have also confirmed that
return which risks torture or cruel, inhuman or degrading treatment or
punishment is contrary to international law. The prohibition on refoulement has
traditionally been applied with reference to risks of persecution that come
from States or their agents. More recently, there has been some recognition
that the prohibition might also apply in certain situations where the fear of
persecution comes from non-State actors and the relevant State is unable to
provide appropriate or effective protection. Such circumstances may well arise
in the context of trafficking, if the State of origin is unable to offer
protection against, for example, reprisals or retrafficking by criminal groups.

RIGHT
TO REMAIN DURING LEGAL PROCEEDINGS

 As discussed in section C above, international
treaty law, including both the Trafficking Protocol and the European
Trafficking Convention, obliges countries of destination to conduct return with
due regard for the status of any related legal proceedings. States should,
therefore, be careful to ensure that the return of trafficked persons does not
jeopardize the initiation and/or successful completion of any legal proceedings
involving them. Such proceedings would include those related to compensation.
The presence of the trafficked person in the country in which remedies are
being sought is often a practical—and sometimes a legal—requirement for that
person to secure remedial action. In some countries, civil action to recover
damages cannot commence until criminal proceedings have been concluded.
Repatriation that does not take account of the victim’s right to remedies will
inevitably obstruct the free and effective exercise of that right. At the very
least, there should be a deferral of deportation, accompanied by a temporary
regularization of legal status, until the victim has been able to participate
in the relevant legal proceedings

Alternatives
to repatriation

 In some cases, repatriation to the country of
origin, even in the longer term, will not be the preferred course of action.
This may be owing to ongoing 26 risks to the victim’s safety and security. It
may also be owing to humanitarian considerations that relate, for example, to
the victim’s health or the links and relationships that the victim has
established in the country of destination. While the Trafficking Protocol does
not address this issue directly, other legal and policy instruments, by
recognizing the possibility of temporary visas and even permanent residency, do
not automatically assume that repatriation is the immediate or even ultimate
outcome of a trafficking event.

 The obligations of States in this respect will
very much depend on the specific situation. For example, States may be required
to provide alternatives to repatriation if return poses unacceptable risks to
the victim and/or the victim’s family. In relation to child victims of trafficking,
local and third-country integration may offer a durable solution if return to
the country of origin is not in the child’s best interests. The Committee on
the Rights of the Child affirmed, in its general comment No. 6 (2005) on the
treatment of unaccompanied and separated children outside their country of
origin, that repatriation is not an option if it leads “to a ‘reasonable risk’
that such return would result in the violation of fundamental human rights of
the child”

Reintegration
of victims

Supported
reintegration is a critical aspect of safe repatriation. Victims of trafficking
who are provided with reintegration assistance are much less likely to be
retrafficked. They may also, depending on the nature and quality of support
provided, be less vulnerable to intimidation, retaliation, social isolation and
stigmatization. Supported reintegration is a right owed to trafficked persons
by virtue of their status as victims of crime and of human rights violations.
It must be accompanied by respect for the repatriated individuals’ rights,
including their right to privacy and their right not to be discriminated
against. Successful reintegration requires cooperation between repatriating and
receiving countries. The importance of such cooperation is recognized in
regional treaties as well as in key international and regional policy
documents.

1 CTOC/COP/WG.4/2009/2, Para. 12.

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