Implementation of Effective Remedies for the Comprehensive Protection of
Victims of Trafficking in Persons: Restitution, Recover, Compensation
Federica Donati,
United Nations Office of the High Commissioner for Human Rights, Special Procedures Branch
Lima, 11 – 12 September 2013
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Excellencies,
Distinguished Delegates
Ladies and Gentlemen,
Chairperson,
It is an honour to deliver this statement on the work of the Special Rapporteur on trafficking
in persons, especially women and children, and particularly on the work that the Special
Rapporteur has developed in the course of her mandate on the right to effective remedies for
trafficked victims. At the outset let me apologize as in the end I was not able to be with you
in person due to last minute unforeseen circumstances. Hence I am particularly grateful to be
given the opportunity to address you through video conference.
You may be aware that the fulcrum of the work of the Special Rapporteur has been to
advocate for the implementation of anti-trafficking responses based on 5Ps (protection,
prosecution, punishment, prevention, promoting international cooperation and partnership),
3Rs (redress, recovery and reintegration) and 3Cs (capacity, cooperation and coordination),
guided by international human rights law and standards.
With regards to the right to an effective remedy for trafficked persons which essentially
entails the 3Rs, the Special Rapporteur observed that adequate and effective remedies are
often out of reach for trafficked persons, despite the egregious human rights violations they
suffered. The right to effective remedies is one of the fundamental guarantees under
international human rights law. Article 6 of the Protocol to Prevent, Suppress, and Punish
Trafficking in Persons, Especially Women and Children (“Palermo Protocol”) expressly
provides that “[e]ach State Party shall ensure that its domestic legal system contains measures
that offer victims of trafficking in persons the possibility of obtaining compensation for
damage suffered”. While the right to an effective remedy is a well-established norm under
international law, there remains a wide gap in practice between the law and its
implementation vis-à-vis trafficked persons.
In many States, trafficked persons are not
provided with remedies as a matter of right, but only with ad hoc measures predominantly
aimed at facilitating criminal investigation, such as for example temporary residence permits
contingent upon cooperation with law enforcement authorities. Trafficked persons are rarely
known to have received compensation, as they do not have access to information, legal
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assistance, and support services. At worst, many trafficked persons are wrongly identified as
irregular migrants, detained and deported before they have an opportunity to even consider
seeking remedies, thus leading to their double victimization.
Following the analysis of the situation of trafficked persons vis à vis the right to effective
remedies carried out in two of her reports to the Human Rights Council and the General
Assembly, the Special Rapporteur developed the draft basic principles on the right to an
effective remedy for trafficked persons. These principles are based on existing international
human rights law and standards, and are designed to bring clarity to the concept of the right
and to elaborate specific factors to be taken into account when this right is applied to
trafficked persons. This year, the Special Rapporteur has also embarked on regional
consultations to solicit inputs and comments that would refine the content of these principles.
Last July she convened the regional consultation for Latin America and the Caribbean
regions where a number of your Governments were represented and provide valuable
contributions.
I would therefore like to present to you the content of the draft basic principles. The first part
addresses the question of what constitutes the right to an effective remedy, and sets out the
basic obligations of all States, countries of origin, transit and destination, in relation to
ensuring effective realization of this right.
Indeed it is a well-established doctrine of international law that a State has an obligation to
redress wrongs where an act or omission is attributable to it and constitutes a breach of an
international obligation of the State. While this doctrine of State responsibility has
traditionally been applied between States, it also extends to wrongs committed against
individuals. On face value, State responsibility may seem difficult to establish in cases of
trafficking, however State responsibility may arise if it fails to take necessary measures to
prevent the effects of the conduct of private parties. In the context of human rights and
trafficking in persons, obligations to prevent and punish acts of private persons clearly exist,
as seen in the obligations under the Palermo Protocol to “prevent and combat” trafficking in
persons, and under international human rights law to prevent human rights violations by nonState actors.
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The draft guidance also attempts to specify the substantive components of the right to
effective remedy, which may include restitution, compensation, recovery, satisfaction, and
guarantees of non-repetition, as defined by the Basic Principles and Guidelines on Remedy
and Reparation, as well as the procedural rights necessary to access reparations.
In relation to the substantive components, restitution, a form of remedy aimed at restoring
the situation that existed prior to the violation, warrants a cautious approach, as simply
returning the trafficked person to the pre-existing situation may place him or her at the risk of
further human rights violations and being re-trafficked. In cases where a safe return to the
country of origin cannot be guaranteed, denying a temporary or permanent residence status to
them may place them at risk of persecution or further human rights violations. Where
trafficked persons are repatriated, restitution may imply States’ obligations to undertake
broader measures to address root causes of trafficking and to provide the necessary support
for reintegration of trafficked persons.
Recovery is a crucial form of remedy for trafficked persons not only in itself, but also as a
means to seek other forms of remedy, such as compensation. The draft Basic Principles calls
for granting a non-conditional reflection and recovery period, during which trafficked persons
are provided with measures necessary for the physical, psychological and social recovery,
including appropriate housing, counselling and information about their legal rights; medical,
psychological and material assistance; and employment, educational and training
opportunities.
In some States, recovery services are only available upon cooperation with law enforcement
authorities, which is contrary to the human rights-based approach to combating trafficking. In
this regard, the draft guidance underlines that trafficked persons’ access to assistance and
other benefits should be under no circumstances dependent upon their cooperation in legal
proceedings.
Compensation, the most widely recognized form of remedy, is often not readily accessible
due to a number of obstacles, whether in criminal, civil or labour proceedings. In criminal
proceedings, obtaining compensation hinges upon identification, arrest, trial and conviction
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of traffickers, which remains difficult in trafficking cases. Civil proceedings tend to be timeconsuming, expensive and complicated, which may effectively preclude trafficked persons
from seeking this course of action. The possibility of obtaining compensation through labour
proceedings may be restricted by various eligibility criteria, such as the type of their work
and their immigration status. There are also other common obstacles to seeking compensation
such as the lack of adequate support, access to information, counselling and legal aid, and
regularization of residence status.
The draft Basic Principles contains a number of suggestions for addressing the common
obstacles for trafficked persons in obtaining compensation for their material and non-material
damage. These include creating the necessary laws, mechanisms and procedures to enable
trafficked persons to obtain civil damages for trafficking-related offences, including breaches
of labour laws; to secure awards or orders from criminal courts for compensation; and to gain
access to compensation from the State for injuries and damages.
The formulation of the right to a remedy under various treaties and soft law makes clear that
it encompasses not only a substantive right to reparations, but also a set of procedural rights
which becomes critical pre-conditions in realizing the substantive right to reparations for
trafficked persons.
Victims of human rights violations must be guaranteed access to a competent and
independent authority in order to successfully obtain reparations. Such an authority must
have the power to investigate and decide whether a human rights violation has taken place,
and if so, to enforce reparations. If the victims are to be provided with meaningful access to
such an authority, they must be guaranteed of a set of ancillary rights.
Firstly, they should be provided with information about their rights and about the ways for
obtaining remedies. Secondly, victims of trafficking need legal, medical, psychological,
social, administrative and any other assistance to exercise the right to an effective remedy in a
meaningful manner.
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The Palermo Protocol requires establishing measures that provide trafficked persons with
“information on relevant court and administrative proceedings”. However, there is very little
evidence of State practices of informing trafficked persons about their right to remedies, and
the provision of information to trafficked persons in a manner that is appropriate in terms of
language, content, form and timing remains a challenge.
As judicial and administrative proceedings are often complex in many jurisdictions, legal
assistance is essential to enable trafficked persons to claim compensation. While some States
provide for free legal assistance to victims of crime, including trafficked persons, reportedly
it is still not the case in many of them. Often, legal assistance may only be available from
non-governmental or international organizations in reality. Further, some States impose
eligibility criteria for legal aid, which may be difficult for trafficked persons to fulfil, such as
being nationals of the country or long-term residents with legal status and a domicile.
The ability of trafficked persons to claim remedies hinges upon possibilities to remain in
countries where remedies are sought, as it would be difficult for them to obtain remedies if
they were at risk of expulsion or had already been expelled from destination countries. In
many instances, however, trafficked persons are misidentified as irregular migrants and
detained in immigration detention centres, or immediately deported without being given any
opportunities to seek compensation.
Article 7 of the Palermo Protocol requires each State to consider adopting measures that
permit trafficked persons “to remain in its territory, temporarily or permanently, in
appropriate cases” and to “give appropriate consideration to humanitarian and compassionate
factors” in doing so. At a very minimum, this should entail the provision of a reflection and
recovery period to allow trafficked persons to regain physical and psychological stability and
to reflect on available options. While an increasing number of States, particularly those in
Europe, provide for a reflection and recovery period of varying duration, it is not the case in
many other States.
Following a reflection and recovery period, trafficked persons should be provided with
temporary or permanent residence status on certain grounds. Firstly, trafficked persons
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should be entitled to remain in the country where remedies are being sought for the duration
of any criminal, civil or administrative proceedings. Secondly, trafficked persons should be
granted temporary or permanent residence status on social or humanitarian grounds,
including the lack of guarantee of a safe and secure return, the fears of reprisals and
retaliation by traffickers, the risk of being re-trafficked, or the return is otherwise not in the
best interests of the trafficked person.
In many States, the grant of residence permits is exclusively tied to the willingness of
trafficked persons to cooperate with law enforcement to investigate and prosecute traffickers.
This poses concern, particularly in the absence of a reflection and recovery period in many
States, as such cooperation may result in re-traumatization of trafficked persons.
The draft Basic Principles also contains a special section devoted to the provision of remedies
for trafficked children. It highlights the importance of taking account of the individual
circumstances of the child, including age, upbringing, ethnic, cultural and linguistic
background and protection needs in determining what form of remedy is the most
appropriate. Moreover, the draft document puts emphasis on measures necessary for ensuring
adequate and appropriate training for persons working with trafficked children, in particular
legal and psychological training. Where legal proceedings are concerned, States should
develop and implement child-sensitive court procedures, so that they are able to exercise their
right to an effective remedy in a meaningful manner.
In conclusion, I would also like to mention that the Special Rapporteur has devoted particular
attention to the issues of cooperation and partnership among all stakeholders, and at all
levels, national, regional and international, which according to her, are critical to fighting
trafficking in persons. In this regard seminars like this one where state and civil society actors
come together to strengthen partnerships and find synergies for the protection of rights of
trafficked persons are commendable. The Special Rapporteur encourages this type of
initiatives and is grateful that this important platform for exchanges provided an opportunity
to discuss the right to effective remedies for trafficked persons including the draft Basic
Principles that she elaborated. Inputs on the draft basic principles are still welcome and the
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Special Rapporteur would like to encourage those of you who have not done so already to
submit comments.
Trafficking in persons results in cumulative breaches of human rights, and this correlation
needs to be recognized in any intervention effort. It is for this reason that the Special
Rapporteur calls States to put in place strategies that will focus equally on the victim by
recognizing and redressing the violations suffered, empowering the victim to speak out
without being doubly victimized, jeopardized or stigmatized, while at the same time targeting
the root causes of human trafficking. In this regard, redress and restorative justice are central
to combating human trafficking.
I will be happy to circulate, through the organizers, relevant reports and information on the
mandate of the Special Rapporteur on trafficking as well as the email address where inputs on
the draft Basic Principles could be sent to.
Once again thank you very much for your consideration.
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