Decision 8/07 suggests that states should consider options allowing for alternative
representation when the victim is unable to participate in legal proceedings in person.
The UN Trafficking Protocol requires states to ensure that measures are taken to provide victims with information on relevant court and administrative proceedings, as
well as assistance in presenting their views and concerns in criminal proceedings.
The UN Trafficking Protocol also recommends that States Parties consider providing
counselling and information, in particular concerning the legal rights of victims, in a
language that they can understand.111 Pursuant to the UN Draft Basic Principles on
the right to an effective remedy for trafficked persons, procedural rights for victims
of trafficking include access to a competent authority, the provision of information
about their rights, legal and other forms of assistance and the granting of a reflection
period.112
According to practitioners, it is not uncommon in some OSCE participating States for
a trafficked person to be denied the status of a victim of trafficking. This is often the
case where no criminal investigation has been initiated, sometimes as a result of the
trafficked person’s unwillingness to co-operate with the authorities. Consequently,
the person either has no or limited access to relevant assistance services. In accordance with UN principles relating to victims of crime, as well to victims of gross violations of international human rights law, trafficked persons are to be considered victims regardless of whether the perpetrator in a particular case has been identified,
apprehended, prosecuted or convicted.113 Likewise, the UN Draft basic principles on
the right to an effective remedy for trafficked persons foresee that all trafficked persons have a legally enforceable right to obtain compensation, irrespective of whether
their perpetrator has been convicted.114
In a similar vein, the Council of Europe Trafficking Convention obliges States Parties
to provide counselling and information in a language that the victim can understand,
along with assistance to enable their rights and interests to be presented during criminal proceedings.115 Victims must be afforded access to information on relevant legal
and administrative procedures from their first contact with the competent authorities.116 This includes victims who are present in a country illegally, who should be
informed about their rights regarding residence117 so that they have time to consider
111 UN Trafficking Protocol, arts. 6.2 and 6.3(b).
112 UN Draft basic principles on the right to an effective remedy for trafficked persons, UN Doc. A/HRC/17/35,
13 April 2011, art. 1(5).
113 UN General Assembly, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 29
November 1985, A/RES/40/34; UN General Assembly Resolution on Basic Principles and Guidelines on the Right to
Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations
of International Human Rights Law of 16 December 2005, A/60/509/Add.1.
114 Draft basic principles on the right to an effective remedy for trafficked persons, art. 2(c).
115 Council of Europe Trafficking Convention, art. 12(1)(d), art. 12(1)(e).
116 Council of Europe Trafficking Convention, art. 15(1). See also Explanatory Report to the Council of Europe
Trafficking Convention, para. 192.
117 Explanatory Report to the Council of Europe Trafficking Convention, para. 194.
52
Part 2: Explanatory Report to the Principles
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