7 PRINCIPLE 7 AND RELATED GUIDELINES: NO DETENTION OR PROSECUTION FOR STATUSRELATED OFFENCES257 Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.257 7.1. PURPOSE AND CONTEXT In countries of transit and 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, trafficked persons may not have the correct migration or work papers; their identity documents may be forged or may 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 State of destination. The criminalization of trafficked persons is commonplace, even in situations where it would appear obvious that the victim was an unwilling participant in the illegal act. Such criminalization This section draws on Gallagher, International Law of Human Trafficking, chap. 5. 257 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 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. Finally, it is not uncommon for victims of trafficking to be detained in police lock-ups, immigration centres, shelters or other such facilities, even for very extended periods. The criminalization and detention of victims of trafficking are important issues because they are often tied to a failure on the part of the criminalizing 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 right of access to an effective remedy.258 The Human Rights Committee has noted that for trafficked women who “are likely to be penalized for their illegal presence … by deportation,” apprehension “effectively prevents these women from pursuing a remedy for the violation of their rights under article 8 of the Covenant”: concluding observations: Israel (CCPR/C/79/ Add.93, para. 16). 258 COMMENTARY 129