obligation on States to assist in ensuring that
victims can be present at, and have their
concerns and views considered during, criminal
proceedings against traffickers (art. 6 (2)
(b)). Both provisions are mandatory and echo
a similar provision in the Organized Crime
Convention (art. 25 (3)). The Protocol recognizes
that the right of victims to be present and have
their views known during legal proceedings
is compromised by premature repatriation. It
therefore requires States parties of destination
to ensure, inter alia, “that such return shall be
[undertaken] with due regard… for the safety of
any legal proceedings related to the fact that the
person is a victim of trafficking” (art. 8 (2)). This
issue is considered further below in relation to
temporary residence permits and, under Principle
11 and related guidelines, in the context of
the obligation to ensure safe and preferably
voluntary return.
The European Trafficking Convention, which also
requires any return to be undertaken with
due regard for legal proceedings (art. 16 (2)),
establishes a range of victim assistance
provisions relating to the legal process, including
an obligation on States parties to ensure that
victims are given counselling and information
regarding their legal rights in a language they
understand (art. 12 (1)(d) and (e)).
The SAARC Convention requires Member
States to provide women and children victims of
trafficking for the purpose of sexual exploitation
with legal assistance (art. 5).
Soft-law support for a right of trafficked persons
to legal information and assistance can found in
the Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power. Paragraph
6 includes such actions as keeping victims
informed as to the scope, timing and progress
of proceedings and of the disposition of their
cases as well as providing victims with proper
assistance. A key General Assembly resolution
on criminal justice measures to eliminate violence
against women also urges States to “make
available to women who have been subjected to
violence information on rights and remedies and
on how to obtain them, in addition to information
about participating in criminal proceedings and
the scheduling, progress and ultimate disposition
of the proceedings”.351
Other resolutions of the General Assembly352
and the Commission on Human Rights/Human
Rights Council,353 and concluding observations
of United Nations treaty bodies,354 have also
recommended the provision of legal assistance to
victims of trafficking.
In summary, victims 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
victims be involved in, or otherwise support, any
form of legal action, they have the right to play a
meaningful role in that process.
9.3. THE PARTICULAR PROTECTION AND
SUPPORT NEEDS OF VICTIM WITNESSES355
Victims have a critical role to play in the criminal
prosecution of traffickers and their accomplices.
351
Resolution 52/86, annex, para. 10 (a).
Resolutions 61/144 (para. 15), 59/166 (para. 13)
and 58/137 (para. 6).
352
Commission on Human Rights resolutions 2004/49
(para. 4) and 2004/45 (para. 20).
353
Committee against Torture, concluding observations:
Indonesia (CAT/C/IDN/CO/2, para. 20); Ukraine
(CAT/C/UKR/CO/5, para. 14); Committee on the
Elimination of Discrimination against Women, concluding
observations: Lebanon (CEDAW/C/LBN/CO/3, para.
29); Austria (CEDAW/C/AUT/CO/6, para. 26).
354
Additional information on this issue can be found in
Gallagher and Holmes, loc. cit.
355
COMMENTARY
155
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