direct victim and persons who have suffered
harm in intervening to assist victims in distress
or to prevent victimization.261
The Basic Principles and Guidelines on the Right
to a Remedy and Reparation also confirm that a
person is to be considered a victim irrespective
of whether the perpetrator of the violation is
identified, apprehended, prosecuted or convicted
and regardless of the familial relationship
between the perpetrator and the victim (para. 9).
This instrument further confirms that victims have
a right to be treated with humanity and respect
for their dignity and human rights and that
measures should be taken to ensure their wellbeing and avoid re-victimization (para. 10) – a
likely consequence of criminalization.
7.3. PROSECUTION FOR STATUS-RELATED
OFFENCES
Principle 7 is clear that trafficked persons should
not be charged or prosecuted for offences that
have been committed in the course of their
being trafficked. Principle 7 is supplemented by
Guideline 2.5, which, in the context of the need
for trafficked persons to be identified quickly and
accurately, calls on States and others to ensure
that “trafficked persons are not 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 4.5 also considers the issue of
prosecution for status-related offences with
reference to the need for an adequate legal
framework, requiring States to consider ensuring
that “legislation prevents trafficked persons
from being prosecuted, detained or punished
for the illegality of their entry or residence or
Basic Principles and Guidelines on the Right to a
Remedy and Reparation, General Assembly resolution
60/147, para. 8.
261
for the activities they are involved in as a direct
consequence of their situation as trafficked
persons.”
The Trafficking Protocol does not specifically
address the issue of prosecution for status-related
offences. However, the body established to make
recommendations on the effective implementation
of the Protocol has recently affirmed that: “States
parties should … [c]onsider, 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.”262
Developments since the adoption of the Protocol
are a further indication that the standard set out
in the Trafficking Principles and Guidelines is
receiving increased support. Article 26 of the
European Trafficking Convention, for example,
requires States 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.263
This provision is narrower than that set out in
the Trafficking Principles and Guidelines, in
that it would prevent only the punishment of a
trafficked person for a status-related offence,
not their arrest, prosecution or conviction.
Nevertheless, as the first – and, at present, the
only – treaty-based standard relating to statusrelated offences, it clearly represents a step
forward in the recognition of a need to prevent
the criminalization of victims.
“Report on the meeting of the Working Group on
Trafficking in Persons held in Vienna on 14 and 15 April
2009" (CTOC/COP/WG.4/2009/2, para. 12).
262
See also Explanatory Report on the European
Trafficking Convention, paras. 272-274.
263
COMMENTARY
131
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents